Range v. Brewer

Filing 4

MEMORANDUM OPINION and ORDER Dismissing Without Prejudice the 1 Petition for Writ of Habeas Corpus, Denying the 3 MOTION to Expedite, Denying a Certificate of Appealability and Denying Leave to Proceed In Forma Pauperis on Appeal. Signed by District Judge Arthur J. Tarnow. (CPic)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

DUANE RANGE, #297113,
Petitioner,
CASE NO. 2:17-CV-11242
HONORABLE ARTHUR J. TARNOW

v.
SHAWN BREWER,
Respondent.
/

OPINION AND ORDER DISMISSING WITHOUT PREJUDICE THE
PETITION FOR A WRIT OF HABEAS CORPUS, DENYING THE MOTION
TO EXPEDITE, DENYING A CERTIFICATE OF APPEALABILITY AND
DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
I. INTRODUCTION
Michigan prisoner Duane Range (“Petitioner”) has filed a petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 22411 challenging his parole revocation, as well as
a motion to expedite this case. Having reviewed the matter, the Court finds that
Petitioner has not exhausted his habeas claims in the state courts before seeking review in
federal court. Accordingly, the Court shall dismiss without prejudice the petition and
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Although Petitioner seeks to proceed under 28 U.S.C. § 2241, the Court notes that the
exclusive remedy for a state prisoner seeking federal habeas relief is 28 U.S.C. § 2254. See
Rittenberry v. Morgan, 468 F.3d 331, 337 (6th Cir. 2006) (“numerous federal decisions . . .
support the view that all petitions filed on behalf of persons in custody pursuant to state court
judgments are filed under section 2254” and are subject to the requirements of the AEDPA);
Greene v. Tennessee Dep't of Corr., 265 F.3d 369, 371 (6th Cir. 2001) (when a state prisoner
seeks habeas relief, but does not directly or indirectly challenge a state court conviction or
sentence, the requirements of § 2254 apply no matter what statutory label is used because the
detention arises from a state court process).

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deny the motion to expedite. The Court shall also deny a certificate of appealability and
deny leave to proceed in forma pauperis on appeal.
II. FACTS AND PROCEDURAL HISTORY
Petitioner challenges his 2016 parole revocation proceedings in his pleadings.
Petitioner pleaded no contest to operating a motor vehicle while intoxicated, third or
higher offense, and was sentenced to three years four months to five years imprisonment
in the Isabella County Circuit Court in 2013. He was released on parole to the Detroit
Reentry Center in June, 2016 until his discharge date in February, 2018. As a condition
of parole, Petitioner was required to participate in a substance abuse program operated by
CPI, Inc. According to Petitioner, the program required him to espouse religious
doctrines which ran contrary to his own beliefs as a Jehovah’s Witness. He objected to
such matters, but was told to comply or be punished. The people running the program
reported that he was being disruptive and stirring up dissension. In July, 2016, he was
charged with misconduct, dismissed from the program, and found guilty of a parole
violation (for not completing the substance abuse program). His parole was subsequently
revoked and he was returned to prison. Petitioner complained to prison officials alleging
a violation of his religious freedoms to no avail. Petitioner does not indicate that he
pursued any relief in the Michigan courts.

