United States District Court, E.D. Michigan, Southern Division
AND ORDER DISMISSING THE PETITION FOR A WRIT OF HABEAS
CORPUS, SEVERING AND DISMISSING THE CIVIL RIGHTS CLAIMS,
DENYING A CERTIFICATE OF APPEALABILITY AND DENYING LEAVE TO
PROCEED ON APPEAL IN FORMA PAUPERIS
Page Hood Chief Judge, United States District Court
prisoner Robert Winburn (“Petitioner”) has filed
a pro se petition for a writ of habeas corpus (with civil
rights claims) challenging his pending prosecution on state
criminal charges of first-degree home invasion, armed
robbery, and conspiracy to commit first-degree home invasion
in the Washtenaw County Circuit Court. He states that he
is representing himself with stand-by counsel in that case
and that trial is scheduled for April 23, 2018. In his
petition, he asserts that he has filed 40 pre-trial motions
which have not been heard and that he has been unable to
pursue interlocutory appeals or exhaust state remedies.
Petitioner seeks an immediate hearing and testimony, a show
cause order, a conditional writ, a stay and abeyance order,
and declaratory and injunctive relief under 28 U.S.C.
§§ 2201, 2202, 2241, 2254 and 42 U.S.C. §
1983. The Court has granted Petitioner leave to proceed in
forma pauperis for this action.
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 those petitions which raise legally frivolous
claims, as well as those containing factual allegations which
are palpably incredible or false. Carson v. Burke,
178 F.3d 434, 436-37 (6th Cir. 1999). After undertaking such
a review, the Court concludes that the habeas petition must
be dismissed and that a certificate of appealability and
leave to proceed in forma pauperis on appeal must be denied.
challenges his pending criminal prosecution in the Washtenaw
County Circuit Court in this habeas action. A petitioner may
bring a habeas action in federal court to demand enforcement
of the state's affirmative constitutional obligation to
bring him promptly to trial, but may not generally seek
habeas relief to forestall state prosecution altogether.
Braden v. 30th Judicial Cir. Ct. of Kentucky, 410
U.S. 484, 489-91 (1973); Capps v. Sullivan, 13 F.3d
350, 354 (10th Cir. 1993). Although 28 U.S.C. § 2241
establishes jurisdiction in the federal courts to consider
pretrial habeas corpus petitions, the courts should abstain
from the exercise of that jurisdiction if the issues raised
in the petition may be resolved either by trial on the merits
in the state courts or by other state procedures available to
the petitioner. Atkins v. People of the State of
Michigan, 644 F.2d 543, 546 (6th Cir. 1981). Principles
of comity and federalism require federal courts to abstain
from deciding pre-conviction habeas challenges unless the
petitioner demonstrates that: (1) he has exhausted available
state court remedies, and (2) “special
circumstances” warrant federal intervention.
Martin-Trigona v. Shiff, 702 F.2d 380, 388 (2d Cir.
1983); Carden v. Montana, 626 F.2d 82, 83-84 (9th
Cir. 1980); see also Urquhart v. Brown, 205 U.S.
179, 182 (1907) (a federal court may “sometimes
appropriately interfere by habeas corpus in advance of final
action by the authorities of the State, ” but such
cases are “exceptional” and of “great
urgency”); Bronston v. Sabbatine, 12 F.3d 211,
1993 WL 473792, *1 (6th Cir. 1993) (unpublished).
has not met his burden. First, to the extent that Petitioner
seeks dismissal of the pending state charges or release from
custody, he is not entitled to federal habeas relief. See
Braden, 410 U.S. at 493. Second, to the extent that
Petitioner contests the trial court's failure to address
his motions and/or matters arising from the investigation and
prosecution of the pending criminal charges, he fails to show
that he has exhausted his state court remedies. Given that
his trial is scheduled for April 23, 2018, the state trial
court may still resolve his pending motions. If not,
Petitioner can seek a writ of mandamus in the state appellate
courts to compel the trial court to consider those motions.
See generally Morales v. Michigan Parole Bd., 260
Mich.App. 29, 41-42, 676 N.W.2d 221 (2003) (citing cases).
Petitioner can also present his underlying claims,
i.e., the subject matter of his motions, to the
state courts on direct appeal and/or collateral review should
he be convicted. Consequently, he has not fully exhausted his
state court remedies. See 28 U.S.C. § 2254(c)
(“An applicant shall not be deemed to have exhausted
the remedies available in the courts of the State, within the
meaning of this section, if he has the right under the law of
the State to raise, by any available procedure, the question
presented”); O'Sullivan v. Boerckel, 526
U.S. 838, 845 (1999). Lastly, Petitioner fails to establish
that special circumstances warrant federal habeas review. His
habeas petition is therefore premature and subject to
Civil Rights Claims
also seems to raise civil rights claims in this action. To
the extent that he wishes to pursue such claims, he must
bring them in a properly filed civil rights action. The
requirements for pursuing a civil rights action in federal
court differ from those in a habeas proceeding, including the
payment of a $350.00 filing fee and a $50.00 administrative
fee for a civil rights action (which is paid up front or in
installments for indigent prisoners) versus a $5.00 filing
fee for a habeas action (which is paid up front or waived for
indigent prisoners). Petitioner may not circumvent those
requirements by filing a joint or hybrid action. His civil
rights claims are subject to severance and dismissal.
reasons stated, the Court concludes that Petitioner's
habeas petition challenging his ongoing state criminal
proceedings is premature and must be dismissed and that any
civil rights claims must be severed and dismissed.
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 court
relief on the merits, the substantial showing threshold is
met if the petitioner demonstrates that reasonable jurists
would find the court's assessment of the constitutional
claim debatable or wrong. Slack v. McDaniel, 529
U.S. 473, 484-85 (2000). “A petitioner satisfies this
standard by demonstrating that . . . jurists could conclude
the issues presented are adequate to deserve encouragement to
proceed further.” Miller-El v. Cockrell, 537
U.S. 322, 327 (2003). When a court denies relief on
procedural grounds, a certificate of appealability should
issue if it is shown that jurists ...