Lester #161276 v. Horton

Filing 9

OPINION; signed by District Judge Paul L. Maloney (Judge Paul L. Maloney, cmc)

Case 2:20-cv-00083-PLM-MV ECF No. 9 filed 08/03/20 PageID.17 Page 1 of 9

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
______

KENNETH LESTER,
Petitioner,
v.

Case No. 2:20-cv-83
Honorable Paul L. Maloney

CONNIE HORTON,
Respondent.

____________________________/
OPINION
This is a habeas corpus action brought by a state prisoner purportedly under 28
U.S.C. § 2241.1 (Am. Pet., ECF No. 8, PageID.5.) 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,

1

Although Petitioner purports to bring his action under 28 U.S.C. § 2241, habeas corpus actions brought by “a person
in custody pursuant to the judgment of a State court” are governed by 28 U.S.C. § 2254. Id. Section 2254 “‘allows
state prisoners to collaterally attack either the imposition or the execution of their sentences[.]’” Bailey v. Wainwright,
951 F.3d 343, 348 (6th Cir. 2020) (Stranch, J., dissenting) (quoting Allen v. White, 185 F. App’x 487, 490 (6th Cir.
2006)); see also Rittenberry v. Morgan, 468 F.3d 331, 336-37 (6th Cir. 2006). As a consequence, Petitioner’s filing
is subject to all of the requirements that apply to a petition filed under § 2254. Moreover, § 2241 petitions by state
prisoners are subject to the rules governing § 2254 petitions. See Rule 1(b), Rules Governing § 2254 Cases.

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the Court will dismiss the petition without prejudice for failure to exhaust available state-court
remedies.
Discussion
I.

Factual allegations
Petitioner Kenneth Lester is incarcerated with the Michigan Department of

Corrections (MDOC) at the Chippewa Correctional Facility (URF) in Chippewa County,
Michigan. Petitioner is serving a string of sentences—some consecutive, some concurrent—
imposed in two criminal proceedings. On October 19, 1989, the Genessee County Circuit Court
imposed concurrent sentences of 25 to 50 years and 40 to 60 years, consecutive to a sentence of 2
years, after a jury found Petitioner guilty of armed robbery, conspiracy to commit armed robbery,
and possession of a firearm during the commission of a felony. On April 25, 1980, following
Petitioner’s guilty plea to a charge of armed robbery, the Wayne County Circuit Court imposed a
sentence of 3 to 15 years. According to the MDOC, Petitioner’s earliest release date is September
24,

2027;

his

maximum

discharge

date

is

November

https://mdocweb.state.mi.us/otis2/otis2profile.aspx?mdocNumber=161276

15,

2049.

(visited

See
July

21,

2020).
On May 21, 2020, Petitioner filed his habeas corpus petition with the United States
District Court for the Eastern District of Michigan. In an order entered June 11, 2020, Petitioner’s
case was transferred to the Western District of Michigan (ECF No. 3). Petitioner filed an amended
petition on July 1, 2020. (ECF No. 8.)
The petition and the amended petition allege that the risk of infection arising from
the COVID-19 pandemic2 renders Petitioner’s continued imprisonment a violation of due process

2

In Wilson v. Williams, 961 F.3d 829 (6th Cir. 2020), the Sixth Circuit described the COVID-19 problem as follows:

2

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under the Fifth Amendment and cruel and unusual punishment in violation of the Eighth
Amendment. Petitioner seeks immediate release from custody.
II.

Availability of § 2254 relief for unconstitutional conditions of confinement
Petitioner’s request for relief is not a typical habeas petition. The Supreme Court

