Small v. Harry
OPINION and ORDER Summarily Denying the Petition for Writ of Habeas Corpus 1 , Declining to Issue A Certificate of Appealability, and Granting Leave to Appeal In Forma Pauperis. Signed by District Judge Denise Page Hood. (LSau)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
FLETCHER DARNELL SMALL,
Civil No. 2:17-CV-12803
HONORABLE DENISE PAGE HOOD
CHIEF UNITED STATES DISTRICT JUDGE
OPINION AND ORDER SUMMARILY DENYING THE PETITION FOR
WRIT OF HABEAS CORPUS, DECLINING TO ISSUE A CERTIFICATE
OF APPEALABILITY, AND GRANTING LEAVE TO APPEAL IN FORMA
Fletcher Darnell Small, (“Petitioner”), confined at the Brooks
Correctional Facility in Muskegon Heights, Michigan, has filed a petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his application,
filed pro se, petitioner challenges his conviction for first-degree felony
murder, M.C.L.A. § 750.316, first-degree criminal sexual conduct,
M.C.L.A.§ 750.520b(1)(d), unarmed robbery, M.C.L.A. § 750.530, and
breaking and entering an occupied dwelling with intent to commit a felony,
M.C.L.A. § 750.110. For the reasons that follow, the petition for writ of
habeas corpus is SUMMARILY DENIED.
Petitioner was convicted in 1980 in the Genesee County Circuit
Court. Petitioner's conviction was affirmed on appeal. People v. Small, 120
Mich. App. 442, 327 N.W.2d 504, 505 (1982).
On February 3, 2015, petitioner filed a motion to re-issue judgment,
pursuant to M.C.R. 6.428. The trial judge re-characterized the motion as a
post-conviction motion for relief from judgment brought pursuant to M.C.R.
6.500, et. Seq., and denied relief. People v. Small, No. 80-29659-FC
(Genesee Cty. Cir.Ct., Apr. 13, 2015); reconsideration den. No. 80-29659FC (Genesee Cty. Cir.Ct., Jul. 27, 2015).
The Michigan Court of Appeals denied petitioner's application for
leave to appeal pursuant to M.C.R. 6.508(D), the rule which governs the
various reasons for denying a criminal defendant's 6.500 motion for relief
from judgment. The Michigan Court of Appeals further concluded that the
trial judge did not err in re-characterizing petitioner's 6.428 motion as a
motion for relief from judgment because M.C.R. 6.428 is inapplicable where
a defendant files a timely appeal of right, as petitioner did in this case.
People v. Small, No. 329301 (Mich.Ct.App. Nov. 12, 2015).
Petitioner filed an application for leave to appeal. The Michigan
Supreme Court denied petitioner's application with the following language:
On order of the Court, the application for leave to appeal the
November 12, 2015 order of the Court of Appeals is considered,
and it is DENIED, because we are not persuaded that the
questions presented should be reviewed by this Court. For
purposes of MCR 6.502(G)(1), the Court notes that, although the
defendant's motion has been styled as a motion for relief from
judgment by the courts below, the defendant actually requested
reissuance of his judgment under MCR 6.428. The motion was
properly denied due to the lack of merit in the grounds presented,
though not under MCR 6.508(D).
People v. Small, 500 Mich. 853, 884 N.W.2d 280 (2016),
reconsideration den., 500 Mich. 901, 887 N.W.2d 203 (2016).
Petitioner seeks habeas relief on the following ground:
[The] trial court's recharacterization of motion pleading and
subsequent dismissal without providing petitioner notification was
an abuse of discretion in violation of his rights to equal protection
and due process of law pursuant to the U.S. Const., Am. 14, and
Mich. Const., Art. 1, Sections 2 and 17.
II. Standard of Review
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., see also 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 federal district court
is authorized to summarily dismiss a habeas corpus petition if it plainly
appears from the face of the petition and any attached exhibits that the
petitioner is not entitled to federal habeas relief. See 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.
No response to a habeas petition is necessary when the petition is
frivolous, obviously lacks merit, or where the necessary facts can be
determined from the petition itself without consideration of a response from
the State. See Allen, 424 F.2d at 141. After undertaking the review
required by Rule 4, the Court concludes that the petition must be
Petitioner alleges that the trial judge violated his constitutional rights
by re-characterizing his motion to reissue judgment that he brought under
M.C.R. 6.428 as a post-conviction motion for relief from judgment brought
pursuant to M.C.R. 6.500, et. seq.
