Smith #179933 v. Detroit, City of et al

Filing 5

OPINION; Judgment to issue; signed by Judge Janet T. Neff (Judge Janet T. Neff, clb)

UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

DARYL JEROME SMITH,
Plaintiff,

Case No. 1:12-cv-468

v.

Honorable Janet T. Neff

CITY OF DETROIT et al.,
Defendants.
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OPINION
This is a mandamus action brought by a state prisoner pursuant to 28 U.S.C. § 1361.
The Court has granted Plaintiff leave to proceed in forma pauperis. Under the Prison Litigation
Reform Act, PUB. L. NO. 104-134, 110 STAT. 1321 (1996), the Court is required to dismiss any
prisoner action brought under federal law if the complaint is frivolous, malicious, fails to state a
claim upon which relief can be granted, or seeks monetary relief from a defendant immune from
such relief. 28 U.S.C. §§ 1915(e)(2), 1915A. The Court must read Plaintiff’s pro se complaint
indulgently, see Haines v. Kerner, 404 U.S. 519, 520 (1972), and accept Plaintiff’s allegations as
true, unless they are clearly irrational or wholly incredible. Denton v. Hernandez, 504 U.S. 25, 33
(1992). Applying these standards, Plaintiff’s action will be dismissed as frivolous.

Factual Allegations
Plaintiff Daryl Jerome Smith presently is incarcerated with the Michigan Department
of Corrections (MDOC) and housed at the Michigan Reformatory. He sues the City of Detroit,
Wayne County, and Judges Leonard Townsend and Michael James Callahan.
On June 12, 1985, Plaintiff was sentenced to life imprisonment without parole, after
a Wayne County jury convicted him of first-degree felony murder. Plaintiff appealed his conviction
to both the Michigan Court of Appeals and the Michigan Supreme Court. The supreme court denied
leave to appeal on November 9, 1987. In 1994, Plaintiff filed a motion for relief from judgment,
which was denied under MICH. CT. R. 6.508(D) on March 3, 1994. Plaintiff sought leave to appeal
to both the Michigan Court of Appeals and Michigan Supreme Court. Both courts denied leave to
appeal. The supreme court’s decision was issued on June 24, 1996. Plaintiff filed a second motion
for relief from judgment on July 24, 1998, which was denied on August 5, 1998. Both the Michigan
Court of Appeals and the Michigan Supreme Court denied leave to appeal under MICH. CT. R.
6.508(D)(3). The supreme court’s decision was issued February 29, 2000.
On June 6, 2000, Plaintiff filed an application for writ of habeas corpus in the United
States District Court for the Eastern District of Michigan. That court denied the petition because
it was barred by the statute of limitations. See Smith v. Stegall, 141 F. Supp. 2d 779 (E.D. Mich.
2001). Plaintiff has filed a third motion for relief from judgment in the Wayne County Circuit Court
on March 16, 2012. That case apparently remains pending.
For relief, Plaintiff seeks an evidentiary hearing, a determination that appellate
counsel was ineffective, a finding that Plaintiff has overcome the procedural bar of MICH. CT. R.
6.508(D), and $3.5 million in damages.

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Discussion
Plaintiff essentially challenges his incarceration by the State of Michigan. Title 28
U.S.C. § 1361 confers jurisdiction only over mandamus actions to compel action by federal, not
state, officials or employees. Federal courts have no authority to issue writs of mandamus to direct
state officials to conform their conduct to state law. Pennhurst State Sch. & Hosp. v. Halderman,
465 U.S. 89 (1984); Haggard v. Tennessee, 421 F.2d 1384 (6th Cir. 1970). Therefore, the Court
may not maintain jurisdiction over Plaintiff’s action pursuant to 28 U.S.C. § 1361. Plaintiff’s
challenge to the fact or duration of his confinement pursuant to the judgment of a state court only
can be brought as a petition for habeas corpus relief under 28 U.S.C. § 2254. See Preiser v.
Rodriguez, 411 U.S. 475, 484, 493 (1973) (the essence of habeas corpus is an attack by a person in
custody upon the legality of that custody and the traditional function of the writ is to secure release
from illegal custody).1
Moreover, to the extent Plaintiff seeks injunctive, declaratory and monetary relief for
alleged violations of Constitutional rights, his claim is barred by Heck v. Humphrey, 512 U.S. 477,
486-87 (1994), which held that “in order to recover damages for allegedly unconstitutional

