Roberts #15621-040 v. Michigan, State of
OPINION ; signed by Chief Judge Robert J. Jonker (Chief Judge Robert J. Jonker, ymc)
UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
Case No. 1:16-cv-1462
Honorable Robert J. Jonker
STATE OF MICHIGAN,
This is a habeas corpus action brought by a state prisoner pursuant to 28 U.S.C.
§ 2254. Promptly after the filing of a petition for habeas corpus, 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 so, the petition must be
summarily dismissed. Rule 4; see 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 those containing factual
allegations that are palpably incredible or false. Carson v. Burke, 178 F.3d 434, 436-37 (6th Cir.
1999). After undertaking the review required by Rule 4, the Court concludes that the petition must
be dismissed because the Court lacks subject matter jurisdiction.
Petitioner is presently incarcerated at the Oxford Federal Correctional Institution in
Oxford, Wisconsin. Petitioner is serving a sentence of 210 months imprisonment imposed by this
Court following his guilty plea to a charge of distribution of 28 grams or more of cocaine base.
United States v. Roberts, No. 1:10-cr-300 (J., ECF No. 68.) Petitioner is not challenging the
constitutionality of that conviction or sentence in this proceeding; rather, he is challenging the
constitutionality of his 2002 Mason County Circuit Court conviction for possession with intent to
deliver less than 50 grams of a controlled substance in violation of MICH. COMP. LAWS
§ 333.7401(2)(a)(iv). (J., ECF No. 1-3, PageID.127.) Petitioner pleaded guilty to that offense on
September 3, 2002. (Id.) On October 8, 2002, the court sentenced Petitioner to the custody of the
Michigan Department of Corrections for a term of imprisonment of 1year and 1 day to 20 years.
(Id.) Petitioner’s 2002 state court conviction was used to enhance his sentence in the federal case.
United States v. Roberts, No. 1:10-cr-300 (Mins. of Sentencing, ECF No. 67.)
Petitioner never sought leave to appeal his 2002 conviction. He commenced his
challenge to that conviction in the state courts in 2012, only after the impact of the conviction on his
federal sentence became apparent. (Mot. for Relief from J., ECF No. 1-2, PageID.26-40.) The
Mason County Circuit Court denied Petitioner’s requests for relief initially and upon reconsideration.
(Orders, ECF No. 1-2, PageID.43-45, 50-53.) The state appellate courts refused to provide relief.
See People v. Roberts, No. 325545 (Mich. Ct. App. Apr. 8, 2015) (Order, ECF No. 1-3, PageID.129);
People v. Roberts, No. 151660 (Mich. Jun. 22, 2016) (Order, ECF No. 1-3, PageID.130.) Petitioner
filed his habeas petition on December 22, 2016.
Critically, at the time Petitioner filed his petition, he was no longer in custody
pursuant to the state court judgment he challenges. According to the Final Presentence Report in
Petitioner’s federal criminal case, he was paroled on the state sentence July 5, 2003, and discharged
from parole July 5, 2005. Case No. 1:10-cr-300, ECF No. 59 at ¶ 51, PageId.205-06. This is
consistent with the absence of any information about the old conviction on the Michigan OTIS
system.1 Petitioner makes no argument to the contrary.
The federal habeas statute gives this Court jurisdiction to entertain petitions for
habeas relief only from persons who are “in custody in violation of the Constitution or laws or
treaties of the United States.” 28 U.S.C. § 2241(c)(3); see also 28 U.S.C. § 2254(a). The Supreme
Court has clarified “that the habeas petitioner must be ‘in custody’ under the conviction or sentence
under attack at the time his petition is filed.” Maleng v. Cook, 490 U.S. 488, 490-491 (1989) (citing
Carafas v. LaVallee, 391 U.S.234, 238 (1968).
Petitioner implicitly acknowledges that he is not “in custody.” He claims, instead,
that he suffers collateral consequences, in the form of his federal sentence enhancement, that permit
this Court to exercise jurisdiction. Petitioner is incorrect. Collateral consequences, such as a
subsequent sentence enhancement, may be sufficient to prevent a case from becoming moot upon
The Michigan Department of Corrections Offender Tracking Information System (OTIS) includes information
on offenders until they are three years beyond their discharge date. http://mdocweb.state.mi.us/OTIS2/aboutotis2.aspx
(“The Michigan Legislature requires the MDOC to keep offender information on OTIS for a period of three years after
the offender has discharged from MDOC supervision.”) There is no information regarding Petitioner, indicating not only
was he discharged, but he was discharged some time ago. This Court takes judicial notice of the information provided
by a search of the MDOC OTIS website with regard to Petitioner. See, i.e. Carpenter v. Mich. Dep’t of Corr. Time
Computation Unit, No. 1:13-cv-313, 2013 WL 1947249 *1 n.1 (W.D. Mich. May 9, 2013); Ward v. Wolfenbarger, 323
F. Supp. 2d 818, 821–22 n. 3 (E.D.Mich. 2004).
discharge;2 but, they are not sufficient to create jurisdiction if the discharge precedes the filing of the
petition. Maleng, 490 U.S. at 492 (“[O]nce the sentence imposed for a conviction has completely
expired, the collateral consequences of that conviction are not themselves sufficient to render an
individual ‘in custody’ for the purposes of a habeas attack upon it.”)
