Smith v. Michigan Department of Corrections Hearings Division

Filing 11

OPINION and ORDER DENYING 10 MOTION to Grant the Writ of Habeas Corpus, DISMISSING the Habeas Corpus Petition, and DECLINING to Issue a Certificate of Appealability, but GRANTING Leave to Appeal in forma pauperis. Signed by District Judge Terrence G. Berg. (AChu)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DERRICK LEE SMITH,
Petitioner,
v.

CASE NO. 14-14790
HONORABLE TERRENCE G. BERG

MICHIGAN DEPARTMENT
OF CORRECTIONS HEARINGS
DIVISION, et al.,
Respondents.
_________________________________/
OPINION AND ORDER DENYING PETITIONER’S MOTION TO
GRANT THE WRIT OF HABEAS CORPUS (Dkt. #10), DISMISSING
THE HABEAS CORPUS PETITION (Dkt. #1), DECLINING TO
ISSUE A CERTIFICATE OF APPEALABILITY, BUT GRANTING
LEAVE TO APPEAL IN FORMA PAUPERIS
State prisoner Derrick Lee Smith (“Petitioner”) has filed a pro se habeas
corpus petition challenging a prison misconduct proceeding that resulted in the
forfeiture of certain privileges. Because Petitioner has not exhausted state
remedies for his claims, nor demonstrated that he is in custody in violation of the
Constitution, the Court must dismiss his petition.
I. BACKGROUND
A. The Prison Disciplinary Proceeding
Petitioner alleges that, on October 19, 2014, a correctional officer charged
him with major prison misconduct for allegedly being an accomplice to (1)
possession of forged documents and (2) possession of stolen property. The charges

arose from allegations that Petitioner gave his identification card to a prisoner
named Greer so that Greer could receive a second meal tray. On October 29, 2014,
a prison hearing officer found Petitioner guilty of being an accomplice to forgery, but
not guilty of being an accomplice to possession of stolen property. The hearing
officer punished Petitioner with three days loss of privileges. Petitioner appealed
the hearing officer’s decision to a deputy warden, but the deputy warden affirmed
the hearing officer and denied the appeal.
B. The Habeas Petition
On December 18, 2014, Petitioner filed a habeas corpus petition and a
certified statement of his prison trust fund account. See ECF Nos. 1 and 2. On
December 20, 2014, the Magistrate Judge ordered Petitioner to pay the $5.00 filing
fee or to submit an application to proceed in forma pauperis within twenty-one days
of the date of the order. See ECF No. 3. On January 8, 2015, Petitioner filed a
document raising new claims, see ECF No. 5,1 but he did not pay the $5.00 filing fee,
nor submit a proper application to proceed in forma pauperis. Accordingly, on July
31, 2015, the Court dismissed the petition for want of prosecution. See ECF No. 6.
On August 24, 2015, Petitioner moved for reconsideration of the order of
dismissal, see ECF No. 7, and on September 25, 2015, Petitioner moved for
reinstatement of the habeas petition, see ECF No. 8. On October 6, 2015, the Court
received the $5.00 filing fee from Petitioner, and on November 3, 2015, the Court
The new claims pertain to other prison misconduct charges brought against
Petitioner and for sanctions involving loss of privileges and “top lock” (confinement
in one’s cell).
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entered an order that granted Petitioner’s motions for reconsideration and
reinstatement of the habeas petition. The order also vacated the order of dismissal
and directed the Clerk of Court to re-open this case.
Finally, on November 17, 2015, Petitioner moved to grant his habeas corpus
petition as to the forgery charge. See ECF No. 10.2 In his motion, Petitioner
disputes the hearing officer’s finding that Petitioner never reported losing his
identification card. Petitioner maintains that he did report the identification card
as being lost and that prisoner Greer found the card and used it. Petitioner denies
giving the card to Greer, as charged by prison officials.
Petitioner claims that the hearing officer violated his right to due process by
failing to conduct the misconduct proceedings according to departmental policy and
procedure and by issuing a decision based on false information. Petitioner seeks to
have the major misconduct charge dismissed and removed from his files and a “not
guilty” plea entered on the record.
II. DISCUSSION
A. Exhaustion of State Remedies
A threshold question is whether Petitioner fairly presented his claims to the
state courts. A federal court may not grant habeas corpus relief to a state prisoner
unless the prisoner exhausted state remedies for his claims. See 28 U.S.C. §
2254(b)(1); O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); Nali v. Phillips, 681

