Sosby 576425 v. Brown

Opinion

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN NORTHERN DIVISION ______

MARSHALL S. SOSBY,

Petitioner, Case No. 2:20-cv-80

v. Honorable Robert J. Jonker

MIKE BROWN,

Respondent. ____________________________/ OPINION This is a habeas corpus action brought by a state prisoner under 28 U.S.C. § 2254.1 Promptly after the filing of a petition for habeas corpus, the Court must undertake a preliminary review of the petition to determine whether “it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court.” Rule 4, Rules Governing § 2254 Cases; see 28 U.S.C. § 2243. If so, the petition must be summarily dismissed. Rule 4; see Allen v. Perini, 424 F.2d 134, 141 (6th Cir. 1970) (district court has the duty to “screen out” petitions that lack merit on their face). A dismissal under Rule 4 includes those petitions which raise legally frivolous claims, as well as those containing factual allegations that are palpably incredible or false. Carson v. Burke, 178 F.3d 434, 436-37 (6th Cir. 1999). After

1 Although Plaintiff purports to raise his claim under 38 U.S.C. § 2241, his action is properly characterized as one brought under § 2254. A state prisoner seeking post-conviction relief from a federal court has but one remedy: an application for a writ of habeas corpus. See Rittenberry v. Morgan, 468 F.3d 331, 336-37 (6th Cir. 2006). All such applications for writs of habeas corpus are governed by § 2241, which generally authorizes federal courts to grant the writ – to both federal and state prisoners. Id. Most state prisoners’ applications for writs of habeas corpus are subject also to the additional restrictions of § 2254. That is, if a state prisoner is “in custody pursuant to the judgment of a State court,” his petition is subject to the procedural requirements of § 2254. Id.; see also Thomas v. Crosby, 371 F.3d 782, 803 (11th Cir. 2004); Walker v. O’Brien, 216 F.3d 626, 633 (7th Cir. 2000). Petitioner brings this action seeking relief from custody pursuant to a state court judgment. His action, therefore, is governed by § 2254. undertaking the review required by Rule 4, the Court will dismiss the petition without prejudice for failure to exhaust available state-court remedies. Discussion I. Factual allegations Petitioner Marshall S. Sosby is incarcerated with the Michigan Department of Corrections at the Kinross Correctional Facility (KCF) in Kincheloe, Chippewa County, Michigan. According to the MDOC Offender Tracking Information System (OTIS), Petitioner was convicted of two counts of second-degree murder, assault with a dangerous weapon, interfering with a police investigation, and felony firearm. Petitioner is serving a sentence of life in prison, with the possibility of parole. See id., http://mdocweb.state.mi.us/OTIS2/otis2profile.aspx?mdocNumber=

576425. On May 5, 2020, Petitioner filed this habeas corpus petition seeking early release from prison because his continued detention places him at risk of contracting the COVID-19 virus. Petitioner states that it is impossible for prisoners to maintain a safe social distance at KCF, which is his only defense against becoming infected by COVID-19. In light of the risks of infection with the COVID-19 virus in the prison environment, Petitioner contends his continued detention violates his due process rights. Petitioner seeks an immediate release from custody. II. Cognizability Petitioner’s request for relief is not a typical habeas petition. The Supreme Court has made clear that constitutional challenges to the fact or duration of confinement are the proper subject of a habeas corpus petition rather than a complaint under 42 U.S.C. § 1983. Preiser v.

