United States District Court, W.D. Michigan, Southern Division
HONORABLE ROBERT J. JONKER CHIEF UNITED STATES DISTRICT
a habeas corpus action under 28 U.S.C. § 2241. Promptly
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
jurisdiction to consider it.
Barry Wayne Adams was a state prisoner incarcerated by the
Michigan Department of Corrections for failure to pay child
support. He was released on February 28, 2015. (Pet., ECF No.
1, PageID.1.) At present, he resides in Marshall, Michigan.
In his petition, he asserts that he is subject to
“imminent detention” under the “fraudulent
pretext” of failure to pay child support.
(Id.) He asserts that the Calhoun County Friend of
the Court has sent him several documents falsely claiming
that he owes child support. One of those documents, which he
received on September 21, 2017, indicates that a warrant will
be issued for his arrest. He claims that state officials are
harassing and retaliating against him because he filed a
lawsuit against them in federal court, Adams v. Calhoun
County, No. 1:16-cv-678 (W.D. Mich.). He also asserts
that the state's attempt to recover a debt from him
violates his rights under the Thirteenth Amendment and
various federal statutes.
relief, he requests an injunction preventing various state
and municipal agencies, including the 37th Circuit Court,
Calhoun County, and the Calhoun County Friend of the Court,
from enforcing the alleged debt obligation and attempting to
have him imprisoned. In addition, he asks that the Michigan
Department of Attorney General be notified of “the
violations of various federal criminal statutes”
identified in his petition. (Pet., PageID.4.)
habeas statute requires that, at the time a petitioner files
his habeas application with the district court, he is
“in custody in violation of the Constitution or laws or
treaties of the United States.” 28 U.S.C. §§
2241(c)(3); see Maleng v. Cook, 490 U.S. 488, 490-91
(1989) (“We have interpreted the statutory language as
requiring that the habeas petitioner be “in
custody” under the conviction or sentence under attack
at the time his petition is filed.”). The custody
requirement is a jurisdictional one; if a petitioner is not
“in custody” at the time that the petition is
filed, the Court lacks jurisdiction to consider it.
Id. Petitioner does not meet this requirement. He is
not in custody.
does not necessarily require physical confinement.
Id. at 491. For instance, a prisoner released on
parole is “in custody” for the sentence requiring
the parole, and can use a habeas corpus petition to challenge
that sentence. Id. In this case, however, Petitioner
does not contend that he is on parole. Moreover, he has not
identified a custodian to respond to his petition. See
Braden v. 30th Judicial Circuit Ct. of Ky., 410 U.S.
484, 494-95 (1973) (noting that “[t]he writ of habeas
corpus does not act upon the prisoner who seeks relief, but
upon the person who holds him in what is alleged to be
unlawful custody”). Instead of seeking relief from
custody, Petitioner seeks an injunction to avoid the
possibility of future confinement. In effect, he seeks to
prevent the state from prosecuting him for failure to pay
child support. But because he is not presently “in
custody, ” relief under § 2241 is not available to
the doctrine of comity requires that federal courts abstain
from considering challenges to state criminal proceedings
under 28 U.S.C. § 2241, unless and until the petitioner
has exhausted available state remedies. Atkins v.
Michigan, 644 F.2d 543, 546 (6th Cir. 1981). Petitioner
has presented no evidence that he exhausted his available
state court remedies as to any future prosecution by the
State of Michigan. The district court can and must raise the
exhaustion issue sua sponte when it appears that
habeas claims have not been presented to the state courts.
See Prather v. Rees, 822 F.2d 1418, 1422 (6th
Cir.1987). Petitioner bears the burden of showing exhaustion.
See Rust v. Zent, 17 F.3d 155, 160 (6th Cir.1994).
He has not met this burden. Thus, for all the foregoing
reasons, the Court cannot grant him relief under 28 U.S.C.
Petitioner alleges that his constitutional rights have been,
or will be, violated, the Court declines to construe
Petitioner's habeas application as a civil rights action
under 42 U.S.C. § 1983. See Martin v. Overton,
391 F.3d 710, 714 (2004) (reversing district court's
construction of a § 2241 petition as a civil rights suit
under 42 U.S.C. § 1983 because “liberal
construction does not require a court to conjure allegations
on a litigant's behalf”) (citing Erwin v.
Edwards, 22 F. App'x 579, 580 (6th Cir. 2001)).
Indeed, Petitioner has already filed an action under §
1983 raising a similar claim, and that action is still
pending. See Adams v. Calhoun County, No.
1:16-cv-678 (W.D. Mich.).
light of the foregoing, the Court will summarily dismiss
Petitioner's application pursuant to Rule 4 because the
Court lacks jurisdiction to consider it.