United States District Court, W.D. Michigan, Southern Division
CHRISTOPHER B. ROBINSON, Petitioner,
SHERMAN CAMPBELL, Respondent.
T. Neff United States District Judge.
a habeas corpus action brought by a state prisoner
purportedly pursuant to 28 U.S.C. § 2243. Because
Petitioner alleges he is improperly held in custody pursuant
to the judgment of a state court, the Court will consider his
petition under 28 U.S.C. § 2254. See Byrd v.
Bagley, 37 F. App'x 94, 95 (6th Cir. 2002)
(“[R]egardless of the label on the statutory
underpinning for the petition, habeas petitions of state
prisoners are governed by 28 U.S.C. § 2254.”)
after the filing of a petition for habeas corpus, the Court
must undertake a preliminary review of the petition to
determine whether “it plainly appears from the face of
the petition and any exhibits annexed to it that the
petitioner is not entitled to relief in the district
court.” Rule 4, Rules Governing § 2254 Cases;
see 28 U.S.C. § 2243. If so, the petition must
be summarily dismissed. Rule 4; see Allen v. Perini,
424 F.2d 134, 141 (6th Cir. 1970) (district court has the
duty to “screen out” petitions that lack merit on
their face). A dismissal under Rule 4 includes those
petitions which raise legally frivolous claims, as well as
those containing factual allegations that are palpably
incredible or false. Carson v. Burke, 178 F.3d 434,
436-37 (6th Cir. 1999). After undertaking the review required
by Rule 4, the Court concludes that the petition must be
dismissed because the Court lacks subject matter
Christopher B. Robinson attacks his January 7, 2014 Washtenaw
County Circuit Court conviction and sentence of 2 to 4 years
for resisting and obstructing a police officer, Mich. Comp.
Laws § 750.81. Petitioner, with the assistance of
counsel, directly appealed his conviction and sentence. He
won. The Michigan Court of Appeals vacated his conviction and
sentence and remanded the matter to the trial court for
further proceedings. People v. Robinson, No. 323878,
2016 WL 370040 (Mich. Ct. App. Jan. 28, 2016).
carefully crafted submissions leave the impression that
despite the vacation of his conviction and sentence, he
remains incarcerated on the January 7, 2014 conviction and
sentence. The Washtenaw County Circuit Court docket reveals
otherwise. Following the remand, the circuit court retried
Petitioner, found him guilty of resisting and obstructing a
police officer, and sentenced him to 2 years to 4 years
imprisonment. The Michigan Department of Corrections
indicates that Petitioner is presently serving that sentence
(as well as other sentences imposed more than 25 years ago
for unrelated offenses).
federal habeas statute gives this Court jurisdiction to
entertain petitions for habeas relief only from persons who
are “in custody in violation of the Constitution or
laws or treaties of the United States.” 28 U.S.C.
§ 2241(c)(3); see also 28 U.S.C. §
2254(a). The Supreme Court has clarified “that the
habeas petitioner must be ‘in custody' under the
conviction or sentence under attack at the time his petition
is filed.” Maleng v. Cook, 490 U.S. 488,
490-491 (1989) (citing Carafas v. LaVallee, 391
U.S.234, 238 (1968). The petition here attacks a January 7,
2014 conviction and sentence. (Pet., ECF No. 1, PageID.2.)
Petitioner is not “in custody” under that
conviction and sentence. This Court does not have
jurisdiction to entertain his petition.
light of the foregoing, the Court will summarily dismiss
Petitioner's application pursuant to Rule 4 because the
Court lacks subject matter jurisdiction.
28 U.S.C. § 2253(c)(2), the Court must determine whether
a certificate of appealability should be granted. A
certificate should issue if Petitioner has demonstrated a
“substantial showing of a denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). This Court's
dismissal of Petitioner's action under Rule 4 of the
Rules Governing § 2254 Cases is a determination that the
habeas action, on its face, lacks sufficient merit to warrant
service. It would be highly unlikely for this Court to grant
a certificate, thus indicating to the Sixth Circuit Court of
Appeals that an issue merits review, when the Court has
already determined that the action is so lacking in merit
that service is not warranted. See Love v. Butler,
952 F.2d 10 (1st Cir. 1991) (it is “somewhat
anomalous” for the court to summarily dismiss under
Rule 4 and grant a certificate); Hendricks v.
Vasquez, 908 F.2d 490 (9th Cir. 1990) (requiring
reversal where court summarily dismissed under Rule 4 but
granted certificate); Dory v. Comm'r of Corr. of New
York, 865 F.2d 44, 46 (2d Cir. 1989) (it was
“intrinsically contradictory” to grant a
certificate when habeas action does not warrant service under
Rule 4); Williams v. Kullman, 722 F.2d 1048, 1050
n.1 (2d Cir. 1983) (issuing certificate would be inconsistent
with a summary dismissal).
Sixth Circuit Court of Appeals has disapproved issuance of
blanket denials of a certificate of appealability. Murphy
v. Ohio, 263 F.3d 466 (6th Cir. 2001). Rather, the
district court must “engage in a reasoned assessment of
each claim” to determine whether a certificate is
warranted. Id. at 467. Each issue must be considered
under the standards set forth by the Supreme Court in
Slack v. McDaniel, 529 U.S. 473 (2000).
Murphy, 263 F.3d at 467. Consequently, this Court
has examined each of Petitioner's claims under the
Slack standard. Under Slack, 529 U.S. at
484, to warrant a grant of the certificate, “[t]he
petitioner must demonstrate that reasonable jurists would
find the district court's assessment of the
constitutional claims debatable or wrong.” Id.
“A petitioner satisfies this standard by demonstrating
that . . . jurists could conclude the issues presented are
adequate to deserve encouragement to proceed further.”
Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). In
applying this standard, the Court may not conduct a full
merits review, but must limit its examination to a threshold
inquiry into the underlying merit of Petitioner's claims.
Court finds that reasonable jurists could not conclude that
this Court's dismissal of Petitioner's claims was
debatable or wrong. Therefore, the Court ...