Opinion
2:21-cv-12198
09-30-2021
DONALD EUGENE ROSE, Petitioner, v. STATE OF MICHIGAN, Respondent.
OPINION AND ORDER DISMISSING THE PETITION FOR A WRIT OF HABEAS CORPUS [1], DENYING A CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
STEPHEN J. MURPHY, III UNITED STATES DISTRICT JUDGE
Petitioner Donald Eugene Rose filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254 and named the State of Michigan as the respondent. ECF 1. Upon an initial review, the Court found the petition procedurally deficient. As a result, the Court will deny the petition.
BACKGROUND
While Petitioner addressed sentences imposed by Michigan state courts in his petition, he appears to be incarcerated in the California state prison system. ECF 1, PgID 1 (listing Petitioner's place of confinement as the California Institution for Men); see also Exhibit 1 (listing Donald Eugene Rose as an inmate in the California Institution for Men with an admission date of October 2018 and a parole eligible date in July 2022). The petition states that in 2013 Petitioner pleaded nolo contendere to attempted second-degree criminal sexual conduct, felonious assault, and domestic violence in Genesee County Circuit Court. Id. The Genesee County Circuit Court register of actions for Petitioner's case lists the attempted second-degree criminal sexual conduct charge as under Mich. Comp. Laws § 750.520C1F, the felonious assault charge as under Mich. Comp. Laws § 750.82, and the domestic violence charge as under Mich. Comp. Laws § 750.812. Exhibit 2. The register of actions also states that Petitioner pleaded guilty rather than nolo contendere. Id. Petitioner was sentenced to seventeen months' imprisonment and did not appeal the convictions or sentence. ECF 1. Petitioner also needed to register as a sex offender under Michigan law. Exhibit 2.
Petitioner appears to have now fully served the seventeen-month term of imprisonment. The Genesee County Circuit Court register of actions listed Petitioner's sentence as beginning on November 25, 2013. Exhibit 2. A seventeen-month term beginning at that time would have long since expired. And the Michigan Department of Corrections, which removes offender information from the department's website three years after an offender's discharge date, no longer lists Petitioner as an offender. See Michigan Department of Corrections, Offender Tracking Information System (last accessed Sept. 29, 2021) https://bit.ly/3ikGygC [https://perma.cc/KM7B-8RHZ] ("In 2008, the Michigan Legislature permitted removal of offender's information from OTIS after three years had elapsed from the discharge date."); Exhibit 3 (listing all offenders, including parolees, with the name Donald Rose in the Michigan Department of Corrections Offender Tracking Information System without having Donald Eugene Rose included). Even though Petitioner's imprisonment term for the attempted second-degree criminal sexual conduct conviction terminated years ago, in September 2021 Petitioner filed the present petition for a writ of habeas corpus requesting that the Court dismiss the conviction. Id. at 15. Petitioner claimed that Mich. Comp. Laws § 750.520 was repealed in 2015 and that there was legal precedent addressing how convictions and sentences under the old statute should be handled. Id. at 5.
For the following reasons, the Court will dismiss the petition for a writ of habeas corpus. The Court will also deny a certificate of appealability and leave to proceed in forma pauperis on appeal.
LEGAL STANDARD
After the filing of a habeas petition, the Court must undertake a preliminary review of the petition to determine whether "it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court." Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts; 28 U.S.C. § 2243. If, after preliminary consideration, the Court determines that the petitioner is not entitled to relief, the Court must dismiss the petition. Id.; Allen v. Perini, 424 F.2d 134, 141 (6th Cir. 1970) ("Under [Section 2243] the District Court has a duty to screen out a habeas corpus petition which should be dismissed for lack of merit on its face."). A dismissal under Rule 4 may apply to both "petitions that raise legally frivolous claims" and petitions that "contain[] factual allegations that are palpably incredible or false." Carson v. Burke, 178 F.3d 434, 436-37 (6th Cir. 1999).
