McCrory v. Donnellon

Filing 8

OPINION and ORDER re 1 dismissing Petition for Writ of Habeas Corpus; denying certificate of appealability and denying leave to proceed in forma pauperis. Signed by District Judge Nancy G. Edmunds. (CBet)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ANTHONY MCCRORY,
Petitioner,
CASE NO. 2:16-CV-10137
HONORABLE NANCY G. EDMUNDS

v.
TIM DONNELLON,
Respondent.
_____________________________/

OPINION AND ORDER DISMISSING THE PETITION FOR A WRIT OF
HABEAS CORPUS, DENYING A CERTIFICATE OF APPEALABILITY,
& DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
I.

Introduction
Anthony McCrory (“Petitioner”), an inmate at the St. Clair County Jail currently

awaiting re-trial on an aggravated stalking charge in the St. Clair County Circuit Court, has
filed a pro se petition challenging his state criminal proceedings, which the Court construes
as a petition for a writ of habeas corpus under 28 U.S.C. §§ 2254 and/or 2241.1 In his
petition, which is rambling and difficult to read, he appears to challenge his prior state
criminal proceedings and his pending, ongoing state prosecution.2
1

Petitions filed by state prisoners challenging their convictions and sentences are
brought pursuant to §2254 and petitions filed by state pre-trial detainees are brought
pursuant to § 2241. See Phillips v. Court of Common Pleas, Hamilton Co., 668 F.3d
804 (6th Cir. 2012) (citing cases).
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To the extent that Petitioner may seek to pursue civil rights claims, he must
bring them in a properly-filed civil rights action. The requirements for pursuing a civil
rights action in federal court differ from those in a habeas proceeding, including the
payment of a $350.00 filing fee with a $50.00 administrative fee for a civil rights action
versus a $5.00 filing fee for a habeas action. Petitioner may not circumvent those
requirements by filing a joint or hybrid action. Accordingly, the Court declines to
construe any part of his current petition in such a manner.

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 also 28 U.S.C. § 2243. If,
after preliminary consideration, the Court determines that the petitioner is not entitled to
relief, the Court must summarily dismiss the petition. Id.; Allen v. Perini, 424 F.2d 134, 141
(6th Cir. 1970) (district court has the duty to “screen out” petitions that lack merit on their
face). 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.
See 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 habeas petition must be dismissed.
II.

Discussion
A.

Prior Proceedings

As an initial matter, Petitioner seems to challenge his prior state trial and sentencing
proceedings. To the extent that he does so, any such claims must be dismissed as moot.
Article III, § 2 of the United States Constitution requires the existence of a case or
controversy through all stages of federal judicial proceedings. This means that, throughout
the litigation, the petitioner “must have suffered, or be threatened with, an actual injury
traceable to the defendant and likely to be redressed by a favorable judicial decision.”
Lewis v. Cont'l Bank Corp., 494 U.S. 472, 477 (1990). If an event occurs which deprives
a court of the ability to provide meaningful relief, the case becomes moot and is subject to
dismissal. Ailor v. City of Maynardville, 368 F.3d 587, 596 (6th Cir. 2004). Similarly, a
claim for habeas relief becomes moot when the controversy between the parties is no
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longer alive because the party seeking relief has obtained the relief requested. See, e.g.,
Picron–Peron v. Rison, 930 F.2d 773, 776 (9th Cir. 1991) (a claim is moot when the court
no longer has power to grant the requested relief); Johnson v. Riveland, 855 F.2d 1477,
1479-80 (10th Cir. 1998). “Mootness is a jurisdictional question because the Court is not
empowered to decide moot questions or abstract propositions.” North Carolina v. Rice, 404
U.S. 244, 246 (1971) (internal quotations omitted).
In this case, any claims concerning Petitioner’s prior aggravated stalking trial and
sentencing are moot because his aggravated stalking conviction and sentence were
reversed by the Michigan Court of Appeals, see People v. McCrory, No. 311205, 2015 WL
5567973 (Mich. Ct. App. Sept. 22, 2015), and he is awaiting a competency evaluation and
retrial in the state trial court. See St. Clair Cir. Ct. Dkt., Case No. 11-002928-FH. There
is no additional relief that this Court could grant. Any claims concerning Petitioner’s prior
criminal proceedings are therefore moot and must be dismissed.
B.

