Board #766060 v. Washington et al

Filing 5

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

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
______

RYAN BOARD,
Petitioner,
v.

Case No. 2:20-cv-161
Honorable Janet T. Neff

HEIDI L. WASHINGTON et al.,
Respondents.

____________________________/
OPINION
This is a habeas corpus action brought by a state prisoner under 28 U.S.C. § 2241.1
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

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Although Petitioner brings 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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undertaking the review required by Rule 4, the Court will dismiss the petition without prejudice
for failure to exhaust available state-court remedies.
Discussion
I.

Factual allegations
Petitioner Ryan Board is incarcerated with the Michigan Department of Corrections

(MDOC) at the Chippewa Correctional Facility (URF) in Chippewa County, Michigan. Petitioner
is serving consecutive sentences for armed robbery and use of a firearm during the commission of
a felony imposed by the Oakland County Circuit Court on May 7, 2010. Upon completion of those
sentences, Petitioner will serve a sentence of 2 years, 6 months to 10 years for possession of a
weapon by a prisoner. According to the Michigan Department of Corrections, Petitioner’s earliest
release date is June 20, 2026; his maximum discharge date is December 20, 2041.

See

https://mdocweb.state.mi.us/OTIS2/otis2profile.aspx?mdocNumber=766060 (visited Sept. 4,
2020).
Petitioner filed his habeas corpus petition with the United States District Court for
the Eastern District of Michigan. In an order entered August 28, 2020, Petitioner’s case was
transferred to the Western District of Michigan (ECF No. 2). The petition alleges that the risk of
infection arising from the COVID-19 pandemic2 renders Petitioner’s continued imprisonment a
violation of Petitioner’s Fifth, Eighth, and Fourteenth Amendment rights. (Pet., ECF No. 1.)
Petitioner seeks immediate release from custody.

2

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

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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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, 424 F.2d at 138-39.
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
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

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.

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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 referencing the imminent
danger he faces and seeking immediate release as the only adequate relief, it appears that Petitioner
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. It does not appear that Petitioner has filed the single motion for relief from judgment
typically allowed under Mich. Ct. R. 6.500 et seq. in either of his criminal cases. Moreover, even
if he had, 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). Petitioner could
not have discovered the facts underlying his present claims before he filed any previous motion.
Additionally, 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.

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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 postconviction 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.5 The Palmer court concluded that if the
petitioner had more than 60 days remaining in the period of limitation—30 days to raise his

5

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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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.

Request for Preliminary Injunctive Relief
Petitioner asks the Court to enter a temporary restraining order and preliminary

injunctive relief immediately releasing Petitioner from custody. Because the petition is properly
dismissed, the Court will deny Petitioner’s requests 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
“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
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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 a temporary restraining order and
preliminary injunctive relief, and denying a certificate of appealability.

Dated:

September 9, 2020

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

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