United States District Court, E.D. Michigan, Northern Division
OPINION AND ORDER SUMMARILY DISMISSING WITHOUT
PREJUDICE PETITION FOR HABEAS CORPUS, DENYING CERTIFICATE OF
APPEALABILITY, AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS
L. Ludington United States District Judge.
18, 2019, Michigan prisoner Lance Adam Goldman filed a
petition for writ of habeas corpus. He challenges the
constitutionality of his detention in the Saginaw
Correctional Facility, Freeland, Michigan. He does not
challenge his Kalamazoo County conviction for obtaining money
by false pretenses and conspiracy to obtain money by false
pretenses and the related prison sentence imposed on March 8,
2016 for ten months to seven years and six months. Rather,
Petitioner's challenge involves a criminal conviction in
the Calhoun County Circuit Court from 2000, No. 2000-3259-FH.
Petitioner alleges that in 2017 that court revoked his
probation sentence and the revocation is detrimentally
affecting his current parole eligibility. Because Petitioner
has not exhausted his state court remedies as required by 28
U.S.C. § 2254, this matter will be dismissed without
the filing of a habeas corpus petition, the Court must
promptly examine the petition to determine “if it
plainly appears from the face of the petition and any
exhibits annexed to it that the petitioner is not entitled to
relief.” Rule 4, Rules Governing Section 2254 cases. If
the Court determines that the petitioner is not entitled to
relief, the Court may summarily dismiss the petition.
McFarland v. Scott, 512 U.S. 849, 856 (1994)
(“Federal courts are authorized to dismiss summarily
any habeas petition that appears legally insufficient on its
prisoner must exhaust the remedies available to him in the
state courts before a federal court may grant relief. 28
U.S.C. § 2254(b)(1); O'Sullivan v.
Boerckel, 526 U.S. 838, 842 (1999). Exhaustion requires
a petitioner to “fairly present” his federal
claims to the state courts so that the state courts have a
“fair opportunity” to apply controlling legal
principles to the facts bearing upon a petitioner's
constitutional claim. See O'Sullivan, 526 U.S.
at 842; Duncan v. Henry, 513 U.S. 364, 365 (1995).
To fulfill the exhaustion requirement, a petitioner must have
fairly presented his federal claims at all levels of the
state appellate system. Duncan, 513 U.S. at 365-66;
Wagner v. Smith, 581 F.3d 410, 414 (6th Cir. 2009);
Hafley v. Sowders, 902 F.2d 480, 483 (6th Cir.
1990). If a petitioner may still access “any available
procedure” in state court to address the question
presented, the question has not been properly exhausted. 28
U.S.C. § 2254(c). “It is the petitioner's
burden to prove exhaustion.” Rust v. Zent, 17
F.3d 155, 160 (6th Cir. 1994) (citing Darr v.
Burford, 339 U.S. 200, 218-19 (1950)).
states that he was convicted by plea in August 2000 in
Calhoun County Circuit Court of Attempted
Delivery/Manufacture Marijuana and Resisting/Obstructing
Police and sentenced to two years' probation. Petitioner
alleges that probation was revoked by the circuit court in
January 2017. He does not explain if the Calhoun County
Circuit Court imposed a custodial sentence. He does assert
that he “immediately” filed a motion for relief
from judgment. ECF No. 1 at PageID.2. Because the state
court has not responded to Petitioner's motion, he
asserts that he “has no available state
remedies.” Id. at PageID.3. Petitioner raises
four grounds for habeas relief and requests “this Court
grant this Petition and order that Lance Goldman be promptly
retried[.]” Id. at PageID.9.
well settled that “federal courts have no authority to
issue writs of mandamus to direct state courts or their
judicial officers in the performance of their duties.”
Seyka v. Corrigan, 46 Fed.Appx. 260, 261 (6th Cir.
2002) (quoting Haggard v. Tennessee, 421 F.2d 1384,
1386 (6th Cir. 1970)). This Court thus lacks the authority to
compel the Calhoun County Circuit Court to adjudicate
Petitioner's post-conviction motion. See, e.g.,
Moye v. Clerk, DeKalb Cty. Superior Court, 474 F.2d
1275, 1276 (5th Cir. 1973); Smith v. Thompson, 437
F.Supp. 189, 191 (E.D. Tenn. 1976), aff'd, 559
F.2d 1221 (6th Cir. 1977).
a habeas petition should be denied on exhaustion grounds
where a state appeal or post-conviction motion remains
pending. See e.g., Juliano v. Cardwell, 432
F.2d 1051, 1051 (6th Cir. 1970). If the trial court rules
against Petitioner, he must appeal the denial of his
post-conviction motion to the Michigan Court of Appeals and
the Michigan Supreme Court to properly exhaust his potential
habeas claims. See, e.g., Mohn v.
Bock, 208 F.Supp.2d 796, 800 (E.D. Mich. 2002).
mere fact that the Calhoun County Circuit Court may not have
adjudicated Petitioner's claims does not excuse him from
the exhaustion requirement. Petitioner could seek an order of
superintending control from the Michigan Court of Appeals
pursuant to M.C.R. 3.302(D)(1) and M.C.R. 7.203(C)(1) to
order the Circuit Court to adjudicate his motion. If the
Michigan Court of Appeals failed to issue an order of
superintending control, Petitioner could seek an order of
Lockheed Martin Corp., 431 F.3d 966, 972 n. 5 (6th
Cir. 2005) (citations omitted). Petitioner has also not
provided the Court with a copy of the trial court's order
of probation revocation. superintending control from the
Michigan Supreme Court. M.C.R. 7.303(B)(5); see also
M.C.R. 7.306. Because Petitioner has not sought relief from
the Michigan appellate courts to compel the trial court to
entertain his post-conviction motion, he is not excused from
exhausting his claims in the state courts. See Washington
v. Warden, Ross Corr. Inst., 2003 WL 1867914, at *3
(E.D. Mich. Mar. 21, 2003); see also Wells v.
Marshall, 885 F.Supp. 314, 318 (D. Mass. 1995) (although
his motion for new trial had been pending in the state trial
court for nearly four years, state prisoner was not exempt
from exhaustion requirement for filing a petition for writ of
habeas corpus where he did not seek intervention from the
highest state court to remedy the delay).
Rule of Appellate Procedure 22 provides that an appeal may
not proceed unless a certificate of appealability (COA) is
issued under 28 U.S.C. § 2253. A COA may be issued
“only if the applicant has made a substantial showing
of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). A petitioner must show “that
reasonable jurists could debate whether (or, for that matter,
agree that) the petition should have been resolved in a
different manner or that the issues presented were adequate
to deserve encouragement to proceed further.” Slack
v. McDaniel, 529 U.S. 473, 484 (2000) (internal
quotation and quoting citation omitted).
case, the Court concludes that reasonable jurists would not
debate the Court's conclusion that the petition should be
summarily dismissed without prejudice. Therefore, the Court
denies a certificate of appealability. The Court will also
deny Petitioner permission to proceed on appeal in forma
pauperis because an appeal cannot be taken in good
faith. 28 U.S.C. § 1915(a)(3).
it is ORDERED that Goldman's Motion for