Pending, Ongoing Prosecution

Petitioner also seems to challenge his pending, ongoing state criminal prosecution.
A petitioner may bring a habeas action in federal court to demand enforcement of the
state’s affirmative constitutional obligation to bring him promptly to trial, but may not
generally seek habeas relief to forestall state prosecution altogether. See Braden v. 30th
Judicial Cir. Ct. of Kentucky, 410 U.S. 484, 489-91 (1973); Capps v. Sullivan, 13 F.3d 350,
354 (10th Cir. 1993). Although 28 U.S.C. § 2241 establishes jurisdiction in the federal
courts to consider pretrial habeas corpus petitions, the courts should abstain from the
exercise of that jurisdiction if the issues raised in the petition may be resolved either by trial
on the merits in the state courts or by other state procedures available to the petitioner.
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See Atkins v. People of the State of Michigan, 644 F.2d 543, 546 (6th Cir. 1981).
Principles of comity and federalism require federal courts to abstain from deciding preconviction habeas challenges unless the petitioner demonstrates that:

(1) he has

exhausted available state court remedies, and (2) “special circumstances” warrant federal
intervention. Martin-Trigona v. Shiff, 702 F.2d 380, 388 (2d Cir. 1983); Carden v. Montana,
626 F.2d 82, 83-84 (9th Cir. 1980); see also Urquhart v. Brown, 205 U.S. 179, 182 (1907)
(a federal court may “sometimes appropriately interfere by habeas corpus in advance of
final action by the authorities of the State,” but such cases are “exceptional” and of “great
urgency”); Bronston v. Sabbatine, 12 F.3d 211, 1993 WL 473792, *1 (6th Cir. 1993)
(unpublished).
Petitioner makes no such showing. To the extent that he seeks dismissal of his
pending state criminal charge and release from custody, federal habeas relief is
unavailable. See Braden, 410 U.S. at 493. To the extent that he seeks some other type
of relief, he fails to show that he has exhausted available state court remedies or that
special circumstances warrant pre-trial federal intervention. The Court is aware of few
exceptions to this abstention doctrine and those exceptions seems to be limited to speedy
trial claims, Braden, supra, double jeopardy claims, Delk v. Atkinson, 665 F.3d 90, 94 (6th
Cir. 1981); Gully v. Kunzman, 592 F.2d 283, 286-87 (6th Cir. 1979), and perhaps cases of
“proven harassment or prosecution undertaken by state officials in bad faith without hope
of obtaining a valid conviction....” Perez v. Ledesma, 401 U.S. 82, 85 (1971). Should
Petitioner be convicted at trial, he can pursue a direct appeal in the state courts and then
seek federal habeas review as necessary. Should Petitioner be acquitted at trial, his issues
will be moot. The instant petition is therefore premature and must be dismissed.

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Moreover, to the extent that Petitioner raises a double jeopardy claim as to his
ongoing prosecution and retrial on the aggravated stalking charge, his claim lacks merit.
The Fifth Amendment’s Double Jeopardy Clause, applicable to the states through the Due
Process Clause of the Fourteenth Amendment, Benton v. Maryland, 395 U.S. 784, 787
(1969), “protects a criminal defendant from repeated prosecutions for the same offense.”
Oregon v. Kennedy, 456 U.S. 667, 671 (1982). It is well-established, however, that “the
Double Jeopardy Clause’s general prohibition against successive prosecutions does not
prevent the government from retrying a defendant who succeeds in getting his first
conviction set aside, through direct appeal or collateral attack, because of some error in the
proceedings leading to conviction.” Lockhart v. Nelson, 488 U.S. 33, 38 (1988); see also
North Carolina v. Pearce, 395 U.S. 711, 720 (1969) (citing United States v. Ball, 163 U.S.
662 (1896)). Petitioner’s double jeopardy claim thus lacks merit and does not warrant
federal habeas relief.
III.

Conclusion
For the reasons stated, the Court concludes that Petitioner’s challenge to his prior

criminal proceedings is moot, that his challenge to his pending, ongoing state criminal
prosecution is premature, and that his double jeopardy claim lacks merit. His habeas
petition must therefore be dismissed.
Before Petitioner may appeal the Court’s decision, a certificate of appealability must
issue. See 28 U.S.C. § 2253(c)(1)(a); Fed. R. App. P. 22(b). 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). When a federal court denies a habeas claim
on the merits, the substantial showing threshold is met if the petitioner demonstrates that
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reasonable jurists would find the court’s assessment of the constitutional claim debatable
or wrong. Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). When a federal court denies
a habeas claim on procedural grounds without addressing the merits, a certificate of
appealability should issue if it is shown that jurists of reason would find it debatable whether
the petitioner states a valid claim of the denial of a constitutional right, and that jurists of
reason would find it debatable whether the court was correct in its procedural ruling. Id.
The Court concludes that reasonable jurists would not find its procedural ruling debatable
and that Petitioner fails to make a substantial showing of the denial of a constitutional right.
A certificate of appealability is not warranted. The Court further concludes that Petitioner
should not be granted leave to proceed in forma pauperis on appeal as an appeal cannot
be taken in good faith. See Fed. R. App. P. 24(a).
Accordingly, the Court DISMISSES WITHOUT PREJUDICE the petition for a writ
of habeas corpus and DENIES a certificate of appealability and leave to proceed in forma
pauperis on appeal.
IT IS SO ORDERED.

s/ Nancy G. Edmunds
NANCY G. EDMUNDS
UNITED STATES DISTRICT JUDGE
Dated: March 9, 2016

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