Rodriguez, 411 U.S. 475, 499 (1973). Constitutional challenges to the conditions of confinement, 2 on the other hand, are proper subjects for relief under 42 U.S.C. § 1983. Id. The Preiser Court, however, did not foreclose the possibility that habeas relief might be available even for conditions of confinement claims: This is not to say that habeas corpus may not also be available to challenge such prison conditions. See Johnson v. Avery, 393 U.S. 483, (1969); Wilwording v. Swenson, supra, at 251 of 404 U.S. . . . When a prisoner is put under additional and unconstitutional restraints during his lawful custody, it is arguable that habeas corpus will lie to remove the restraints making the custody illegal. See Note, Developments in the Law—Habeas Corpus, 83 Harv.L.Rev. 1038, 1084 (1970).[] Preiser, 411 U.S. at 499 (footnote omitted). But, the Court has also never upheld a “conditions of confinement” habeas claim. Indeed, in Muhammad v. Close, 540 U.S. 749 (2004), the Court acknowledged that it had “never followed the speculation in Preiser . . . that such a prisoner subject to ‘additional and unconstitutional restraints’ might have a habeas claim independent of § 1983 . . . .” Id. at 751 n.1. The Sixth Circuit has concluded that claims regarding conditions of confinement are properly brought under § 1983 and are not cognizable on habeas review. See Martin v. Overton, 391 F.3d 710, 714 (6th Cir. 2004) (“‘Petitioner in this case appears to be asserting the violation of a right secured by the federal Constitution or laws by state prison officials. Such a claim is properly brought pursuant to 42 U.S.C. § 1983.’”); In re Owens, 525 F. App’x 287, 290 (6th Cir. 2013) (“The criteria to which Owens refers involves the conditions of his confinement . . . This is not the proper execution of sentence claim that may be pursued in a § 2254 petition.”); Hodges v. Bell, 170 F. App’x 389, 392-93 (6th Cir. 2006) (“Hodges’s complaints about the conditions of his confinement . . . are a proper subject for a § 1983 action, but fall outside of the cognizable core of habeas corpus relief.”); Young v. Martin, 83 F. App’x 107, 109 (6th Cir. 2003) (“It is clear under current law that a prisoner complaining about the conditions of his 3 confinement should bring suit under 42 U.S.C. § 1983.”). Petitioner’s claims regarding the constitutionality of his continued custody in light of the danger posed by COVID-19 are principally claims regarding the conditions of his confinement. Such claims should be raised by a complaint for violation of 42 U.S.C. § 1983. However, the relief Petitioner seeks—release from custody—is available only upon habeas corpus review. A challenge to the fact or duration of confinement should be brought as a petition for habeas corpus and is not the proper subject of a civil rights action brought pursuant to § 1983. See Preiser, 411 U.S. at 484 (the essence of habeas corpus is an attack by a person in custody upon the legality of that custody and the traditional function of the writ is to secure release

from illegal custody). Undoubtedly, for that reason, Petitioner has sought habeas relief under 28 U.S.C. § 2241. The Court will address Petitioner’s claim as he has raised it, as a claim for habeas relief under 28 U.S.C. § 2254. The Sixth Circuit has suggested it would be wrong to do otherwise. Martin v. Overton, 391 F. 3d 710, 714 (6th Cir. 2004). III. Exhaustion of State Court Remedies Before the Court may grant habeas relief to a state prisoner, the prisoner must exhaust remedies available in the state courts. 28 U.S.C. § 2254(b)(1); O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). Exhaustion requires a petitioner to “fairly present” federal claims so that state courts have a “fair opportunity” to apply controlling legal principles to the facts bearing upon a petitioner’s constitutional claim. Id. at 844, 848; see also Picard v. Connor, 404 U.S. 270,

275-77 (1971); Duncan v. Henry, 513 U.S. 364, 365 (1995); Anderson v. Harless, 459 U.S. 4, 6 (1982). To fulfill the exhaustion requirement, a petitioner must have fairly presented his federal claims to all levels of the state appellate system, including the state’s highest court. O’Sullivan, 4 526 U.S. at 845; Wagner v. Smith, 581 F.3d 410, 414 (6th Cir. 2009); Hafley v. Sowders, 902 F.2d 480, 483 (6th Cir. 1990). The district court can and must raise the exhaustion issue sua sponte when it clearly appears that habeas claims have not been presented to the state courts. See Prather v. Rees, 822 F.2d 1418, 1422 (6th Cir. 1987); Allen v. Perini, 424 F.2d 134, 138-39 (6th Cir. 1970). Petitioner bears the burden of showing exhaustion. See Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994). Petitioner fails to allege any facts indicated that he has raised this claim in the state courts. A petitioner’s failure to exhaust may be excused if “there is an absence of State corrective process” or “circumstances exist that render such process ineffective to protect the rights of the applicant.” 28 U.S.C. § 2254(b)(1)(B). Petitioner has failed to show the absence of State

corrective process, or that the present circumstances have rendered state court remedies ineffective. An applicant has not exhausted available state remedies if he has the right under state law to raise, by any available procedure, the question presented. 28 U.S.C. § 2254(c). It appears that Petitioner has filed a motion for relief from judgment under Mich. Ct. R. 6.500 et seq. Petitioner’s motion for relief from judgment was denied by the Lenawee Circuit Court and his appeal was denied by the Michigan Court of Appeals on November 19, 2019. Michigan v. Sosby, Michigan Court of Appeals No. 349773 (Mich. App. 2019). Petitioner’s appeal to the Michigan Supreme Court is currently pending. Michigan v. Sosby, Michigan Supreme Court No. 160741. Under Michigan law, one such motion may be filed after August 1, 1995. Mich. Ct. R.

