Moses v. Department of Corrections, Docket No. 262970.

• Citation: 274 Mich. App. 481,736 N.W.2d 269
• Decision Date: 01 March 2007
• Docket Number: Docket No. 262970.
• Parties: Scott William MOSES, Plaintiff-Appellant, v. DEPARTMENT OF CORRECTIONS and People of the State of Michigan, Defendants-Appellees.
• Court: Court of Appeal of Michigan (US)

736 N.W.2d 269

274 Mich. App. 481

Scott William MOSES, Plaintiff-Appellant, v. DEPARTMENT OF CORRECTIONS and People of the State of Michigan, Defendants-Appellees.

Docket No. 262970.

Court of Appeals of Michigan.

Submitted December 4, 2006, at Lansing.

Decided March 1, 2007, at 9:05 a.m.

Released for Publication June 21, 2007.

William L. Antrobius, Mt. Pleasant, for Scott W. Moses.

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, and Chester S. Sugierski, Jr., Assistant Attorney General, for the Department of Corrections.

Larry J. Burdick, Prosecuting Attorney, and Risa Scully, Senior Assistant Prosecuting Attorney, for the people.

Before: MARKEY, P.J., and SAAD and WILDER, JJ.

PER CURIAM.

In this habeas corpus proceeding, plaintiff challenges the jurisdiction of the Isabella Circuit Court with respect to his conviction of third-degree criminal sexual conduct (CSC), MCL 750.520d(1)(b), because he contends the offense occurred in "Indian country" as that term is defined in 18 USC 1151. Plaintiff asserts that because he is an enrolled member of the Saginaw Chippewa Tribe, and because the offense occurred within the exterior boundaries of the Isabella Indian Reservation as determined by the treaties of August 2, 1855, and October 18, 1864, between the United States and the Chippewa of Saginaw, Swan Creek, and Black River, the jurisdiction over the CSC offense was exclusively federal or tribal. First, we conclude that habeas corpus is an available remedy to assert a radical defect in the circuit court's jurisdiction. Second, we deny plaintiff relief because the offense occurred on so-called "swampland" patented by the United States to the state of Michigan before the treaties of 1855 and 1864; consequently, the situs of the CSC offense was not "Indian country." See People v. Bennett, 195 Mich.App. 455, 491 N.W.2d 866 (1992).

I. Facts and Procedural History

This action arises out of plaintiff's November 28, 2001, no-contest plea to one count of third-degree CSC, pursuant to a plea agreement, before the Isabella Circuit Court. The court used a Michigan State Police report offered by the prosecutor to find a factual basis for the plea. The parties agree that the CSC offense occurred in October 2001, at the home that the complainant and plaintiff shared at 3560 N. Johnson Road in Isabella County.¹ The parties further agree that this location is within the exterior boundaries of the Isabella Reservation according to the treaties of 1855 and 1864, consisting of five townships and the north half of two other townships, all contiguous and situated in Isabella County. In addition, plaintiff concedes this location is on "swampland" that the United States patented² to the state of Michigan pursuant to the Swamp Land Act of September 28, 1850, 43 USC 982. Plaintiff was sentenced on April 11, 2002, to 110 months to 15 years' imprisonment.

On February 7, 2005, while serving his prison sentence at the Saginaw Correctional Facility, plaintiff filed an action for a writ of habeas corpus against the Saginaw Correctional Facility's warden in the Saginaw Circuit Court. Plaintiff argued that he should be released from prison because the state of Michigan lacked jurisdiction to prosecute him because (1) he was an enrolled member of the Saginaw Chippewa Indian Tribe at the time of the offense, and (2) the offense occurred on the Isabella Indian Reservation. He also argued that various federal constitutional rights were violated when he was arrested pursuant to a warrant that lacked probable cause on the matter of jurisdiction and prosecuted in a forum that had no jurisdiction. The Attorney General's office argued that the petition should be dismissed because, in substance, plaintiff was seeking judicial review of his conviction and sentence, which took place in the Isabella Circuit Court, and neither the warden nor the Department of Corrections (DOC) is a proper party to an appeal of a criminal conviction.

On April 15, 2005, the Saginaw Circuit Court dismissed plaintiff's petition for lack of jurisdiction. Plaintiff thereafter filed an appeal by right with this Court in Docket No. 262589, which was dismissed for lack of jurisdiction on June 15, 2005, because the April 15, 2005, order was not subject to appeal by right. On May 27, 2005, plaintiff filed an original complaint for habeas relief with this Court. On October 17, 2005, this Court entered an order granting the complaint for a writ of habeas corpus and ordering the parties to "proceed to a full hearing on the merits in the same manner as an appeal of right." On February 22, 2006, this Court entered an order granting the Isabella County prosecutor's motion to join this action as a party defendant.

