United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DISMISSING WITHOUT PREJUDICE THE
PETITION FOR A WRIT OF HABEAS CORPUS, DENYING THE MOTION TO
EXPEDITE, DENYING A CERTIFICATE OF APPEALABILITY AND DENYING
LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
HONORABLE ARTHUR J. TARNOW JUDGE
prisoner Duane Range (“Petitioner”) has filed a
petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2241 challenging his parole revocation, as well
as a motion to expedite this case. Having reviewed the
matter, the Court finds that Petitioner has not exhausted his
habeas claims in the state courts before seeking review in
federal court. Accordingly, the Court shall dismiss without
prejudice the petition and deny the motion to expedite. The
Court shall also deny a certificate of appealability and deny
leave to proceed in forma pauperis on appeal.
FACTS AND PROCEDURAL HISTORY
challenges his 2016 parole revocation proceedings in his
pleadings. Petitioner pleaded no contest to operating a motor
vehicle while intoxicated, third or higher offense, and was
sentenced to three years four months to five years
imprisonment in the Isabella County Circuit Court in 2013. He
was released on parole to the Detroit Reentry Center in June,
2016 until his discharge date in February, 2018. As a
condition of parole, Petitioner was required to participate
in a substance abuse program operated by CPI, Inc. According
to Petitioner, the program required him to espouse religious
doctrines which ran contrary to his own beliefs as a
Jehovah's Witness. He objected to such matters, but was
told to comply or be punished. The people running the program
reported that he was being disruptive and stirring up
dissension. In July, 2016, he was charged with misconduct,
dismissed from the program, and found guilty of a parole
violation (for not completing the substance abuse program).
His parole was subsequently revoked and he was returned to
prison. Petitioner complained to prison officials alleging a
violation of his religious freedoms to no avail. Petitioner
does not indicate that he pursued any relief in the Michigan
through counsel, filed the instant habeas petition on April
20, 2017. In his pleadings, he challenges the substance abuse
program, the parole revocation proceedings, and the
revocation decision asserting a violation of his religious
freedoms and his due process rights.
after the filing of a habeas petition, 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 also 28 U.S.C.
§ 2243. If, after preliminary consideration, the Court
determines that the petitioner is not entitled to relief, the
Court must summarily dismiss the petition. Id.,
Allen v. Perini, 424 F.2d 134, 141 (6th Cir. 1970)
(district court has duty to “screen out”
petitions that lack merit on their face). A dismissal under
Rule 4 includes 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.
prisoner filing a petition for a writ of habeas corpus
pursuant to 28 U.S.C. §2254 must first exhaust state
remedies. See 28 U.S.C. § 2254(b), (c);
O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999)
(“state prisoners must give the state courts one full
fair opportunity to resolve any constitutional issues by
invoking one complete round of the State's established
appellate review process”); Rust v. Zent, 17
F.3d 155, 160 (6th Cir. 1994). This holds true for habeas
petitions challenging state parole revocation decisions.
See Brewer v. Dahlberg, 942 F.2d 328, 337-39 (6th
Cir. 1991); Wem v. Burt, No. 5:09-CV-13754, 2011 Wl
825730, *1 (E.D. Mich. March 3, 2011); Knuckles v.
Bell, No. 08-CV-10942, 2008 WL 1743494, *1 (E.D. Mich.
April 14, 2008); Swantak v. Romanowski, No.
08-CV-10126, 2008 WL 186127, *1-2 (E.D. Mich. Jan. 18, 2008);
Simmons v. Michigan Dep't of Corrections Parole
Bd., No. 2:07-CV-15442, 2008 WL 62459, *1 (E.D. Mich.
Jan. 3, 2008).
satisfy the exhaustion requirement, the claims must be
“fairly presented” to the state courts, meaning
that the petitioner must have raised both the factual and
legal bases for the claims in the state courts. McMeans
v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000); see
also Williams v. Anderson, 460 F.3d 789, 806 (6th Cir.
2006) (citing McMeans). The claims must be presented
as federal constitutional issues. Koontz v. Glossa,
731 F.2d 365, 368 (6th Cir. 1984). For a Michigan prisoner,
each claim must also be raised before the Michigan Court of
Appeals and the Michigan Supreme Court to satisfy the
exhaustion requirement. Wagner v. Smith, 581 F.3d
410, 414 (6th Cir. 2009) (citing Hafley v. Sowders,
902 F.2d 480, 483 (6th Cir. 1990)). While the exhaustion
requirement is not jurisdictional, a “strong
presumption” exists that a petitioner must exhaust
available state remedies before seeking federal habeas
review. Granberry v. Greer, 481 U.S. 129, 131,
134-35 (1987); Wagner, 581 F.3d at 415 (citing
Harris v. Lafler, 553 F.3d 1028, 1031 (6th Cir.
2009)). The burden is on the petitioner to prove exhaustion.
Rust, 17 F.3d at 160.
fails to establish that he has exhausted his parole
revocation claims in the state courts before proceeding in
federal court on habeas review. His pleadings do not reflect
any attempt to exhaust state court remedies. Petitioner,
however, has an available remedy by which to exhaust his
parole revocation claims in the state courts. He may file a
complaint for a writ of habeas corpus in the appropriate
state circuit court, see Mich. Comp. Laws §
600.4301 et seq., Mich. Ct. R. 3.303; Hinton v. Michigan
Parole Bd., 148 Mich.App. 235, 383 N.W.2d 626 (1986);
Triplett v. Deputy Warden, 142 Mich.App. 774, 371
N.W.2d 862 (1985); see also Caley v. Hudson, 759
F.Supp. 378, 380-81 (E.D. Mich. 1991). While the denial of
such a writ is not appealable by right, the petition may be
renewed by filing an original complaint for writ of habeas
corpus with the Michigan Court of Appeals. Id.
Denial of such a complaint by the Michigan Court of Appeals
is subject to review by the Michigan Supreme Court.
See Mich. Ct. R. 7.301. There is no time limit for
filing a state habeas compliant as long as the prisoner is in
custody when the judgment becomes effective.
Triplett, 142 Mich.App. at 779. Because
Petitioner fails to demonstrate that he has exhausted
available state court remedies before seeking federal habeas
review, his habeas claims are premature and this case must be
reasons stated, the Court concludes that Petitioner fails to
establish that he has fully exhausted his habeas claims in
the state courts before proceeding on federal habeas review.
Accordingly, the Court DISMISSES WITHOUT PREJUDICE the
petition for a writ of habeas corpus. The Court makes no
determination as to the merits of Petitioner's claims.
Petitioner may appeal the Court's decision, a certificate
of appealability must issue. See 28 U.S.C. §
2253(c)(1)(a); Fed. R. App. P. 22(b). A certificate of
appealability may issue “only if the applicant has made
a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). When a federal
district court relief on procedural grounds without
addressing the merits, a certificate of appealability should
issue if it is shown that jurists of reason would find it
debatable whether the petitioner states a valid claim of the
denial of a constitutional right, and that jurists of reason
would find it debatable whether the district court was
correct in its procedural ruling. Slack v. McDaniel,
529 U.S. 473, 484-85 (2000). Reasonable jurists could not
debate the correctness of the ...