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As discussed, Plaintiff previously has filed a petition for habeas corpus relief, which was denied as time-barred.
Because Plaintiff’s previous habeas action was filed after the enactment of the Antiterrorism and Effective Death Penalty
Act, PUB. L. 104-132, 110 STAT. 1214 (AEDPA), his current petition is subject to the “second or successive” provision
set forth in 28 U.S.C. § 2244(b). See Cress v. Palmer, 484 F.3d 844, 852 (6th Cir. 2007). Before a second or
successive application is filed in the district court, the applicant must move in the court of appeals for an order
authorizing the district court to consider the application. 28 U.S.C. § 2244(b)(3)(A); see also Tyler v. Cain, 533 U.S.
656, 661 n.3 (2001) (circuit court may authorize the petition upon a prima facie showing that the claim satisfies
§ 2244(b)(2)). A prior dismissal on the merits has a preclusive effect under § 2244, and moreover, certain types of
decisions reached before a merits determination also have a preclusive effect. Carlson v. Pitcher, 137 F.3d 416, 419 (6th
Cir. 1997) (citing Benton v. Washington, 106 F.3d 162, 164 (7th Cir. 1996)). A dismissal on the basis of the statute of
limitations is a decision on the merits, rendering a subsequent application second or successive. See Villanueva v. United
States, 346 F.3d 55, 60 n.1 (2d Cir. 2003) (holding that a dismissal of a petition under § 2255 on the grounds of the
statute of limitations is a decision on the merits for purposes of determining whether a petition is second or successive
and noting that the rule applies equally to cases under § 2254). As a consequence, should Plaintiff wish to file a habeas
petition, it would be second or successive, and he must first seek an order authorizing that petition from the Sixth Circuit.

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conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render
a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has
been [overturned].” See Edwards v. Balisok, 520 U.S. 641, 646 (1997) (emphasis in original). In
Heck, the Supreme Court held that a state prisoner cannot make a cognizable claim under § 1983
for an allegedly unconstitutional conviction or for “harm caused by actions whose unlawfulness
would render a conviction or sentence invalid” unless a prisoner shows that the conviction or
sentence has been “reversed on direct appeal, expunged by executive order, declared invalid by a
state tribunal authorized to make such determination, or called into question by a federal court’s
issuance of a writ of habeas corpus.” Heck, 512 U.S. at 486-87 (footnote omitted). The holding in
Heck has been extended to actions seeking injunctive or declaratory relief. See Edwards, 520 U.S.
at 646-48 (declaratory relief); Clarke v. Stalder, 154 F.3d 186, 189-90 (5th Cir. 1998) (claim for
injunctive relief intertwined with request for damages); Wilson v. Kinkela, No. 97-4035, 1998 WL
246401, at *1 (6th Cir. May 5, 1998) (injunctive relief). Plaintiff’s allegations clearly call into
question the validity of his conviction. Therefore, his action is barred under Heck until his criminal
conviction has been invalidated.
An action may be dismissed as frivolous if “it lacks an arguable basis either in law
or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989); Lawler v. Marshall, 898 F.2d 1196, 1198
(6th Cir. 1990). Because Plaintiff’s request for a writ of mandamus lacks an arguable basis in law,
it will be dismissed with prejudice as frivolous. See Seyka v. Corrigan, 46 F. App’x 260, 261 (6th
Cir. 2002) (dismissing as meritless prisoner’s request for mandamus relief in civil rights case);
Toptsidis v. Ohio, No. 97-3283, 1997 WL 778106, at *1 (6th Cir. Dec. 11, 1997) (affirming
dismissal of mandamus action challenging state conviction); Sparks v. Doe, No. 85-3463, 1985 WL

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14132, at *1 (6th Cir. Dec. 13, 1985) (affirming district court’s dismissal of state prisoner’s
mandamus action as frivolous); Haggard, 421 F.2d at 1386 (affirming dismissal of mandamus
action because “federal courts have no authority to issue writs of mandamus to direct state courts
or their judicial officers in the performance of their duties”); Santee v. Quinlan, 115 F.3d 355, 357
(5th Cir. 1997) (same).
Conclusion
Having conducted the review required by the Prison Litigation Reform Act, the Court
determines that Plaintiff’s action will be dismissed as frivolous pursuant to 28 U.S.C. §§ 1915(e)(2)
and 1915A(b).
The Court must next decide whether an appeal of this action would be in good faith
within the meaning of 28 U.S.C. § 1915(a)(3). See McGore v. Wrigglesworth, 114 F.3d 601, 611
(6th Cir. 1997). For the same reasons that the Court dismisses the action, the Court discerns no
good-faith basis for an appeal. Should Plaintiff appeal this decision, the Court will assess the
$455.00 appellate filing fee pursuant to § 1915(b)(1), see McGore, 114 F.3d at 610-11, unless
Plaintiff is barred from proceeding in forma pauperis, e.g., by the “three-strikes” rule of § 1915(g).
If he is barred, he will be required to pay the $455.00 appellate filing fee in one lump sum.
This is a dismissal as described by 28 U.S.C. § 1915(g).
A Judgment consistent with this Opinion will be entered.

Dated: June 4, 2012

/s/ Janet T. Neff
Janet T. Neff
United States District Judge

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