HERSHEY v. CARLSON (W.D.Mich. 1-2-2008)
KENNETH HERSHEY, Petitioner, v. JASON CARLSON et al., Respondent.
Case No. 1:07-cv-906.
United States District Court, W.D. Michigan, Southern Division.
January 2, 2008

OPINION

GORDON QUIST, District Judge

This is a habeas corpus action brought by a state prisoner
pursuant to 28 U.S.C. § 2254. 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 undertaking the review required by Rule 4, the Court
concludes that Petitioner has failed to exhaust his available
state-court remedies as to all claims raised in the petition. As
a result, the Court will dismiss the petition without prejudice
for lack of exhaustion.
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Discussion

I. Factual allegations

Petitioner Kenneth Hershey presently is incarcerated with the
Michigan Department of Corrections (MDOC) and housed at the
Muskegon Correctional Facility. He presently is serving a term of
21/2 to 20 years, imposed by the Muskegon County Circuit Court on
April 11, 1997, after he pleaded guilty as a second felony
offender to one count of breaking and entering a building with
intent to commit a felony, MICH. COMP. LAWS § 750.110.
Petitioner, however, does not challenge his conviction or the
imposition of his sentence. Instead, he challenges the extension
of his parole in violation of his rights and in contravention of
Michigan law and MDOC procedure.

On February 15, 2003, Petitioner was released from prison to a
two-year term of parole that was scheduled to expire on February
15, 2005. Petitioner alleges that a few days before the
expiration of his parole, his parole officer, Defendant Jason
Carlson, indicated that he had failed to pay the $60 crime victim
fee ordered by the sentencing judge. Petitioner advised Carlson
that he had, in fact, paid the fee in 1997 and that the court
account reflected a $0 balance. Carlson purportedly informed
Petitioner that he would check the records. Carlson then
petitioned for an extension of parole on February 15, 2005, on
the grounds that the crime victim fee had not been paid. On
February 23, 2005, the parole board extended Petitioner's parole
for an additional two years, until February 15, 2007. On May 18,
2005, three months after his parole had been extended,
Petitioner's parole was revoked as a result of conduct that
occurred on May 11, 2005.

Petitioner alleges that the timing and procedure by which
Carlson sought extension of his parole and the order extending
parole were in violation of Michigan law and procedure.
Petitioner also alleges that he was given no notice of either the
request to extend parole or the order extending parole, in
violation of both state procedures and his due process rights.
Page 3

Petitioner's application does not indicate whether he sought
administrative review of his parole revocation under Michigan's
Administrative Procedures Act, MICH. COMP. LAWS § 24.201 et seq.
However, on November 30, 2006, he filed a complaint for writ of
mandamus in the Michigan Court of Appeals. In a one-sentence
order issued March 28, 2007, the court of appeals denied the
complaint. Petitioner sought leave to appeal to the Michigan
Supreme Court on June 12, 2007. The supreme court rejected the
application as untimely.

Petitioner then filed a complaint for habeas corpus in the
Muskegon County Circuit Court. On August 6, 2007, the court
denied habeas relief, concluding that the accounting statement
from the circuit court did not demonstrate that Petitioner had
paid the crime victim fee. Petitioner filed the instant petition
on or about September 11, 2007.[fn1]

II. Failure to exhaust available 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. See O'Sullivan,
526 U.S. at 842; Picard v. Connor, 404 U.S. 270, 275-77 (1971), cited in
Duncan v. Henry, 513 U.S. 364, 365 (1995), and 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. Duncan, 513 U.S. at 365-66; Silverburg v.
Evitts, 993 F.2d 124, 126 (6th Cir. 1993); Hafley v. Sowders,

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902 F.2d 480, 483 (6th Cir. 1990). "[S]tate prisoners must give the state
courts one full opportunity to resolve any constitutional issues
by invoking one complete round of the State's established
appellate review process." O'Sullivan, 526 U.S. at 845. 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, 424 F.2d at 138-39.

