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Malcom v. Stewart

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

April 22, 2015

EBONY CRYSTAL MALCOM, Petitioner,
v.
ANTHONY STEWART, Respondent.

MEMORANDUM AND ORDER DISMISSING THE PETITION WITHOUT PREJUDICE AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY

AVERN COHN, District Judge.

I. Introduction

This is a habeas case under 28 U.S.C. ยง 2254. Petitioner Ebony Crystal Malcom (Petitioner) is a state inmate who is currently confined at the Huron Valley Women's Correctional Facility in Ypsilanti, Michigan. Petitioner filed a pro se petition for a writ of habeas corpus challenging her convictions for operating a criminal enterprise, two counts of false pretenses with intent to defraud, nine counts of forgery, nine counts of uttering and publishing, seventeen counts of identity theft, and one count of recording a false conveyance of realty. As will be explained, although this is Petitioner's third habeas petition filed in this district, she still has not fully exhausted her state court remedies. Therefore, the petition, like her prior two petitions, will be dismissed without prejudice so Petitioner may fully exhaust all of her claims.

II. Background

While awaiting trial, Petitioner filed her first habeas petition in this district. The petition was dismissed without prejudice on exhaustion grounds because Petitioner's criminal case was pending in the trial court. Malcom v. Napoleon, No. 13-10332, 2013 WL 980204 (E.D. Mich. Mar. 13, 2013). Petitioner was subsequently convicted by a jury as described above.

Following her convictions, Petitioner filed a complaint for writ of habeas corpus with the Michigan Court of Appeals, which was denied. In Re Malcom, No. 315499 (Mich.Ct.App. June 6, 2013). Petitioner filed a second complaint for writ of habeas corpus, which was also denied. Malcom v. Warren, No. 319875 (Mich.Ct.App. May 21, 2014); lv. den. 496 Mich. 868 (2014).

Petitioner also filed an appeal of right with the court of appeals. The court of appeals affirmed her conviction. People v. Malcom, No. 315265; 2014 WL 3547236 (Mich.Ct. App. July 17, 2014).

During the pendency of her appeal of right, Petitioner filed a second petition for writ of habeas corpus in this district. It too was dismissed without prejudice on the ground that petitioner failed to exhaust her state court remedies. Malcom v. Warren, No. 2:14-CV-13059, 2014 WL 4272788, at *1 (E.D. Mich. Aug. 29, 2014); reconsideration denied, No. 14-CV-13059, 2014 WL 5605087 (E.D. Mich. Nov. 4, 2014).

On March 3, 2015, the Michigan Supreme Court denied Petitioner's application for leave to appeal from her appeal of right. People v. Malcom, 859 N.W.2d 515 (2015).

On March 20, 2015, Petitioner filed her third petition for writ of habeas corpus in this district.[4]

Although Petitioner's claims are difficult to understand, it appears she is seeking habeas relief on the following grounds:

I. The state court lacked jurisdiction to prosecute petitioner because it is not an Article III court.
II. The state trial court lacked jurisdiction over petitioner's case because she ...

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