United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER SUMMARILY DISMISSING THE PETITION
FOR WRIT OF HABEAS CORPUS WITHOUT PREJUDICE AND DECLINING TO
ISSUE A CERTIFICATE OF APPEALABILITY AND LEAVE TO APPEAL IN
V. PARKER U.S. DISTRICT JUDGE
Keith Wayne Mykolaitis (“Petitioner”) filed a
petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. In his pro se application, Petitioner challenges
a court order requiring the reimbursement of court-appointed
attorney fees for his conviction and sentence for breaking
and entering a building with intent and being a fourth felony
habitual offender, in violation of Michigan Compiled Laws
Sections 750.110 and 769.12, respectively. For the reasons
stated below, the Court is summarily denying the petition.
29, 1998, Petitioner was convicted of the above-listed
offense following a jury trial in the Circuit Court for
Oakland County, Michigan. On July 1, 1998, the state trial
court sentenced Petitioner to two to twenty years in prison.
Petitioner was discharged from parole on June 27,
2002. Petitioner claims that he has been ordered
several times to pay the Oakland County Reimbursement
Division for court-appointed attorney fees in the amount of
$3, 521.00. Petitioner claims he previously filed for
bankruptcy protection in federal bankruptcy court and should
not have been assessed attorney fees because they are a type
of debt the bankruptcy court discharged in his bankruptcy
filed a motion in state court to vacate the court-appointed
attorney fees, which the court denied. People v.
Mykolaitis, No. 97-155147-FH (Oakland Cty. Cir. Ct. July
10, 2014). The Michigan appellate courts denied Petitioner
leave to appeal the denial of this motion. People v.
Mykolaitis, No. 326599 (Mich. Ct. App. Apr. 22, 2015),
lv. den. 499 Mich. 913, 878 N.W.2d 219 (2016).
November 28, 2016, Petitioner filed his federal habeas
petition seeking relief on the following grounds:
I. [The] Circuit Court did not address that Federal
Bankruptcy voided attorney fees if cost is for defense, not
II. Mr. Mykolaitis has shown hardship, claims federal court
ruling/filing bankruptcy is proof of hardship.
III. Circuit Court was in violation of the Ex Post
Facto Clause pursuant (sic) when M.C.L.A. 769.1k(1) was
federal district court is authorized to summarily dismiss a
habeas corpus petition if it plainly appears from the face of
the petition or the exhibits that are 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); Rule
4 of the Rules Governing § 2254 Cases. This Court is
summarily dismissing Petitioner's case because it lacks
jurisdiction over his habeas petition due to the fact that
Petitioner no longer is in custody for the conviction from
which the challenged attorney fees arose.
plain language of § 2254 requires that a habeas
petitioner be “in custody” under the conviction
or sentence under attack at the time a habeas petition is
filed in the federal court. See Maleng v. Cook, 490
U.S. 488, 490-91 (1989). A habeas petitioner is no longer
“in custody” for purposes of a conviction
imposed, after the sentence on that conviction has fully
expired. Id. at 492-93. The “in custody”
requirement is jurisdictional. Foster v. Booher, 296
F.3d 947, 949 (10th Cir. 2002).
the Supreme Court has not interpreted § 2254 as
requiring “that a prisoner be physically confined in
order to challenge his sentence on habeas corpus, ”
Maleng, 490 U.S. at 491, “[t]he custody
requirement of the habeas corpus statute is designed to
preserve the writ of habeas corpus as a remedy for severe
restraints on individual liberty.” Hensley v.
Municipal Court, 411 U.S. 345, 351 (1973) (holding that
a petitioner who had been released on his own recognizance
pending the execution of sentence was “in
custody” for the purposes of federal habeas corpus). As
a result, “its use has been limited to cases of special
urgency, leaving more conventional remedies for cases in
which the restraints on liberty are neither severe nor
immediate.” Id. When considering the identical
“in custody” requirement of 28 U.S.C. §
2255, the Sixth Circuit has stated that “ ‘a
monetary fine is not a sufficient restraint on liberty to
meet the requirement[.]” United States v.
Watroba, 56 F.3d 28, 29 (6th Cir. 1995); see also
Michael v. Hackel, 491 F. App'x 670, 671 (6th Cir.
2012) (stating that a fine is not cognizable under §
2254 and citing Watroba, 56 F.3d at 29).
2002, Petitioner was paroled on the conviction he is
challenging. He no longer is “in custody” on this
conviction. Although Petitioner currently is incarcerated,
see supra note 1, he is not seeking relief (through
this petition) from the conviction or sentence upon which his
present confinement is based. See, e.g., Leslie
v. Randle, 296 F.3d 518, 522 (6th Cir. 2002). Thus, this
Court lacks subject matter ...