Harvey v. Warren

Filing 4

OPINION AND ORDER SUMMARILY DISMISSING CASE without Prejudice for a Writ of Habeas Corpus. Signed by District Judge Terrence G. Berg. (AChu)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
2:20-cv-13206

KIM HARVEY,
Petitioner,
v.
PATRICK WARREN,

OPINION AND ORDER
SUMMARILY DISMISSING
WITHOUT PREJUDICE FOR A
WRIT OF HABEAS CORPUS

Respondent.
Kim Harvey, (“Petitioner”), is presently confined at the Macomb
Correctional Facility. He commenced this action by filing a “Motion to
Stay and Abey Habeas Proceedings.” (ECF No. 1.) This is not a valid
means of commencing a habeas action, so the case will be summarily
dismissed without prejudice.
Federal courts can dismiss a habeas petition that is 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. “[A] claim for relief in habeas
corpus must include reference to a specific federal constitutional
guarantee, as well as a statement of the facts which entitle the Petitioner
to relief.” Gray v. Netherland, 518 U.S. 152, 162-63 (1996) (internal
citations omitted). Among other requirements, Rule 2 of the Rules
Governing § 2254 Cases requires a habeas petitioner to specify all the

grounds for relief available to the petitioner and specify the facts
supporting each ground. “Notice pleading” is not sufficient. See Adv.
Comm. Notes to Rule 4; Mayle v. Felix, 545 U.S. 644, 655 (2005)
(observing that Rule 2 is “more demanding” than Fed. R. Civ. P. 8(a)).
Petitioner’s filing states that on or about November 9, 2020, he filed
a petition for writ of habeas corpus with this Court. No such pleading has
been received or docketed, and so the Clerk’s Office filed the pleading as
a new habeas case. The allegations in the motion, however, do not suffice
to serve as a habeas petition. The pleading merely states that the unfiled
petition raised one unidentified claim, and that Petitioner wishes to raise
four additional identified unexhausted claims in the state courts. The
allegations in the pleading do not comply with the requirements of Rule
2. The petition is therefore subject to summary dismissal without
prejudice.
If Petitioner wishes to commence a federal habeas action, he may
file a new case using the approved form which should be available in his
institution’s law library.
Finally, Petitioner is not entitled to a certificate of appealability
because he has not made a substantial showing of the denial of a
constitutional right. 28 U.S.C. § 2253(c)(2). He is not entitled to
permission to appeal in forma pauperis because any appeal would be
frivolous. 28 U.S.C. § 1915(a)(3).
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Accordingly, the Court 1) summarily DISMISSES WITHOUT
PREJUDICE the petition for a writ of habeas corpus, 2) DENIES a
certificate of appealability, and 3) DENIES permission to appeal in
forma pauperis.
SO ORDERED.
Dated: March 23, 2021

s/Terrence G. Berg
TERRENCE G. BERG
UNITED STATES DISTRICT JUDGE

Certificate of Service
I hereby certify that this Order was electronically filed, and the
parties and/or counsel of record were served on March 23, 2021.
s/A. Chubb
Case Manager

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