United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DISMISSING WITHOUT PREJUDICE
PLAINTIFF'S CIVIL RIGHTS CLAIMS UNDER THREE-STRIKES RULE,
DISMISSING WITHOUT PREJUDICE PLAINTIFF'S HABEAS CLAIMS,
DENYING CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO
APPEAL IN FORMA PAUPERIS
GERSHWIN A. DRAIN UNITED STATES DISTRICT JUDGE
Bernard Robinson (“Plaintiff”) filed this hybrid
civil rights complaint under 42 U.S.C. § 1983 and
petition for writ of habeas corpus pursuant to 28 U.S.C.
§§ 2241 and 2254. This action stems from Washtenaw
County Prosecutor's Office's
(“Defendant”) filing of criminal charges against
Plaintiff on September 24, 2019 for his failure to comply
with Michigan's sex offender registry law.
asserts that: (1) the charging documents failed to adequately
notify him of the nature of the offense in violation of due
process; (2) the criminal charges were filed in retaliation
for Plaintiff filing previous civil rights actions against
Defendants and other law enforcement agencies; (3) the
Michigan Department of Corrections (“MDOC”)
improperly calculated Plaintiff's prior criminal
sentences; and (4) Defendants are unconstitutionally applying
the sex offender registry law retroactively to Plaintiff.
seeks the following relief: (1) an order terminating the
current criminal case; (2) a temporary restraining order and
injunction removing Plaintiff from the sex offender registry;
(3) an unconditional writ of habeas corpus vacating one of
Plaintiff's prior convictions; (4) an award of $50, 000
per year for each year Plaintiff was illegally incarcerated;
(5) an award of $5, 200, 000 in punitive damages against
MDOC; and (6) an award of $1, 200, 000 in damages against the
individually named defendant in MDOC-L. Todd-who calculated
Court summarily dismisses the complaint. To the extent
Plaintiff seeks to file a civil rights complaint, Plaintiff
is barred from proceeding in forma pauperis because he
already has more than three strikes. To the extent Plaintiff
is seeking habeas corpus relief, the Court will abstain from
interfering in an ongoing state criminal proceeding. Finally,
Plaintiff has failed to exhaust his sentence calculation
claim. The Court will also deny a certificate of
appealability and deny permission to proceed on appeal in
was convicted in 1989 in the Washtenaw Circuit Court of
first-degree criminal sexual conduct; he was sentenced to
twelve to thirty years. On September 4, 1990, he pled guilty
in the Ionia Circuit Court to assault on a prison employee;
he was sentenced to a consecutive two to four-year prison
2004, the Michigan Parole Board released Plaintiff on parole,
but Plaintiff returned to prison after violating the
conditions of his parole when he failed to register as a sex
offender. According to Plaintiff, his two state sentences
were then improperly “stacked” by the MDOC.
2011, the Parole Board again released Plaintiff on parole.
Approximately two years later, though, Plaintiff pled guilty
to again violating the conditions of parole-this time for
assaulting a police officer. Plaintiff was found guilty of
the corresponding felony offense in a bench trial in
Washtenaw Circuit Court. He was sentenced to another term of
two to four years in prison.
Michigan Court of Appeals reversed this conviction-ruling
that Plaintiff did not voluntarily waive his right to
counsel. On remand, the trial court conducted another bench
trial and again found Plaintiff guilty of assaulting a police
officer. He was given the same sentence.
does not claim to have appealed his reconviction in the state
courts, nor does he claim to have appealed or challenged the
calculation of his sentence by the MDOC in the state courts.
8, 2018, Plaintiff was again released on parole.
September 24, 2019, Plaintiff was charged in the Washtenaw
Circuit Court with the felony offense of failure to register
as a sex offender.