Childress v. Booker

Filing 11

ORDER GRANTING CERTIFICATE OF APPEALABILITY Signed by District Judge Lawrence P. Zatkoff. (MVer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ROBERT LEE CHILDRESS, JR.,
Case Number: 2:12-CV-14284

Petitioner,
v.

HON. LAWRENCE P. ZATKOFF

RAYMOND BOOKER,
Respondent.
/
ORDER GRANTING CERTIFICATE OF APPEALABILITY
Petitioner Robert Lee Childress, Jr., a state inmate presently incarcerated at the Muskegon
Correctional Facility in Muskegon, Michigan, filed a pro se petition for a writ of habeas corpus
under 28 U.S.C. § 2241. Petitioner is serving two concurrent state sentences. Upon completion of
his state sentences, he will be released to federal custody to serve a 36-month term of imprisonment
for violation of the terms of his supervised release. In his petition, he argued that his Federal
sentence should run concurrently with his state court sentences. The Court dismissed the petition
without prejudice because Childress did not comply with the exhaustion requirement.
Petitioner has filed a notice of appeal. The Sixth Circuit Court of Appeals will not proceed
with Petitioner’s appeal until this Court rules on a certificate of appealability. The Court did not rule
on a certificate of appealability (COA) at the time it dismissed the petition because, generally, a
prisoner need not obtain a certificate of appealability for appeals from denials of relief in cases
properly brought under § 2241, that are not challenging state court proceedings. Witham v. United
States, 355 F.3d 501, 504 (6th Cir. 2004). See also Greene v. Tennessee Dep’t of Corrections, 265
F.3d 369, 371 (6th Cir. 2001) (a state prisoner must obtain a COA to appeal the denial of a habeas

petition filed under § 2241 “‘whenever the detention complained of . . . arises out of process issued
by a state court.’”) quoting 28 U.S.C. § 2253(c)(1)(a). Nevertheless, because it appears that the
Sixth Circuit Court of Appeals awaits a COA ruling, the Court will address this issue.
A certificate of appealability may issue “only if the applicant has made a substantial showing
of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Courts must either issue a certificate
of appealability indicating which issues satisfy the required showing or provide reasons why such
a certificate should not issue. 28 U.S.C. § 2253(c)(3); Fed. R. App. P. 22(b); In re Certificates of
Appealability, 106 F.3d 1306, 1307 (6th Cir. 1997). To receive a certificate of appealability, “a
petitioner must show that reasonable jurists could debate whether (or, for that matter, agree that) the
petition should have been resolved in a different manner or that the issues presented were adequate
to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S. Ct.
1029, 154 L. Ed.2d 931 (2003) (internal quotes and citations omitted).
The Court summarily dismissed the petition without prejudice on November 20, 2012,
because Petitioner, who challenged the execution of his Federal sentence, failed to exhaust
administrative remedies prior to filing his petition. Recently, the Sixth Circuit Court of Appeals
held that exhaustion in the context of a § 2241 petition is an affirmative defense and may not form
the basis for dismissing a petition at the screening stage. Luedtke v. Berkebile, __ F.3d __, 2013 WL
163649, * 1 (6th Cir. Jan. 16, 2013). Given the recent Luedtke decision, the Court finds reasonable
jurists could debate whether the petition was properly dismissed for failure to satisfy the exhaustion
requirement.

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Accordingly, the Court GRANTS a certificate of appealability for the question whether the
petition was properly dismissed for failure to exhaust administrative remedies.
IT IS SO ORDERED.

S/Lawrence P. Zatkoff
HON. LAWRENCE P. ZATKOFF
UNITED STATES DISTRICT JUDGE
Dated: February 5, 2013

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