Smith v. Michigan Dep't of Corr. Parole Bd.
| Decision Date | 13 August 2012 |
| Docket Number | Case No. 1:12-cv-515 |
| Parties | NATHANIEL SMITH, Petitioner, v. MICHIGAN DEPARTMENT OF CORRECTIONS PAROLE BOARD et al., Respondents. |
| Court | U.S. District Court — Western District of Michigan |
Honorable Gordon J. Quist
This is a habeas corpus action brought by a state prisoner pursuant to 28 U.S.C. § 2254. Petitioner has paid the filing fee. Promptly after the filing of a petition for habeas corpus, 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 28 U.S.C. § 2243. If so, the petition must be summarily dismissed. Rule 4; see Allen v. Perini, 424 F.2d 134, 141 (6th Cir. 1970) (). A dismissal under Rule 4 includes those petitions which raise legally frivolous claims, as well as those containing factual allegations that are palpably incredible or false. Carson v. Burke, 178 F.3d 434, 436-37 (6th Cir. 1999). After undertaking the review required by Rule 4, the Court concludes that the petition must be dismissed because Petitioner has not exhausted available remedies and it does not raise a meritorious claim.
Petitioner Nathaniel Smith is incarcerated with the Michigan Department of Corrections (MDOC) at the Carson City Correctional Facility. On February 26, 2004, Petitioner was sentenced in Van Buren County Circuit Court to a term of 23 months to 14 years for uttering and publishing, Mich. Comp. Laws § 750.249. On August 14, 2005, Michigan authorities released him on parole to the State of Illinois under an interstate corrections compact. On May 1, 2006, while he was in Illinois, he was arrested on a charge of "possession" and for violating his parole. (Br. in Supp. of Pet., docket #1, Page ID#8.) On June 1, 2006, the "possession" charge was dismissed nolle prosequi, but Petitioner remained in custody because of a warrant for his arrest in connection with the parole violation. (Id.)
On July 6, Petitioner contested extradition to Michigan, and an Illinois court held an extradition hearing to determine whether Petitioner should be turned over to Michigan authorities. Michigan authorities failed to act on the extradition inquiry, so Petitioner was released from custody. Petitioner subsequently reported to the Illinois Department of Corrections and Parole, and it discharged Petitioner "from parole and the underlying sentence." (Id.) Petitioner contends that Michigan parole authorities had knowledge of his whereabouts in June 2006, but "failed to comply with an extradition order and proceed with reasonable diligence to 'issue and execute' a warrant" for his arrest. (Id.)
Petitioner was arrested by Michigan authorities on November 27, 2006. He received an "informal" parole-violation hearing on January 29, 2007. After the hearing, his parole was revoked and he returned to prison in Michigan to continue serving his sentence for uttering and publishing.
Petitioner asserts that his present incarceration is "ILLEGAL" because:
a) Petitioner is in custody in violation to United States Constitution of Laws, b) Said restraint places an atypical and significant hardship on Petitioner in respect to ordinary incidents of prison life, c) After Petitioner was criminally charged while in State of Illinois on parole and charges were subsequently dismissed . . . Michigan parole authorities failed to act on a custody request for extradition to State of Michigan for violation of parole, d) After Michigan parole authorities failed to act on said custody request for Petitioner's extradition to State of Michigan, the Michigan parole authorities waived jurisdiction over Petitioner and he was subsequently released from Cook County Jail then discharged by Illinois parole authorities from parole and sentence, and e) Michigan authorities were not authorized by any laws or MDOC policies to re-start Petitioner's sentence- subjecting Petitioner to further confinement.
(Pet., docket #1, Page ID#2.) In his brief in support of the petition, he also asserts that he is in custody in violation of the "Interstate Compact for Adult Offender Supervision," Mich. Comp. Laws § 3.1011 et seq. (), and the right to due process under the Fourteenth Amendment. (Br. in Supp. of Pet. 1, docket #1, Page ID#10.)
