Opinion
Civil No. 02-CV-70514-DT
March 15, 2002
OPINION AND ORDER OF SUMMARY DISMISSAL
Victor Charles Ward, ("petitioner"), presently confined at the Mid-Michigan Correctional Facility in St. Louis, Michigan, has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, in which he challenges the Michigan Parole Board's decision to deny him parole. For the reasons stated below, the petition for writ of habeas corpus is DISMISSED WITHOUT PREJUDICE.
Although petitioner filed his application for writ of habeas corpus under 28 U.S.C. § 2241, § 2254 is not only the "appropriate vehicle" for petitioner's parole denial claims, it is, practically speaking, the sole vehicle. Crouch v. Norris, 251 F.3d 720, 723 (8th Cir. 2001). This is because petitioner is a "person in custody pursuant to the judgment of a State court", and can only obtain habeas relief under § 2254, regardless of how his pleadings are styled. Id. (quoting 28 U.S.C. § 2254(a)).
I. Background
Petitioner was convicted of third degree criminal sexual conduct and was sentenced to 4 1/2-15years in prison. Petitioner has been denied parole three times by the Michigan Parole Board, most recently on September 10, 2001. In denying him parole, the parole board stated that it lacked reasonable assurance that petitioner would not become a menace to society or to the public safety if he was released on parole. Petitioner has now filed a petition for writ of habeas corpus, challenging the Michigan Parole Board's decision to deny him release on parole.
II. Discussion
The instant petition for writ of habeas corpus must be dismissed without prejudice, because petitioner has not exhausted any of his claims by presenting them to the Michigan courts.
As a general rule, a state prisoner seeking federal habeas relief must first exhaust his or her available state court remedies before raising a claim in federal court. 28 U.S.C. § 2254(b) and (c); Picard v. Connor, 404 U.S. 270, 275-278 (1971). "This rule of comity reduces friction between the state and federal court systems by avoiding the unseemliness of a federal district court's overturning a state court conviction without the state courts having had an opportunity to correct the constitutional violation in the first instance." O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (internal quotation omitted). Federal courts will therefore not review a habeas corpus petition when a state prisoner has not first presented his or her claims to the state courts and exhausted all state court remedies available to him or to her. Rogers v. Howes, 144 F.3d 990, 992 (6th Cir. 1998). A prisoner confined pursuant to a Michigan conviction must raise each habeas issue in both the Michigan Court of Appeals and in the Michigan Supreme Court before seeking federal habeas corpus relief Hafley v. Sowders, 902 F.2d 480, 483 (6th Cir. 1990). As a general rule, a federal district court should dismiss a habeas petition that contains unexhausted claims. See Foster v. Withrow, 159 F. Supp.2d 629, 638 (E.D. Mich. 2001) (internal citations omitted).
While § 2254(c) requires a habeas petitioner to exhaust state court remedies before proceeding with a federal habeas corpus proceeding, exhaustion is not required where a remedy in state court is unavailable. O'Sullivan v. Boerekel, 526 U.S. at 847-848. This Court must determine whether petitioner has any available state court remedy for him to use to exhaust his claims.
Prior to 1999, Mich. Comp. Laws § 791.234(8) provided, in pertinent part:
The action of the parole board in ranting or denying a parole is appealable by the prisoner, by the prosecutor of the county from which the prisoner was committed, or the victim of the crime for which the prisoner was convicted.
Public Act 1999, No. 191, amended § 791.234(8), to permit appeals of parole board decisions only by prosecutors and victims, and to eliminate such appeals by prisoners. The amendment also renumbered subpart (8) as subpart (9). This amendment became effective on March 10, 2000. Because petitioner was denied parole on September 10, 2001, § 791.234(9) would apply to his case.
This does not mean, however, that petitioner has no available state court remedies with which to challenge the denial of parole or the procedures used by the Michigan Parole Board to deny him parole. Even if petitioner cannot appeal the Michigan Parole Board's decision to deny him parole pursuant to § 791.234(9), petitioner may have another avenue for review available to him in the Michigan courts by way of an appeal made pursuant to Section 631 of the Revised Judicature Act. Matson v. Michigan Parole Board, 175 F. Supp.2d 925, 929 (E.D. Mich. 2001). Mich. Comp. Laws § 600.631 states:
An appeal shall lie from any order, decision, or opinion of any state board, commission, or agency, authorized under the laws of this state to promulgate rules from which an appeal or other judicial review has not otherwise been provided for by law, to the circuit court of the county of which the appellant is a resident or to the circuit court of Ingham county, which court shall have and exercise jurisdiction with respect thereto as in nonjury cases. Such appeals shall be made in accordance with the rules of the supreme court.Id.
The legislative history behind the amendment to Mich. Comp. Laws § 791.234 supports the Court's view that Section 631 of the Revised Judicature Act remains as a potential means of appeal for prisoners who have been denied parole in Michigan. Matson v. Michigan Parole Board, 175 F. Supp. 2d at 930. Michigan's House Legislative Analysis Section's March 21, 2000 Report ("HLSA Report") on the proposed amendment to § 791.234 stated that, although the proposed amendment eliminated a prisoner's appeal of a parole board decision under the Corrections Code, an avenue of appeal remained for prisoners:
[T]he bill still would leave prisoners recourse to appeal under the Revised Judicature Act (RJA), although the RJA has a higher burden of proof under an "abuse of discretion" standard. That is, the bill would leave intact a prisoner's right to appeal a parole denial under the MA, but in order for the appeal to be successful, the prisoner would have [to] show competent, material and substantial evidence that the parole board's decision was not supported by the law. Consequently, the bill should cut down on the number of prisoner appeals, make it easier for the courts to dismiss cases that wouldn't meet the higher burden of proof under the MA, and would make it easier and less expensive for the attorney general's office to respond to such appeals.
HLSA Report, at p. 9.
It therefore appears that petitioner may be able to utilize Section 631 of the Revised Judicature Act to present his parole denial claims to the Michigan courts. The interests of comity between state and federal courts counsels in favor of affording the Michigan courts the first opportunity to address petitioner's claims concerning the denial of his release on parole and the procedures used to deny him parole. Matson, 175 F. Supp. 2d at 930.
In cases where there is any doubt about the availability of a state court remedy to exhaust habeas claims, the claim must be dismissed. Coady v. Vaughn, 251 F.3d 480, 489 (3rd Cir. 2001). The somewhat "unsettled state law" with respect to the remedies that might be available to petitioner to challenge the parole board's decision to deny him parole is a factor to be considered in determining whether this Court should proceed on the merits of the habeas petition or require petitioner to exhaust his state court remedies. Burkett v. Love, 89 F.3d 135, 142 (3rd Cir. 1996). Clarification of this issue by the state courts is highly desirable and counsels in favor of the exhaustion of state court remedies rather than a resolution on the merits. Id. This Court will therefore resolve any doubts concerning the availability of state corrective processes against exhaustion. See Lukity v. Elo, 2000 WL 1769507, *4 (E.D. Mich. October 10, 2000); Rivers v. Martin, 484 F. Supp. 162, 165 (W.D. Va. 1980). Thus, the Court will dismiss the petition without prejudice to permit petitioner to exhaust available remedies in state court.
III. ORDER
Based upon the foregoing, IT IS ORDERED that the petition for writ of habeas corpus is DISMISSED WITHOUT PREJUDICE.