United States District Court, E.D. Michigan, Southern Division
David R. Grand J.
OPINION AND ORDER SUMMARILY DISMISSING THE PETITION,
DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY, AND
DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
TERRENCE G. BERG UNITED STATES DISTRICT JUDGE
prisoner Duane Letroy Berry has petitioned the Court for a
writ of habeas corpus. (Dkt. 1) The petition challenges
respondent Scott Stephenson's authority to hold Berry in
state custody. The petition must be dismissed because Berry
has failed to exhaust state remedies for his claim and
because federal abstention is appropriate.
litigation search of Berry's federal cases reveals that,
in 2015, Berry was indicted in this District on charges of
perpetrating false information and hoaxes in violation of 18
U.S.C. § 1038. See United States v.
Berry, No. 2:15-cr-20743 (E.D. Mich. Nov. 17, 2016). In
the district court determined Berry to be incompetent to
stand trial based on a finding that he suffered from
delusional disorder. The court ordered Berry hospitalized
while Bureau of Prison (“BOP”) officials
determined whether he could gain the competency necessary to
allow trial proceedings to go forward. After the BOP
submitted a report indicating that Berry might benefit from
antipsychotic medication, the court ordered the parties to
address whether Berry could be forced to take medications
against his will under the framework outlined by Sell v.
United States, 539 U.S. 166 (2003). After considering
the matter, the court ordered that Berry be forced to take
medication under the Sell framework.
Berry v. Michigan, et al., No. 17-2202 (6th Cir.
Mar. 16, 2018).
was sent to the Federal Transfer Center in Oklahoma City,
Oklahoma where he filed a pretrial habeas corpus petition
challenging his commitment. While his petition was pending in
the United States District Court for the Western District of
Oklahoma, the United States Marshal removed Berry from the
Federal Transfer Center and took him to the Midland County
Jail in Michigan. A magistrate judge in the Western District
of Oklahoma then recommended to United States District Judge
David L. Russell that Berry's habeas petition be
dismissed as moot because Berry was no longer detained in
Oklahoma and had been relocated to the Midland County Jail in
Michigan. See Berry v. Fox, No. CIV-17-202-R, 2017
WL 3203706 (W.D. Okla., June 30, 2017). Judge Russell adopted
the magistrate judge's report and recommendation and
dismissed Berry's case without prejudice. See Berry
v. Fox, No. CIV-17-202-R, 2017 WL 3197239 (W.D. Okla.
July 27, 2017). Berry subsequently filed an untimely
objection to the magistrate judge's report and
recommendation. He maintained that the Western District of
Oklahoma could provide him with relief because he remained in
the custody of the United States Marshal. On August 2, 2017,
Judge Russell rejected Berry's claim, stating:
as is evident from his Notice of Change of Address and his
objection, Mr. Berry is currently in the custody of the
State. See Doc. No. 23 (“Petitioner is still
in the custody of the U.S. Marshal pursuant to 18 U.S.C.
§ 4241(d), and was unlawfully removed from the
jurisdiction by a Habeas Corpus from an inferior state court
in Michigan, in violation of Michigan Compiled Law (MCL)
600.4310.” Doc. No. 23, p. 1. As such, it appears that
Petitioner is being detained by a state official, and that
custodian is a necessary respondent in this action. The Court
has no basis for exercising jurisdiction over
Petitioner's current state custodian, and accordingly,
the Court declines to reconsider its July 27, 2017 Order and
Judgment. Petitioner may seek relief in federal court in
Michigan, however, he cannot prevail on his claims in this
Pet. for Writ of Habeas Corpus, Ex. A (Dkt. 1, Page ID 8-9).
The Tenth Circuit Court of Appeals affirmed Judge
Russell's decision. See Berry v. Fox, 704
Fed.Appx. 789 (10th Cir. 2017).
Berry was charged in Wayne County, Michigan with malicious
destruction of a building. See People v. Berry, No.
17-005237-01-FH (Wayne Cty. Cir. Ct., Apr. 28, 2017). While
he was being held as a pretrial detainee on the Wayne County
charge, he filed a petition for the writ of habeas corpus in
this District. He argued that the State of Michigan had no
authority or power to remove him from federal custody. On
September 1, 2017, United States District Judge Nancy G.
Edmunds summarily dismissed the petition on the basis that
federal court abstention was appropriate because Berry was
challenging a pending criminal matter in state court. See
Berry v. Michigan, et al., No. 2:17-cv-12738 (E.D. Mich.
Sept. 1, 2017). The United States Court of Appeals for the
Sixth Circuit affirmed Judge Edmunds' decision on grounds
that Berry had not exhausted state remedies for his claim and
that abstention from interference in the Michigan state-court
proceeding was proper. See Berry v. Michigan, No.
17-2202 (6th Cir. Mar. 16, 2018).
filed a subsequent habeas petition, raising the same issue
about the State's authority to remove him from federal
custody and his continued confinement in state custody.
United States District Judge Victoria A. Roberts summarily
dismissed the petition on grounds that Berry had failed to
exhaust state remedies for his claim, his challenge to an
ongoing state criminal proceeding was premature, and
abstention was appropriate. See Berry v. Stephenson,
No. 2:18-cv-10451 (E.D. Mich. Apr. 6, 2018).
filed his habeas petition in this case on February 20, 2018.
He argues that respondent Scott Stephenson holds him in
unlawful custody at the Midland County Jail in violation of
federal district court orders and his Fifth Amendment right
to due process.