Before a court may grant habeas relief to a state prisoner, the prisoner must exhaust remedies available in the state courts. 28 U.S.C. § 2254(b)(1); O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). Exhaustion requires a petitioner to "fairly present" federal claims so that 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; Picard v. Connor, 404 U.S. 270, 275-77 (1971) (). To fulfill the exhaustion requirement, a petitioner must have fairly presented his federal claims to all levels of the state appellate system, including the state's highest court. Duncan, 513 U.S. at 365-66; Silverburg v. Evitts, 993 F.2d 124, 126 (6th Cir. 1993); Hafley v. Sowders, 902 F.2d480, 483 (6th Cir. 1990). "[S]tate prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process." O'Sullivan, 526 U.S. at 845. The district court can and must raise the exhaustion issue sua sponte, when it clearly appears that habeas claims have not been presented to the state courts. See Prather v. Rees, 822 F.2d 1418, 1422 (6th Cir. 1987); Allen v. Perini, 424 F.2d 134, 138-39 (6th Cir. 1970). Petitioner bears the burden of showing exhaustion. See Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994). A federal habeas court will require exhaustion only if there is some "reasonable probability" that a state remedy is available. Witzke v. Withrow, 702 F. Supp. 1338, 1349 (W.D. Mich. 1988) (citing Powell v. Wyrick, 657 F.2d 222, 224 (8th Cir. 1981)).
It appears that Petitioner has not exhausted remedies available to him. Petitioner asserts that "he was and is not required to exhaust state remedies" because state remedies are not available. (Br. in Supp. of Pet., Page ID#13.) To the contrary, Petitioner may be able to challenge the revocation of his parole by filing a complaint for writ of habeas corpus in the appropriate state circuit court. See Mich. Comp. Laws § 600.4301 et seq.; Triplett v. Deputy Warden, 371 N.W.2d 862, 865 (Mich. Ct. App. 1985). Although 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. Denial of such a complaint by the Michigan Court of Appeals is subject to review by the Michigan Supreme Court. See Mich. Ct. R. 7.301.
Petitioner cites Mich. Comp. Laws § 600.4310, which prohibits habeas corpus relief to "[p]ersons convicted, or in execution, upon legal process, civil or criminal." Id. at § 600.4310(3). Petitioner falls in the prohibited category, but there is an exception for claims raising a "radical defect in jurisdiction," i.e., "'an act or omission by state authorities that clearly contravenes an express legal requirement in existence at the time of the act or omission.'" Moses v. Dep't of Corr.,736 N.W.2d 269, 273 (Mich. Ct. App. 2007) (quoting People v. Price, 179 N.W.2d 177, 180 (Mich. Ct. App. 1970)). Indeed, Michigan courts have reviewed state habeas petitions raising claims similar to Petitioner's. See, e.g., Kenney v. Booker,No. 304900, 2012 WL 1109047, at **2-3 (Mich. Ct. App. Apr. 3, 2012) (); Wem v. Dep't of Corr., No. 297618, 2011 WL 2651858, at *4 (Mich. Ct. App. July 7, 2011) ().
Petitioner also cites Jackson v. Jamrog, 411 F.3d 615 (6th Cir. 2005), in which the Sixth Circuit determined that state remedies were not available to a Michigan prisoner challenging the denial of his parole. Id. at 618. As noted by the court in Jackson, the Michigan Court of Appeals has held that "an appeal from the denial of parole is 'not allowed under the [Revised Judicature Act, Mich. Comp. Laws § 600.631].'" Id. (quoting Morales v. Mich. Parole Bd., 676 N.W.2d 221, 225 (Mich. Ct. App. 2003)). The finding in Jackson is not applicable to Petitioner's case, however, because Petitioner does not challenge a denial of parole. Instead, he challenges the revocation of his parole, which may be reviewable in a state habeas petition.
In light of the foregoing, it appears that there is a means for Petitioner to present his claims in state court. Consequently, Petitioner's claims are subject to dismissal because they are not exhausted.
Alternatively, even if Petitioner's claims are exhausted, the petition is subject to dismissal because it fails to raise a meritorious habeas claim.
Petitioner claims that Michigan authorities arrested him in violation of the Interstate Compact for Adult Offender Supervision, Mich. Comp. Laws § 3.1011 et seq. He also claims that his arrest and subsequent incarceration were unlawful because he was released by Illinois parole authorities after Michigan authorities waived jurisdiction over him.
First, the Illinois Parole Board did not have power to release Petitioner from his Michigan sentence. The authority to discharge a Michigan...
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