Zagorodnyy v. Barrett
Filing
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OPINION AND ORDER Summarily Dismissing the Petition for Writ of Habeas Corpus, DENYING a Certificate of Appealability, and DENYING Leave to Appeal in forma pauperis. Signed by District Judge Terrence G. Berg. (AChu)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ALEKSANDR ANATOULYE ZAGORODNYY,
Petitioner,
Case No. 4:16-cv-10178
HONORABLE TERRENCE G. BERG
UNITED STATES DISTRICT JUDGE
v.
JOSEPH BARRETT,
Respondent.
______________________________________/
OPINION AND ORDER SUMMARILY DISMISSING THE PETITION FOR
WRIT OF HABEAS CORPUS AND DENYING A CERTIFICATE OF
APPEALABILITY AND LEAVE TO APPEAL IN FORMA PAUPERIS
Aleksandr Anatoulye Zagorodnyy, (“petitioner”), confined at the Cooper
Street Correctional Facility in Jackson, Michigan, seeks the issuance of a writ of
habeas corpus pursuant to 28 U.S.C. § 2254. In his pro se application, petitioner
challenges the Michigan Parole Board’s decision to deny him parole for his
conviction of operating a motor vehicle while impaired, third offense, Mich. Comp.
Laws § 257.625, and being a second habitual offender, Mich. Comp. Laws § 769.11.
For the reasons stated below, the application for a writ of habeas corpus is
summarily DISMISSED WITHOUT PREJUDICE.
I. FACTUAL BACKGROUND
Petitioner pleaded nolo contendere in the Kent County Circuit Court and was
sentenced to 2 years, 10 months to 10 years, 6 months in prison.
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On February 26, 2015, petitioner’s substance abuse counselor at prison, Ken
Seel, prepared a Substance Abuse Client Discharge Sheet for petitioner. Mr. Seel
indicated that due to a language barrier created by petitioner’s limited command of
the English language [Petitioner says he is from “the Ukraine, Russia”], he was
unable to determine how much petitioner would be able to benefit from the
Advanced Substance Abuse Treatment (ASAT) program. Mr. Seel indicated that
petitioner had attended and participated in the programming.
On July 7, 2015, a parole guidelines worksheet was prepared which assessed
petitioner at a high probability of parole.
Petitioner was interviewed by the Michigan Parole Board. On September 9,
2015, the Michigan Parole Board denied petitioner parole and ordered a 12-month
continuance. The basis for their decision was that petitioner had a long history of
alcohol driving related convictions and “no insight into why he drinks.” The Parole
Board further stated that petitioner failed to use programming to gain the insight
needed to understand or control his drinking.
Petitioner filed a petition for writ of habeas corpus, in which he claims that
the Michigan Parole Board violated his constitutional rights by denying him parole.
Petitioner further claims that the Parole Board failed to offer substantial and
compelling reasons for departing from the parole guidelines recommendation.
Lastly, petitioner contends that the Parole Board improperly used his ethnicity and
nationality to deny him parole because their decision to deny petitioner parole was
based on Mr. Seel’s inability to understand petitioner and petitioner’s inability to
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make Mr. Seel and the Parole Board understand him due to his limited
understanding of the English language. By his own admission, petitioner admits
that he did not attempt to present these claims to the state courts but claims that
there are no remedies with which to exhaust these claims.
II. Discussion
The instant petition is subject to dismissal because petitioner has not
exhausted his claims with the state courts and has a remedy with which to do so.
As a general rule, a state prisoner seeking federal habeas relief must first
exhaust his available state court remedies before raising a claim in federal court. 28
U.S.C. § 2254(b) and (c). See Picard v. Connor, 404 U. S. 270, 275-78 (1971). The
Antiterrorism and Effective Death Penalty Act (AEDPA) preserves the traditional
exhaustion requirement, which mandates dismissal of a habeas petition containing
claims that a petitioner has a right to raise in the state courts but has failed to do
so. See Welch v. Burke, 49 F. Supp. 2d 992, 998 (E.D. Mich. 1999). A habeas
petitioner has the burden of proving that he or she has exhausted his or her state
court remedies. Sitto v. Bock, 207 F. Supp. 2d 668, 675 (E.D. Mich. 2002). The
failure to exhaust state court remedies may be raised sua sponte by a federal court.
