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Herrington v. Bezotte

United States District Court, E.D. Michigan, Southern Division

January 21, 2015

JEANNE HERRINGTON, Plaintiff,
v.
ROBERT BEZOTTE, Defendant.

OPINION AND ORDER SUMMARILY DENYING, PETITION FOR HABEAS CORPUS [1], DENYING MOTION FOR DEFAULT JUDGMENT [6], AND DENYING MOTION TO EXPUNGE [7]

LAURIE J. MICHELSON, District Judge.

Petitioner Jeanne Herrington, currently incarcerated at the Livingston County Jail in Howell, Michigan, filed a petition for the "Great Writ of Habeas Corpus, " which this Court construes as a petition brought pursuant to 28 U.S.C. § 2241. In her pro se application, Petitioner claims that she is being unconstitutionally detained by the United States Marshals Service for an unspecified charge or conviction. Petitioner has also filed a Motion for Default Judgment (Dkt. 6) and a Motion to Expunge "All State of Michigan and United States of America Case/Item in the Strawman Name JEANNE HERRINGTON aka JEANNE MARIE HERRINGTON" (Dkt. 7.) For the reasons stated below, the Petition for Writ of Habeas Corpus is summarily denied and the Motion for Default Judgment and Motion to Expunge will also be denied.

I. BACKGROUND

Petitioner claims that she is being unlawfully detained by the United States Marshals Service at the Livingston County Jail. But she does not specify on what charges or conviction. This Court has searched the records for the United States District Courts for the Eastern and Western Districts of Michigan and has been unable to locate any pending federal criminal charges or convictions involving Petitioner. The Court searched PACER records more broadly and located a criminal case out of the United States District Court for the Northern District of Ohio in which Petitioner was convicted on November 14, 2008, for conspiracy to defraud the United States, in violation of 18 U.S.C. § 371, and interference with administration of the Internal Revenue Service, in violation of 26 U.S.C. § 7212(a). See United States v. Herrington, No. 06-CV-00426 (N.D. Ohio Nov. 14, 2008). Petitioner was sentenced to ninety-six months imprisonment, with the court ordering that twenty-four months of the sentence be served concurrently with a state sentence petitioner was serving and the remaining seventy-two months of the sentence would be consecutive to this sentence.

While Petitioner's appeal was pending, she filed a motion to vacate sentence pursuant to 28 U.S.C. § 2255, which was denied without prejudice. United States v. Herrington, No. 06-CV-00426 (N.D. Ohio Sept. 21, 2009). The United States Court of Appeals for the Sixth Circuit affirmed petitioner's conviction. United States v. Herrington, No. 09-3733 (6th Cir. Dec. 23, 2010) (unpublished). Petitioner filed a motion for default judgment, which was construed as a motion to vacate sentence and denied. United States v. Herrington, No. 06-CV-00426 (N.D. Ohio Sept. 27, 2012).[1]

Again, Petitioner does not specifically indicate whether she is challenging her 2008 conviction or some other detention.[2] In any event, Petitioner claims that she is a secured party creditor under the Uniform Commercial Code ("UCC") in a fictitious person or "strawman" known as "Jeanne Marie Herrington." She claims to have obtained this secured interest in herself by filing the appropriate paperwork with the Michigan Secretary of State. Petitioner claims that as a result of this security interest, her birth certificate, her name, and her person are her property. Petitioner argues that the United States Marshals Service does not have the power to detain her because they failed to acquire a security interest in her person, as required by the UCC, and that she, as the secured creditor, has a superior interest over her own person. Petitioner therefore claims that she is being unlawfully detained and asks to be released from custody.

II. ANALYSIS

A. Petition for Habeas Corpus

The petition for writ of habeas corpus will be dismissed because Petitioner fails to state a claim upon which relief can be granted.