II. Standard of Review

A prisoner's right to file a complaint for habeas corpus relief is guaranteed by Const 1963, art 1, § 12. Morales v. Parole Bd., 260 Mich.App. 29, 40, 676 N.W.2d 221 (2003). Also, this Court has jurisdiction to entertain an action for habeas corpus to inquire into the cause of detention where, as here, the judge in the county where the prisoner was detained refuses to issue the writ. MCL 600.4304(2); MCR 3.303(A)(2); MCR 7.203(C)(3). To the extent that they do not conflict with MCR 7.206, the rules in MCR 3.303 apply to the action. MCR 7.206(B). Where this Court orders a full hearing on the merits, it may do so "with or without referral to a judicial circuit or tribunal or agency for the taking of proofs and report of factual findings." MCR 7.206(D)(3). The use of a fact-finder is appropriate when there are disputed facts. Durant v. State Bd. of Ed., 424 Mich. 364, 394, 381 N.W.2d 662 (1985).

We review de novo questions of law, including the interpretation of a statute or treaty. Jones v. Dep't of Corrections, 468 Mich. 646, 651, 664 N.W.2d 717 (2003); People v. Mackle, 241 Mich.App. 583, 590, 617 N.W.2d 339 (2000).

III. Analysis

As a threshold matter, we reject the DOC's argument that it is not a proper party to this proceeding. Under MCR 3.303(J), the "writ or order may designate the person to whom it is directed as the person having custody of the prisoner." Further, the DOC has "consistently been named as 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." Cross v. Dep't of Corrections, 103 Mich.App. 409, 413-414, 303 N.W.2d 218 (1981). The DOC's reliance on MCL 600.4310 is misplaced because that statute does not identify the proper defendant, but rather identifies persons who may not bring an action for a writ of habeas corpus.

The object of the writ of habeas corpus is "to determine the legality of the restraint under which a person is held." Phillips v. Warden, State Prison of Southern Michigan, 153 Mich.App. 557, 565, 396 N.W.2d 482 (1986). The writ of habeas corpus deals with radical defects that render a judgment or proceeding absolutely void. Hinton v. Parole Bd., 148 Mich.App. 235, 244-245, 383 N.W.2d 626 (1986). In general, MCL 600.4310(3) prohibits habeas corpus relief to "[p]ersons convicted, or in execution, upon legal process, civil or criminal." But relief "is open to a convicted person in one narrow instance, . . . where the convicting court was without jurisdiction to try the defendant for the crime in question." People v. Price, 23 Mich.App. 663, 669-670, 179 N.W.2d 177 (1970). Moreover, to qualify for habeas corpus relief the jurisdictional defect must be radical, rendering the conviction absolutely void. Id. at 670, 179 N.W.2d 177. "A radical defect in jurisdiction contemplates . . . an act or omission by state authorities that clearly contravenes an express legal requirement in existence at the time of the act or omission." Id. at 671, 179 N.W.2d 177. Nevertheless, habeas relief may be denied in the exercise of a court's discretion where full relief may be obtained in other more appropriate proceedings. See Phillips, supra at 566, 396 N.W.2d 482; see also Jones, supra at 658, 664 N.W.2d 717 (order of mandamus, rather than writ of habeas corpus, was the proper remedy for the DOC's failure to conduct a timely fact-finding hearing on parole violation charges). Thus, while plaintiff may not use a habeas proceeding as a substitute for an appeal or to review the merits of his criminal conviction, plaintiff may assert a radical defect in the jurisdiction of the court in which his conviction was obtained. MCL 600.4310(3); Price, supra at 669-670, 179 N.W.2d 177.

Here, habeas relief requiring the DOC to release plaintiff might be appropriate because plaintiff raises a jurisdictional challenge to the authority of the state to prosecute him in any state court. Plaintiff did not waive his right to raise a jurisdictional challenge to his conviction by his no-contest plea in the Isabella Circuit Court because the claim implicates the very authority of the state to bring him to trial. See People v. New, 427 Mich. 482, 491, 398 N.W.2d 358 (1986). Further, this Court's granting the prosecutor's motion to join this case as a defendant has resolved the DOC's concern that the Isabella County prosecutor is the proper party.

Plaintiff argues that the swampland where the crime occurred is "Indian country," as defined in 18 USC 1151. That statute defines "Indian country" in relevant part as "all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation." 18 USC 1151(a). Plaintiff relies on the phrase "notwithstanding the issuance of any patent" to argue that any "swampland" patents of reservation land as established by the treaties of 1855 and 1864 are irrelevant to the determination of "the limits" of the Isabella Indian Reservation. Plaintiff further argues that excluding swampland from the reservation is contrary to the canons of construing Indian treaties,...