Rose v. State of Michigan

CourtDistrict Court, E.D. Michigan
DecidedSeptember 30, 2021
Docket2:21-cv-12198
StatusUnknown

This text of Rose v. State of Michigan (Rose v. State of Michigan) is published on Counsel Stack Legal Research, covering District Court, E.D. Michigan primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rose v. State of Michigan, (E.D. Mich. 2021).

Opinion

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

DONALD EUGENE ROSE, Case No. 2:21-cv-12198 Petitioner, HONORABLE STEPHEN J. MURPHY, III 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 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,

Related

Jones v. Cunningham
371 U.S. 236 (Supreme Court, 1963)
Carafas v. LaVallee
391 U.S. 234 (Supreme Court, 1968)
Maleng v. Cook
490 U.S. 488 (Supreme Court, 1989)
Garlotte v. Fordice
515 U.S. 39 (Supreme Court, 1995)
Slack v. McDaniel
529 U.S. 473 (Supreme Court, 2000)
Theodore R. Allen v. E. P. Perini, Superintendent
424 F.2d 134 (Sixth Circuit, 1970)
Dewey W. Carson v. Luella Burke
178 F.3d 434 (Sixth Circuit, 1999)
Oliver W. Leslie, Jr. v. Michael Randle, Warden
296 F.3d 518 (Sixth Circuit, 2002)
Lackawanna County District Attorney v. Coss
532 U.S. 394 (Supreme Court, 2001)

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Bluebook (online)
Rose v. State of Michigan, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rose-v-state-of-michigan-mied-2021.