Smith v. Ludwick

Filing 17

ORDER denying 15 Motion for a statement. Signed by District Judge John Corbett O'Meara. (WBar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

DERRICK LEE SMITH, #267009,
Petitioner,
v.

CASE NO. 5:10-11052
HONORABLE JOHN CORBETT O’MEARA

NICK LUDWICK,
Respondent.
_______________________________/
ORDER DENYING PETITIONER’S MOTION FOR A STATEMENT [dkt. #15]
This is a habeas corpus case under 28 U.S.C. § 2254. The case has been
stayed and closed for administrative purposes while Petitioner pursues additional postconviction remedies in state court.
Pending before the Court is Petitioner’s “Motion to Have Statement Swearing that
the Trial Court did in Fact Provide One Complete Copy of the Trial Court Record as
Stated in November 4, 2010 Court Ruling Stating so in Order of Denial of Transcripts
Entire Court File Without Oral Argument.” The motion appears to challenge Wayne
County Circuit Judge Daniel P. Ryan’s order dated November 4, 2010. In that order,
Judge Ryan denied Petitioner’s request for a copy of his entire criminal case file. Judge
Ryan stated in his order that Petitioner was not entitled to the requested copies because
the entire court file, including the transcripts, was sent to Petitioner’s appellate attorney.
Petitioner appears to be saying in his pending motion before this Court that
neither the trial court, nor his appellate attorney, provided him with a complete copy of

the trial court record, as alleged by Judge Ryan. Petitioner claims that, pursuant to
Michigan Court Rule 5.433, he is entitled to one free copy of the entire state court
record for purposes of pursing post-conviction relief.
This Court is not free to overturn Judge Ryan’s ruling on a matter of state law.
Hicks on Behalf of Feiock v. Feiock, 485 U.S. 624, 629-630 (1988); Landrum v. Mitchell,
625 F.3d 905, 923 (6th Cir. 2010), petition for cert. filed, No. 10-9911 (U.S. Apr. 4,
2011). Furthermore, Petitioner “has no constitutional right to a transcript to prepare for
a post-conviction proceeding.” Rickard v. Burton 2 F. App’x 469, 470 (6th Cir. 2001)
(citing Ruark v. Gunter, 958 F.2d 318, 319 (10th Cir. 1992), and United States v.
MacCollum, 426 U.S. 317, 325-26 (1976) (plurality) (upholding constitutionality of
statute limiting availability of free transcripts in federal habeas corpus actions)).
Therefore, this Court cannot grant the requested relief, and Petitioner’s Motion for a
Statement [dkt. #15] is DENIED.

s/John Corbett O’Meara
United States District Judge
Date: July 5, 2011

I hereby certify that a copy of the foregoing document was served upon the counsel of record on
this date, July 5, 2011, using the ECF system and upon Petitioner at Michigan Reformatory, 1342 West
Main Street, Ionia, MI 48846 by first-class U.S. mail.
s/William Barkholz
Case Manager

2