Acevedo-Legrand v. Michigan, State of

• Court: District Court, E.D. Michigan
• Decided: March 25, 2025
• Docket: 4:25-cv-10403
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

Luis M. Acevedo-Legrand,

Petitioner, Case Number: 25-10403 Honorable F. Kay Behm v.

State of Michigan,

Respondent. /

OPINION AND ORDER DISMISSING MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE PURSUANT TO 28 U.S.C. § 2255

Luis M. Acevedo-Legrand, a prisoner in the custody of the Michigan Department of Corrections, has filed a Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255. For the reasons set forth below, the Court denies the motion. Acevedo-Legrand was convicted in Tuscola County Circuit Court of two counts of third-degree criminal sexual conduct and one count of felony firearm. On April 30, 2024, he was sentenced to 10 to 15 years for each criminal sexual conduct conviction and 2 years for the felony firearm conviction. He seeks relief on the ground that he received ineffective assistance of counsel. Section 2255 governs collateral attacks by federal prisoners challenging the legality of their conviction or sentence. See Allen v. White, 185 F. App’x 487, 490 (6th Cir. 2006) (holding that Section 2255 “does not apply to state prisoners”). Because Acevedo-Legrand is not a federal prisoner, he may not proceed under

§ 2255. A challenge to the constitutionality of a state court conviction is properly filed under 28 U.S.C. § 2254. See Skinner v. Switzer, 562 U.S. 521, 525 (2011).

The Court will not construe the petition as having been filed under § 2254 for two reasons. First, “[a] pro se pleading may not be recharacterized as a § 2254 habeas petition unless the movant is advised of the district court’s intention to recharacterize it, warned that the recharacterization could adversely affect the

ability to seek future relief under § 2254, and allowed an opportunity to withdraw or amend the pleading.” Foster v. Warden Chillicothe Corr. Inst., 522 F. App’x 319, 321 (6th Cir. 2013) (citing Castro v. United States, 540 U.S. 375, 383 (2003)).

Second, Acevedo-Legrand has not exhausted his state court remedies. A state prisoner must present his or her claims to the Michigan Court of Appeals and Michigan Supreme Court before raising the claim in a federal habeas petition. See 28 U.S.C. § 2254(b)(1), (c); Wagner v. Smith, 581 F.3d 410, 414 (6th Cir. 2009).

A review of publicly available dockets shows that Acevedo-Legrand filed an application for leave to appeal in the Michigan Court of Appeals. The court of appeals denied leave to appeal. People v., No. 372988 (Mich. Ct. App. Dec. 11, 2024). Acevedo-Legrand did not file an application for leave to appeal the court of appeals’ decision in the Michigan Supreme Court.

Accordingly, Acevedo-Legrand cannot challenge his state court convictions under 28 U.S.C. § 2255. Therefore, the motion to vacate, set aside, or correct sentence is DENIED, and the case is DISMISSED. This dismissal is without

prejudice to the petitioner challenging his convictions in a properly filed petition under 28 U.S.C. § 2254. SO ORDERED.

Date: March 25, 2025 s/F. Kay Behm F. Kay Behm United States District Judge