Opinion
Case Number: 03-10257-BC.
February 23, 2005
ORDER DENYING PETITIONER'S MOTION TO REINSTATE HABEAS CORPUS PETITION AND DISMISSING PETITION
The petitioner, Louis Anthony Wilbon, filed a pro se petition for a writ of habeas corpus on October 6, 2003 challenging his continued incarcerated on the ground that his sentence has expired. On June 9, 2004, the Court issued an Opinion and Order Holding in Abeyance Petition for Writ of Habeas Corpus and Administratively Closing Case because the petitioner had not yet exhausted his state court remedies. On September 27, 2004, the petitioner filed an Amended Petition for a Writ of Habeas Corpus, which the Court construed as a motion to reinstate the habeas corpus proceeding; the Court directed the respondent to file a response. The respondent has now filed his response and the petitioner has submitted a "Rebuttal to Respondent's Response." The Court concludes that the petitioner has not submitted his federal constitutional claim to the Michigan appellate courts in a manner that allows for a finding of exhaustion of state remedies as required by 28 U.S.C. § 2254(b)(1)(A) and (c), and therefore the petition will not be reinstated.
I.
At the time the petitioner filed his original petition for a writ of habeas corpus, he was incarcerated at the Ryan Correctional Facility in Wayne County, Michigan. He alleged that he was being unconstitutionally detained beyond the expiration of his sentence. Before turning to this Court, the petitioner filed a complaint for habeas corpus in the Wayne County, Michigan Circuit Court on February 28, 2003 asserting this same ground for relief. The state trial court denied the petition on September 24, 2003. Wilbon v. Michigan Dep't of Corr., No. 03-306569-AH (3d Jud. Cir. Ct. Sept. 24, 2003). The petitioner then filed his petition in this Court. I determined that the petitioner had not exhausted his state court remedies with respect to this claim because the petitioner did not "fairly present" those claims as federal constitutional issues in the state appellate courts before presenting them in his habeas petition. See 28 U.S.C. § 2254(b)(1)(A) and (c). I issued an order holding the petition in abeyance and required the petitioner to file an application for delayed appeal or other appropriate papers in the state trial or intermediate appellate court on or before August 9, 2004.
On August 9, 2004, the petitioner filed an Amended Complaint for Writ of Habeas Corpus in this Court. On September 13, 2004, I issued an order holding the amended complaint because the petitioner failed to demonstrate that he exhausted his state court remedies.
In his first amended complaint, the petitioner stated that he attempted to exhaust his state court remedies but was prevented from doing so by the Michigan Court of Appeals. In support of this claim, he attached a letter from the court of appeals dated June 30, 2004 in which the court acknowledged receipt of his letter and stated that the court does not give legal advice. Despite this disclaimer, the court offered the petitioner a "hint" as to how he must proceed by referring him to Triplett v. Deputy Warden, 142 Mich. App. 774, 371 N.W.2d 862 (1985). See Letter from Michigan Court of Appeals, dated June 30, 2004. In that case, the court held that the state court of appeals had no jurisdiction to review a circuit court's denial of a complaint for habeas corpus; rather, a claimant should file an original action for habeas corpus in the Michigan Court of Appeals. Rather than following the lead of the state court of appeals, which would have counseled a filing under Michigan Court Rule 7.206(D)(1) and Michigan Compiled Laws § 600.4301, the petitioner filed his first amended complaint in this Court. I concluded, therefore, that the petitioner still had not exhausted his state court remedies and held the petitioner's first amended complaint in abeyance. See Order Holding Petitioner's Amended Complaint for Writ of Habeas Corpus in Abeyance, Sept. 13, 2004.
On September 21, 2004, the petitioner filed a second Amended Complaint for Writ of Habeas Corpus. He also filed a motion on October 15, 2994 to reinstate his case. I ordered the respondent to file a response, which he has now done.
II.
During the petitioner's procedural forays through the Michigan court system, it appear that he was released on parole and is now in custody in the Kent County jail, which is located in Michigan's federal Western District. The respondent alleges that the petitioner was arrested on a larceny charge while on parole and is awaiting trial there. Citing Rumsfeld v. Padilla, 542 U.S. ___, 124 S. Ct. 2711 (2004), the respondent argues that this Court has no jurisdiction over the habeas claim, and he requests that the case be transferred to the Western District.
