United States District Court, E.D. Michigan, Southern Division
OPINION & ORDER DISMISSING THE PETITION FOR A
WRIT OF HABEAS CORPUS WITHOUT PREJUDICE, DENYING A
CERTIFICATE OF APPEALABILITY, & DENYING LEAVE TO PROCEED
IN FORMA PAUPERIS ON APPEAL
V. PARKER U.S. DISTRICT JUDGE
prisoner Christopher Robinson (“Petitioner”) has
filed a pro se petition for a writ of habeas
corpus challenging his recent parole revocation.
Having reviewed the matter, the Court finds that Petitioner
has not exhausted his claims in the state courts before
seeking habeas review in federal court.
the Court is dismissing the petition without prejudice. The
Court also is denying Petitioner a certificate of
appealability and leave to proceed in forma pauperis on
challenges the revocation of his parole. Petitioner states
that, after a parole revocation hearing on November 21, 2019,
he was found guilty of two parole violations for not properly
registering under the Michigan Sex Offender Registry. In the
petition, Petitioner challenges the validity of his arrest on
the parole violation charges, asserts that the sex offender
registration law is being applied retroactively to him, and
alleges a radical jurisdictional defect and a violation of
due process. Petitioner does not indicate that he has pursued
any relief in the Michigan courts.
after the filing of a habeas petition, 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 also 28
U.S.C. § 2243. If, after preliminary consideration, the
Court determines that the petitioner is not entitled to
relief, the Court must summarily dismiss the petition.
Id.; Allen v. Perini, 424 F.2d 134, 141
(6th Cir. 1970) (district court has duty to “screen
out” petitions that lack merit on their face). After
undertaking the review required by Rule 4, the Court
concludes that the habeas petition must be dismissed without
prisoner filing a habeas petition under 28 U.S.C. § 2254
must first exhaust state court remedies. See
O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999)
(“state prisoners must give the state courts one full
fair opportunity to resolve any constitutional issues by
invoking one complete round of the State's established
appellate review process”); Rust v. Zent, 17
F.3d 155, 160 (6th Cir. 1994); 28 U.S.C. § 2254(b), (c).
This holds true for habeas petitions challenging state parole
revocation decisions. See Sneed v. Donahue, 993 F.2d
1239, 1241 (6th Cir. 1993) (noting that petitioner exhausted
state remedies before bringing habeas action challenging
parole revocation); Brewer v. Dahlberg, 942 F.2d
328, 337-39 (6th Cir. 1991) (dismissing challenge to state
parole revocation where state remedies seemed to be
available); Range v. Brewer, No. 2:17-CV-11242, 2017
WL 1549754, *2 (E.D. Mich. May 1, 2017) (citing cases);
accord Brown v. Jackson, No. 1:17-cv-571, 2017 WL
3140902, *3 (W.D. Mich. July 25, 2017).
satisfy the exhaustion requirement, the claims must be
“fairly presented” to the state courts, meaning
that the petitioner must have raised both the factual and
legal bases for the claims in the state courts. McMeans
v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000); see
also Williams v. Anderson, 460 F.3d 789, 806 (6th Cir.
2006) (citing McMeans). The claims must be presented
as federal constitutional issues. Koontz v. Glossa,
731 F.2d 365, 368 (6th Cir. 1984). For a Michigan prisoner,
each claim must also be raised before the Michigan Court of
Appeals and the Michigan Supreme Court to satisfy the
exhaustion requirement. Wagner v. Smith, 581 F.3d
410, 414 (6th Cir. 2009) (citing Hafley v. Sowders,
902 F.2d 480, 483 (6th Cir. 1990)). While the exhaustion
requirement is not jurisdictional, a “strong
presumption” exists that a petitioner must exhaust
available state remedies before seeking federal review.
Granberry v. Greer, 481 U.S. 129, 131, 134-35
(1987); Wagner, 581 F.3d at 415 (citing Harris
v. Lafler, 553 F.3d 1028, 1031 (6th Cir. 2009)). The
burden is on the petitioner to prove exhaustion.
Rust, 17 F.3d at 160.
neither alleges nor establishes that he exhausted his parole
revocation claims in the state courts before proceeding on
habeas review in federal court. His pleadings do not reflect
any attempt to exhaust state court remedies. Petitioner,
however, has available remedies by which to exhaust his
parole revocation claims in the state courts. Michigan's
Administrative Procedures Act, Mich. Comp. Laws § 24.201
et seq., provides an inmate whose parole has been
revoked with the right to seek judicial review of the Parole
Board's decision in the state circuit court. Penn v.
Department of Corr., 532, 298 N.W.2d 756 (Mich. Ct. App.
1980). This must be done within 60 days of the parole
revocation. The circuit court decision is appealable in the
Michigan Court of Appeals and the Michigan Supreme Court.
Mich. Ct. R. 7.205, 7.302. Petitioner may also file a
complaint for a writ of habeas corpus in the appropriate
state circuit court. See Mich. Comp. Laws §
600.4301 et seq., Mich. Ct. R. 3.303; Hinton v. Michigan
Parole Bd., 383 N.W.2d 626 (Mich. Ct. App. 1986);
Triplett v. Deputy Warden, 371 N.W.2d 862 (Mich. Ct.
App. 1985); see also Caley v. Hudson, 759 F.Supp.
378, 380-81 (E.D. Mich. 1991). While the denial of such a
writ is not appealable by right, the petition may be renewed
by filing an original complaint for writ of habeas corpus
with the Michigan Court of Appeals. Id. The Michigan
Court of Appeals' denial of such a complaint is subject
to review by the Michigan Supreme Court. Mich. Ct. R. 7.301.
There is no time limit for filing a state habeas complaint as
long as the petitioner is in custody when the judgment
becomes effective. Triplett, 142 Mich.App. at 779.
Petitioner fails to show that he exhausted available state
court remedies before seeking federal habeas review, his
habeas claims are premature and this case must be dismissed.
reasons stated, the Court concludes that Petitioner fails to
establish that he exhausted his habeas claims in the state
courts before proceeding on federal habeas review.
Accordingly, the Court is dismissing his petition without
prejudice. The Court makes no determination as to the merits
of Petitioner's claims.
Petitioner may appeal this decision, a certificate of
appealability must issue. See 28 U.S.C. §
2253(c)(1)(a); Fed. R. App. P. 22(b). A certificate of
appealability may issue only if the petitioner makes a
“substantial showing of the denial of a constitutional
right. 28 U.S.C. § 2253(c)(2). When a federal district
court denies relief on procedural grounds without addressing
the merits, a certificate of appealability should issue if it
is shown that jurists of reason would find it debatable
whether the petitioner states a valid claim of the denial of
a constitutional right, and that jurists of reason would find
it debatable whether the court was correct in its procedural
ruling. Slack v. McDaniel, ...