Neal v. Whitmer et al

Filing 4

MEMORANDUM OPINION and ORDER Dismissing the 1 Petition for Writ of Habeas Corpus, Denying a Certificate of Appealability, and Denying Leave to Proceeding in Forma Pauperis on Appeal. Signed by District Judge Gershwin A. Drain. (TMcg)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DION LAVELL NEAL-EL, #197239,
Petitioner,
CASE NO. 2:20-CV-11539
HONORABLE GERSHWIN A. DRAIN

v.
GRETCHEN WHITMER and
WILLIS CHAPMAN,
Respondents.
________________________________/

OPINION AND ORDER DISMISSING THE PETITION FOR A WRIT OF
HABEAS CORPUS, DENYING A CERTIFICATE OF APPEALABILITY,
AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
I.

Introduction
Michigan prisoner Dion Lavell Neal-El (“Petitioner”), currently confined at the Thumb

Correctional Facility in Lapeer, Michigan, has filed a pro se petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2241 and request for injunctive relief. Petitioner was
convicted of first-degree murder following a jury trial in the Wayne County Circuit Court and
was sentenced to life imprisonment without the possibility of parole in 1988. In his
pleadings, Petitioner does not challenge the constitutionality of his convictions, rather he
seeks release from custody due to his risk of illness and death due to COVID-19 while
incarcerated.

Petitioner states that he tested positive for the virus and includes

documentation showing that he was tested for the virus on May 12, 2020 and a positive
result report was signed on May 17, 2020. For the reasons stated herein, the Court
dismisses the petition for a writ of habeas corpus and request for injunctive relief. The
Court also denies a certificate of appealability and denies leave to proceed in forma

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pauperis on appeal.
II.

Analysis
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).
It is well-settled that a state prisoner filing a petition for a writ of habeas corpus
under 28 U.S.C. § 2254 must first exhaust available state court remedies. See O’Sullivan
v. Boerckel, 526 U.S. 838, 845 (1999) (“state prisoners must give the state courts one full
fair 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). The claims must be “fairly presented” to the state courts, meaning that the petitioner
must have asserted 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 also be raised in the
state courts as federal constitutional issues. Koontz v. Glossa, 731 F.2d 365, 368 (6th Cir.
1984). A Michigan prisoner must raise each issue he seeks to present in a federal habeas
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proceeding to both the Michigan Court of Appeals and the Michigan Supreme Court to
satisfy the exhaustion requirement. Hafley v. Sowders, 902 F.2d 480, 483 (6th Cir. 1990);
Welch v. Burke, 49 F. Supp. 2d 992, 998 (E.D. Mich. 1999). The burden is on the petitioner
to prove exhaustion. Rust, 17 F.3d at 160.
In this case, Petitioner has filed his habeas petition pursuant to 28 U.S.C. § 2241,
rather than 28 U.S.C. § 2254. The United States Court of Appeals for the Sixth Circuit has
suggested that there is a “serious question whether a state prisoner may proceed under
§ 2241,” Allen v. White, 185 F. App’x 487, 490 (6th Cir. 2006), but, has permitted state
prisoners to proceed under § 2241, subject to the restrictions imposed by § 2254. See,
e.g., Greene v. Tennessee Dep’t of Corr., 265 F.3d 369, 371 (6th Cir. 2001). Regardless
of whether the petition is deemed filed under § 2254 or § 2241, Petitioner must satisfy the
exhaustion requirement. See Fazzini v. Northeast Ohio Corr. Ctr., 473 F.3d 229, 237 (6th
Cir. 2006); see also Phillips v. Court of Common Pleas, Hamilton Cty., Ohio, 668 F.3d 804,
810 n.4 (6th Cir. 2012).
Petitioner fails to meet this burden. He neither alleges nor establishes that he has
exhausted available remedies in the state courts. Petitioner has at least one available
procedure by which to raise the issues presented in his pleadings. For example, he may
be able to file a state habeas petition in that he seeks a determination on the legality of his
continued confinement. See Phillips v. Warden, State Prison of S. Mich., 396 N.W.2d 482,
486 (Mich. Ct. App. 1986). He may also seek relief, even release, by civil action in state
court for unconstitutional conditions of confinement. See Kent Cty. Prosecutor v. Kent Cty.
Sheriff, 409 N.W.2d 202, 208 (Mich. 1987) (“No one now doubts the authority of courts to
order the release of prisoners confined under conditions violating their Eighth and
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Fourteenth Amendment rights.”). He may also pursue an administrative remedy seeking
release or alternative custody by filing a grievance or other complaint within the Michigan
Department of Corrections. Petitioner thus has at least one available state remedy that
must be exhausted before proceeding in federal court. See, e.g., Sewell v. Brown, No.
2:20-CV-77, 2020 WL 3542154, *3-4 (W.D. Mich. Jun. 30, 2010) (discussing available
remedies and dismissing similar § 2241 habeas petition).
The Court notes that a petitioner’s failure to exhaust state court remedies may be
excused if “there is an absence of State corrective process” or if “circumstances exist that
render such process ineffective” to protect his or her rights. 28 U.S.C. § 2254(b)(1)(B).
Petitioner does not assert that there is an absence of state corrective process, nor does he
assert that present circumstances have rendered state court remedies ineffective.
Although the COVID-19 pandemic has had an undeniable impact on all aspects of society,
including delaying court proceedings, there is no indication that Petitioner cannot obtain
relief in the state courts. See, e.g., Money v. Pritzker, Nos. 20-cv-2093; 20-cv-2094, 2020
WL 1820660, *21 (N.D. Ill. Apr. 10, 2020) (holding that exhaustion requirement was not
satisfied because petitioners had “not made a satisfactory showing that the state court
system was not every bit as available as the federal courts, if not more so [to resolve
emergency COVID-19 motion]”). This case must therefore be dismissed.
Additionally, and alternatively, even if the Court were to excuse the exhaustion
requirement, it would still deny Petitioner relief. Petitioner alleges a violation of his
substantive due process rights under the Fourteenth Amendment and a violation of his right
to be free from cruel and unusual punishment/right to health and safety under the Eighth
Amendment. As to the former, substantive due process “prevents the government from
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engaging in conduct that shocks the conscience...or interferes with rights implicit in the
concept of ordered liberty.” United States v. Salerno, 481 U.S. 739, 746 (1987) (internal
quotations and citations omitted). To state such a claim, a plaintiff must allege that he has
a constitutionally protected interest which has been deprived by arbitrary and capricious
state action. MSI Regency, Ltd. v. Jackson, No. 09-4473, 2011 WL 3555419, *8 (6th Cir.
Aug. 12, 2011). As to the latter, the “deliberate indifference to serious medical needs of
prisoners constitutes the unnecessary and wanton infliction of pain proscribed by the Eighth
Amendment.” Estelle v. Gamble, 429 U.S. 97, 104 (1976). The deliberate indifference
standard requires a prisoner to show that prison officials acted with a reckless disregard
of a known risk of serious harm to the prisoner. Farmer v. Brennan, 511 U.S. 825, 836
(1994).

