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Julian-Bey v. The State of Michigan, Inc.

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

August 29, 2017

EDDIE ARMAIL JULIAN-BEY, Petitioner,
v.
THE STATE OF MICHIGAN INCORPORATED, RICK SNYDER, and DUNCAN MACLAREN, Respondents.

         OPINION 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

          ROBERT H. CLELAND, UNITED STATES DISTRICT JUDGE.

         This 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).

         Petitioner 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. at 4.

         It 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 See Julian v. Koehler, 815 F.2d 78 (6th Cir. 1987) (unpublished).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.

         II. EXHAUSTION OF STATE REMEDIES AND ABUSE OF THE WRIT

         A state 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 6.

         It 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.

         III. ANALYSIS

         Petitioner 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).[1] 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.

         First, 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, ...

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