Dunlap v. Horton
OPINION and ORDER Denying 7 & 9 Petitions for Investigation and 10 MOTION for Guidance. Signed by District Judge Judith E. Levy. (SBur)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case No. 17-cv-11338
Judith E. Levy
United States District Judge
Mag. Judge David R. Grand
OPINION AND ORDER DENYING PETITIONS FOR
INVESTIGATION [7, 9] AND MOTION FOR GUIDANCE 
Michigan state prisoner Darnell Dunlap is serving a sentence of
twenty-five to forty years for second-degree murder. In 2017, Dunlap filed
a letter “Seeking Investigation” which was docketed as a habeas corpus
petition. (ECF No. 1.) On March 10, 2017, the Court dismissed the case
without prejudice because a petitioner may not commence a habeas
action by filing a letter. (ECF No. 3.)
After the dismissal of his case, Dunlap filed a “Petition for
Investigation” (ECF No. 7), “Petition for Writ for Administrative
Investigation Into Injustice and Violation of Petitioner’s Constitutional
Rights” (ECF No. 9), and “Motion for Guidance of Corruption, of Injustice,
that Violated Petitioner’s State and Federal Constitution to Having a
Fair Trial, Requesting a Grand Jury’s Investigation Into the Corruption”
(ECF No. 10). The Court interprets all three filings to be asking for some
variation of the same relief: guidance, an administrative investigation
into the failure to transcribe state court proceedings, and a grand jury
investigation into his allegedly unconstitutional conviction. The Court
will deny the petitions and motion.
First, to the extent that Dunlap’s filings request an investigation or
guidance, the Court does not interpret them to be successive habeas
petitions. If Dunlap wishes to challenge his second-degree murder
conviction, he must first seek authorization to file a successive petition
from the Sixth Circuit Court of Appeals. In 2014, Dunlap filed a habeas
corpus petition challenging his second-degree murder conviction, which
was denied on the merits. See Opinion and Order Denying Petition for
Writ of Habeas Corpus, Case No. 5:14-cv-11537 (E.D. Mich. Apr. 21,
2016) (ECF No. 30). Dunlap may not seek relief from his conviction in
this Court without first obtaining authorization to file a successive
habeas petition from the Sixth Circuit Court of Appeals. See 28 U.S.C. §
2244(b)(3)(A). The Court will not transfer these filings to the Court of
Appeals at this time because the Court does not construe Dunlap’s filings
as challenges to his second-degree murder conviction.
Instead, Dunlap seeks “guidance” from the Court. It is unclear on
what subject Dunlap seeks guidance. Regardless, the Court is empowered
to hear only cases and controversies and may not issue advisory opinions.
See Nat’l Bank of Or. v. Indep. Ins. Agents, 508 U.S. 439, 446 (1993) (“[A]
federal court [lacks] the power to render advisory opinions.”) (internal
citation omitted, alteration in original). The Court will deny the request
Dunlap also asks for an investigation, either by this Court under
Rule 4 of the Rules Governing § 2254 Cases or in the form of a grand jury
investigation. Rule 4 of the Rules Governing Section 2254 Cases requires
a judge to “examine” only habeas petitions properly filed and forwarded
by the clerk. Rule 4 does not provide its own cause of action. As explained
above, Dunlap does not have a current habeas petition in front of this
Court and would need to seek leave from the Sixth Circuit before filing
one. Additionally, a private citizen does not have the authority or right
to initiate a grand jury investigation. See Franklin v. Henderson, 15 Fed.
App’x 205, 207 (6th Cir. 2001) (an individual citizen has no right to
initiate federal criminal proceedings); Mitchell v. McNeil, 487 F.3d 374,
378 (6th Cir. 2007) (“There is no statutory or common law right, much
less a constitutional right, to an investigation.”). The request for either
kind of investigation is denied.
Certificate of Appealability and In Forma Pauperis Status
Federal Rule of Appellate Procedure 22(b)(1) provides that an
appeal may not proceed unless a certificate of appealability is issued
under 28 U.S.C. § 2253. Rule 11(a) of the Rules Governing Section 2254
Cases requires the Court to “issue or deny a certificate of appealability
when it enters a final order adverse to the applicant.”
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). Section 2253(c)(2) is satisfied only if reasonable jurists could
find either that the district court’s assessment is debatable or wrong or
that the issues presented deserve encouragement to proceed further.
Slack v. McDaniel, 529 U.S. 473, 483–84 (2000).
For the reasons above, reasonable jurists could not find this Court’s
assessment of Petitioner’s claims to be debatable or wrong. Nor would
reasonable jurists conclude that the issues presented are adequate to
deserve encouragement to proceed further. Consequently, Petitioner is
not entitled to a certificate of appealability. See Millender v. Adams, 187
F. Supp.2d 852, 880 (E.D. Mich. 2002).
The Court further concludes that an appeal from this decision
would be frivolous and could not be taken in good faith. See Coppedge v.
U.S., 369 U.S. 438, 444 (1962). Therefore, even though Petitioner was
granted leave to proceed in forma pauperis in this Court, he may not
proceed in forma pauperis on appeal. Fed. R. App. P. 24(a)(3)(A).
For the reasons set forth above, the Petitions for Investigation (ECF
Nos. 7, 9) and Motion for Guidance (ECF No. 10) are DENIED WITH
PREJUDICE. The Court DENIES a certificate of appealability. The
Court DENIES permission to appeal in forma pauperis.
IT IS SO ORDERED.
Dated: October 8, 2019
Ann Arbor, Michigan
s/Judith E. Levy
JUDITH E. LEVY
United States District Judge
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 October 8, 2019.
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