has made clear that constitutional challenges to the fact or duration of confinement are the proper
subject of a habeas corpus petition rather than a complaint under 42 U.S.C. § 1983. Preiser v.
Rodriguez, 411 U.S. 475, 499 (1973). Constitutional challenges to the conditions of confinement,
on the other hand, are proper subjects for relief under 42 U.S.C. § 1983. Id. The Preiser Court,
however, did not foreclose the possibility that habeas relief might be available even for conditions
of confinement claims:
This is not to say that habeas corpus may not also be available to challenge such
prison conditions. See Johnson v. Avery, 393 U.S. 483, (1969); Wilwording v.
Swenson, supra, at 251 of 404 U.S. . . . When a prisoner is put under additional and
unconstitutional restraints during his lawful custody, it is arguable that habeas
corpus will lie to remove the restraints making the custody illegal. See Note,
Developments in the Law—Habeas Corpus, 83 Harv. L. Rev. 1038, 1084 (1970).[]
Preiser, 411 U.S. at 499 (footnote omitted).
But, the Court has also never upheld a “conditions of confinement” habeas claim.
Indeed, in Muhammad v. Close, 540 U.S. 749 (2004), the Court acknowledged that it had “never
followed the speculation in Preiser . . . that such a prisoner subject to ‘additional and
unconstitutional restraints’ might have a habeas claim independent of § 1983 . . . .” Id. at 751 n.1.

The COVID-19 virus is highly infectious and can be transmitted easily from person to person.
COVID-19 fatality rates increase with age and underlying health conditions such as cardiovascular
disease, respiratory disease, diabetes, and immune compromise. If contracted, COVID-19 can cause
severe complications or death.
Wilson, 961 F.3d at 833.

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The Sixth Circuit has concluded that claims regarding conditions of confinement
are properly brought under § 1983 and are not cognizable on habeas review. See Martin v.
Overton, 391 F.3d 710, 714 (6th Cir. 2004) (“‘Petitioner in this case appears to be asserting the
violation of a right secured by the federal Constitution or laws by state prison officials. Such a
claim is properly brought pursuant to 42 U.S.C. § 1983.’”); In re Owens, 525 F. App’x 287, 290
(6th Cir. 2013) (“The criteria to which Owens refers involves the conditions of his
confinement . . . . This is not the proper execution of sentence claim that may be pursued in a
§ 2254 petition.”); Hodges v. Bell, 170 F. App’x 389, 392-93 (6th Cir. 2006) (“Hodges’s
complaints about the conditions of his confinement . . . are a proper subject for a § 1983 action,
but fall outside of the cognizable core of habeas corpus relief.”); Young v. Martin, 83 F. App’x
107, 109 (6th Cir. 2003) (“It is clear under current law that a prisoner complaining about the
conditions of his confinement should bring suit under 42 U.S.C. § 1983.”). Petitioner’s claims
regarding the constitutionality of his custody in the prison because of risks posed by COVID-19
are principally claims regarding the conditions of his confinement. Such claims should be raised
by a complaint for violation of 42 U.S.C. § 1983.
However, the relief Petitioner seeks—release from custody—is available only upon
habeas corpus review. “The Supreme Court has held that release from confinement—the remedy
petitioner[] seek[s] here—is ‘the heart of habeas corpus.’” Wilson, 961 F.3d at 868 (quoting
Preiser, 411 U.S. at 498).3 A challenge to the fact or duration of confinement should be brought
as a petition for habeas corpus and is not the proper subject of a civil rights action brought pursuant
to § 1983. See Preiser, 411 U.S. at 484 (the essence of habeas corpus is an attack by a person in

3

The Wilson petitioners were federal prison inmates who brought habeas claims under 28 U.S.C. § 2241 similar to
those claims brought by Petitioner.

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custody upon the legality of that custody and the traditional function of the writ is to secure release
from illegal custody). Undoubtedly, for that reason, Petitioner has sought habeas relief.
Petitioner’s decision to pursue habeas relief, however, circumscribes the relief
available. Wilson, 961 F.3d at 837. Even if there might be conditions of confinement, short of
release, that would mitigate the risk—and eliminate the cruel or unusual character of the
punishment—it is not within this Court’s habeas jurisdiction to grant such relief. Id. A claim
seeking relief other than release is properly brought under 42 U.S.C. § 1983.
III.