Petitioner’s claim that the Michigan courts wrongfully denied him
post-conviction relief is non-cognizable. This Court notes that “[t]he Sixth
Circuit consistently held that errors in post-conviction proceedings are
outside the scope of federal habeas corpus review.” Cress v. Palmer, 484
F. 3d 844, 853 (6th Cir. 2007). A federal habeas corpus petition cannot be
used to mount a challenge to a state’s scheme of post-conviction relief.
See Greer v. Mitchell, 264 F. 3d 663, 681 (6th Cir. 2001). The reason for
this is that the states have no constitutional obligation to provide postconviction remedies. Id. (citing to Pennsylvania v. Finley, 481 U.S. 551,
557 (1987)). Challenges to state collateral post-conviction proceedings
“cannot be brought under the federal habeas corpus provision, 28 U.S.C. §
2254,” because “‘the essence of habeas corpus is an attack by a person in
custody upon the legality of that custody, and ... the traditional function of
the writ is to secure release from illegal custody.’” Kirby v. Dutton, 794 F.
2d 245, 246 (6th Cir. 1986)(quoting Preiser v. Rodriguez, 411 U.S. 475,
484 (1973)). “A due process claim related to collateral post-conviction
proceedings, even if resolved in a petitioner’s favor, would not ‘result [in] ...
release or a reduction in ... time to be served or in any other way affect his
detention because we would not be reviewing any matter directly pertaining
to his detention.’” Cress, 484 F. 3d at 853 (quoting Kirby, 794 F. 2d at 247).
The “‘scope of the writ’” does not encompass a “‘second tier of complaints
about deficiencies in state post-conviction proceedings.’” Cress, 484 F. 3d
at 853 (quoting Kirby, 794 F. 2d at 248). “[T]he writ is not the proper
means to challenge collateral matters as opposed to the underlying state
conviction giving rise to the prisoner’s incarceration.” Id. (internal
Michigan law does not require a trial judge to give a defendant
advance notice that he or she will characterize a defendant’s postconviction motion as a 6.500 motion nor is there a requirement that the
judge simply return a mislabeled post-conviction motion to the defendant or
permit him to withdraw the motion rather than adjudicate it.
Petitioner relies on Castro v. United States, 540 U.S. 375 (2003), in
which the United States Supreme Court held that a federal district court
may not re-characterize a pro se criminal defendant's motion as the
litigant’s first motion to vacate sentence under 28 U.S.C. § 2255 unless the
court (1) informs the litigant of its intent to re-characterize the motion, (2)
warns the litigant that the re-characterization will subject subsequent §
2255 motions to the “second or successive” restrictions of § 2255 ¶ 8, and
(3) provides the litigant with an opportunity to withdraw or to amend the
filing. Id. at 383.
The Supreme Court’s holding in Castro is applicable only to federal
courts’ interpretation of federal prisoner’s pro se motions and has no
application to a state court’s interpretation or construction of a state
prisoner’s post-conviction motions. See Hall v. Rivard, No. 2:10-CV-11252,
2016 WL 1258990, at * 16 (E.D. Mich. Mar. 31, 2016); Flowers v. Booker,
No. No. 05-CV-74617-DT, 2006 WL 2421315, at * 2 (E.D. Mich. Aug. 22,
2006). Castro was decided as a matter of the Supreme Court’s
supervisory power over the lower federal courts and is not binding authority
on the state courts. See Ruelas v. Wolfenbarger, 580 F.3d 403, 407 (6th
Cir. 2009). The state court judge was not constitutionally required to give
petitioner advance notice of his intent to re-characterize petitioner’s first
post-conviction motion as a motion for relief from judgment being filed
pursuant to M.C.R. 6.500, et. seq., nor was he required to allow petitioner
to withdraw the motion prior to adjudicating it.
Finally, petitioner's claim may be moot in light of the fact that it
appears that the Michigan Supreme Court agreed with him that his motion
should not have been characterized as a 6.500 motion for relief from
judgment. The Michigan Supreme Court expressly invoked M.C.R.