Petitioner bears the burden of showing exhaustion. See Rust v.
Zent, 17 F.3d 155, 160 (6th Cir. 1994). In his application and
attachments, Petitioner indicates that he sought a writ of
mandamus in the Michigan Court of Appeals. Petitioner, however,
did not timely file an appeal to the Michigan Supreme Court,
which therefore has had no opportunity to review the issue.
Petitioner thereafter filed a complaint for habeas corpus in the
Muskegon County Circuit Court, which was denied on August 3,
2007. Petitioner has not yet attempted to seek habeas relief in
either the Michigan Court of Appeals or the Michigan Supreme
Court.

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).
Petitioner has at least one available procedure by which to raise
the unexhausted issues he has presented in this application.
While an order denying a complaint for habeas corpus is not
appealable, see Triplett v. Deputy Warden, 371 N.W.2d 862, 866
(Mich.Ct.App. 1985), Michigan law permits the filing of a
complaint for habeas corpus directly in both the Michigan Court
of Appeals and the Michigan Supreme Court. See MICH. COMP. LAWS
§ 600.4304; see also Mich. Ct. R. 7.203(C)(3), 7.301(A)(7);
Triplett, 371 N.W.2d at 866. Therefore, the Court concludes that
Petitioner has at least one available state remedy.
Page 5

Conclusion

In light of the foregoing, the Court will dismiss Petitioner's
application pursuant to Rule 4 because he has failed to exhaust
his state-court remedies.

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). This Court's dismissal of Petitioner's action under
Rule 4 of the Rules Governing § 2254 Cases is a determination
that the habeas action, on its face, lacks sufficient merit to
warrant service. It would be highly unlikely for this Court to
grant a certificate, thus indicating to the Sixth Circuit Court
of Appeals that an issue merits review, when the Court has
already determined that the action is so lacking in merit that
service is not warranted. See Love v. Butler, 952 F.2d 10 (1st
Cir. 1991) (it is "somewhat anomalous" for the court to summarily
dismiss under Rule 4 and grant a certificate); Hendricks v.
Vasquez, 908 F.2d 490 (9th Cir. 1990) (requiring reversal where
court summarily dismissed under Rule 4 but granted certificate);
Dory v. Commi'r of Corr. of the State of N.Y., 865 F.2d 44, 46
(2d Cir. 1989) (it was "intrinsically contradictory" to grant a
certificate when habeas action does not warrant service under
Rule 4); Williams v. Kullman, 722 F.2d 1048, 1050 n. 1 (2d Cir.
1983) (issuing certificate would be inconsistent with a summary
dismissal).

The Sixth Circuit Court of Appeals has disapproved issuance of
blanket denials of a certificate of appealability. Murphy v.
Ohio, 263 F.3d 466 (6th Cir. 2001). Rather, the district court
must "engage in a reasoned assessment of each claim" to determine
whether a certificate is warranted. Id. at 467. Each issue must
be considered under the standards set forth by the Supreme
Page 6
Court in Slack v. McDaniel, 529 U.S. 473 (2000). Murphy,
263 F.3d at 467. Consequently, this Court has examined each of
Petitioner's claims under the Slack standard.

This Court denied Petitioner's application on the procedural
ground of lack of exhaustion. Under Slack, 529 U.S. at 484, 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 debate that this Court correctly dismissed the
petition on the procedural grounds of lack of exhaustion. "Where
a plain procedural bar is present and the district court is
correct to invoke it to dispose of the case, a reasonable jurist
could not conclude either that the district court erred in
dismissing the petition or that the petitioner should be allowed
to proceed further." Id. Therefore, the Court denies Petitioner a
certificate of appealability.

A Judgment consistent with this Opinion will be entered.

[fn1] Under Sixth Circuit precedent, the application is deemed filed
when handed to prison authorities for mailing to the federal
court. Cook v. Stegall, 295 F.3d 517, 521 (6th Cir. 2002); In re
Sims, 111 F.3d 45, 47 (6th Cir. 1997). Petitioner dated his
application on September 11, 2007, and it was received by the
Court on September 13, 2007. Thus, it must have been handed to
prison officials for mailing at some time between September 11
and September 13. For purposes of this opinion, the Court has
given Petitioner the benefit of the earliest possible filing
date.