UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

DANIEL MARIN, #267821,

Petitioner,

CASE NO. 2:14-CV-12400

v. HONORABLE LINDA V. PARKER

LLOYD RAPELJE, et al.,

Respondents.

_____________________________________/

OPINION AND ORDER (1) DENYING THE PETITION FOR A WRIT OF

HABEAS CORPUS; (2) DENYING A CERTIFICATE OF

APPEALABILITY; (3) DENYING LEAVE TO PROCEED

IN FORMA PAUPERIS ON APPEAL; AND (4) DENYING AS MOOT

PETITIONER’S MOTION FOR APPOINTMENT OF COUNSEL OR

TRANSFER 

Michigan prisoner Daniel Marin (“Petitioner”) filed a pro se petition for a

writ of habeas corpus pursuant to 28 U.S.C. § 2254 on June 19, 2014, in which he

challenges state civil forfeiture proceedings.1

 He raises claims concerning an

 1Those proceedings arose from events that resulted in Petitioner pleading guilty

in the Circuit Court for Saginaw County, Michigan to the delivery or manufacture

of more than forty-five kilograms of marijuana and conducting a criminal

enterprise. He was sentenced to concurrent terms of six and a half years to twentyfive years imprisonment on those convictions in 2012. See

http://mdocweb.state.mi.us/OTIS2/otis2profile.aspx?mdocNumber=267821. 

Petitioner has filed a separate habeas petition challenging those convictions, which

currently is pending before another judge of this Court. See Marin v. Rapelje, No.

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alleged illegal search and seizure, the use of an ex parte motion, coercion to testify

on his own behalf, the sufficiency of the evidence, his appearance in handcuffs,

and the admission of an un-notarized affidavit at trial. On September 24, 2014,

Petition filed a motion for appointment of counsel or transfer to the Saginaw

Correctional Facility where he was housed when his petition was filed. (ECF No.

9.) For the reasons that follow, the Court summarily dismisses the petition. 

Petitioner’s motion for counsel or transfer therefore is moot.

Promptly after the filing of a habeas petition, a federal district 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 also 28 U.S.C. § 2243. If, after preliminary consideration, the

court determines that the petitioner is not entitled to relief, the court must

summarily dismiss the petition. Id.; see also Allen v. Perini, 424 F.2d 134, 141

(6th Cir. 1970) (the district court has the duty to “screen out” petitions that lack

merit on their face). The court is authorized to summarily dismiss a habeas petition

if it plainly appears from the face of the petition and any attached exhibits that the

 1(...continued)

2:14-CV-11436 (E.D. Mich. filed April 8, 2014)(Rosen, C.J.).

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petitioner is not entitled to federal habeas relief. McFarland v. Scott, 512 U.S. 849,

856 (1994); Carson v. Burke, 178 F.3d 434, 436 (6th Cir. 1999); Rule 4, Rules

Governing § 2254 Cases. No response to a habeas petition is necessary when the

petition is frivolous, obviously lacks merit, or where the necessary facts can be

determined from the petition itself without consideration of a response from the

State. Allen, 424 F.2d at 141; Robinson v. Jackson, 366 F. Supp. 2d 524, 525 (E.D.

Mich. 2005). After undertaking Rule 4’s required review, the Court finds that

Petitioner fails to state a claim upon which habeas relief may be granted under 28

U.S.C. § 2254. 

Petitioner is challenging state civil forfeiture proceedings in this habeas

action. The overwhelming consensus among district courts, however, is that such

claims are not cognizable on federal habeas review. See, e.g., Anaya v. Smith, No.

3:11CV779, 2014 WL 315277, *27 n. 7 (N.D. Ohio Jan. 28, 2014) (citing cases for

the principle that § 2254 cannot be used as means to contest a state civil forfeiture

judgment); Cannon v. Kelly, No. 3:07CV583 DPJ-FKB, 2012 WL 1038802, *10

(S.D. Miss. March 29, 2012) (same); Tharpe v. Quarterman, No. 4:07cv494, 2007

WL 2491855, *1 (N.D. Texas Sept. 5, 2007) (citing Ozoroski v. Klem, No. 04-561,

2004 WL 1446046, *16 n. 16 (10th Cir. Jan. 24, 1997) (“the accuracy of the [state]

forfeiture proceedings falls beyond this Court’s province on habeas corpus

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review”)); Van Lang v. St. Lawrence, No. CV406-119, 2006 WL 1653630, at *1

(S.D. Ga. June 7, 2006) (“Because state civil forfeiture proceedings may not be

challenged using habeas corpus pursuant to § 2254, this case should be dismissed

without prejudice.”); Bowen v. United States, No. 7:05cv37, 2005 WL 1676668, *2

(M.D. Ga. June 29, 2005) (“A writ of habeas corpus under 28 U.S.C. § 2254 is

available for persons in custody pursuant to the judgment of a State court.

Although petitioner argues that the imprisonment of his property violates his

constitutional rights, § 2254 cannot be used to challenge the forfeiture of the funds

seized.”); Dawkins v. United States, 883 F. Supp. 83, 85 (E.D. Va. 1995)

(“Nowhere does [28 U.S.C. § 2255] authorize collateral attacks on civil

administrative forfeitures in an effort to secure the release of forfeited property or

its cash equivalent.”). Simply put, a writ of habeas corpus under 28 U.S.C. § 2254

is available for a person in custody pursuant to a state court judgment. Petitioner is

not in custody pursuant to the judgment in the state civil forfeiture proceedings. 

Consequently, he fails to state a claim upon which habeas relief may be granted

under 28 U.S.C. § 2254 and his petition must be dismissed.

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). A

certificate of appealability may issue “only if the applicant has made a substantial

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showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). When a

district court denies relief on the merits, the substantial showing threshold is met if

the petitioner demonstrates that reasonable jurists would find the court’s

assessment of the constitutional claim debatable or wrong. Slack v. McDaniel, 529

U.S. 473, 484-85 (2000). “A petitioner satisfies this standard by demonstrating

that . . . jurists could conclude the issues presented are adequate to deserve

encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327

(2003). Petitioner fails to satisfy this standard as no reasonable jurist would find

that his challenge of the state civil forfeiture proceedings is cognizable on federal

habeas corpus review. No certificate of appealability is warranted. Nor should

Petitioner be granted leave to proceed in forma pauperis on appeal as an appeal

cannot be taken in good faith. See Fed. R. App. P. 24(a).

Accordingly,

IT IS ORDERED that the petition for a writ of habeas corpus is

DISMISSED WITH PREJUDICE;

IT IS FURTHER ORDERED that a certificate of appealability is DENIED

and that leave to proceed in forma pauperis on appeal is DENIED;

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IT IS FURTHER ORDERED, that Petitioner’s Motion for Appointment of

Counsel or Transfer Back to Saginaw Correction[al] Facility is DENIED AS

MOOT.

S/ Linda V. Parker 

LINDA V. PARKER

U.S. DISTRICT JUDGE

Dated: October 8, 2014

I hereby certify that a copy of the foregoing document was mailed to counsel of

record and/or pro se parties on this date, October 8, 2014, by electronic and/or U.S.

First Class mail.

S/ Richard Loury 

Case Manager

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