McBrayer v. Bush
Filing
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OPINION and ORDER Dismissing the 1 Petition for a 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. (SBur)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Richard McBrayer, #235965,
Petitioner,
v.
Case No. 18-cv-11186
Judith E. Levy
United States District Judge
Jeremy Bush,
Mag. Judge Anthony P. Patti
Respondent.
________________________________/
OPINION AND ORDER DISMISSING THE PETITION
FOR A WRIT OF HABEAS CORPUS [1], DENYING A
CERTIFICATE OF APPEALABILITY, AND DENYING
LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
Michigan prisoner Richard Allen McBrayer (“Petitioner”), through
a representative William Sim Spencer, filed a petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254 asserting that he is incarcerated in
violation of his constitutional rights. Specifically, he alleges a defect in
the jurisdiction of the Michigan courts concerning his parole proceedings.
I.
Background
In 1994, Petitioner pleaded guilty to two counts of first-degree
criminal sexual conduct in the Macomb County Circuit Court, and was
sentenced to concurrent terms of 20 to 40 years imprisonment. The
Michigan Parole Board voted to grant Petitioner parole on October 15,
2015, with a projected release date of January 5, 2016. Petitioner was
apparently paroled on or about that date. On May 9, 2016, the victim filed
a delayed application for leave to appeal with the Macomb County Circuit
Court challenging the Parole Board’s decision. The circuit court granted
the delayed application for leave to appeal on August 16, 2016, and
reversed the Parole Board’s decision on November 18, 2016. See Macomb
Co. Cir. Ct. Dkt., Case No. 2016-001586-AP. The Michigan Court of
Appeals subsequently affirmed the circuit court’s decision. In re Parole of
Richard McBrayer, No. 336084, 2017 WL 3722010 (Mich. Ct. App. Aug.
29, 2017). The Michigan Supreme Court denied leave to appeal in a
standard order. In re Parole of Richard McBrayer, _ Mich. _, 908 N.W.2d
915 (April 3, 2018).
Petitioner, through his representative, filed this petition on April
13, 2018. He alleges that there was/is a defect in the jurisdiction of the
state courts due to the failure of the victim to timely file an appeal from
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the Parole Board’s decision to grant Petitioner parole1 with the circuit
court and he asserts that this violates his federal due process rights.
Petitioner does not indicate whether he raised this issue in the state
courts – although he asserts that jurisdictional challenges may be made
at any time.
II.
Discussion
A district court must undertake a preliminary review of a habeas
petition promptly after filing 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 also 28 U.S.C. § 2243. If, after preliminary
consideration, the court determines that the petitioner is not entitled to
relief, the court must summarily dismiss the petition. Id.; Allen v. Perini,
424 F.2d 134, 141 (6th Cir. 1970) (district court has the duty to “screen
out” petitions that lack merit on their face). A dismissal under Rule 4
includes those petitions which raise legally frivolous claims, as well as
1Petitioner
cites Michigan Court Rule 7.105(A), which provides a 21-day time period
for filing an application for leave to appeal with the circuit court. Michigan Court
Rule 7.105(G) provides a 6-month period in which to file a late application for leave
to appeal with the circuit court.
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those containing factual allegations that are palpably incredible or false.
Carson v. Burke, 178 F.3d 434, 436-37 (6th Cir. 1999).
As an initial matter, Petitioner failed to demonstrate that he
exhausted his jurisdictional claim in the state courts. A prisoner filing a
petition for a writ of habeas corpus under 28 U.S.C. §2254 must first
exhaust all state remedies. See O'Sullivan v. Boerckel, 526 U.S. 838, 845
(1999) (“state prisoners must give the state courts one full fair
opportunity to resolve any constitutional issues by invoking one complete
round of the State’s established appellate review process”); Rust v. Zent,
17 F.3d 155, 160 (6th Cir. 1994). To satisfy the exhaustion requirement,
a Michigan prisoner must present each issue, including federal
constitutional issues, to both the Michigan Court of Appeals and the
Michigan Supreme Court. See Welch v. Burke, 49 F. Supp. 2d 992, 998
(E.D. Mich. 1999); Hafley v. Sowders, 902 F.2d 480, 483 (6th Cir. 1990);
see also Koontz v. Glossa, 731 F.2d 365, 368 (6th Cir. 1984) (requiring
habeas petitioners to present federal constitutional claims to the state
court as part of the exhaustion process). The claims must be “fairly
presented” to those courts, meaning that the petitioner must have
asserted both the factual and legal bases for the claims. McMeans v.
