United States District Court, E.D. Michigan, Southern Division
ORDER DENYING AND SUMMARILY DISMISSING PETITION FOR
WRIT OF HABEAS CORPUS
PAGE HOOD CHIEF JUDGE, UNITED STATES DISTRICT COURT
DECLINING TO ISSUE ANY CERTIFICATE OF APPEALABILITY
the Court is a Petition for Non-Statutory Writ of Habeas
Corpus under Article 1 Section 9 of the United States
Constitution. (Doc., No. 1) Petitioner Jeremie McCoy asserts
that he has been restrained, “not bodily, ” but
by a state court judgment that violated his due process.
Petitioner asserts that the denial of the writ of habeas
corpus would subject Petitioner with contempt and deprive him
of property. Petitioner attached a copy of a motion filed
before the Third Judicial Circuit for the County of Wayne,
State of Michigan involving a divorce action and request for
a Qualified Domestic Relations Order (“QDRO”).
Id. at Pg ID 12.
a Writ of Habeas Petition from a state court judgment,
Section 2254 states that “a district court shall
entertain an application for a writ of habeas corpus on
behalf of a person in custody pursuant to the judgment of a
State court only on the ground that he is in custody in
violation of the Constitution or laws or treaties of the
United States.” 28 U.S.C. § 2254(a). For a federal
court to have jurisdiction and grant § 2254 relief, the
petitioner must be in custody pursuant to the judgment of a
state court. Steverson v. Summers, 258 F.3d 520, 522
(6th Cir. 2001). A petitioner need not be physically
incarcerated at the time the petition is adjudicated or at
the time the petition is filed, but must be subject to
restraints not shared by the public generally such as being
on parole, probation or out on bail. Hensley v. Municipal
Court, San Jose-Milipitas Judicial Dist., 411 U.S. 345,
351 (1973). Even if a petitioner if exposed to a criminal
contempt conviction with a possible sanction of jail time,
this does not meet the “in custody” requirement
for purposes of federal habeas corpus jurisdiction.
Maleng v. Cook, 490 U.S. 488, 492 (1989);
Musilli v. Googasian Firm, P.C., 2010 WL 25955552,
*4 (E.D. Mich. June 24, 2010). “The custody requirement
serves to preserve the writ of habeas corpus as a remedy for
severe restraints on individual liberty.” Tinder v.
Sister Rose Paula, 725 F.2d 801, 803 (1st Cir. 1984).
construing Petitioner's papers, the Court finds that
Petitioner fails to meet the “in custody”
requirement under § 2254. Petitioner fails to allege
that he is subject to any restraints issued by a state
tribunal. Rather, Petitioner seeks review of the rulings by a
state court involving a divorce action and a request for a
QDRO. The Court has no subject matter jurisdiction to grant
relief under § 2254 since Petitioner is not “in
Court also has no jurisdiction to review any state court
rulings as to the divorce action. Federal courts are courts
of limited jurisdiction which may exercise only those powers
authorized by Constitution and statute. Kokkonen v.
Guardian Life Ins. Co. of America, 511 U.S. 375, 377
(1994). The party asserting jurisdiction has the burden of
establishing whether the court has jurisdiction over a
matter. Id. at 377. The first and fundamental
question presented by every case brought to the federal
courts is whether it has jurisdiction to hear a case, even
where the parties concede or do not raise or address the
issue. See Bender v. Williamsport Area Sch. Dist.,
475 U.S. 534, 541 (1986); Amer. Telecom Co., L.L.C. v.
Republic of Lebanon, 501 F.3d 534, 537 (6th Cir.
2007)(“Subject matter jurisdiction is always a
Supreme Court has held that federal courts lack jurisdiction
over questions of divorce, alimony, or child custody. See
Barber v. Barber, 62 U.S. (21 How.) 582, 584 (1858);
Ankenbrandt v. Richards, 504 U.S. 689, 703-07
(1992). “Even when brought under the guise of a federal
question action, a suit whose subject is domestic relations
generally will not be entertained in a federal court.”
Firestone v. Cleveland Trust Co., 654 F.2d 1212,
1215 (6th Cir. 1981). “The whole subject of the
domestic relations of husband and wife, parent and child,
belongs to the laws of the state and not to the laws of the
United States.” In re Burrus, 136 U.S. 586,
593-94 (1890); Partridge v. Ohio, 79 Fed.Appx. 844,
845 (6th Cir. 2003)(“[F]ederal courts have no
jurisdiction to resolve domestic relations disputes involving
child custody or divorce.”). Federal courts also lack
jurisdiction to review the decisions made by Michigan courts
in domestic relations disputes since the federal courts do
not possess direct oversight powers over Michigan's
courts. See, In re Cook, 551 F.3d 542, 548 (6th Cir.
2009); Hood v. Keller, 341 F.3d 593, 597 (6th Cir.
2003). A party may appeal an adverse decision of a state
trial court to the Michigan Court of Appeals, an application
for leave to appeal to the Michigan Supreme Court, and
thereafter an application for a writ of certiorari before the
United States Supreme Court. See District of Columbia
Circuit Court of Appeals v. Feldman, 460 U.S. 462, 483
n. 16 (1983); Rooker v. Fidelity Trust Co., 263 U.S.
413, 415-16 (1923); Lawrence v. Welch, 531 F.3d 364,
368-69 (6th Cir. 2008).
on the above, the Court has no jurisdiction to review the
decisions of the Michigan courts regarding domestic relations
issues raised by Petitioner in his papers under § 2254,
any other federal “Non-Statutory Writ of Habeas Corpus,
” or any other federal law. The law is clear as noted
above that this Court lacks subject matter jurisdiction to
review issues related to domestic relations issued by the
IT IS ORDERED that Petitioner's “Non-Statutory Writ
of Habeas Corpus under Article 1 Section 9 of the United
States Constitution” (Doc. No. 1) is
DENIED and DISMISSED with prejudice.
FURTHER ORDERED that a certificate of appealability
not issue in this case. The Court
denies any request to issue a certificate of appealability.
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). Petitioner is not ...