A federal court may entertain a habeas petition on "behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Here, the custody requirement is at issue. A prisoner need not be physically confined in jail or prison to challenge his or her conviction or sentence in a federal habeas proceeding. See Jones v. Cunningham, 371 U.S. 236, 243 (1963) ("While petitioner's parole releases him from immediate physical imprisonment, it imposes conditions which significantly confine and restrain his freedom; this is enough to keep him in the 'custody' of the members of the Virginia Parole Board within the meaning of the habeas corpus statute."); see also Garlotte v. Fordice, 515 U.S. 39, 41 (1995) (holding that a prisoner serving consecutive sentences is in custody for all of those sentences in the aggregate, and may attack the sentence scheduled to run first, even after it has expired, until all of the consecutive sentences have been served).
But once a sentence for a conviction has fully expired, a habeas petitioner is no longer "in custody" for that offense and cannot bring a habeas petition directed solely at that conviction. See Maleng v. Cook, 490 U.S. 488, 490-92 (1989) (citing Carafas v. LaVallee, 391 U.S. 234, 238 (1968)); Lackawanna Cty. Dist. Att'y v. Coss, 532 U.S. 394, 401 (2001). The United States Supreme Court has "never held [] that a habeas petitioner may be 'in custody' under a conviction when the sentence imposed for that conviction has fully expired at the time his petition is filed." Maleng, 490 U.S. at 491 (emphasis in original). In fact, "[t]he federal habeas statute gives the United States district courts 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.'" Id. at 490 (emphasis supplied by Supreme Court) (quoting 28 U.S.C. § 2241(c)(3)).
Finally, a requirement that a petitioner register as a sex offender does not, alone, create custody for habeas review when the registration law does not place a restraint on a registrant's freedom of movement. See Leslie v. Randle, 296 F.3d 518, 522-23 (6th Cir. 2002) (holding that Ohio's sex offender registration law did not create custody for the petitioner because petitioner's ability to move to another community or residence and to engage in legal activities and employment was not conditioned on government approval). Michigan's sex offender registration law does not restrain a registrant's movement to the extent that custody is created. Hamama v. Michigan, No. 2:13-CV-14096, 2013 WL 5745281, at *2 (E.D. Mich. Oct. 23, 2013) (Battani, J.).
DISCUSSION
Here, as discussed, Petitioner has fully served his seventeen-month sentence, which was imposed in 2013, and has been discharged from Michigan custody. See Exhibit 2; Exhibit 3. While Petitioner does not discuss whether he contests his sex offender registration status, or even mention if he still must register under his conviction, the Court lacks jurisdiction regardless given that Michigan's sex offender registration statute does not restrain a registrant's freedom of movement so as to create custody. See Hamama, 2013 WL 5745281, at *2; Leslie, 296 F.3d at 522-23. Thus, the Court lacks subject matter jurisdiction in the case. Federal habeas relief is therefore unavailable and unwarranted. Before Petitioner may appeal the Court's decision, a certificate of appealability must issue. See 28 U.S.C. § 2253(c)(1)(A); Fed. R. App. P. 22(b). Under the current statutory scheme, "[a] certificate of appealability may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right." § 2253(c)(2). When a federal court denies a habeas claim on procedural grounds without addressing the merits, a certificate of appealability should issue "when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). Here, reasonable jurists could not debate the correctness of the Court's procedural ruling. The Court will therefore deny Petitioner a certificate of appealability.
Finally, the Court finds that an appeal from the Court's decision cannot be taken in good faith. See Fed. R. App. P. 24(a). The Court will therefore deny leave to proceed in forma pauperis on appeal.
ORDER
WHEREFORE, it is hereby ORDERED that the petition for a writ of habeas corpus [1] is DENIED.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED. IT IS FURTHER ORDERED that leave to proceed in forma pauperis on appeal is DENIED.
SO ORDERED.
I hereby certify that a copy of the foregoing document was served upon the parties and/or counsel of record on September 30, 2021, by electronic and/or ordinary mail.
David P. Parker Case Manager
EXHIBIT 1
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