United States District Court, E.D. Michigan, Southern Division
ARTHUR J. TARNOW, JUDGE
OPINION AND ORDER DISMISSING PETITION FOR WRIT OF
HABEAS CORPUS WITHOUT PREJUDICE
J. Tarnow, Senior United States District Judge
Paul Holt has filed a pro se petition for a writ of
habeas corpus under 28 U.S.C. § 2254. Holt is
incarcerated at the West Tennessee State Prison in Henning,
Tennessee. His petition challenges conditions of his
confinement. He alleges that he is being tortured daily
“by a device in [his] ear shocking [his] brain and
cranium, body, genitals, torturing [him] with audio and
thought racing torture tactics.” Pet. at 5. He claims
not to have received due process before this torture
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 may summarily dismiss the petition.
Id.; McFarland v. Scott, 512 U.S. 849, 856
(1994) (“Federal courts are authorized to dismiss
summarily any habeas petition that appears legally
insufficient on its face.”). See also Allen v.
Perini, 26 Ohio Misc. 149, 424 F.2d 134, 141 (6th
Cir.1970) (district court has duty to “screen
out” petitions that lack merit on their face). Rule 4
permits sue sponte dismissal of a habeas petition
that raises legally frivolous claims or contains 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 habeas petition is legally insufficient on
its face. The Court also concludes that a certificate of
appealability and leave to proceed in forma pauperis
on appeal should be denied.
alleges that he is being tortured while incarcerated. He
claims that he receives daily shocks to various parts of his
body through a device implanted in his ear.
law opens two main avenues to relief on complaints related to
imprisonment: a petition for habeas corpus, 28 U.S.C. §
2254, and a complaint under . . . 42 U.S.C. §
1983.” Muhammed v. Close, 540 U.S. 749, 750
(2004). Habeas corpus petitions allow for challenges
“to the validity of any confinement or to particulars
affecting its duration.” Id.
“[C]onstitutional claims that merely challenge the
conditions of a prisoner's confinement, . . .fall outside
of that core [of habeas corpus] and may be brought pursuant
to § 1983.” Nelson v. Campbell, 541 U.S.
637, 643 (2004).
Supreme Court and Sixth Circuit authority holds that a
prisoner may not challenge the conditions of confinement
under § 2254. See Preiser v. Rodriguez, 411
U.S. 475, 490 (1973) (holding that a petition for habeas
corpus is a means for challenging the fact or length of a
prisoner's confinement). Because, “[i]t is clear
under current law that a prisoner complaining about the
conditions of his confinement should bring suit under 42
U.S.C. § 1983, ” the Court will summarily dismiss
the petition. Young v. Martin, 83 F. App'x
107, 109 (6th Cir. 2003), citing Preiser, 411 U.S.
Certificate of Appealability and Proceeding In Forma
Petitioner may appeal, a certificate of appealability must
issue. See 28 U.S.C. § 2253(c)(1)(a); Fed. R. App. P.
22(b). In order to obtain a certificate of appealability, a
prisoner must make a substantial showing of the denial of a
constitutional right. 28 U.S.C. § 2253(c)(2). To
demonstrate this denial, the applicant is required to show
that reasonable jurists could debate whether, or agree that,
the petition should have been resolved in a different manner,
or that the issues presented were adequate to deserve
encouragement to proceed further. Slack v. McDaniel,
529 U.S. 473, 483-84 (2000). When a district court rejects a
habeas petitioner's constitutional claims on the merits,
the petitioner must demonstrate that reasonable jurists would
find the district court's assessment of the
constitutional claims to be debatable or wrong. Id.
at 484. “The district court must issue or deny a
certificate of appealability when it enters a final order
adverse to the applicant.” Rules Governing § 2254
Cases, Rule 11(a), 28 U.S.C. § 2254.
reasons stated in this opinion, the Court will deny
petitioner a certificate of appealability because reasonable
jurists would not find the holding that Petitioner challenges
a condition of his confinement rather than the fact of his
confinement to be debatable or wrong. The Court further
concludes that Petitioner should not be granted leave to
proceed in forma pauperis on appeal, as any appeal
would be frivolous. See Fed. R. App. P. 24(a).
reasons set forth above, the petition presents claims not