United States District Court, E.D. Michigan, Southern Division
CHRISTOPHER B. ROBINSON, Petitioner,
SHANE JACKSON, Respondent.
OPINION AND ORDER DISMISSING WITHOUT PREJUDICE
AMENDED PETITION FOR WRIT OF HABEAS CORPUS  AND DENYING AS
MOOT MOTION FOR IMMEDIATE RELEASE/MOTION TO DISMISS
Honorable Laurie J. Michelson, Judge
B. Robinson, a Michigan state prisoner, seeks a writ of
habeas corpus. He challenges his confinement based upon
alleged prosecutorial misconduct and jurisdictional defects
in his conviction for assaulting or obstructing a police
officer. (R. 3.) He also alleges jurisdictional defects in
the revocation of his parole based upon the same offense. (R.
the filing of his habeas corpus petition, Robinson has also
filed a motion to amend the petition (R. 3), a motion for
immediate release/motion to dismiss (alleging that he was
entitled to release from confinement even without habeas
corpus relief) (R. 4), and an emergency petition for writ of
habeas corpus, (R. 6).
the Court will grant Robinson's motion to amend pursuant
to Fed.R.Civ.P. 15(a)(1), it will dismiss the amended
petition without prejudice because Robinson has not shown
exhaustion of state-court remedies. It will also deny as moot
his motion for immediate release/motion to dismiss as well as
his emergency petition for writ of habeas corpus.
1990, Robinson was convicted of first-degree criminal sexual
conduct following a jury trial in the Washtenaw County
Circuit Court. (R. 1, PID 65.) Robinson received a sentence
of 12 to 30 years imprisonment. (R. 1, PID 50.)
being released from prison, Robinson was subsequently charged
in April 2013 with resisting or obstructing a police officer.
(R. 3, PID 131.) Robinson, on parole at the time, was also
charged with violating his parole and pled no contest to
those three counts. (R 3, PID 124.)
a bench trial in Washtenaw County Circuit Court for the
underlying resisting or obstructing charge, Robinson was
convicted and sentenced to 24 to 48 months' imprisonment.
See People v. Robinson, No. 323878, 2016 WL 370040
(Mich. Ct. App. Jan. 28, 2016). Robinson appealed arguing
that the trial court failed to properly advise him before
waiving his right to counsel. Id. The Michigan Court
of Appeals vacated the conviction and remanded the case for
further proceedings. Id. The trial judge held a
second bench trial, Robinson was again convicted, and again
sentenced to 24 to 48 months' imprisonment. (R. 1, PID
1.) Robinson did not appeal the conviction.
amended petition, Robinson now challenges his state-court
conviction for resisting or obstructing a police officer on
grounds that the trial court lacked personal and
subject-matter jurisdiction and the prosecution was motived
by prosecutorial vindictiveness. (R. 3, PID 77-81.) He also
challenges his parole revocation on the ground that the
parole board lacked jurisdiction over the proceeding. (R. 3,
PID 81-83.) Robinson has failed to exhaust these claims in
state court and the petition will be dismissed without
prejudice on that basis.
prisoner filing a petition for a writ of habeas corpus under
28 U.S.C. § 2254 must first exhaust all state remedies.
See O'Sullivan v. Boerckel, 526 U.S. 838, 845
(1999). The district court has a duty to raise any exhaustion
issues sua sponte. See Prather v. Rees, 822
F.2d 1418, 1422 (6th Cir. 1987). Robinson, as the petitioner,
has the burden to prove exhaustion, Rust v. Zent, 17
F.3d 155, 160 (6th Cir. 1994), and he has failed meet this
burden. Again, a review of the state court website shows that
Robinson did not appeal his 2016 conviction to the Michigan
Court of Appeals or Michigan Supreme Court. See Walburn
v. Lockheed Martin Corp., 431 F.3d 966, 972 n.5 (6th
Cir. 2005) (courts may take judicial notice of proceedings in
other courts). Although the time for filing a direct appeal
has expired, a prisoner is required to comply with the
exhaustion requirement as long as there is still a
state-court procedure available. See Adams v.
Holland, 330 F.3d 398, 401 (6th Cir. 2003). In this
case, Robinson may file a motion for relief from judgment
from his resisting-and-obstructing conviction under Michigan
Court Rule 6.502. If that motion is denied, he may seek
review by the Michigan Court of Appeals and Michigan Supreme
Court by filing an application for leave to appeal. Mich. Ct.
R. 6.509; Mich. Ct. R. 7.203; Mich. Ct. R. 7.302.
has also not exhausted the claims related to his parole
revocation by properly filing a complaint for writ of habeas
corpus in the appropriate state circuit court. See
Mich. Comp. Laws § 600.4301 et seq., Mich. Ct.
R. 3.303. There is no time limit for the filing of a state
complaint for habeas corpus so long as the prisoner will be
in custody at the time the judgment becomes effective.
Triplett v. Deputy Warden, 371 N.W.2d 862, 865
(Mich. Ct. App. 1985).
response, Robinson argues that a conspiracy among state
actors renders exhaustion futile. (R. 3, PID 74-77.) True,
the exhaustion requirement can be excused if exhaustion would
be “an exercise in futility.” See Lucas v.
People of State of Michigan, 420 F.2d 259, 262 (6th Cir.
1970). But Robinson has not shown futility. In support of his
argument, Robinson attaches the following documents to his
amended petition: two state court orders regarding petitions
filed in 2014, prior to the conviction at issue in his
amended petition (R. 3, PID 86-88); a letter from the
Michigan Court of Appeals informing Robinson that his
petition for writ of habeas corpus was defective for failing
to include a proof of service and a copy of his prisoner
account statement (R. 3, PID 90); his petition to the
Washtenaw County Trial Court (R. 3, PID 128-29); and a form
from the Washtenaw County Circuit Court Clerk stating that
his petition was returned because he filed it in the wrong
court (R. 3, PID 103). None of these documents demonstrate
that state actors are conspiring to foil Robinson's
attempts at state habeas relief. The 2014 orders concern a
prior petition and are not relevant. The rest of the
documents demonstrate that Robinson incorrectly filed
previous habeas corpus petitions. Apparently, the only thing
stopping Robinson from exhausting is a number of small
defects that should be easily corrected once Robinson files
his habeas corpus petitions in the correct county with the
correct documentation. (See R. 3, PID 90, 103.)
exhaustion is not futile and Robinson must first exhaust his
state-court remedies prior to ...