Kusk v. John Doe

Filing 4

MEMORANDUM OPINION and ORDER Denying Summarily Denying the 1 Petition for Writ of Habeas Corpus, Denying a Certificate of Appealability, and Denying Leave to Proceed in Forma Pauperis on Appeal - Signed by District Judge Judith E. Levy. (FMos)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Carol Sue Kusk f/k/a Carol Sue
Hall,
Case No. 16-cv-14423
Petitioner,
Judith E. Levy
United States District Judge

v.
John Doe,

Mag. Judge Stephanie Dawkins
Davis
Respondent.

________________________________/
OPINION AND ORDER SUMMARILY DENYING THE PETITION
FOR A WRIT OF HABEAS CORPUS, DENYING A CERTIFICATE
OF APPEALABILITY, AND DENYING LEAVE TO PROCEED IN
FORMA PAUPERIS ON APPEAL
Petitioner Carol Sue Kusk f/k/a Carol Sue Hall filed her pro se
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254,
challenging her 2014 Oakland County Circuit Court conviction for
domestic assault. After exhausting her state remedies, Petitioner filed
the petition at issue here with the United States District Court for the
Western District of Michigan, and the case was transferred to this
Court on December 21, 2016. (Dkt. 1.) Because Petitioner has already
fully served her sentence, the petition is summarily denied, a certificate

of appealability is denied, and leave to proceed in forma pauperis on
appeal is denied.
Promptly after the filing of a habeas petition, the Court must
undertake a preliminary review of the petition to determine whether “it
plainly appears from the face of the petition and any exhibits annexed
to it that the petitioner is not entitled to relief in the district court.”
Rule 4, Rules Governing § 2254 Cases; see 28 U.S.C. § 2243. If the
Court determines that the petitioner is not entitled to relief, the Court
must summarily deny the petition. 28 U.S.C. § 2243; Allen v. Perini,
424 F.2d 134, 141 (6th Cir. 1970) (under § 2243, the district court has a
duty to screen out a habeas corpus petition which is meritless on its
face).

“[P]etitions that raise legally frivolous claims” and those

“containing factual allegations that are palpably incredible or false”
must be screened under Rule 4. Carson v. Burke, 178 F.3d 434, 436-37
(6th Cir. 1999).
Under 28 U.S.C. § 2254(a), “a district court shall entertain an
application for a writ of habeas corpus in behalf of a person in custody
pursuant to the judgment of a State court only on the ground that he is
in custody in violation of the Constitution or laws or treaties of the
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United States.” 28 U.S.C. § 2254(a) (emphasis added). Once a habeas
petitioner has fully served her sentence, she is no longer “in custody” for
the purposes of bringing a petition pursuant to § 2254(a). Lackawanna
Cty. Dist. Att’y v. Coss, 532 U.S. 394, 401 (2001); Maleng v. Cook, 490
U.S. 488, 490-91 (1989); Carafas v. LaVallee, 391 U.S. 234, 238 (1968).
On May 25, 2016, the Michigan Supreme Court reinstated
Petitioner’s conviction and ninety-three day sentence, thus exhausting
her state remedies. (See Dkt. 1-1 at 18.) According to the docket at
Oakland County Circuit Court, Petitioner began her ninety-three day
sentence on September 10, 2014. Petitioner must have fully served her
sentence by this time. Thus, the Court lacks subject matter jurisdiction
to hear Petitioner’s challenges to her conviction.
For the reasons set forth above, the petition for a writ of habeas
corpus (Dkt. 1) is summarily DENIED WITH PREJUDICE.
Before Petitioner may appeal this decision, a certificate of
appealability must issue.

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 court denies relief on the merits, the
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substantial showing threshold is met if the petitioner demonstrates that
reasonable

jurists

would

find

the

court’s

assessment

of

the

constitutional claim debatable or wrong. Slack v. McDaniel, 529 U.S.
473, 484-85 (2000). When a court denies relief 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. Id. Reasonable jurists would not
find the denial of this habeas petition on jurisdictional grounds
debatable.
Accordingly, the Court DENIES a certificate of appealability. The
Court also DENIES Petitioner leave to proceed in forma pauperis on
appeal because an appeal would be frivolous and cannot be taken in
good faith. See Fed. R. App. P. 24(a).
IT IS SO ORDERED.
Dated: January 13, 2017
Ann Arbor, Michigan

s/Judith E. Levy
JUDITH E. LEVY
United States District Judge

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CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served
upon counsel of record and any unrepresented parties via the Court’s
ECF System to their respective email or First Class U.S. mail addresses
disclosed on the Notice of Electronic Filing on January 13, 2017.
s/Felicia M. Moses
FELICIA M. MOSES
Case Manager

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