See Benoit v. Bock, 237 F. Supp. 2d 804, 806 (E.D. Mich. 2003); 28 U.S.C. §
2254(b)(3).
Petitioner contends that he should be excused from exhausting his claims
because Michigan law prohibits prisoners from appealing adverse parole board
decisions to the Michigan courts.
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An exception to the exhaustion requirement exists only if there is no
opportunity to obtain relief in the state courts or if the corrective process is so
clearly deficient as to render futile any effort to obtain relief in the state courts.
Duckworth v. Serrano, 454 U.S. 1, 3 (1981); Sitto, 207 F. Supp. 2d at 676. A habeas
petitioner, however, has the burden of showing that all available state court
remedies have been exhausted or that exceptional circumstances exist which would
make exhaustion unnecessary. Doty v. Lund, 78 F. Supp. 2d 898, 901 (N.D. Iowa
1999).
Prior to 1999, a decision by the Michigan Parole Board to grant or deny
parole was appealable by the prisoner, prosecutor, or the victim of the crime for
which the prisoner was convicted. See Mich. Comp. Laws § 791.234(8). In 1999, the
Michigan Legislature amended that provision to allow for appeals only from the
action of the parole board in granting parole by the prosecutor or the victim. See
Mich. Comp. Laws § 791.234(9)(as amended by 1999 Mich. Pub. Acts 191). This
subsection has since been recodified as Mich. Comp. Laws § 791.234(11)(See 2006
Mich.Pub. Acts 167). The Michigan Supreme Court subsequently amended M.C.R.
7.104, effective March 10, 2000, to eliminate the provisions regarding the methods
by which a prisoner could appeal a parole denial. See M.C.R. 7.104(d)(1), (2)(a).
Finally, the Michigan Court of Appeals has held that a prisoner may not
appeal the denial of parole under the Administrative Procedures Act, Mich. Comp.
Laws § 24.201, or the Revised Judicature Act, Mich. Comp. Laws § 600.631. See
Morales v. Michigan Parole Board, 260 Mich.App. 29, 36-42; 676 N.W.2d 221 (2004).
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The Sixth Circuit Court of Appeals has held that a Michigan petitioner’s
failure to exhaust his equal protection challenge to parole procedures was excused
under 28 U.S.C. § 2254(b)(1)(B)(i) because Michigan law does not provide a state
corrective process for such a claim. See Jackson v. Jamrog, 411 F. 3d 615, 618 (6th
Cir. 2005). However, certain types of parole denial claims involving radical defects
in legal process may be cognizable in state habeas corpus proceedings or by a
complaint for an order of mandamus. Id. at 621; See also Morales, 260 Mich.App.at
40-41. Although acknowledging that a state habeas petition could be brought only
to challenge a radical jurisdictional defect, the Michigan Court of Appeals noted
that: “‘A radical defect in jurisdiction contemplates ... an act or omission by state
authorities that clearly contravenes an express legal requirement in existence at
the time of the act or omission.’” Morales, 260 Mich. App. at 40 (internal quotations
omitted). The Michigan Court of Appeals concluded:
Therefore, under certain radical circumstances, a prisoner has a right
to file a complaint for habeas corpus. Although not a completely
exhaustive list, in the unlikely scenario where the Parole Board has
denied a prisoner parole exclusively on the basis of his race, religion, or
national origin, a complaint for habeas corpus would be proper.
Morales v. Michigan Parole Bd., 260 Mich. App. at 40-41.
“[A] prisoner’s right to file a complaint for habeas corpus is guaranteed by the
Michigan Constitution.” Morales, 260 Mich. App. at 40.
Petitioner claims that he is being denied parole due to his Russian and/or
Ukrainian nationality or ethnic heritage and/or his inability to speak the English
language. Mich. Comp. Laws § 791.233(e)(6) states that the Parole Board shall not
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use a “prisoner’s gender, race, ethnicity, alienage, national origin, or religion to
depart from the recommended parole guidelines.” Because petitioner alleges that
the Parole Board used his nationality or ethnic heritage to deny him parole, it is
possible that he could file a petition for writ of habeas corpus in the state courts to
challenge the Parole Board’s decision.