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Petitioner, through counsel, filed the instant habeas petition on April 20, 2017. In
his pleadings, he challenges the substance abuse program, the parole revocation
proceedings, and the revocation decision asserting a violation of his religious freedoms
and his due process rights.
III. DISCUSSION
Promptly after the filing of a habeas petition, 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 duty to “screen out” petitions that lack merit on
their face). A dismissal under Rule 4 includes petitions which raise legally frivolous
claims, as well as those containing factual allegations that are palpably incredible or false.
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 petition must be dismissed.
A prisoner filing a petition for a writ of habeas corpus pursuant to 28 U.S.C. §2254
must first exhaust state remedies. See 28 U.S.C. § 2254(b), (c); O’Sullivan v. Boerckel,
526 U.S. 838, 845 (1999) (“state prisoners must give the state courts one full fair
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opportunity to resolve any constitutional issues by invoking one complete round of the
State’s established appellate review process”); Rust v. Zent, 17 F.3d 155, 160 (6th Cir.
1994). This holds true for habeas petitions challenging state parole revocation decisions.
See Brewer v. Dahlberg, 942 F.2d 328, 337-39 (6th Cir. 1991); Wem v. Burt, No.
5:09-CV-13754, 2011 Wl 825730, *1 (E.D. Mich. March 3, 2011); Knuckles v. Bell, No.
08-CV-10942, 2008 WL 1743494, *1 (E.D. Mich. April 14, 2008); Swantak v.
Romanowski, No. 08-CV-10126, 2008 WL 186127, *1-2 (E.D. Mich. Jan. 18, 2008);
Simmons v. Michigan Dep’t of Corrections Parole Bd., No. 2:07-CV-15442, 2008 WL
62459, *1 (E.D. Mich. Jan. 3, 2008).
To satisfy the exhaustion requirement, the claims must be “fairly presented” to the
state courts, meaning that the petitioner must have raised both the factual and legal bases
for the claims in the state courts. McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir.
2000); see also Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006) (citing
McMeans). The claims must be presented as federal constitutional issues. Koontz v.
Glossa, 731 F.2d 365, 368 (6th Cir. 1984). For a Michigan prisoner, each claim must also
be raised before the Michigan Court of Appeals and the Michigan Supreme Court to
satisfy the exhaustion requirement. Wagner v. Smith, 581 F.3d 410, 414 (6th Cir. 2009)
(citing Hafley v. Sowders, 902 F.2d 480, 483 (6th Cir. 1990)). While the exhaustion
requirement is not jurisdictional, a “strong presumption” exists that a petitioner must
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exhaust available state remedies before seeking federal habeas review. Granberry v.
Greer, 481 U.S. 129, 131, 134-35 (1987); Wagner, 581 F.3d at 415 (citing Harris v.
Lafler, 553 F.3d 1028, 1031 (6th Cir. 2009)). The burden is on the petitioner to prove
exhaustion. Rust, 17 F.3d at 160.
Petitioner fails to establish that he has exhausted his parole revocation claims in
the state courts before proceeding in federal court on habeas review. His pleadings do not
reflect any attempt to exhaust state court remedies. Petitioner, however, has an available
remedy by which to exhaust his parole revocation claims in the state courts. He may file
a complaint for a writ of habeas corpus in the appropriate state circuit court, see Mich.
Comp. Laws § 600.4301 et seq., Mich. Ct. R. 3.303; Hinton v. Michigan Parole Bd., 148
Mich. App. 235, 383 N.W.2d 626 (1986); Triplett v. Deputy Warden, 142 Mich. App.
774, 371 N.W.2d 862 (1985); see also Caley v. Hudson, 759 F. Supp. 378, 380-81 (E.D.
Mich. 1991). While the denial of such a writ is not appealable by right, the petition may
be renewed by filing an original complaint for writ of habeas corpus with the Michigan
Court of Appeals. Id. Denial of such a complaint by the Michigan Court of Appeals is
subject to review by the Michigan Supreme Court. See Mich. Ct. R. 7.301. There is no
time limit for filing a state habeas compliant as long as the prisoner is in custody when the

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judgment becomes effective. Triplett, 142 Mich. App. at 779.2 Because Petitioner fails to
demonstrate that he has exhausted available state court remedies before seeking federal
habeas review, his habeas claims are premature and this case must be dismissed.
IV. CONCLUSION
For the reasons stated, the Court concludes that Petitioner fails to establish that he
has fully exhausted his habeas claims in the state courts before proceeding on federal
habeas review. Accordingly, the Court DISMISSES WITHOUT PREJUDICE the
petition for a writ of habeas corpus. The Court makes no determination as to the merits of
Petitioner’s claims.
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 district court
relief 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

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The Michigan’s Administrative Procedures Act, Mich. Comp. Laws § 24.201 et seq.,
also provides an inmate whose parole has been revoked with the right to seek judicial review of
the Parole Board’s decision in the state circuit court. See Penn v. Department of Corrections,
100 Mich. App. 532, 298 N.W.2d 756 (1980). This must be done within 60 days of the parole
revocation. The circuit court decision is appealable in the Michigan Court of Appeals and the
Michigan Supreme Court. See Mich. Ct. R. 7.205, 7.302.
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petitioner states a valid claim of the denial of a constitutional right, and that jurists of
reason would find it debatable whether the district court was correct in its procedural
ruling. Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). Reasonable jurists could not
debate the correctness of the Court’s procedural ruling. Accordingly, the Court DENIES
a certificate of appealability. The Court also DENIES leave to proceed in forma pauperis
on appeal as an appeal cannot be taken in good faith. See Fed. R. App. P. 24(a).
IT IS SO ORDERED.

S/Arthur J. Tarnow
Arthur J. Tarnow
Senior United States District Judge
Dated: May 1, 2017
I hereby certify that a copy of the foregoing document was served upon parties/counsel of
record on May 1, 2017, by electronic and/or ordinary mail.
S/Catherine A. Pickles
Judicial Assistant

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