GOLLNICK v. Christiansen
Filing
14
OPINION and ORDER Denying 1 Petition for Writ of Habeas Corpus; Denying Certificate of Appealability and Denying Leave to Appeal in forma pauperis. Signed by District Judge Judith E. Levy. (WBar)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Steven John Gollnick,
Petitioner,
v.
Case No. 20-11863
Judith E. Levy
United States District Judge
John Christiansen,
Respondent.
________________________________/
OPINION AND ORDER DENYING PETITION FOR WRIT OF
HABEAS CORPUS [1], DENYING CERTIFICATE OF
APPEALABILITY AND DENYING LEAVE TO APPEAL IN
FORMA PAUPERIS
Steven John Gollnick, (“Petitioner”), confined at the Central
Michigan Correctional Facility in St. Louis, Michigan, filed a pro se
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his
habeas application, Petitioner challenges his conviction for failure to pay
child support, Mich. Comp. Laws § 750.165. Respondent filed a motion to
dismiss on the ground that this Court no longer has jurisdiction over the
case because Petitioner has been released from custody on his failure to
pay child support conviction. For the reasons set forth below, the petition
for a writ of habeas corpus is denied.
I.
BACKGROUND
Petitioner was convicted of failure to pay child support in the
Hillsdale County Circuit Court and was sentenced to probation.
Petitioner violated the terms of his probation and pleaded guilty to
violating the terms of his probation. Petitioner was sentenced on
December 12, 2005, to thirty-two to forty-eight months in prison.
The Michigan Department of Corrections Offender Tracking
Information System (“OTIS”), which this Court is permitted to take
judicial notice of, see Ward v. Wolfenbarger, 323 F. Supp. 2d 818, 821, n.
3 (E.D. Mich. 2004), indicates that Petitioner was discharged from his
sentence on his failure to pay child support conviction on August 1, 2009. 1
On June 15, 2020, Petitioner filed a petition for a writ of habeas
corpus, in which he seeks habeas relief from his failure to pay child
support conviction. Petitioner has also attached to this petition a form
petition in which he appears to challenge his 1997 conviction out of
Hillsdale County for attempted first-degree criminal sexual conduct.
(ECF No. 1, PageID.11.) OTIS reveals that Petitioner was discharged
from that conviction on August 22, 2001. It is not clear whether Petitioner
1
https://mdocweb.state.mi.us/otis2/otis2profile.aspx?mdocNumber=258339.
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seeks to also challenge that conviction.
II.
DISCUSSION
The Court dismisses Petitioner’s case because the Court lacks
jurisdiction over the habeas petition due to the fact that Petitioner is no
longer in custody for his conviction for failure to pay child support. To the
extent that Petitioner is attempting to challenge his 1997 conviction for
attempted first-degree criminal sexual conduct, the Court lacks
jurisdiction over this conviction because Petitioner has been discharged
from that sentence as well.
The language of §§ 2241(c)(3) and 2254(a) require that a habeas
petitioner be “in custody” under the conviction or sentence under attack
at the time that a habeas petition is filed in the federal court. See Maleng
v. Cook, 490 U.S. 488, 490–91 (1989). A habeas petitioner is no longer “in
custody,” for purposes of a conviction imposed, after the sentence on that
conviction has fully expired. Id. at 492–93; see also Clemons v. Mendez,
121 F. Supp. 2d 1101, 1102 (E.D. Mich. 2000). The “in custody”
requirement is jurisdictional. See Hautzenroeder v. Dewine, 887 F.3d 737,
740 (6th Cir. 2018). If a habeas petitioner is not in custody when he files
a habeas petition, the Court “may not consider it.” Id. Because
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Petitioner’s sentence has expired on his conviction for failure to pay child
support as well as his 1997 attempted first-degree criminal sexual
conduct conviction, he is no longer in custody on these convictions, thus,
this Court lacks subject matter jurisdiction over his habeas petition with
respect to these convictions. See Steverson v. Summers, 258 F.3d 520, 523
(6th Cir. 2001).
Additionally, once a habeas petitioner’s sentence for a conviction
has completely expired, the collateral consequences of that conviction are
insufficient to render a habeas petitioner “in custody.” Clemons v.
Mendez, 121 F. Supp. 2d at 1102–03. The collateral consequences of a
conviction, such as the inability to carry a firearm, engage in certain
businesses, hold public office, or serve on a jury are insufficient to satisfy
the “in custody” requirement under the habeas statute. See Leslie v.
Randle, 296 F.3d 518, 522 (6th Cir. 2002). Moreover, the fact that
Petitioner might still be subject to a civil judgment that requires him to
pay child support would be insufficient to satisfy the custody requirement
for the habeas statute, because Petitioner’s incarceration for failing to
pay child support on that judgment has ended and he is not on parole,
probation, bail, or any other form of custody. See Sevier v. Turner, 742
4
F.2d 262, 269 (6th Cir. 1984).
Finally, the fact that Petitioner is still in prison for a separate
conviction for failure to register as a sex offender does not alter this
analysis. A habeas petitioner who has fully served his sentence does not
satisfy the custody requirement for that charge merely because he is
serving a prison sentence or other restraint on another conviction which
is not being challenged in the current habeas petition. See e.g. Ward v.
Knoblock, 738 F.2d 134, 136–38 (6th Cir. 1984). Because Petitioner is no
longer in custody for the conviction of failure to pay child support or the
conviction for attempted first-degree criminal sexual conduct, he cannot
maintain a habeas challenge against these convictions.
III.
CONCLUSION
The Court denies the petition for a writ of habeas corpus. The Court
also denies a certificate of appealability to Petitioner. In order 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). A certificate
of appealability may be issued “only if the applicant has made a
substantial showing of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2). “The district court must issue or deny a certificate of
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appealability when it enters a final order adverse to the applicant.” Rules
Governing § 2254 Cases, Rule 11(a), 28 U.S.C. foll. § 2254.
When a district court denies a habeas petition on procedural
grounds without reaching the prisoner’s underlying constitutional
claims, a certificate of appealability should issue, and an appeal of the
district court’s order may be taken, if the petitioner shows 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. Slack v. McDaniel, 529 U.S. 473, 484 (2000). When a plain
procedural bar is present and the district court is correct to invoke it to
dispose of the case, a reasonable jurist could not conclude either that the
district court erred in dismissing the petition or that the petition should
be allowed to proceed further. In such a circumstance, no appeal would
be warranted. Id.
The Court denies Petitioner a certificate of appealability, because
reasonable jurists would not find it debatable whether this Court was
correct in determining that Petitioner failed to meet the “in custody”
requirement for maintaining a habeas action with respect to his
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conviction or convictions. See e.g. Finkelstein v. Spitzer, 455 F.3d 131, 133
(2nd Cir. 2006). The Court denies Petitioner leave to appeal in forma
pauperis, because any appeal would be frivolous. Dell v. Straub, 194 F.
Supp. 2d 629, 659 (E.D. Mich. 2002).
IV.
ORDER
For the reasons set forth above, the petition for a writ of habeas
corpus is denied with prejudice.
It is further ordered that a certificate of appealability is denied and
Petitioner is denied leave to appeal in forma pauperis.
IT IS SO ORDERED.
Dated: June 15, 2021
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 June 15, 2021.
s/William Barkholz
WILLIAM BARKHOLZ
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