Berry et al v. Third Circuit Court et al
OPINION AND ORDER (1) Summarily Denying 1 Petition for Writ of Habeas Corpus, (2) Denying Certificate of Appealability, and (3) Denying Leave to Appeal in Forma Pauperis. Signed by District Judge Nancy G. Edmunds. (JCur)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
DUANE LETROY BERRY,
Case No. 2:17-cv-12738
Hon. Nancy G. Edmunds
STATE OF MICHIGAN, ET. AL,
OPINION AND ORDER (1) SUMMARILY DENYING PETITION FOR WRIT OF
HABEAS CORPUS, (2) DENYING CERTIFICATE OF APPEALABILITY, AND (3)
DENYING LEAVE TO APPEAL IN FORMA PAUPERIS
Duane Letroy Berry, (“Petitioner”), incarcerated at the Midland County Jail, filed a petition
for a writ of habeas corpus. Petitioner is being held as a pretrial detainee in People v. Berry, Wayne
County Circuit Court Case No. 17-005237, in which he is charged with malicious destruction of a
building in violation of MICH. COMP. LAWS § 750.3803. Prior to his current incarceration, Petitioner
was in federal custody pending competency proceedings in United States v. Berry, Eastern District
of Michigan Case No. 15-20743, in which he is charged with perpetrating false information and
hoaxes in violation of 18 U.S.C. § 1038(a).
The petition raises one claim: “the State of Michigan had no authority or power to remove
the petitioner from federal jurisdiction under state or federal law.” Dkt. 1, at 4. For the reasons stated
below, the petition for writ of habeas corpus is summarily denied. The Court will also deny
Petitioner a certificate of appealability and permission to appeal in forma pauperis.
On August 25, 2016, the district court found Petitioner to be incompetent to stand trial and
ordered his hospitalization in Petitioner’s federal criminal proceeding. Eastern District of Michigan
Case No. 15-20743, Dkt. 45. On or about April 28, 2017, Petitioner was transferred to state custody.1
After a preliminary examination held in the state district court, Petitioner was bound over to the
state circuit court for trial. On July 19, 2017, the state circuit court ordered Petitioner to be evaluated
for competency to stand trial and for criminal responsibility. A competency hearing is scheduled to
take place on October 25, 2017.
Federal courts are authorized to summarily dismiss any habeas petition that appears legally
insufficient on its face. McFarland v. Scott, 512 U.S. 849, 856 (1994); Carson v. Burke, 178 F. 3d
434, 436 (6th Cir. 1999); Rules Governing § 2254 Cases, Rule 4, 28 U.S.C. foll. § 2254.
Pretrial habeas petitions, such as this one, are properly brought under 28 U.S.C. § 2241. See
Christian v. Wellington, 739 F.3d 294, 298 (6th Cir. 2014). However, except in extraordinary
circumstances, federal courts do not review habeas petitions challenging state criminal proceedings
that remain pending in the state trial court. Id. Such circumstances may include speedy-trial
challenges and double-jeopardy challenges — rights that cannot be fully vindicated if postponed
until after conviction and sentence. Id. (citing Abney v. United States, 431 U.S. 651, 660 (1997), and
Braden v. 30th Jud. Cir. Ct. of Ky., 410 U.S. 484, 503 (1973).
In Younger v. Harris, 401 U.S. 37 (1971), the Supreme Court held that, absent extraordinary
circumstances, a federal court may not enjoin pending state criminal prosecutions. The rule is
“designed to permit state courts to try state cases free from interference by federal courts,
This Court takes judicial notice of the information provided by a search of the Wayne
Circuit Court website, https://cmspublic.3rdcc.org. See Graham v. Smith, 292 F. Supp. 2d 153,
155, n. 2 (D. Me. 2003) (citing 21 Wright & Graham, Federal Practice and Procedure: Evidence
particularly where the party to the federal case may fully litigate his claim before the state court.”
Zalman v. Armstrong, 802 F.2d 199, 205 (6th Cir. 1986) (internal quotations omitted). A federal
court must abstain from enjoining a state criminal proceeding if: (1) the state proceeding is ongoing;
(2) an important state interest is implicated; and (3) the Petitioner has an adequate opportunity in
the state judicial proceeding to raise constitutional challenges. Middlesex County Ethics Comm. v.
Garden State Bar Ass’n, 457 U.S. 423, 432 (1982); Fieger v. Thomas, 74 F.3d 740, 744 (6th Cir.
The three factors that support Younger abstention are present in this case. First, Petitioner
acknowledges that there is an ongoing state criminal prosecution pending in the Wayne Circuit
Court. In that proceeding, Petitioner has already been arraigned, and a competency hearing is
scheduled for October 25, 2017. Second, state criminal proceedings clearly involve important state
interests. See, e.g., Cooper v. Parrish, 203 F.3d 937, 954 (6th Cir. 2000). Third, the state court
proceedings provide an adequate opportunity for Petitioner to raise constitutional challenges. If he
does so, and the trial court denies or otherwise fails to consider his claims, Petitioner may exercise
his right to an appeal under Michigan law.
Abstention is therefore appropriate in the absence of one of three exceptions to the Younger
abstention doctrine: (1) “the state proceeding is motivated by a desire to harass or is conducted in
bad faith,” Huffman v. Pursue, Ltd., 420 U.S. 592, 611 (1975); (2) “the challenged statute is
flagrantly and patently violative of express constitutional prohibitions,” Moore v. Sims, 442 U.S.
415, 424 (1979) (quoting Huffman, 420 U.S. at 611); or, (3) there is “an extraordinarily pressing
need for immediate federal equitable relief.” Kugler v. Helfant, 421 U.S. 117, 125 (1975). These
exceptions have been interpreted narrowly. Zalman v. Armstrong, 802 F.2d 199, 205 (6th Cir. 1986).
In the instant case, Petitioner alleges none of the three exceptions to Younger abstention.
First, he alleges no facts suggesting that the state proceeding is motivated by an improper purpose.
He does not challenge the constitutionality of a state criminal statute. And Petitioner does not allege
facts suggesting the existence of a pressing need for immediate federal relief. Therefore, the Court
must abstain from considering Petitioner’s challenge to his pending state criminal proceeding.
The Court summarily denies the petition for a writ of habeas corpus. The Court will also
deny a certificate of appealability. The Court will deny petitioner a certificate of appealability
because reasonable jurists would not find this Court’s assessment that it must abstain from enjoining
the pending state criminal proceeding to be debatable or wrong. 28 U.S.C. § 2253(c)(2); Johnson
v. Smith, 219 F. Supp. 2d 871, 885 (E.D. Mich. 2002). The Court will also deny petitioner leave to
appeal in forma pauperis, because the appeal would be frivolous. Allen v. Stovall, 156 F. Supp. 2d
791, 798 (E.D. Mich. 2001).
IT IS ORDERED that the petition for a writ of habeas corpus is SUMMARILY DENIED
IT IS FURTHER ORDERED That a certificate of appealability is DENIED.
IT IS FURTHER ORDERED that leave to appeal in forma pauperis is DENIED.
Dated: September 1, 2017
s/Nancy G. Edmund
NANCY G. EDMUNDS
UNITED STATES DISTRICT JUDGE
CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served upon counsel of record and
any unrepresented parties via the Court's ECF System to their respective email or First Class
U.S. mail addresses disclosed on the Notice of Electronic Filing on September 1, 2017.
s/Johnetta M. Curry-Williams
Acting in the Absence of Carol Bethel
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