In cases where there is any doubt about the availability of a state court
remedy to exhaust habeas claims, the claim must be dismissed. See Coady v.
Vaughn, 251 F. 3d 480, 489 (3rd Cir. 2001). The somewhat “unsettled state law”
with respect to the remedies that might be available to petitioner to challenge the
parole board’s decision to deny him parole is a factor to be considered in
determining whether this Court should proceed on the merits of the habeas petition
or require petitioner to exhaust his state court remedies. Burkett v. Love, 89 F. 3d
135, 142 (3rd Cir. 1996). Clarification of this issue by the state courts is highly
desirable and counsels in favor of the exhaustion of state court remedies rather
than a resolution on the merits. Id. This Court will therefore resolve any doubts
concerning the availability of state corrective processes against a finding of
exhaustion. See Lukity v. Elo, No. 99-cv-74849, 2000 WL 1769507, * 4 (E.D. Mich.
Oct. 10, 2000).
M.C.R. 3.303 (A)(2) states that a habeas action must be brought in the county
where the prisoner is detained. Although orders of denial in a state habeas corpus
proceeding in Michigan are not appealable by right, these orders may be reviewed
by filing an original complaint for a writ of habeas corpus in the Michigan Court of
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Appeals. See Triplett v. Deputy Warden, 142 Mich. App. 774, 779-80; 371 N. W. 2d
862 (1985). There is no limitation on the time in which a complaint for a writ of
habeas corpus may be filed, so long as the prisoner is in custody at the time that the
judgment becomes effective. Id. at 779. Denial of this petition by the Michigan
Court of Appeals is reviewable by the Michigan Supreme Court by filing an
application for leave to appeal. M.C.R. 7.301 (A)(2); M.C.R. 7.302.
Petitioner may have available state court remedies with which to exhaust his
parole denial claims. Because he has failed to do so, his petition for writ of habeas
corpus will be dismissed without prejudice. See Goodell v. Barrett, No. 15-cv-11455,
2015 WL 3948910, at *2 (E.D. Mich. June 29, 2015).
III. Conclusion
The Court will summarily dismiss the petition for writ of habeas corpus
without prejudice. The Court will also deny a certificate of appealability to
petitioner. In order to obtain a certificate of appealability, a prisoner must make a
substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2).
To demonstrate this denial, the applicant is required to show that reasonable jurists
could debate whether, or agree that, the petition should have been resolved in a
different manner, or that the issues presented were adequate to deserve
encouragement to proceed further. Slack v. McDaniel, 529 U.S. 473, 483-84 (2000).
When a district court denies a habeas petition on procedural grounds without
reaching the prisoner’s underlying constitutional claims, a certificate of
appealability should issue, and an appeal of the district court’s order may be taken,
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if the petitioner shows 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 district court was correct in its
procedural ruling. Id. “The district court must issue or deny a certificate of
appealability when it enters a final order adverse to the applicant.” Rules
Governing § 2254 Cases, Rule 11(a), 28 U.S.C. foll. § 2254; See also Strayhorn v.
Booker, 718 F. Supp. 2d 846, 875 (E.D. Mich. 2010).
The Court declines to issue a certificate of appealability, because “jurists of
reason” would not find it debatable whether this Court was correct in its procedural
ruling that petitioner had failed to exhaust an available state court remedy. Colbert
v. Tambi, 513 F. Supp. 2d 927, 939 (S.D. Ohio 2007). The Court denies petitioner
leave to appeal in forma pauperis, because the appeal would be frivolous. Allen v.
Stovall, 156 F. Supp. 2d 791, 798 (E.D. Mich. 2001).
IV. ORDER
Based upon the foregoing, IT IS ORDERED that the Petition for a Writ of
Habeas Corpus is SUMMARILY DISMISSED WITHOUT PREJUDICE. This
means that petitioner may re-file this petition once he has fully exhausted
his state remedies.
IT IS FURTHER ORDERED That a Certificate of Appealability is
DENIED.
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IT IS FURTHER ORDERED that Petitioner will be DENIED leave to
appeal in forma pauperis.
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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