Exhaustion of State Court Remedies
Before the Court may grant habeas relief to a state prisoner, the prisoner must

exhaust remedies available in the state courts. 28 U.S.C. § 2254(b)(1); O’Sullivan v. Boerckel,
526 U.S. 838, 842 (1999). Exhaustion requires a petitioner to “fairly present” federal claims so
that state courts have a “fair opportunity” to apply controlling legal principles to the facts bearing
upon a petitioner’s constitutional claim. Id. at 844, 848; see also Picard v. Connor, 404 U.S. 270,
275-77 (1971); Duncan v. Henry, 513 U.S. 364, 365 (1995); Anderson v. Harless, 459 U.S. 4, 6
(1982). To fulfill the exhaustion requirement, a petitioner must have fairly presented his federal
claims to all levels of the state appellate system, including the state’s highest court. O’Sullivan,
526 U.S. at 845; Wagner v. Smith, 581 F.3d 410, 414 (6th Cir. 2009); Hafley v. Sowders, 902 F.2d
480, 483 (6th Cir. 1990). The district court can and must raise the exhaustion issue sua sponte
when it clearly appears that habeas claims have not been presented to the state courts. See Prather
v. Rees, 822 F.2d 1418, 1422 (6th Cir. 1987); Allen v. Perini, 424 F.2d 134, 138-39 (6th Cir. 1970).
Petitioner bears the burden of showing exhaustion. See Rust v. Zent, 17 F.3d 155,
160 (6th Cir. 1994). Petitioner has neither alleged that he exhausted his claims in the state courts

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nor has he provided any documentation indicating that he has pursued any such state remedies.4
Petitioner instead implicitly asks the Court to relieve him of the exhaustion requirement under
§ 2254(b)(1)(B)(ii).
Subsection (b) of § 2254 precludes the Court from granting habeas relief unless
Petitioner has exhausted his claims in state court. A petitioner’s failure to exhaust may be excused
if “there is an absence of State corrective process” or “circumstances exist that render such process
ineffective to protect the rights of the applicant.” 28 U.S.C. § 2254(b)(1)(B). Petitioner does not
claim that there is an absence of state corrective process. Instead, by seeking emergency
preliminary injunctive relief (ECF No. 8), Petitioner presumably intends to invoke the latter
exception: that circumstances have made the state’s corrective process ineffective. But, he has
failed to allege how the present circumstances have rendered state court remedies ineffective.
An applicant has not exhausted available state remedies if he has the right under
state law to raise, by any available procedure, the question presented. 28 U.S.C. § 2254(c).
Petitioner has at least one available procedure by which to raise the issues he has presented in this
application. Petitioner has filed the single motion for relief from judgment typically allowed under
Mich. Ct. R. 6.500 et seq.. See https://courts.michigan.gov/opinions_orders/case_search/pages/
default.aspx?SearchType=1&CaseNumber=183052&CourtType_CaseNumber=2 (visited July
21, 2020). Moreover, Petitioner has attempted to file at least one successive motion.5 Nonetheless,
the state rules permit a successive motion if it is “based on . . . a claim of new evidence that was
not discovered before the first such motion.” Mich. Ct. R. 6.502(G)(2). The evidence regarding
COVID-19 could not have been discovered until recently.

4

Indeed, given the recency of the events giving rise to Petitioner’s claim, it would appear to be impossible for
Petitioner to have exhausted state court remedies before filing the petition.

5

See https://courts.michigan.gov/opinions_orders/case_search/pages/default.aspx?SearchType=1&CaseNumber
=346251&CourtType_CaseNumber=2 (visited July 21, 2020).

6

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Moreover, relief may be available to Petitioner by way of a habeas corpus petition
in state court in that he seeks a determination “whether his continued custody is legal.” Phillips v.
Warden, State Prison of S. Mich., 396 N.W.2d 482, 486 (Mich. Ct. App. 1986). Alternatively,
Petitioner may seek relief, even release, by civil action in state court for unconstitutional conditions
of confinement. See Kent Cnty. Prosecutor v. Kent Cnty. Sheriff, 409 N.W.2d 202, 208 (Mich.
1987) (“No one now doubts the authority of courts to order the release of prisoners confined under
conditions violating their Eighth and Fourteenth Amendment rights.”). Therefore, the Court
concludes that he has at least one available state remedy.
To properly exhaust his claim, Petitioner must present his claim to each level of the
state court system. O’Sullivan, 526 U.S. at 845; Hafley, 902 F.2d at 483 (“‘[P]etitioner cannot be
deemed to have exhausted his state court remedies as required by 28 U.S.C. § 2254(b) and (c) as
to any issue, unless he has presented that issue both to the Michigan Court of Appeals and to the
Michigan Supreme Court.’”) (citation omitted).
Because Petitioner has failed to exhaust his claims, his petition is properly
dismissed without prejudice. The habeas statute imposes a one-year statute of limitations on
habeas claims. See 28 U.S.C. § 2244(d)(1). Petitioner’s period of limitation commenced running
when “the factual predicate of his claim . . . could have been discovered through the exercise of
reasonable diligence.” 28 U.S.C. §2244(d)(1)(D). Certainly, Petitioner could not have discovered
his claim before March of this year.
The limitations period is not tolled during the pendency of a federal habeas petition.
Duncan v. Walker, 533 U.S. 167, 181-82 (2001). However, the period is tolled while an
application for state post-conviction or collateral review of a claim is pending. 28 U.S.C.
§ 2244(d)(2). The statute of limitations is tolled from the filing of an application for state post-