Creative petitioners have attempted to overcome the jurisdictional limit by claiming
that their constitutional challenges relate to the more recent enhanced sentence. For example, in
Petitioner’s case, he might claim that the Court has jurisdiction because he is “in custody” on the
federal conviction, effectively seeking to convert his § 2254 petition into a § 2255 petition. The
Sixth Circuit rejected that approach in Steverson v. Summers, 258 F.3d 520 (6th Cir. 2001) relying
upon Daniels v. United States, 532 U.S. 374 (2001) (Court rejected the argument in the context of
a § 2255 petition), and Lackawanna Cty. Dist. Attorney v. Coss, 532 U.S. 394 (2001) (Court rejected
the argument in the context of a § 2254 petition). The Coss Court summed up its holding as follows:
[W]e hold that once a state conviction is no longer open to direct or collateral attack
in its own right because the defendant failed to pursue those remedies while they
were available (or because the defendant did so unsuccessfully), the conviction may
be regarded as conclusively valid. See Daniels, post, at 382. If that conviction is
later used to enhance a criminal sentence, the defendant generally may not challenge
the enhanced sentence though a petition under § 2254 [or § 2255, per Daniels,] on
the ground that the prior conviction was unconstitutionally obtained.
The Supreme Court so held in Carafas, 391 U.S. at 237-238; see also Ceasor v. Ocwieja, 655 F. App’x 263,
275-276 (6th Cir. 2016).
Coss, 532 U.S. at 403-404 (parallel citation omitted).3 Petitioner’s state conviction is no longer open
to direct or collateral attack. His conviction is conclusively valid and appropriately relied upon in
subsequent sentences. Moreover, the fact that Petitioner has been discharged means he is no longer
in custody. This Court, therefore, does not have subject matter jurisdiction over the petition.
In light of the foregoing, the Court will summarily dismiss Petitioner’s application
pursuant to Rule 4 because the Court lacks subject matter jurisdiction.
Certificate of Appealability
Under 28 U.S.C. § 2253(c)(2), the Court must determine whether a certificate of
appealability should be granted. A certificate should issue if Petitioner has demonstrated a
“substantial showing of a denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This Court’s
dismissal of Petitioner’s action under Rule 4 of the Rules Governing § 2254 Cases is a determination
that the habeas action, on its face, lacks sufficient merit to warrant service. It would be highly
unlikely for this Court to grant a certificate, thus indicating to the Sixth Circuit Court of Appeals that
an issue merits review, when the Court has already determined that the action is so lacking in merit
that service is not warranted. See Love v. Butler, 952 F.2d 10 (1st Cir. 1991) (it is “somewhat
anomalous” for the court to summarily dismiss under Rule 4 and grant a certificate); Hendricks v.
In Daniels, 532 U.S. at 374, and Coss, 532 U.S. at 394, the Court recognized an exception to the rule if the
prior conviction were “obtained where there was a failure to appoint counsel in violation of the Sixth Amendment as set
forth in Gideon v. Wainwright, 372 U.S. 335 (1963).” Coss, 532 U.S. at 404 (parallel citations omitted). Such a failing
has a “jurisdictional significance.” Custis v. United States, 511 U.S. 485, 494 (1994). That was not the case here;
counsel was appointed for Petitioner in the Mason County case. Indeed, Petitioner contends that his appointed counsel
was constitutionally ineffective. (Pet., ECF No. 1, PageID.10.) Ineffective assistance does not carry the jurisdictional
significance necessary to create an exception to the rule. Indeed, the underlying constitutional challenge in Coss was
ineffective assistance of counsel. Coss, 532 U.S. at 397; see also United States v. Morgan, No. 3:08-cr-063, 2009 WL
5167860 at *3 (S.D. Ohio Dec. 18, 2009) (“A federal defendant has no right to collaterally attack at sentencing a prior
conviction used to enhance the penalty for ineffective assistance of counsel, but only for complete lack of counsel.”)
Vasquez, 908 F.2d 490 (9th Cir. 1990) (requiring reversal where court summarily dismissed under
Rule 4 but granted certificate); Dory v. Comm’r of Corr. of New York, 865 F.2d 44, 46 (2d Cir. 1989)
(it was “intrinsically contradictory” to grant a certificate when habeas action does not warrant service
under Rule 4); Williams v. Kullman, 722 F.2d 1048, 1050 n.1 (2d Cir. 1983) (issuing certificate
would be inconsistent with a summary dismissal).
The Sixth Circuit Court of Appeals has disapproved issuance of blanket denials of
a certificate of appealability. Murphy v. Ohio, 263 F.3d 466 (6th Cir. 2001). Rather, the district
court must “engage in a reasoned assessment of each claim” to determine whether a certificate is
warranted. Id. at 467. Each issue must be considered under the standards set forth by the Supreme
Court in Slack v. McDaniel, 529 U.S. 473 (2000). Murphy, 263 F.3d at 467. Consequently, this
Court has examined each of Petitioner’s claims under the Slack standard. Under Slack, 529 U.S. at
484, to warrant a grant of the certificate, “[t]he petitioner must demonstrate that reasonable jurists
would find the district court’s assessment of the constitutional claims debatable or wrong.” Id. “A
petitioner satisfies this standard by demonstrating that . . . jurists could conclude the issues presented
are adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327
(2003). In applying this standard, the Court may not conduct a full merits review, but must limit its
examination to a threshold inquiry into the underlying merit of Petitioner’s claims. Id.
The Court finds that reasonable jurists could not conclude that this Court’s dismissal
of Petitioner’s claims was debatable or wrong. Therefore, the Court will deny Petitioner a certificate
A Judgment and Order consistent with this Opinion will be entered.
January 19, 2017
/s/ Robert J. Jonker
ROBERT J. JONKER
CHIEF UNITED STATES DISTRICT JUDGE
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