Smith v. Michigan, State of

Filing 7

ORDER DISMISSING CASE Signed by District Judge George Caram Steeh. (PPau)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

SHIEK D. SMITH-EL, Petitioner, v. WARREN C. EVANS, Respondent. _______________________________/ ORDER OF DISMISSAL On April 8, 2009, petitioner Shiek D. Smith-El filed a pro se petition for the writ of habeas corpus. At the time, Petitioner was confined at the Wayne County Jail in Hamtramck, Michigan. The habeas petition appeared to challenge a Wayne County Circuit Court order holding Petitioner in contempt of court for refusing to pay child support. Although a habeas corpus petition is available to challenge a state court's civil contempt order for failure to pay child support, a petitioner must first exhaust state remedies for his claims. Leonard v. Hammond, 804 F.2d 838, 840 (4th Cir. 1986). "It is the petitioner's burden to prove exhaustion." Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994) (citing Darr v. Burford, 339 U.S. 200, 218-19 (1950)). Petitioner has failed to show that he exhausted any state remedies for his claims. Furthermore, he has failed to keep the Court informed of his current address. He paid the filing fee for this action on April 16, 2009, and he applied for appointment of counsel on April 17, 2009. However, a document mailed to Petitioner at the Wayne County Jail in May of 2009 was returned to the Court on July 17, 2009, with the notations "RTS Released" and "Return to CASE NO. 09-11309 HONORABLE GEORGE CARAM STEEH MAGISTRATE JUDGE HLUCHANIUK

Sender. Not Deliverable as addressed. Unable to forward." The Court has not heard from Petitioner for over a year, despite the fact that he apparently is no longer confined in jail. Accordingly, the habeas petition is DISMISSED without prejudice for failure to prosecute, Local Rule 41.2 (E.D. Mich. Mar. 2, 1998), and for failure to exhaust state remedies, 28 U.S.C. § 2254(b)(1). Dated: June 2, 2010 S/George Caram Steeh GEORGE CARAM STEEH UNITED STATES DISTRICT JUDGE
CERTIFICATE OF SERVICE Copies of this Order were served upon attorneys of record on June 2, 2010, by electronic and/or ordinary mail. S/Josephine Chaffee Deputy Clerk

2