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conviction or other collateral relief until a decision is issued by the state supreme court. Lawrence
v. Florida, 549 U.S. 327 (2007).
In Palmer v. Carlton, 276 F.3d 777 (6th Cir. 2002), the Sixth Circuit considered
what action the court should take if the dismissal of a petition for failure to exhaust could
jeopardize the timeliness of a subsequent petition.6 The Palmer court concluded that if the
petitioner had more than 60 days remaining in the period of limitation—30 days to raise his
unexhausted claims and 30 days after exhaustion to return to the court—no additional protection,
such as a stay, was warranted. Id.; see also Rhines v. Weber, 544 U.S. 269, 277 (2007) (approving
stay-and-abeyance procedure); Griffin v. Rogers, 308 F.3d 647, 652 n.1 (6th Cir. 2002).
Petitioner has far more than sixty days remaining in his limitations period.
Assuming that Petitioner diligently pursues his state-court remedies and promptly returns to this
Court after the Michigan Supreme Court issues its decision, he is not in danger of running afoul
of the statute of limitations. Therefore, a stay of these proceedings is not warranted, and the Court
will dismiss the petition for failure to exhaust available state-court remedies.
IV.

Requests for Preliminary Injunctive Relief
Petitioner asks the Court to order preliminary injunctive relief immediately

releasing Petitioner from custody. (Mot., ECF No. 8.) Because the petition is properly dismissed,
the Court will deny Petitioner’s request for preliminary injunctive relief as moot.
V.

Certificate of Appealability
Under 28 U.S.C. § 2253(c)(2), the Court must also determine whether a certificate

of appealability should be granted. A certificate should issue if Petitioner has demonstrated a

6

The Palmer court considered the issue in the context of a “mixed” petition including exhausted and unexhausted
claims. The Palmer court’s explanation of when dismissal of a petition does not jeopardize the timeliness of a
subsequent petition, however, is persuasive even where the petition includes only unexhausted claims.

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“substantial showing of a denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The Sixth
Circuit Court of Appeals has disapproved issuance of blanket denials of a certificate of
appealability. Murphy v. Ohio, 263 F.3d 466, 467 (6th Cir. 2001) (per curiam). Rather, the district
court must “engage in a reasoned assessment of each claim” to determine whether a certificate is
warranted. Id.
The Court has concluded that Petitioner’s application is properly denied for lack of
exhaustion. Under Slack v. McDaniel, 529 U.S. 473, 484 (2000), when a habeas petition is denied
on procedural grounds, a certificate of appealability may issue only “when the prisoner shows, at
least, [1] that jurists of reason would find it debatable whether the petition states a valid claim of
the denial of a constitutional right and [2] that jurists of reason would find it debatable whether the
district court was correct in its procedural ruling.” Both showings must be made to warrant the
grant of a certificate. Id.
The Court finds that reasonable jurists could not find it debatable whether
Petitioner’s application should be dismissed for lack of exhaustion. Therefore, a certificate of
appealability will be denied. Moreover, for the same reasons the Court will deny a certificate of
appealability, the Court also concludes that any issue Petitioner might raise on appeal would be
frivolous. Coppedge v. United States, 369 U.S. 438, 445 (1962).
Conclusion
The Court will enter an order and judgment dismissing the petition for failure to
exhaust state-court remedies, denying Petitioner’s request for preliminary injunctive relief, and
denying a certificate of appealability.

Dated:

August 3, 2020

/s/ Paul L. Maloney
Paul L. Maloney
United States District Judge
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