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Brigano, 228 F.3d 674, 681 (6th Cir. 2000); see also Williams v. Anderson,
460 F.3d 789, 806 (6th Cir. 2006) (citing McMeans). The burden is on the
petitioner to prove exhaustion. Rust, 17 F.3d at 160.
Here, Petitioner makes no such showing. His jurisdiction claim is
unexhausted and his habeas petition is subject to dismissal.
But, while the exhaustion requirement is strictly enforced, it is not
a jurisdictional prerequisite for bringing a habeas petition. Granberry v.
Greer, 481 U.S. 129, 134-35 (1987); Rockwell v. Yukins, 217 F.3d 421, 423
(6th Cir. 2000). An unexhausted claim may be addressed if the pursuit of
state court remedies would be futile, Witzke v. Withrow, 702 F. Supp.
1338, 1348 (W.D. Mich. 1988), or if the unexhausted claim is meritless
such that addressing it would be efficient and not offend federal-state
comity. Prather v. Rees, 822 F.2d 1418, 1422 (6th Cir. 1987); see also 28
U.S.C. § 2254(b)(2) (habeas petition may be denied on the merits despite
the failure to exhaust state court remedies).
Here, Petitioner brings the type of claim that should be adjudicated
despite his failure to exhaust state court remedies because a habeas
petitioner may not challenge a state court’s jurisdiction on federal habeas
review. The determination of whether a particular state court has
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jurisdiction and is the proper venue to hear a case is a “function of the
state courts, not the federal judiciary.” Wills v. Egeler, 532 F.2d 1058,
1059 (6th Cir. 1976); see also Hamby-Bey v. Bergh, No. 08-CV-13284,
2008 WL 3286227, *2 (E.D. Mich. Aug. 7, 2008) (Battani, J.); Chandler v.
Curtis, No. 05-CV-72608-DT, 2005 WL 1640083, *2 (E.D. Mich. July 13,
2005) (Cohn, J.); Groke v. Trombley, No. 01-CV-10045-BC, 2003 WL
1798109, *5 (E.D. Mich. April 1, 2003) (Lawson, J.); accord Wright v.
Angelone, 151 F.3d 151, 157-58 (4th Cir. 1998); Rhode v. Olk-Long, 84
F.3d 284, 287 (8th Cir. 1996). Federal habeas courts must defer to state
courts’ interpretations of state law jurisdictional issues. Strunk v.
Martin, 27 F. App’x 473, 475, 2001 WL 1450740, *2 (6th Cir. 2001).
Petitioner asserts the state circuit court failed to comply with
Michigan Court Rule 7.105. Whether or not petitioner’s assertion is
correct, Federal habeas relief cannot be granted for a state trial court’s
error in the application of state procedural law. See Estelle v. McGuire,
502 U.S. 62, 67–68 (1991) (“it is not the province of a federal habeas court
to reexamine state-court determinations on state-law questions”). State
courts are the final arbiters of state law and the federal courts will not
intervene in such matters. Lewis v. Jeffers, 497 U.S. 764, 780 (1990);
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Oviedo v. Jago, 809 F.2d 326, 328 (6th Cir. 1987); see also Bradshaw v.
Richey, 546 U.S. 74, 76 (2005) (“a state court’s interpretation of state law,
including one announced on direct appeal of the challenged conviction,
binds a federal court sitting on habeas review”). Because Petitioner’s
claim challenges the state court’s decision to exercise jurisdiction over
the victim’s delayed appeal of the parole board’s decision, he cannot
obtain federal habeas relief.
III. Conclusion
For the reasons set forth above, Petitioner is not entitled to federal
habeas relief on his jurisdictional claim, and that his petition for a writ
of habeas corpus is DISMISSED.
Before Petitioner may appeal this 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 court denies a habeas claim on the merits,
the 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,
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484-85 (2000). Here, Petitioner fails to make a substantial showing of the
denial of a constitutional right, and a certificate of appealability is not
warranted. In addition, Petitioner is not granted leave to proceed in
forma pauperis on appeal, as an appeal cannot be taken in good faith. See
Fed. R. App. P. 24(a).
Accordingly, the petition for a writ of habeas corpus is DENIED and
DISMISSED WITH PREJUDICE. Petitioner is also DENIED a
certificate of appealability and leave to proceed in forma pauperis on
appeal.
IT IS SO ORDERED.
Dated: May 22, 2018
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 May 22, 2018.
s/Shawna Burns
SHAWNA BURNS
Case Manager
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