6.502(G)(1). However, relief may be available to Petitioner by way of a habeas corpus petition in state court in that he seeks a determination “whether his continued custody is legal.” Phillips v. Warden, State Prison of S. Mich., 396 N.W.2d 482, 486 (Mich. Ct. App. 1986). Alternatively, 5 Petitioner may seek relief, even release, by civil action in state court for unconstitutional conditions of confinement. See Kent Cty. Prosecutor v. Kent Cty. Sheriff, 409 N.W.2d 202, 208 (Mich. 1987) (“No one now doubts the authority of courts to order the release of prisoners confined under conditions violating their Eighth and Fourteenth Amendment rights.”). Therefore, the Court concludes that he has at least one available state remedy. To properly exhaust his claim, Petitioner must present his claim to each level of the state court system. O’Sullivan, 526 U.S. at 845; Hafley, 902 F.2d at 483 (“‘[P]etitioner cannot be deemed to have exhausted his state court remedies as required by 28 U.S.C. § 2254(b) and (c) as to any issue, unless he has presented that issue both to the Michigan Court of Appeals and to the

Michigan Supreme Court.’”) (citation omitted). Because Petitioner has failed to exhaust his claims, his petition is properly dismissed without prejudice. The habeas statute imposes a one-year statute of limitations on habeas claims. See 28 U.S.C. § 2244(d)(1). Petitioner’s period of limitation commenced running when “the factual predicate of his claim . . . could have been discovered through the exercise of reasonable diligence.” 28 U.S.C. §2244(d)(1)(D). Certainly, Petitioner could not have discovered his claim before February or March of this year. The limitations period is not tolled during the pendency of a federal habeas petition. Duncan v. Walker, 533 U.S. 167, 181-82 (2001). But the period is tolled while an application for state post-conviction or collateral review of a claim is pending. 28 U.S.C. § 2244(d)(2). The

statute of limitations is tolled from the filing of an application for state post-conviction or other collateral relief until a decision is issued by the state supreme court. Lawrence v. Florida, 549 U.S. 327 (2007). 6 In Palmer v. Carlton, 276 F.3d 777 (6th Cir. 2002), the Sixth Circuit considered what action the court should take if the dismissal of a petition for failure to exhaust could jeopardize the timeliness of a subsequent petition.2 The Palmer court concluded that if the petitioner had more than 60 days remaining in the period of limitation—30 days to raise his unexhausted claims and 30 days after exhaustion to return to the court—no additional protection, such as a stay, was warranted. Id.; see also Rhines v. Weber, 544 U.S. 269, 277 (2007) (approving stay-and-abeyance procedure); Griffin v. Rogers, 308 F.3d 647, 652 n.1 (6th Cir. 2002). Petitioner has far more than sixty days remaining in his limitations period. Assuming that Petitioner diligently pursues his state-court remedies and promptly returns to this

Court after the Michigan Supreme Court issues its decision, he is not in danger of running afoul of the statute of limitations. Therefore, a stay of these proceedings is not warranted, and the Court will dismiss the petition for failure to exhaust available state-court remedies. IV. Pending motion Petitioner seeks the appointment of counsel (ECF No. 3). Because Petitioner has failed to exhaust available state court remedies, his pending motion is properly denied as moot. V. Certificate of appealability Under 28 U.S.C. § 2253(c)(2), the Court must determine whether a certificate of appealability should be granted. A certificate should issue if Petitioner has demonstrated a “substantial showing of a denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).

2The Palmer court considered the issue in the context of a “mixed” petition including exhausted and unexhausted claims. The Palmer court’s explanation of when dismissal of a petition does not jeopardize the timeliness of a subsequent petition, however, is persuasive even where the petition includes only unexhausted claims. 7 The Sixth Circuit Court of Appeals has disapproved issuance of blanket denials of a certificate of appealability. Murphy v. Ohio, 263 F.3d 466, 467 (6th Cir. 2001) (per curiam). Rather, the district court must “engage in a reasoned assessment of each claim” to determine whether a certificate is warranted. Id. The Court concludes that Petitioner’s application is properly denied for lack of

exhaustion. Under Slack v. McDaniel, 529 U.S. 473, 484 (2000), when a habeas petition is denied on procedural grounds, a certificate of appealability may issue only “when the prisoner shows, at least, [1] that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and [2] that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Both showings must be made to warrant the grant of a certificate. Id. The Court finds that reasonable jurists could not find it debatable whether Petitioner’s application should be dismissed for lack of exhaustion. Therefore, a certificate of appealability will be denied. Moreover, although I conclude that Petitioner has failed to

demonstrate that he is entitled to relief under § 2254 and has failed to make a substantial showing of a denial of a constitutional right, I would not conclude that any issue Petitioner might raise on appeal would be frivolous. Coppedge v. United States, 369 U.S. 438, 445 (1962). Conclusion The Court will enter a judgment dismissing the petition for lack of exhaustion, and an order denying Petitioner’s motion for appointment of counsel (ECF No. 3) and denying a certificate of appealability.

Dated: July 7, 2020 /s/ Robert J. Jonker ROBERT J. JONKER CHIEF UNITED STATES DISTRICT JUDGE