Marks v. Warden
Filing
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OPINION and ORDER Dismissing Petition for Writ of Habeas Corpus Without Prejudice, Denying Certificate of Appealability, and Denying Leave to Proceed In Forma Pauperis on Appeal. Signed by District Judge Stephanie Dawkins Davis. (THal)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
THEVEREND K. MARKS,
Petitioner,
Case Number: 4:21-CV-11490
Hon. Stephanie Dawkins Davis
v.
MIKE BROWN,
Respondent.
/
OPINION AND ORDER DISMISSING PETITION FOR
WRIT OF HABEAS CORPUS WITHOUT PREJUDICE, DENYING
CERTIFICATE OF APPEALABILITY, AND DENYING
LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
Theverend K. Marks, a prisoner in the custody of the Michigan Department
of Corrections, has filed a pro se petition for a writ of habeas corpus challenging
his conviction for armed robbery, Mich. Comp. Laws § 750.529, and seeking
immediate release from custody. For the reasons discussed, the Court dismisses
the petition without prejudice and denies a certificate of appealability. The Court
denies Marks leave to proceed in forma pauperis on appeal.
I.
STANDARD
Under Rule 4 of the Rules Governing Section 2254 Cases in United States
District Courts, the Court conducts a preliminary review of the petition. Rule 4
provides that upon preliminary consideration by the district court judge, “[i]f it
plainly appears from the petition and any attached exhibits that the petitioner is not
entitled to relief in the district court, the judge must dismiss the petition and direct
the clerk to notify the petitioner.” The instant petition is subject to dismissal under
this standard.
II.
DISCUSSION
Marks pleaded no contest in Macomb County Circuit Court to armed
robbery. On January 3, 2019, he was sentenced to six to twenty years’
imprisonment. He did not seek leave to appeal in the Michigan Court of Appeals
or Michigan Supreme Court. (See ECF No. 1, PageID.2). Instead, he filed this
habeas corpus petition arguing that the state-court criminal proceeding was a
“sham legal process” and that he should be released. Id. at 33.
A state prisoner filing a petition for a writ of habeas corpus must first
exhaust available state court remedies. See O’Sullivan v. Boerckel, 526 U.S. 838,
845 (1999) (“[S]tate prisoners must give the state courts one full opportunity to
resolve any constitutional issues by invoking one complete round of the State's
established appellate review process.”). The claims must be “fairly presented” to
the state courts. McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000). A
petitioner fairly presents claims by asserting the factual and legal bases for the
claims in the state courts, id., and by raising them as federal constitutional issues.
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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 proceeding to both the
Michigan Court of Appeals and the Michigan Supreme Court to satisfy the
exhaustion requirement. Robinson v. Horton, 950 F.3d 337, 343 (6th Cir. 2020).
A petitioner must comply with the exhaustion requirement as long as there is
still a state-court procedure available for him to do so. See Adams v. Holland, 330
F.3d 398, 401 (6th Cir. 2003). In this case, a procedure is available. Marks may
file a motion for relief from judgment in the Macomb County Circuit Court under
Michigan Court Rule 6.502. If that motion is denied, he may seek review from the
Michigan Court of Appeals and Michigan Supreme Court by filing an application
for leave to appeal. Mich. Ct. R. 6.509; Mich. Ct. R. 7.203; Mich. Ct. R. 7.302.
The state courts must be given a fair opportunity to address Marks’s claims
before the claims are presented to this Court. The petition will be dismissed without
prejudice.
IV.
CERTIFICATE OF APPEALABILITY
Before Marks 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
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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 procedural ruling. Therefore, the Court denies a certificate of
appealability.
V.
ORDER
For the reasons given, IT IS ORDERED that the petition for writ of habeas
corpus is DISMISSED WITHOUT PREJUDICE and a certificate of
appealability are DENIED.
IT IS FURTHER ORDERED that Petitioner may not proceed in forma
pauperis on appeal because an appeal may not be taken in good faith. 28 U.S.C.
§ 1915(a)(3).
SO ORDERED.
s/Stephanie Dawkins Davis
Stephanie Dawkins Davis
United States District Judge
Dated: October 27, 2021
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