Winburn v. Gidley
OPINION and ORDER Dismissing the Petition for a Writ of Habeas Corpus 1 , Severing and Dismissing the Civil Right Claims, Denying a Certificate of Appealability and Denying Leave to Proceed on Appeal In Forma Pauperis. Signed by District Judge Denise Page Hood. (LSau)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
ROBERT WINBURN, #222196,
CASE NO. 2:18-CV-10271
HONORABLE DENISE PAGE HOOD
OPINION AND ORDER DISMISSING THE PETITION FOR A WRIT OF
HABEAS CORPUS, SEVERING AND DISMISSING THE CIVIL RIGHTS
CLAIMS, DENYING A CERTIFICATE OF APPEALABILITY AND
DENYING LEAVE TO PROCEED ON APPEAL IN FORMA PAUPERIS
Michigan prisoner Robert Winburn (“Petitioner”) has filed a pro se
petition for a writ of habeas corpus (with civil rights claims) challenging his
pending prosecution on state criminal charges of first-degree home invasion,
armed robbery, and conspiracy to commit first-degree home invasion in the
Washtenaw County Circuit Court.1 He states that he is representing himself
Petitioner is currently in custody pursuant to Wayne County convictions for
second-degree murder, assault with intent to commit murder, and felony firearm for
which he was sentenced to 25 to 50 years imprisonment, a concurrent term of 15 to 30
years imprisonment, and a consecutive term of two years imprisonment. See Inmate
Profile, Michigan Department of Corrections Offender Tracking Information System
with stand-by counsel in that case and that trial is scheduled for April 23,
2018. In his petition, he asserts that he has filed 40 pre-trial motions which
have not been heard and that he has been unable to pursue interlocutory
appeals or exhaust state remedies. Petitioner seeks an immediate hearing
and testimony, a show cause order, a conditional writ, a stay and abeyance
order, and declaratory and injunctive relief under 28 U.S.C. §§ 2201, 2202,
2241, 2254 and 42 U.S.C. § 1983. The Court has granted Petitioner leave to
proceed in forma pauperis for this action.
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 those petitions which raise legally
frivolous claims, as well as those containing factual allegations which are
palpably incredible or false. Carson v. Burke, 178 F.3d 434, 436-37 (6th Cir.
1999). After undertaking such a review, the Court concludes that the habeas
petition must be dismissed and that a certificate of appealability and leave to
proceed in forma pauperis on appeal must be denied.
Petitioner challenges his pending criminal prosecution in the Washtenaw
County Circuit Court in this habeas action. 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. 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. 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.
Petitioner has not met his burden. First, to the extent that Petitioner
seeks dismissal of the pending state charges or release from custody, he is
not entitled to federal habeas relief. See Braden, 410 U.S. at 493. Second,
to the extent that Petitioner contests the trial court’s failure to address his
motions and/or matters arising from the investigation and prosecution of the
pending criminal charges, he fails to show that he has exhausted his state
court remedies. Given that his trial is scheduled for April 23, 2018, the state
trial court may still resolve his pending motions. If not, Petitioner can seek a
writ of mandamus in the state appellate courts to compel the trial court to
consider those motions. See generally Morales v. Michigan Parole Bd., 260
Mich. App. 29, 41-42, 676 N.W.2d 221 (2003) (citing cases). Petitioner can
also present his underlying claims, i.e., the subject matter of his motions, to
the state courts on direct appeal and/or collateral review should he be
convicted. Consequently, he has not fully exhausted his state court remedies.
See 28 U.S.C. § 2254(c) (“An applicant shall not be deemed to have
exhausted the remedies available in the courts of the State, within the
meaning of this section, if he has the right under the law of the State to raise,
by any available procedure, the question presented”); O’Sullivan v. Boerckel,
526 U.S. 838, 845 (1999). Lastly, Petitioner fails to establish that special
circumstances warrant federal habeas review.
His habeas petition is
therefore premature and subject to dismissal.
Civil Rights Claims
Petitioner also seems to raise civil rights claims in this action. To the
extent that he wishes to pursue such 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 and a $50.00 administrative fee for a civil rights action
(which is paid up front or in installments for indigent prisoners) versus a $5.00
filing fee for a habeas action (which is paid up front or waived for indigent
prisoners). Petitioner may not circumvent those requirements by filing a joint
or hybrid action.
His civil rights claims are subject to severance and
For the reasons stated, the Court concludes that Petitioner’s habeas
petition challenging his ongoing state criminal proceedings is premature and
must be dismissed and that any civil rights claims must be severed and
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 court relief on the merits, the substantial showing
threshold is met if the petitioner demonstrates that 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). “A petitioner satisfies this
standard by demonstrating that . . . jurists could conclude the issues
presented are adequate to deserve encouragement to proceed further.”
Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). When a court denies relief on
procedural grounds, 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.
Slack, 529 U.S. at 484-85.
Having considered the matter, the Court concludes that reasonable
jurists would not find the Court’s 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 SEVERS and DISMISSES WITHOUT
PREJUDICE the civil rights claims. The Court also DENIES a certificate of
appealability and DENIES leave to proceed in forma pauperis on appeal.
IT IS SO ORDERED.
S/Denise Page Hood
Denise Page Hood
Chief Judge, United States District Court
Dated: February 7, 2018
I hereby certify that a copy of the foregoing document was served upon
counsel of record on February 7, 2018, by electronic and/or ordinary mail.
S/LaShawn R. Saulsberry
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