6.502(G)(1), which typically limits criminal defendants in Michigan to one
post-conviction motion, and then indicated that although the lower courts
characterized petitioner's motion as a motion for relief from judgment, for
the purposes of 6.502(G)(1), petitioner had filed his motion as a motion to
reissue judgment pursuant to M.C.R. 6.428. The Michigan Supreme Court
indicated that petitioner's motion was properly denied for lack of merit on
the grounds presented and not under M.C.R. 6.508(D). People v. Small,
500 Mich. 383. It appears from the Michigan Supreme Court's order that
petitioner is not precluded under M.C.R. 6.502(G)(1) from filing a postconviction motion for relief from judgment because of the their finding that
petitioner's motion had been brought under M.C.R. 6.428.
Article III, § 2 of the United States Constitution requires the existence
of a case or controversy through all stages of federal judicial proceedings.
“[M]ootness results when events occur during the pendency of a litigation
which render the court unable to grant the requested relief.” Carras v.
Williams, 807 F. 2d 1286, 1289 (6th Cir. 1986). To the extent that
petitioner asks this Court to find that the trial court erred in recharacterizing petitioner's 6.428 motion as a 6.500 motion, his claim has
been mooted by the language in the Michigan Supreme Court order
indicating that for purposes of M.C.R. 6.502(G)(1), petitioner's motion
should not have been denied under the provisions of M.C.R. 6.500.
The Court summarily denies the petition for writ of habeas corpus.
A habeas petitioner must receive a certificate of appealability (“COA”)
in order to appeal the denial of a habeas petition for relief from either a
state or federal conviction. 1 28 U.S.C. §§ 2253(c)(1)(A), (B). A court may
issue a COA “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 rejects a habeas claim on the merits, the substantial showing
threshold is met if the petitioner demonstrates that reasonable jurists would
find the district court's assessment of the constitutional claim debatable or
wrong. See Slack v. McDaniel, 529 U.S. 473, 484-85 (2000).
This Court denies a certificate of appealability because reasonable
jurists would not find this Court’s assessment of the claims to be debatable
Effective December 1, 2009, the newly created Rule 11 of the Rules Governing Section 2254
Cases in the United States District Courts, 28 U.S.C. foll. § 2254, provides that “[t]he district court must
issue or deny a certificate of appealability when it enters a final order adverse to the applicant.” Rule 11(a),
28 U.S.C. foll. § 2254; See also Strayhorn v. Booker, 718 F. Supp. 2d 846, 875 (E.D. Mich. 2010).
or wrong. See Slack v. McDaniel, 529 U.S. at 484.
Although this Court will deny a certificate of appealability to petitioner,
the standard for granting an application for leave to proceed in forma
pauperis (IFP) is a lower standard than the standard for certificates of
appealability. See Foster v. Ludwick, 208 F. Supp. 2d 750, 764 (E.D. Mich.
2002)(citing United States v. Youngblood, 116 F. 3d 1113, 1115 (5th Cir.
1997)). Whereas a certificate of appealability may only be granted if
petitioner makes a substantial showing of the denial of a constitutional right
, a court may grant IFP status if it finds that an appeal is being taken in
good faith. Id. at 764-65; 28 U.S.C. § 1915(a)(3); Fed. R.App.24 (a). “Good
faith” requires a showing that the issues raised are not frivolous; it does not
require a showing of probable success on the merits. Foster, 208 F. Supp.
2d at 765. Although jurists of reason would not debate this Court’s
resolution of petitioner’s claims, the issues are not frivolous; therefore, an
appeal could be taken in good faith and petitioner may proceed in forma
pauperis on appeal. Id.
Based upon the foregoing, IT IS ORDERED that the petition for a writ
of habeas corpus is SUMMARILY DENIED WITH PREJUDICE.
IT IS FURTHER ORDERED That a certificate of appealability is
IT IS FURTHER ORDERED that petitioner will be granted leave to
appeal in forma pauperis.
S/Denise Page Hood
Denise Page Hood
Chief Judge, United States District Court
Dated: October 30, 2017
I hereby certify that a copy of the foregoing document was served upon
counsel of record on October 30, 2017, by electronic and/or ordinary mail.
S/LaShawn R. Saulsberry
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