Cross v. Department of Corrections, Docket No. 46210

• Decision Date: 03 February 1981
• Docket Number: Docket No. 46210
• Citation: 103 Mich.App. 409,303 N.W.2d 218
• Parties: Lemuel CROSS, Plaintiff-Appellee, v. DEPARTMENT OF CORRECTIONS of the State of Michigan, Defendant-Appellant. 103 Mich.App. 409, 303 N.W.2d 218
• Court: Court of Appeal of Michigan — District of US

Page 218

303 N.W.2d 218

Lemuel CROSS, Plaintiff-Appellee, v. DEPARTMENT OF CORRECTIONS of the State of Michigan Defendant-Appellant.

Docket No. 46210.

103 Mich.App. 409, 303 N.W.2d 218

Court of Appeals of Michigan.

Feb. 3, 1981.

Rehearing Denied March 12, 1981.

Released for Publication March 23, 1981.

[103 MICHAPP 411] J. Peter Lark, Asst. Atty. Gen., for defendant-appellant.

Elliott S. Hall, Detroit, for plaintiff-appellee.

Before T. M. BURNS, P. J., and BEASLEY and DENEWETH, ^* JJ.

[103 MICHAPP 412] T. M. BURNS, Presiding Judge.

In 1977, at a time when he was serving a sentence for bank robbery in a Federal corrections facility, plaintiff Lemuel Cross was convicted of armed robbery by a Michigan court. On April 8, 1977, he was sentenced to a term of six to 20 years for the Michigan conviction. In imposing sentence, the judge stated:

"I'm writing the State prison authorities and I will check, counsel, possibly we'll have to write the Federal authorities. We'll check into that. I'll write to the State prison authorities that it is the intention of this Court that this sentence run concurrent with the Federal sentence; he's to be given credit for 290 days, which will be make this sentence in effect, retroactive to the date of the Federal sentence. It's this Court's desire that the sentence be completely concurrent and when he is done with the Federal sentence, he's not no necessity for him to return to the State of Michigan. He could be placed on Federal probation, court probation, they wouldn't have to place him on probation."

In June, 1978, Cross was released from the custody of the Federal prison authorities and placed on parole. After his release, Cross was taken into the custody of the Michigan Department of Corrections and incarcerated in a state prison.

Cross filed the instant complaint for habeas corpus on May 2, 1979. Cross argued that his continued incarceration in the state prison system was unlawful because it extended the period of imprisonment beyond that specified by the sentencing judge. On June 29, 1979, a hearing was held on Cross's complaint. After reviewing the evidence including a letter from the sentencing judge in which he stated that it was his intention "that the defendant was to be released under the Michigan sentence at the time he was released [103 MICHAPP 413] from the Federal sentence", the Jackson County Circuit Court issued an order on July 16, 1979, instructing the Department of Corrections to release Cross. The defendant Department of Corrections now appeals as of right and we affirm.

We summarily reject the argument of the present defendant that the trial court did not acquire jurisdiction over it because process was not properly served pursuant to GCR 1963, 105. It appears from the record that the defendant filed a general appearance and at no time below raised the issue of improper service. A party who enters a general appearance and contests a cause on its merits submits to the jurisdiction of the court and waives all service of process objections. Wright v. Estate of Treichel, 36 Mich.App. 33, 38, 193 N.W.2d 394 (1971). Further, as is prescribed in GCR 1963, 111.3, objections to improper service must be raised in a party's first responsive pleading. Failure to comply with this court rule constitutes waiver of the objection. Uchwat v. U-Haul Rent-A-Truck, 28 Mich.App. 427, 184 N.W.2d 566 (1970). Thus, this issue has not been preserved for appellate review.

Defendant next argues that it is not the proper party to a habeas corpus suit. We disagree.

Pursuant to statute, the Department of Corrections has jurisdiction over, and authority to control, the activities in penal institutions of this state. M.C.L. § 791.204; M.S.A. § 28.2274. In Green v. Dep't of Corrections, 386 Mich. 459, 192 N.W.2d 491 (1971), the Michigan Supreme Court held that the department has the primary responsibility over the well-being of incarcerated state prisoners whenever such prisoners are held in any penal institution over which the department has jurisdiction. The department has consistently been named [103 MICHAPP 414] a party in habeas corpus proceedings brought by state prisoners and its role in such proceedings has never been challenged by the appellate courts of this state. See, Shadbolt v. Dep't of Corrections, 386 Mich. 232, 191 N.W.2d 344 (1971); Browning v. Dep't of Corrections, 385 Mich. 179, 188 N.W.2d 552 (1971); Elliott v. Dep't of Corrections, 343 Mich. 681, 73 N.W.2d 298 (1955); In re Evans, 18 Mich.App. 426, 171 N.W.2d 499 (1969). Finally, we are not unmindful of the fact that it is the policy of this state that petitions for writs of habeas corpus be liberally construed such that they cannot be disobeyed for any defect of form. See, GCR 1963, 712.11.

We also reject defendant's contention that plaintiff may not test the validity of his incarceration pursuant to an action for a writ of habeas corpus.

Under the provisions of M.C.L. § 600.4307; M.S.A. § 27A.4307, an action for habeas corpus "to inquire into the cause of detention may be brought by or on the behalf of any person restrained of his liberty within this state under any pretense whatsoever, except as specified in section 4310 (M.C.L. § 600.4310; M.S.A. § 27A.4310)". In relevant part, section 4310 states:

"An action for habeas corpus to inquire into the cause of detention may not be brought by or on behalf of the following persons:

"(3) Persons convicted, or in execution, upon legal process, civil or criminal; * * *."

We are not persuaded by defendant's argument that these statutes preclude plaintiff from seeking habeas corpus relief. Rather, as was made evident by this Court in People v. Price, 23 Mich.App. 663, 669, 179 N.W.2d 177 (1970), "(t)his statutory prohibition[103 MICHAPP 415] is generally consonant with often-repeated judicial declarations that habeas corpus cannot serve as a substitute for an appeal and cannot be used to review the merits of a criminal conviction".

Plaintiff, in this case, concedes that he was validly convicted and sentenced, and he does not challenge his conviction or sentence in this appeal. Rather, through this action for habeas corpus he seeks to test the authority of the Department of Corrections to continue his incarceration in light of his argument that he has...