United States District Court, E.D. Michigan, Southern Division
ANTHONY P. PATTI
OPINION AND ORDER DISMISSING THE PETITION FOR A WRIT
OF HABEAS CORPUS , DENYING A CERTIFICATE OF APPEALABILITY,
AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON
E. LEVY UNITED STATES DISTRICT JUDGE MAG.
prisoner Richard Allen McBrayer (“Petitioner”),
through a representative William Sim Spencer, filed a
petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254 asserting that he is incarcerated in violation of
his constitutional rights. Specifically, he alleges a defect
in the jurisdiction of the Michigan courts concerning his
1994, Petitioner pleaded guilty to two counts of first-degree
criminal sexual conduct in the Macomb County Circuit Court,
and was sentenced to concurrent terms of 20 to 40 years
imprisonment. The Michigan Parole Board voted to grant
Petitioner parole on October 15, 2015, with a projected
release date of January 5, 2016. Petitioner was apparently
paroled on or about that date. On May 9, 2016, the victim
filed a delayed application for leave to appeal with the
Macomb County Circuit Court challenging the Parole
Board's decision. The circuit court granted the delayed
application for leave to appeal on August 16, 2016, and
reversed the Parole Board's decision on November 18,
2016. See Macomb Co. Cir. Ct. Dkt., No.
2016-001586-AP. The Michigan Court of Appeals subsequently
affirmed the circuit court's decision. In re Parole
of Richard McBrayer, No. 336084, 2017 WL 3722010 (Mich.
Ct. App. Aug. 29, 2017). The Michigan Supreme Court denied
leave to appeal in a standard order. In re Parole of
Richard McBrayer, Mich., 908 N.W.2d 915 (April 3, 2018).
through his representative, filed this petition on April 13,
2018. He alleges that there was/is a defect in the
jurisdiction of the state courts due to the failure of the
victim to timely file an appeal from the Parole Board's
decision to grant Petitioner parole with the circuit court and
he asserts that this violates his federal due process rights.
Petitioner does not indicate whether he raised this issue in
the state courts - although he asserts that jurisdictional
challenges may be made at any time.
district court must undertake a preliminary review of a
habeas petition promptly after filing 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 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).
initial matter, Petitioner failed to demonstrate that he
exhausted his jurisdictional claim in the state courts. A
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) (“state prisoners must give the state courts one
full fair opportunity to resolve any constitutional issues by
invoking one complete round of the State's established
appellate review process”); Rust v. Zent, 17
F.3d 155, 160 (6th Cir. 1994). To satisfy the exhaustion
requirement, a Michigan prisoner must present each issue,
including federal constitutional issues, to both the Michigan
Court of Appeals and the Michigan Supreme Court. See
Welch v. Burke, 49 F.Supp.2d 992, 998 (E.D. Mich. 1999);
Hafley v. Sowders, 902 F.2d 480, 483 (6th Cir.
1990); see also Koontz v. Glossa, 731 F.2d 365, 368
(6th Cir. 1984) (requiring habeas petitioners to present
federal constitutional claims to the state court as part of
the exhaustion process). The claims must be “fairly
presented” to those courts, meaning that the petitioner
must have asserted both the factual and legal bases for the
claims. McMeans v. Brigano, 228 F.3d 674, 681 (6th
Cir. 2000); see also Williams v. Anderson, 460 F.3d
789, 806 (6th Cir. 2006) (citing McMeans). The
burden is on the petitioner to prove exhaustion.
Rust, 17 F.3d at 160.
Petitioner makes no such showing. His jurisdiction claim is
unexhausted and his habeas petition is subject to dismissal.
while the exhaustion requirement is strictly enforced, it is
not a jurisdictional prerequisite for bringing a habeas
petition. Granberry v. Greer, 481 U.S. 129, 134-35
(1987); Rockwell v. Yukins, 217 F.3d 421, 423 (6th
Cir. 2000). An unexhausted claim may be addressed if the
pursuit of state court remedies would be futile, Witzke
v. Withrow, 702 F.Supp. 1338, 1348 (W.D. Mich. 1988), or
if the unexhausted claim is meritless such that addressing it
would be efficient and not offend federal-state comity.
Prather v. Rees, 822 F.2d 1418, 1422 (6th Cir.
1987); see also 28 U.S.C. § 2254(b)(2) (habeas petition
may be denied on the merits despite the failure to exhaust
state court remedies).
Petitioner brings the type of claim that should be
adjudicated despite his failure to exhaust state court
remedies because a habeas petitioner may not challenge a
state court's jurisdiction on federal habeas review. The
determination of whether a particular state court has
jurisdiction and is the proper venue to hear a case is a
“function of the state courts, not the federal
judiciary.” Wills v. Egeler, 532 F.2d 1058,
1059 (6th Cir. 1976); see also Hamby-Bey v. Bergh,
No. 08-CV-13284, 2008 WL 3286227, *2 (E.D. Mich. Aug. 7,
2008) (Battani, J.); Chandler v. Curtis, No.
05-CV-72608-DT, 2005 WL 1640083, *2 (E.D. Mich. July 13,
2005) (Cohn, J.); Groke v. Trombley, No.
01-CV-10045-BC, 2003 WL 1798109, *5 (E.D. Mich. April 1,
2003) (Lawson, J.); accord Wright v. Angelone, 151
F.3d 151, 157-58 (4th Cir. 1998); Rhode v. Olk-Long,
84 F.3d 284, 287 (8th Cir. 1996). Federal habeas courts must
defer to state courts' interpretations of state law
jurisdictional issues. Strunk v. Martin, 27
Fed.Appx. 473, 475, 2001 WL 1450740, *2 (6th Cir. 2001).
asserts the state circuit court failed to comply with
Michigan Court Rule 7.105. Whether or not petitioner's
assertion is correct, Federal habeas relief cannot be granted
for a state trial court's error in the application of
state procedural law. See Estelle v. McGuire, 502
U.S. 62, 67-68 (1991) (“it is not the province of a
federal habeas court to reexamine state-court determinations
on state-law questions”). State courts are the final
arbiters of state law and the federal courts will not
intervene in such matters. Lewis v. Jeffers, 497
U.S. 764, 780 (1990); Oviedo v. Jago, 809 F.2d 326,
328 (6th Cir. 1987); see also Bradshaw v. Richey,
546 U.S. 74, 76 (2005) (“a state court's
interpretation of state law, including one announced on
direct appeal of the challenged conviction, binds a federal
court sitting on habeas review”). Because
Petitioner's claim challenges the state court's
decision to exercise jurisdiction over the victim's
delayed appeal of the parole board's decision, he cannot
obtain federal habeas relief.