Deering v. Perry

Filing 19

ORDER denying 11 Petitioner's Motion to Proceed Under Federal Statute 28 USC § 2241 by. Signed by District Judge Gerald E. Rosen. (JOwe)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JUWAN DEERING,
Case Number: 2:11-CV-10320

Petitioner,

HONORABLE GERALD E. ROSEN

v.
MITCH PERRY,
Respondent.
/

ORDER DENYING PETITIONER’S MOTION TO PROCEED
UNDER FEDERAL STATUTE 28 U.S.C. § 2241
Petitioner Juwan Deering has filed a pro se petition for a writ of habeas corpus
under 28 U.S.C. § 2254. Now before the Court is Petitioner’s Motion to Proceed Under
Federal Statute 28 U.S.C. § 2241.
Petitioner is a state prisoner challenging a state court criminal conviction. He
properly filed his petition under § 2254, which permits state prisoners to collaterally
attack either the imposition or execution of their sentences. Petitioner now asks that his
petition be considered under § 2241, rather than § 2254 because he believes that
consideration under § 2241 would allow him to evade § 2254's exhaustion requirement.
He also seeks consideration under § 2241 because, he argues, the Court would not be
required to afford the state court’s factual determinations a presumption of correctness as
required under § 2254.
Section 2241 authorizes a district court to grant a writ of habeas corpus if a

petitioner establishes that “[h]e is in custody in violation of the Constitution or laws or
treaties of the United States.” 28 U.S.C. § 2241(c)(3). The Sixth Circuit has suggested
that there is a “serious question whether a state prisoner may proceed under § 2241,”
Allen v. White, 185 Fed. App’x 487, 490 (6th Cir.2006), but, has permitted state prisoners
to proceed under § 2241, subject to the restrictions imposed by § 2254. See Greene v.
Tenn. Dep’t of Corr., 265 F.3d 369, 371 (6th Cir. 2001). Regardless of whether the
petition is deemed filed under § 2254 or § 2241, Petitioner must satisfy the exhaustion
requirement. See Fazzini v. Northeast Ohio Corr. Ctr., 473 F.3d 229, 237 (6th Cir. 2006).
Additionally, when a petition challenges a state court conviction, then the standards set
forth in § 2254, including the presumption of correctness afforded state court factual
findings, apply regardless of how the petitioner characterizes the petition. Rittenberry v.
Morgan, 468 F.3d 331, 333 (6th Cir. 2006) (“When a [state] prisoner begins in the district
court, § 2254 and all associated statutory requirements . . . apply no matter what statutory
label the prisoner has given the case.”). Because § 2254's standards apply to the petition,
and would apply whether Petitioner re-labeled the petition as filed under § 2241, it serves
no purpose to re-label the petition as one filed under § 2241 based upon Petitioner’s
mistaken belief that a different standard would then apply.

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Accordingly, the Court DENIES Petitioner’s Motion to Proceed Under Federal
Statute 28 U.S.C. § 2241.

s/Gerald E. Rosen
Chief Judge, United States District Court
Dated: March 8, 2013
I hereby certify that a copy of the foregoing document was served upon the parties and/or
counsel of record on March 8, 2013, by electronic and/or ordinary mail.
s/Julie Owens
Case Manager

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