As an initial matter, Petitioner labels her filing as a petition for the "Great Writ of Habeas Corpus." A petition for the "great writ of habeas corpus" is merely another name for the common law writ formerly used to inquire into the cause of a person's restraint. See Carbo v. United States, 364 U.S. 611, 614-15 (1961). This common law writ, however, was codified into the provisions of 28 U.S.C. § 2241. See Stantini v. United States, 986 F.Supp. 736, 739-40 (E.D.N.Y. 1997). Accordingly, this Court construes petitioner's application as being brought under 28 U.S.C. § 2241. See Walls v. U.S., No. 2:06-cv-12441; 2006 WL 1851184, at * 1 (E.D. Mich. June 30, 2006).

A petition for a writ of habeas corpus must set forth facts that give rise to a cause of action under federal law or it may be summarily dismissed. See Perez v. Hemingway, 157 F.Supp.2d 790, 796 (E.D. Mich. 2001). Federal courts are also authorized to dismiss any habeas petition that appears legally insufficient on its face. McFarland v. Scott, 512 U.S. 849, 856 (1994). Summary dismissal is also available if it plainly appears from the face of the petition or the exhibits attached to it that the petitioner is not entitled to federal habeas relief. See Carson v. Burke, 178 F.3d 434, 436 (6th Cir. 1999); Rules Governing § 2254 Cases, Rule 4, 28 U.S.C. foll. § 2254. In fact, the Sixth Circuit long ago indicated its "disapprov[al of] the practice of issuing a show cause order [to the respondent] until after the District Court first has made a careful examination of the petition." Allen v. Perini, 424 F.2d 134, 140 (6th Cir. 1970).

A district court therefore has the duty to screen out any habeas corpus petition which lacks merit on its face. Id. at 141. No response to a habeas petition is necessary when the petition is frivolous, or obviously lacks merit, or where the necessary facts can be determined from the petition itself without consideration of a response by the state. Id. Courts have used Rule 4 of the habeas corpus rules to summarily dismiss facially insufficient habeas petitions brought under § 2241. See e.g. Perez, 157 F.Supp.2d at 796. Here, Petitioner fails to specify the charge or conviction she is challenging, whether the 2008 Northern District of Ohio conviction or some other charge. This raises two procedural issues.

First, to the extent there are any pending federal criminal charges against Petitioner, it would not be appropriate for her to challenge them in a petition for writ of habeas corpus. It is well established that a criminal defendant cannot use a petition for writ of habeas corpus to raise defenses to a pending federal criminal prosecution. See Jones v. Perkins, 245 U.S. 390, 391 (1918) ("It is well settled that in the absence of exceptional circumstances in criminal cases the regular judicial procedure should be followed and habeas corpus should not be granted in advance of a trial."); Riggins v. United States, 199 U.S. 547 (1905); Horning v. Seifart, 107 F.3d 11 (Table), No. 1997 WL 58620, * 1 (6th Cir. February 11, 1997) (unpublished); Ferguson v. Gilliam, 946 F.2d 894 (Table), No. 1991 WL 206516, * 1 (6th Cir. October 11, 1991) (unpublished). Petitioner could not challenge any pending federal prosecution in her current habeas petition. Moreover, if petitioner is challenging a pre-trial detention order, the appropriate vehicle for such a challenge is an expedited appeal pursuant to the Bail Reform Act, 18 U.S.C. § 3145(b)-(c), and not a habeas corpus petition. See Whitmer v. Levi, 276 F.App'x 217, 219 (3rd Cir. 2008).

Second, Petitioner cannot challenge her 2008 Northern District of Ohio conviction through a petition for habeas corpus. Indeed, a petition for writ of habeas corpus filed by a federal inmate under 28 U.S.C. § 2241 is proper where the inmate is challenging the manner in which his sentence is being executed. Capaldi v. Pontesso, 135 F.3d 1122, 1123 (6th Cir. 1998). In contrast, where a federal inmate claims that her sentence was imposed in violation of the federal constitution or laws, a motion to vacate sentence under § 2255 is ...


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