United States District Court, W.D. Michigan, Southern Division
L. Maloney United States District Judge
a habeas corpus action brought by a state prisoner under 28
U.S.C. § 2254. Promptly after the filing of a petition
for habeas corpus, 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 28 U.S.C. § 2243. If so, the
petition must be summarily dismissed. Rule 4; see 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). After undertaking the review required
by Rule 4, the Court concludes that the petition must be
dismissed for lack of jurisdiction.
I. Factual allegations
Petitioner Barry Wayne Adams' eighth habeas corpus
petition in this Court. Seven of the eight petitions relate
to Petitioner's convictions in the Calhoun County Circuit
Court for failure to pay child support. In the first
case, No. 2004-0000001706-FH, on August 25, 2004, a Calhoun
County Circuit Court jury convicted Petitioner of failure to
pay child support from 1997 to 2003, Mich. Comp. Laws §
750.165. People v. Adams, No. 258750, 2006 WL 708161
(Mich. Ct. App. Mar. 21, 2006). The court sentenced
Petitioner to nine months in the county jail. Id.
second case, No. 2006-0000004001-FH, on January 17, 2007, a
Calhoun County Circuit Court jury convicted Petitioner for
failing to pay child support for the period beginning April
1, 2005 and ending September 30, 2006. People v.
Adams, No. 276845, 2008 WL 4923036 (Mich. Ct. App. Nov.
18, 2008). The court sentenced Petitioner to a term of
imprisonment of 25 to 96 months. Id.
has fully served his sentences in both cases. At present, he
resides in Marshall, Michigan.
petition immediately preceding this petition, Petitioner
asserted that he was subject to “imminent
detention” under the “fraudulent pretext”
of failure to pay child support. (Adams v. Unknown
Party, No. 1:17-cv-858 (W.D. Mich.) (ECF No. 1,
PageID.1.) He asserted that the Calhoun County Friend of the
Court has sent him several documents falsely claiming that he
owed child support. One of those documents, which he received
on September 21, 2017, indicated that a warrant would be
issued for his arrest. The Court dismissed the petition for
lack of subject matter jurisdiction because Petitioner was
not “in custody” at the time the petition was
filed. (1:17-cv-858, ECF No. 3, PageID.32-33.)
present petition raises the same issues Petitioner raised in
his immediately preceding petition. Petitioner simply adds
that circumstances have changed in the interim. Most
importantly, from Petitioner's perspective, the Calhoun
County Circuit Court recently issued bench warrants for
Petitioner's arrest. (Pet., ECF No. 1, PageID.4.)
Petitioner asks this Court to declare the bench warrants null
and void. He also asks the Court to enjoin further
attaches the bench warrants to his petition. (Bench Warrants,
ECF No. 1-1, PageID.16-21.) The warrants, issued on May 22,
2018, indicate that they were issued for Petitioner's
failure to appear for a “show cause” hearing on
May 21, 2018. (Id.) The Calhoun County Circuit Court
ordered the “show cause” hearing to determine if
Petitioner should be held in civil contempt for failing to
pay the amounts previously ordered by that court. (Orders to
Show Cause, ECF No. 1-1, PageID.10-15.)
filed his petition on May 29, 2018. As of that date,
Petitioner had not yet been arrested.
Subject matter jurisdiction
federal habeas statute gives this Court jurisdiction to
entertain petitions for habeas relief only from persons who
are “in custody in violation of the Constitution or
laws or treaties of the United States.” 28 U.S.C.
§ 2241(c)(3); see also 28 U.S.C. §
2254(a). Whether a habeas corpus petitioner is in custody for
purposes of §§ 2241 and 2254 is determined at the
time that the complaint is filed. Maleng v. Cook,
490 U.S. 488, 490-491 (1989) (citing Carafas v.
LaVallee, 391 U.S. 234, 238 (1968)).
Supreme Court has defined “custody” as a
“formal arrest or restraint on freedom of movement of
the degree associated with a formal arrest.”
California v. Beheler, 463 U.S. 1121, 1125 (1983). A
“restraint on freedom of movement of the degree
associated with a formal arrest” exists where a person
has been “deprived of his freedom of action in any
significant way.” Id. at 1124; Oregon v.
Mathiason, 429 U.S. 492, 494 (1977). The term
“custody” is not limited solely to physical
confinement. See Sevier v. Turner, 742 F.2d 262, 269
(6th Cir. 1984) (citing Spring v. Caldwell, 692 F.2d
994, 996 (5th Cir. 1982); Duvallon v. Florida, 691
F.2d 483, 484 (11th Cir. 1982); United States ex rel.
Wojtycha v. Hopkins, 517 F.2d 420, 423 (3d Cir. 1975)).
For example, persons on parole, probation or bail may be in
custody for purposes of §§ 2241 and 2254.
Id. Nevertheless, The custody requirement of the
habeas corpus statute is designed to preserve the writ of
habeas corpus as a remedy for severe restraints on individual
liberty. Since habeas corpus is an extraordinary remedy whose
operation is to a large extent uninhibited by traditional
rules of finality and federalism, its use has been limited to
cases of special ...