This argument ignores the well-settled rule that jurisdiction is determined at the time a petition is filed. See Bishop v. Med. Superintendent of the Ionia State Hosp., 377 F.2d 467, 468 (6th Cir. 1967). Under 28 U.S.C. § 2241, a petitioner challenging confinement on a state judgment and sentence may file a habeas petition in the district court for the district where he is in custody or in the district court for the district within which the state court rendering his judgment and sentence is located. A prisoner who is released on parole is still "in custody" for the purpose of Section 2254. Sanders v. Freeman, 221 F.3d 846, 850-51 (6th Cir. 2000); see also Jones v. Cunningham, 371 U.S. 236, 240-41 (1963) (parole); Hensley v. Municipal Court, 411 U.S. 345, 349 (1973) (bail); McVeigh v. Smith, 872 F.2d 725, 727 (6th Cir. 1989) (probation). Jurisdiction over the original petition is not destroyed upon the subsequent transfer of a habeas corpus petitioner. Bishop, 377 F.2d at 468; accord McClure v. Hopper, 577 F.2d 938, 939-40 (5th Cir. 1978) ("Jurisdiction attached upon the initial filing for habeas corpus relief"); Smith v. Campbell, 450 F.2d 829, 831-33 (9th Cir. 1971) (holding that whether a court has jurisdiction over the custodian is determined at the time the petition is filed).
As noted above, the petitioner was incarcerated at the Ryan Correctional Facility in Detroit, Michigan, located in the Eastern District of Michigan, when he first filed his petition. The petitioner is not challenging in the present petition his confinement as a pretrial detainee in Kent County. Rather, he contends that his state sentence expired and he should not have been confined, or presumably subject to the restrictions of parole. When the petition was filed, jurisdiction was proper in this Court. The respondent's request to transfer the case to the Western District lacks merit.
III.
This Court has pointed out to the petitioner in previous orders in this case that habeas petitioners, such as he, must exhaust their remedies in state court by fairly presenting their claims to the state courts before raising them in their habeas corpus petitions. See 28 U.S.C. § 2254(b)(1)(A) (c); see also O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000), cert. denied, 532 U.S. 958 (2001). The exhaustion requirement is satisfied if a prisoner invokes one complete round of the State's established appellate review process. O'Sullivan, 526 U.S. at 845. In Michigan, this means that petitioners must raise their claims before both the Michigan Court of Appeals and the Michigan Supreme Court before raising them on habeas review. Mohn v. Bock, 208 F. Supp. 2d 796, 800 (E.D. Mich. 2002). The "doctrine of exhaustion requires that the same claim under the same theory be presented to state courts before raising it in a habeas petition." Pillette v. Foltz, 824 F.2d 494, 497 (6th Cir. 1987).
In his second amended complaint, the respondent contends that he has exhausted his state remedies by filing yet another motion for relief from judgment in the Kent County, Michigan circuit court where his conviction arose. Both Michigan appellate courts denied review of the Kent County court's denial of relief. However, as stated in the Kent County judge's order, the petitioner did not raise the issue of confinement beyond the term of his sentence. Rather, the court held that the petitioner was not entitled to have certain convictions set aside. See People v. Wilbon, No. 80-25899-FY, Kent County Cir. Ct. Ord. dated Mar. 1, 2004. The Court finds no evidence that the petitioner "fairly presented" his claim that he is now held beyond the term of his sentence to the state appellate courts, which is a process that must begin, presumably, with an original action for habeas corpus in the state court of appeals. See Triplett, 142 Mich. App. at 779-80, 371 N.W.2d at 866.
The only state court that has considered that claim is the Wayne County Circuit Court. The petitioner's original petition and first amended complaint were both held in abeyance because the petitioner failed to show that he exhausted his state court remedies with respect to the claim presented in his petition. The petitioner has not furnished to this Court a copy of his state motion for relief from judgment most recently filed in Kent County. The inescapable conclusion to be drawn from the circuit court's order, however, is that his claim of confinement beyond his term of custody was not raised. The petitioner has not demonstrated exhaustion of state court remedies. See Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994) (holding that the burden is on the petitioner to prove exhaustion).
IV.
The Court has given the petitioner repeated opportunities to comply with the exhaustion requirement of 28 U.S.C. § 2254(b)(1)(A) (c). He has not done so within the time prescribed by this Court or thereafter. The Court is not persuaded that further efforts will bear fruit. Moreover, it appears that the petitioner's problems may not end with the expiration of his sentence in this case, and that he will be dealing with the Michigan correctional system for some time to come on other matters.
Accordingly, it is ORDERED that the petitioner's Motion to Reinstate Habeas Corpus Petition is DENIED.
It is further ORDERED that the petition for writ of habeas corpus is DISMISSED.