Roberts v. Terris

Filing 3

OPINION and ORDER Dismissing Petition for Writ of Habeas Corpus Without Prejudice and Denying Certificate of Appealabilty. Signed by District Judge Linda V. Parker. (RLou)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

VERDA ROBERTS,
Petitioner,

Case Number: 17-10698
Honorable Linda V. Parker

v.
J.A. TERRIS,
Respondent.
/

OPINION AND ORDER DISMISSING PETITION FOR WRIT OF
HABEAS CORPUS WITHOUT PREJUDICE AND DENYING
CERTIFICATE OF APPEALABILITY
Verda Roberts, presently confined at the Federal Correctional Institution in
Milan, Michigan, has filed a pro se petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2241. Petitioner is awaiting transportation to the State of Oregon to
face a criminal charge pending against him there. He was detained by Michigan
State Police on January 21, 2017. His extradition hearing was conducted on
February 24, 2017 in the Third Judicial Circuit Court of Michigan, and he was
ordered extradited to Oregon. See Michigan v. Roberts, No. 17-000628-01-AX.
Petitioner argues that the State of Oregon failed to take custody of Petitioner within
the time allowed in the extradition order and that the Portland, Oregon Police
Department improperly contracted with the United States Marshals Service to

transport him to Oregon. The Court finds that Petitioner has not exhausted his
state court remedies and dismisses the petition without prejudice.
I.
This is a habeas corpus action brought pursuant to 28 U.S.C. § 2241. Upon
the filing of a habeas corpus petition, the district court must promptly examine the
petition to determine “if it plainly appears from the face of the petition and any
exhibits annexed to it that the petitioner is not entitled to relief.” Rule 4, Rules
Governing Section 2254 cases. If the court determines that the petitioner is not
entitled to relief, the court shall summarily dismiss the petition. McFarland v.
Scott, 512 U.S. 849, 856 (1994) (“Federal courts are authorized to dismiss
summarily any habeas petition that appears legally insufficient on its face”). The
Rules Governing Section 2254 cases may be applied at the discretion of the district
court judge to petitions under habeas statutes in addition to § 2254. Rule 1(b),
Rules Governing Section 2254 Cases.
Title 28 U.S.C. § 2241 confers upon federal courts jurisdiction to consider
pretrial habeas corpus petitions. Atkins v. Michigan, 644 F.2d 543, 546 (6th Cir.
1981). However, “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.” Id. Abstention
from intrusion into state court proceedings is justified by the doctrine of comity

which reduces friction between state and federal court systems by providing state
courts the opportunity to correct a constitutional violation in the first instance.
O’Sullivan v. Boerckel, 526 U.S. 838, 844 (1999). The requirement that a habeas
petitioner exhaust state court remedies before seeking relief in federal court
“protect[s] the state courts’ opportunity to confront initially and resolve
constitutional issues arising within their jurisdictions and to limit federal judicial
interference in state adjudicatory processes.” Atkins, 644 F. 2d at 546.
Petitioner has not alleged that he has exhausted his state-court remedies
concerning the extradition proceedings. Michigan and Oregon have enacted the
Uniform Criminal Extradition Act (UCEA). Mich. Comp. Laws § 780.1 et. seq.;
Or. Rev. Stat. § 133.743 et seq. The UCEA establishes extradition procedures “to
facilitate the administration of justice between states.” Barton v. Norrod, 106 F.3d
1289, 1295 (6th Cir. 1997). Under Michigan law, a person who has been arrested
in accordance with another State’s warrant may apply for a writ of habeas corpus
in the state courts. The law states:
No person arrested upon such warrant shall be delivered over to the
agent whom the executive authority demanding him shall have
appointed to receive him unless he shall first be taken forthwith before
a judge of a court of record in this state, who shall inform him of the
demand made for his surrender and of the crime with which he is
charged, and that he has the right to demand and procure legal
counsel; and if the prisoner or his counsel shall state that he or they
desire to test the legality of his arrest, the judge of such court of
record shall fix a reasonable time to be allowed him within which to
apply for a writ of habeas corpus. When such writ is applied for,

notice thereof, and of the time and place of hearing thereon, shall be
given to the prosecuting officer of the county in which the arrest is
made and in which the accused is in custody, and to the said agent of
the demanding state.
Mich. Comp. Laws § 780.9. “The validity of the detention of a person held under
the executive authority is properly tested on habeas corpus.” People v. Rayborn,
18 Mich. App. 468, 472, 171 N.W.2d 460, 461-62 (Mich. Ct. App. 1969).
Petitioner bears the burden of showing exhaustion of state court remedies. Nali v.
Phillips, 681 F.3d 837, 852 (6th Cir. 2012). Petitioner fails to satisfy that burden
because he fails to allege that he has pursued state habeas corpus relief. The Court
will dismiss the petition so the petitioner can exhaust his state court remedies.
II.
Accordingly, the Court DISMISSES the petition for a writ of habeas corpus.
(ECF No. 1.)
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
federal court denies a habeas claim on procedural grounds without addressing the
merits, 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

district court was correct in its procedural ruling. See Slack v. McDaniel, 529 U.S.
473, 484-85 (2000). Reasonable jurists would not debate the correctness of the
Court’s ruling. Accordingly, the Court DENIES a certificate of appealability.
IT IS SO ORDERED.
s/ Linda V. Parker
LINDA V. PARKER
U.S. DISTRICT JUDGE
Dated: April 24, 2017
I hereby certify that a copy of the foregoing document was mailed to counsel of
record and/or pro se parties on this date, April 24, 2017, by electronic and/or U.S.
First Class mail.
s/ Richard Loury
Case Manager