A prisoner may establish deliberate indifference by a showing of grossly

inadequate care. Terrance v. Northville Regional Psychiatric Hosp., 286 F.3d 834, 843 (6th
Cir. 2002).
Petitioner makes no such showing. While he asserts that he lives in a communal
environment and is unable to practice social distancing in prison and that he is concerned
for his well-being because he is older (51) and has high blood pressure, he fails to identify
specific issues regarding the prison’s response to the pandemic, or lack thereof, that rise
to the level of a substantive due process or other constitutional violation. Moreover, while
Petitioner states that he tested positive for the virus in May, 2020, he does not allege facts
showing that the prison failed to treat him, that his medical needs were (or are) not being
met, or that alternative incarceration or release from custody is necessary at this time.
Conclusory allegations, without evidentiary support, are insufficient to warrant federal
habeas relief. See, e.g., Cross v. Stovall, 238 F. App’x 32, 39-40 (6th Cir. 2007); Workman
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v. Bell, 178 F.3d 759, 771 (6th Cir. 1998); see also Washington v. Renico, 455 F.3d 722,
733 (6th Cir. 2006) (bald assertions and conclusory allegations do not provide a basis for
an evidentiary hearing on habeas review). Petitioner is thus not entitled to habeas relief.
This case must therefore be dismissed.
III.

Conclusion
For the reasons stated, the Court concludes that Petitioner has not exhausted

available state court remedies as to his claims before seeking federal habeas review and
that he fails to alleges sufficient facts to state a claim for federal habeas relief. Accordingly,
the Court DISMISSES the petition for a writ of habeas corpus and the request for injunctive
relief.
Before Petitioner may appeal this decision, a certificate of appealability must issue.
28 U.S.C. § 2253(c)(1)(a); Fed. R. App. P. 22(b). A certificate of appealability may issue
only if a petitioner makes “a substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2). When a court denies habeas 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 claim debatable or wrong. Slack v. McDaniel, 529 U.S. 473,
484-85 (2000).

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. Id.
Petitioner makes no such showing. Accordingly, the Court DENIES a certificate of
appealability. The Court also DENIES Petitioner leave to proceed in forma pauperis on

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appeal as an appeal cannot be taken in good faith. See Fed. R. App. P. 24(a). This case
is closed.
IT IS SO ORDERED.

s/Gershwin A. Drain
GERSHWIN A. DRAIN
UNITED STATES DISTRICT JUDGE
Dated: July 29, 2020

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