Switek v. Michigan

• Decision Date: 02 November 2021
• Docket Number: Case No. 1:21-cv-12448
• Citation: 587 F.Supp.3d 622
• Parties: Benjamin Allen SWITEK, Petitioner, v. State of MICHIGAN, Respondent.
• Court: U.S. District Court — Eastern District of Michigan

587 F.Supp.3d 622

Benjamin Allen SWITEK, Petitioner,
v.
State of MICHIGAN, Respondent.

Case No. 1:21-cv-12448

United States District Court, E.D. Michigan, Northern Division.

Signed November 2, 2021

587 F.Supp.3d 624

Benjamin A. Switek, Midland, MI, Pro Se.

OPINION AND ORDER DISMISSING WITHOUT PREJUDICE PETITION FOR WRIT OF HABEAS CORPUS AND DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY AND LEAVE TO APPEAL IN FORMA PAUPERIS

THOMAS L. LUDINGTON, United States District Judge

Petitioner Benjamin Allen Switek, confined at the Midland County Jail in Midland, Michigan, seeks a writ of habeas corpus under 28 U.S.C. § 2241.¹ In his pro se petition, Petitioner appears to be challenging his pending criminal prosecution in the Chippewa County Circuit Court for possession of a weapon inside a prison. He contends that, because of that charge, a detainer has been placed on him for the offenses for which he is paroled.² Lastly, he claims that he is at risk of contracting COVID-19 while incarcerated. For the reasons stated hereafter, Petitioner's request for a writ of habeas corpus will be dismissed without prejudice.

I.

A petition for a writ of habeas corpus must present facts that give rise to a federal cause of action, or it may be summarily be dismissed. See Perez v. Hemingway , 157 F. Supp. 2d 790, 796 (E.D. Mich. 2001). Accordingly, Petitioner's habeas petition will be dismissed if it plainly appears from the petition's face or attached exhibits that Petitioner is not entitled to federal habeas relief. McFarland v. Scott , 512 U.S. 849, 856, 114 S.Ct. 2568, 129 L.Ed.2d 666 (1994) ; see Carson v. Burke, 178 F.3d 434, 436 (6th Cir. 1999) ; Rules Governing § 2254 Cases, Rule 4, 28 U.S.C. foll. § 2254.

The Sixth Circuit has long held that it "disapprove[s of] the practice of issuing a show cause order [to the respondent] until after the District Court first has made a careful examination of the petition." Allen v. Perini , 424 F.2d 134, 140 (6th Cir. 1970). To that end, this Court is to screen any habeas corpus petition that lacks merit on its face. Id. at 141.

No return to a habeas petition is necessary when it is frivolous or obviously lacks merit or when the necessary facts can be determined from the petition itself without consideration of a return by the

587 F.Supp.3d 625

state. Id. Instead, a district court may use Rule 4 of the habeas corpus rules to summarily dismiss facially insufficient habeas petitions brought under § 2241. See, e.g. , Perez, 157 F. Supp. 2d at 796 (additional citations omitted).

Petitioner's petition must be dismissed because he has yet to be convicted of any criminal charges in this case. In the absence of "special circumstances," federal habeas relief is not available to review the merits of an affirmative defense to a state criminal charge before the state court issues a judgment of conviction. Braden v. 30th Jud. Cir. Ct. of Ky. , 410 U.S. 484, 489, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973). A state criminal case is ordinarily ripe for federal habeas review only after the defendant has been tried, convicted, sentenced, and has pursued his direct appeals. Allen v. Att'y Gen. of Me. , 80 F.3d 569, 572 (1st Cir. 1996) ; see also Hoard v. Michigan , 2005 WL...