Petitioner abandoned his claims about the other prison misconduct charges that
were brought against him.
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F.3d 837, 851 (6th Cir. 2012). The exhaustion requirement is satisfied if a prisoner
“give[s] the state courts one full opportunity to resolve any constitutional issues by
invok[ing] one complete round of the State’s established appellate review process,”
including a petition for discretionary review to a state supreme court when that
review is part of the state’s ordinary appellate review procedure. O’Sullivan, 526
U.S. at 845, 847. A Michigan petitioner must present each ground to both state
appellate courts before seeking federal habeas corpus relief. Wagner v. Smith, 581
F.3d 410, 414 (6th Cir. 2009).
Petitioner alleges that he filed a state complaint for the writ of habeas corpus
in Branch County Circuit Court, which dismissed the complaint for lack of
jurisdiction. See Mot. to Grant Writ of Habeas Corpus, ECF No. 10, at 3. Petitioner
apparently took no other action on his state complaint and never raised his claims
in the Michigan Court of Appeals or in the Michigan Supreme Court. Therefore, he
has failed to exhaust state remedies for his claims.
B. The “In Custody” Requirement
Petitioner’s claims are not only unexhausted; they also lack merit. First,
Petitioner is challenging the conditions of confinement, and a civil rights complaint
under 42 U.S.C. § 1983 is the “proper remedy for a state prisoner who is making a
constitutional challenge to the conditions of his prison life.” Preiser v. Rodriguez,
411 U.S. 475, 499 (1973). A petition for the writ of habeas corpus generally is
limited to challenges to the fact or duration of imprisonment. Id. at 500. Although

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a habeas corpus petition may be used to challenge prison conditions “[w]hen a
prisoner is put under additional and unconstitutional restraints during his lawful
custody,” Preiser, 411 at 499, Petitioner has not demonstrated that “additional and
unconstitutional restraints” were imposed on him as a result of the misconduct
proceeding. The proceeding resulted only in the loss of privileges. Petitioner is not
attacking the fact or length of his imprisonment, and he has not alleged that he lost
any good-time or disciplinary credits as a result of the misconduct proceeding.
Thus, habeas corpus is not the proper remedy for Petitioner’s claims.
Second, the writ of habeas corpus is available only to persons “in custody in
violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. §§
2241(c)(3) and 2254(a). A prisoner may not challenge the loss of privileges in a
habeas corpus petition because it does not affect the duration of his incarceration.
Pernokis v. McBride, 67 F. App’x 931, 932 (7th Cir. 2003). Therefore, even though
Petitioner is still incarcerated, he is not “in custody” for purposes of the habeas
corpus statute as a result of the disciplinary sanctions. Id; see also Homen v. Hasty,
229 F. Supp.2d 290, 295 (S.D. N.Y. 2002) (stating that a “challenge [to] disciplinary
procedures having only a speculative or incidental effect on the length of [prisoner’s]
sentence is not close to the core of habeas corpus and cannot be raised under §
2241”) (quotation marks omitted) (alterations in original); Johnson v. Freeburn, 29
F. Supp. 2d 764, 776 n. 3 (E.D. Mich. 1998) (stating that the prisoner was not “in
custody” within the meaning of § 2254 and could not bring a habeas action with

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respect to his misconduct ticket and its sanction).
Because Petitioner is not “in custody” as a result of the disciplinary
proceedings, he cannot challenge his misconduct ticket and its sanction in this
habeas corpus action. Accordingly, the habeas corpus petition (ECF No. 1) is
summarily DISMISSED, and the motion to grant the writ of habeas corpus (ECF
No. 10) is DENIED.
III. CERTIFICATE OF APPEALABILITY
A “district court must issue or deny a certificate of appealability when it
enters a final order adverse to the applicant.” Rule 11(a) of the Rules Governing
Section 2254 Cases in the United States District Courts. A certificate of
appealability may be issued “only if the applicant has made a substantial showing
of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner
satisfies this standard by demonstrating that jurists of reason could disagree with
the district court’s resolution of his constitutional claims or 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).
The Court declines to issue a certificate of appealability here, because
reasonable jurists would not find the Court’s assessment of Petitioner’s claims
debatable or wrong. Reasonable jurists also would not conclude that the issues
deserve encouragement to proceed further. Petitioner nevertheless may appeal this

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Court’s decision in forma pauperis, because an appeal could be taken in good faith.
28 U.S.C. § 1915(a)(3).
SO ORDERED.
s/Terrence G. Berg
TERRENCE G. BERG
UNITED STATES DISTRICT JUDGE
Dated: May 17, 2016
Certificate of Service
I hereby certify that this Order was electronically submitted on May 17,
2016, using the CM/ECF system, which will send notification to each party.
s/A. Chubb
Case Manager

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