United States District Court, W.D. Michigan, Southern Division
J. QUIST, UNITED STATES DISTRICT JUDGE.
a habeas corpus action brought by a county jail inmate 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 will
dismiss the petition without prejudice for failure to exhaust
available state-court remedies.
Richard Schomaker is incarcerated at the Ingham County Jail.
Following a jury trial in the 54B District Court, Petitioner
was convicted of the misdemeanor of nuisance, in violation of
East Lansing Ordinance 26-3(8), because he maintained an
unsafe structure, specifically, a noncompliant fence/wall.
Plaintiff's barrier consisted of a
combination of paving stones, cinder blocks, and chain link
fence. At the time it was originally constructed, barbed wire
was installed. No. footings were placed to support the paving
stones and cinder blocks. . . . The paving stones and cinder
blocks are not stabilized with rebar or pea stone and are not
constructed on footings. The blocks are not interlocked in
any way. No. mortar has been placed between the paving stones
or the cinder blocks. There is no adhesion between the blocks
and/or the paving stones. Defendant has placed loose angle
iron top to bottom within the cinder blocks, apparently for
the purpose of preventing them from collapsing into a pile of
(54B District Ct. Order for Re-Sentencing After Remand, ECF
No. 1-1, PageID.81.)
August 29, 2016, Petitioner was placed on short-term
probation and ordered to “complete, within ninety (90)
days, a fence that is in compliance with the city's
requirements . . . .” (54B District Ct. Order, ECF No.
November 29, 2016, a probation violation was docketed,
indicating that Petitioner had failed to bring his fence into
compliance with the city ordinance. (54B Register of Action,
ECF No. 1-1, PageID.106.) A notice to appear for arraignment
on the probation violation issued on December 2, 2016.
(Id.) The probation-violation arraignment was twice
postponed, because Petitioner had appealed his sentence to
the Ingham County Circuit Court.
February 1, 2017, the circuit court vacated the sentence and
“remanded for an evidentiary hearing and for further
proceedings regarding the “Retaining Wall” and
“Fence Height[.]” (Id., PageID.81.) The
court retained jurisdiction. On remand, the district court
held an evidentiary hearing and, in an order issued on August
23, 2017, detailed its findings about the deficiencies of the
wall/fence that supported the sentence. (Id.) The
court set a new sentencing date of September 13, 2017, but
the parties stipulated to an order to adjourn the sentencing
on September 12, 2017. (Id., PageID.109.)
October 18, 2017, the district court judge held a
re-sentencing hearing. (Id., PageID.110.) The court
continued the bonds. (Id.) In an order issued on
November 15, 2017, the circuit court dismissed the appeal.
(Id., PageID.111; Cir. Ct. Ord., ECF No. 1-1,
PageID.85-86, 221-222.) Following a sentencing hearing,
Petitioner was again sentenced on February 21, 2018, to a
three-month period of probation, together with approximately
$1, 600.00 in fines and costs. (54B Register of Action, ECF
No. 101, PageID.112.) Petitioner was given three months to
bring the fence into compliance and to pay the fines.
(Id.) On March 8, 2018, the court amended the
probation order, extending it by one month. (Id.,
filed a claim of appeal to the circuit court on March 30,
2018. (Id., PageID.112-113.) On May 21, 2018,
Petitioner sought a stay of the proceedings, pending the
outcome of the appeal. That same date, a probation violation
notice was filed, and arraignment on the probation violation
was scheduled for May 23, 2018. (Id.,
PageID.113-114.) At a hearing held on June 19, 2018, the
district court granted Petitioner's motion to stay and to
continue the bond on appeal. (Id., PageID.114;
Hr'g on Mot. to Stay Pending Appeal, ECF No. 1-1,
circuit court granted Petitioner leave to appeal on June 14,
2018, but directed Petitioner to comply fully with Mich. Ct.
R. 7.104(D)(1), (4), and (6) within seven days. (6/14/18 Cir.
Ct. Order, ECF No. 1-1, PageID.36-37.) On June 25, 2018, the
court dismissed the appeal, because Petitioner failed to
comply with the order by filing a copy of the decision being
appealed. (6/25/2018 Cir. Ct. Order, ECF No. 1-3,
PageID.228.) Petitioner sought reconsideration. In an opinion
and order issued on September 12, 2018, the circuit court
denied the motion. (9/12/2018 Cir. Ct. Order, ECF No. 1-3,
was scheduled for a probation-violation arraignment on
November 9, 2018, and it ultimately was held on December 1,
2018. (Id., PageID.153.) A probation-violation
hearing was held on January 30, 2019, and February 4, 2019.
At a hearing held on February 19, 2019, the court found
Petitioner to be in civil contempt and guilty of the
probation violation, as the fence had not been repaired. The
court continued probation until June 22, 2019, and ...