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Berry v. Stephenson

United States District Court, E.D. Michigan, Southern Division

May 31, 2018

DUANE LETROY BERRY, Petitioner,
v.
SCOTT STEPHENSON, Respondent.

          Hon. 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

         Pro se 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.

         I. BACKGROUND

         A 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 that case,

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).

         Berry 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 District.

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).

         Meanwhile, 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).

         Berry 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).

         Berry 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.

         II. ...


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