United States District Court, E.D. Michigan, Southern Division
AND ORDER (1) SUMMARILY DISMISSING THE HABEAS PETITION, (2)
TERMINATING AS MOOT MOTIONS FOR AN EMERGENCY HEARING AND
ISSUANCE OF A SUBPOENA DUCES TEACUM, (3) DECLINING TO ISSUE A
CERTIFICATE OF APPEALABILITY, AND (4) GRANTING LEAVE TO
PROCEED IN FORMA PAUPERIS ON APPEAL
H. CLELAND, UNITED STATES DISTRICT JUDGE.
matter is before the court on Petitioner Eddie Armail
Julian-Bey's pro se application for the writ of
habeas corpus under 28 U.S.C. § 2241 and supporting
affidavit. See Dkt. #1. Also before the court are
Petitioner's motion for an emergency hearing on his
petition (Dkt. #3) and his motion in support of issuance of a
subpoena duces tecum (Dkt. #4).
is a state prisoner at the Handlon Correctional Facility in
Ionia, Michigan. He alleges in his habeas petition that he
was convicted of felony murder and sentenced in 1976 to life
imprisonment without the possibility of parole. See
Pet. at 3 and 5. Petitioner has provided the court with very
little additional information about his state criminal case,
except to say that, in 1980, he raised his constitutional
argument in the Michigan Supreme Court, which denied relief
without an explanation. See Aff. in Support of Pet.
appears that sometime in the 1980's Petitioner filed a
federal habeas corpus petition in which he alleged that his
constitutional rights were violated by the admission of
similar-acts testimony at his trial. The district court
denied the petition because Petitioner had raised a state law
question which was not cognizable in a federal habeas corpus
proceeding, and the United States Court of Appeals for the
Sixth Circuit affirmed the district court's judgment.
See Julian v. Koehler, 815 F.2d 78 (6th Cir. 1987)
(unpublished). More recently, in 2016, Petitioner filed a
delayed motion for new trial, which the trial court denied.
See Aff. in Support of Pet. at 4. Petitioner
apparently did not appeal that decision. Instead, he
commenced this action on January 9, 2017. The court
understands Petitioner's grounds for relief to be that
there is no crime of felony murder in Michigan, his jury was
not permitted to decide the issue of malice, and the state
trial court lacked jurisdiction in his case. See
Pet. at 3-4.
EXHAUSTION OF STATE REMEDIES AND ABUSE OF THE WRIT
prisoner ordinarily must exhaust state remedies for his or
her claims before filing a habeas corpus petition in federal
court. 28 U.S.C. § 2254(b)(1); O'Sullivan v.
Boerckel, 526 U.S. 838, 842, 845 (1999). It does not
appear that Petitioner exhausted state remedies for all his
claims. In fact, he concedes as much by arguing that
exhaustion is futile in his case. Aff. in Support of Pet. at
further appears that the habeas petition is subject to
dismissal as an abuse of the writ because Petitioner could
have raised his claims in his prior petition, and he has not
explained his failure to do so. McCleskey v. Zant,
499 U.S. 467, 489 (1991); Cress v. Palmer, 484 F.3d
844, 852 (6th Cir. 2007). The court, however, may dismiss a
§ 2241 habeas petition on the merits despite the
court's discretionary ability to dismiss the case under
the abuse-of-the-writ doctrine. Dietz v. U.S. Parole
Comm'n, 260 Fed.Appx. 763, 766 (6th Cir. 2008). And
the exhaustion rule is not a jurisdictional requirement.
Castille v. Peoples, 489 U.S. 346, 349 (1989). In
the interest of efficiency, the court elects to decide this
case on the merits.
brings his habeas petition under 28 U.S.C. § 2241, which
states in relevant part that “[t]he writ of habeas
corpus shall not extend to a prisoner unless . . . [h]e is in
custody in violation of the Constitution or laws or treaties
of the United States.” 28 U.S.C. § 2241(c)(3).
Upon receipt of a habeas corpus petition, a federal court
must promptly examine the petition to determine if it plainly
appears from the petition and any attached exhibits that the
petitioner is not entitled to relief. Crump v.
Lafler, 657 F.3d 393, 396 n.2 (6th Cir. 2011) (quoting
Rule 4 of the Rules Governing Section 2254 Cases in the
United States District Courts). If the court determines that the
petitioner is not entitled to relief, it must summarily
dismiss the petition. Id. (citing McFarland v.
Scott, 512 U.S. 849, 856 (1994)). Petitioner is plainly
not entitled to relief for the following reasons.
despite Petitioner's allegation to the contrary, felony
murder is an offense under state law. The Michigan
felony-murder statute currently reads:
(1) [A] person who commits any of the following is guilty of
first degree murder and shall be punished by imprisonment for
life without eligibility for parole:
. . . .
(b) Murder committed in the perpetration of, or attempt to
perpetrate, arson, criminal sexual conduct in the first,
second, or third degree, child abuse in the first degree, a
major controlled substance offense, robbery, carjacking,
breaking and entering of a dwelling, home invasion in the
first or second degree, larceny of any kind, extortion,
kidnapping, vulnerable adult abuse in the first or second
degree under section 145n, ...