Laury v. Kolanowski

Filing 3

OPINION and ORDER Denying 1 Petition for Writ of Habeas Corpus and Denying Certificate of Appealability. Signed by District Judge Sean F. Cox. (JMcC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

DARRIN LAURY,
Case Number: 2:16-11433
HONORABLE SEAN F. COX

Petitioner,
v.
GERALD KOLANOWSKI,
Respondent.
/

OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS
CORPUS AND DENYING CERTIFICATE OF APPEALABILITY
Petitioner Darrin Laury has filed a petition for a writ of habeas corpus under 28
U.S.C. § 2254. He is presently housed at the Caro Center, a mental health facility
operated by the State of Michigan. It is difficult to discern the conviction(s) challenged in
this pro se petition. Petitioner references a 2015 domestic violence case, but indicates
that he was acquitted of that charge. Petitioner also references a 2015 probate court
proceeding. The Court dismisses the petition without prejudice because the Court cannot
discern the conviction(s) challenged and, to the extent the petition challenges one of the
two referenced 2015 proceedings, those claims are unexhausted.
I.
Upon the filing of a habeas corpus petition, the Court must promptly examine the
petition to determine “if it plainly appears from the face of the petition and any exhibits
annexed to it that the petitioner is not entitled to relief.” Rule 4, Rules Governing Section

2254 cases. If the Court determines that the petitioner is not entitled to relief, the Court
shall summarily dismiss the petition. McFarland v. Scott, 512 U.S. 849, 856 (1994)
(“Federal courts are authorized to dismiss summarily any habeas petition that appears
legally insufficient on its face.”).
Petitioner fails to clearly identify the conviction(s) challenged, listing two case
numbers in the space provided for identifying the challenged judgment of conviction.
Petition ¶ 1. One of those cases resulted in an acquittal. Petition ¶ 6(b). The Court will
not guess what conviction(s) Petitioner challenges. The petition is subject to dismissal on
that basis.
Moreover, Petitioner fails to show exhaustion of state court remedies. A federal
court may not grant habeas corpus relief to a state prisoner unless the prisoner first
exhausts his remedies in state court. O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999).
“Ordinarily, the state courts must have had the opportunity to pass on defendant’s claims
of constitutional violations.” Prather v. Rees, 822 F.2d 1418 (6th Cir. 1987). “This rule
of comity reduces friction between the state and federal court systems by avoiding the
unseemliness of a federal district court’s overturning a state court conviction without the
state courts having had an opportunity to correct the constitutional violation in the first
instance.” O’Sullivan, 526 U.S. at 845 (internal quotation omitted). State prisoners in
Michigan must raise each claim in both state appellate courts before seeking federal
habeas corpus relief. See Manning v. Alexander, 912 F.2d 878, 881 (6th Cir. 1990). The
petitioner bears the burden of establishing exhaustion. Rust v. Zent, 17 F.3d 155, 160 (6th
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Cir. 1994); Caver v. Straub, 349 F.3d 340, 345 (6th Cir. 2003).
Petitioner indicates in his petition that he raised challenges to the state court
proceedings in the district court at various points in 2015. He also states that he appealed
to the highest state court having jurisdiction, Petition ¶ 11(d), but also indicates that he
did not appeal to the highest state court having jurisdiction because the judge “refused to
let my motion be heard before courts.” Petition ¶ 11(e). A search of the Michigan One
Court of Justice website does not indicate any appeal by Petitioner to the Michigan
appellate courts.1
Petitioner fails to satisfy his burden of showing exhaustion of state court remedies.
Where a petition contains both exhausted and unexhausted claims, a district court may
dismiss the unexhausted claims, retain jurisdiction over the exhausted claims, and stay
proceedings pending exhaustion. Rhines v. Weber, 544 U.S. 269, 278 (2005); Griffin v.
Rogers, 308 F.3d 647, 652, n.1 (6th Cir. 2002). In this case, the petition contains no
exhausted claims over which the Court may retain jurisdiction. Thus, the Court will
dismiss the petition without prejudice so that Petitioner may pursue exhaustion of his
state court remedies.
II.

1

See coa.courts.mi.gov/. Public records and government documents, including
those available from reliable online sources, are subject to judicial notice. See United
States ex. rel. Dingle v. BioPort Corp., 270 F. Supp. 2d 968, 972 (W.D. Mich. 2003). A
federal district court is permitted to take judicial notice of another court’s website. See
e.g., Graham v. Smith, 292 F. Supp. 2d 153, 155 n.2 (D. Me. 2003).
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Federal Rule of Appellate Procedure 22 provides that an appeal may not proceed
unless a certificate of appealability (COA) is issued under 28 U.S.C. § 2253. Rule 11 of
the Rules Governing Section 2254 Proceedings requires that a court “issue or deny a
certificate of appealability when it enters a final order adverse to the applicant.”
A COA may be issued “only if the applicant has made a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The substantial showing
threshold is satisfied when a petitioner demonstrates “that reasonable jurists would find
the district court’s assessment of the constitutional claims debatable or wrong.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000).
In this case, the Court concludes that reasonable jurists would not debate the
conclusion that Petitioner fails to clearly identify the conviction(s) challenged and that the
claims are unexhausted. Therefore, the Court will deny a certificate of appealability.
III.
For the foregoing reasons, the Court ORDERS the petition for a writ of habeas
corpus DISMISSED WITHOUT PREJUDICE and DENIES a certificate of appealability.
SO ORDERED.
Dated: May 17, 2016

S/ Sean F. Cox
Sean F. Cox
U. S. District Judge

I hereby certify that on May 17, 2016, the foregoing document was served on counsel of
record via electronic means and upon Darrin Laury via First Class mail at the address

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below:
Darrin Laury 210443
Caro Center/OCJ
2000 Chambers Rd.
Caro, MI 48723
S/ J. McCoy
Case Manager

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