UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

TERRY ADAMS,

Petitioner, Civil No. 2:15-CV-10124

HONORABLE NANCY G. EDMUNDS

v. UNITED STATES DISTRICT JUDGE

RANDY HAAS,

Respondent,

________________________________/ 

 

OPINION AND ORDER SUMMARILY DISMISSING THE PETITION FOR WRIT OF

HABEAS CORPUS BROUGHT UNDER 28 U.S.C. § 1651

Terry Adams, (“petitioner”), a state prisoner confined at the G. Robert Cotton 

Correctional Facility in Jackson, Michigan, seeks the issuance of a writ of habeas corpus

pursuant to the All Writs Act, 28 U.S.C. § 1651. In his application, filed pro se, petitioner

challenges his conviction for carjacking, M.C.L.A. 760.529a. For the reasons stated below,

the petition for writ of habeas corpus is SUMMARILY DISMISSED WITHOUT PREJUDICE.

I. Discussion

Petitioner challenges his conviction on the ground that he was denied the assistance

of counsel during his initial arraignment on the warrant. Petitioner claims that the state

lacked jurisdiction to try and convict him because of this violation. Petitioner seeks relief

under the All Writs Act, 28 U.S.C. § 1651. 

The petition for writ of habeas corpus is subject to dismissal because petitioner has

sought habeas relief from his state court conviction pursuant to 28 U.S.C. § 1651 and not

under 28 U.S.C. § 2254, the statute governing the filing of habeas petitions by prisoners

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in state custody. 

28 U.S.C.§ 2254 confers jurisdiction on district courts to “entertain an application for

a writ of habeas corpus in 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). The Sixth Circuit has noted that

“numerous federal decisions ...support the view that all petitions filed on behalf of persons

in custody pursuant to State court judgments are filed under section 2254” and are subject

to the various restrictions imposed by the Antiterrorism and Effective Death Penalty Act

(AEDPA) for obtaining habeas relief from a state conviction. See Rittenberry v. Morgan,

468 F.3d 331, 337 (6th Cir. 2006)(emphasis original); See also Allen v. White, 185 Fed.

Appx. 487, 490 (6th Cir. 2006)(“In light of the serious question whether a state prisoner may

proceed under § 2241, there is no reason to think that a state prisoner (like Allen) must

proceed under § 2241, or, a fortiori, that a court commits error by not converting a petition

under § 2254 into one under § 2241”)(emphasis original). Regardless of the label on the

statutory underpinning of the habeas petition, habeas petitions of state prisoners are

governed by 28 U.S.C. § 2254. See Byrd v. Bagley, 37 Fed. Appx. 94, 95 (6th Cir. 2002). 

§ 2254 is basically “the exclusive vehicle for prisoners in custody pursuant to a state court

judgment who wish to challenge anything affecting that custody[,].” Greene v. Tennessee

Dep't of Corr., 265 F. 3d 369, 371 (6th Cir. 2001)(quoting Walker v. O'Brien, 216 F. 3d 626,

633 (7th Cir. 2000)). By contrast, the All-Writs Act is not an independent source of federal

jurisdiction to issue writs, but only authorizes a federal court to issue a writ in aid of their

jurisdiction. See Baze v. Parker, 632 F.3d 338, 345 (6th Cir. 2011)(citing United States v.

Perry, 360 F.3d 519, 533 (6th Cir. 2004)). 

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28 U.S.C. § 1651, the All Writs Act, thus may not be used to evade the strictures of

section 2254. See Brennan v. Wall, 100 F. Appx. 4 (1st Cir.2004); see also Haliburton v.

United States, 59 F. Appx. 55, 57 (6th Cir.2003) (federal prisoner could not use the All

Writs Act to circumvent the AEDPA’s prohibition against the filing of a second or successive

motion to vacate sentence brought under 28 U.S.C. § 2255); Ward v. Howes, 2007 WL

172515 (W.D. Michigan January 19, 2007)(refusing to entertain petition under § 1651

where habeas corpus petition appropriately considered under § 2254). In addition,

although a petitioner can challenge his or her conviction by filing for a writ of coram nobis

pursuant to 28 U.S.C. § 1651, he or she can only do so if the prisoner is no longer in

federal or state custody. See U.S. v. Acosta, 10 Fed. Appx. 294, 295-96 (6th Cir.

2001)(citing United States v. Johnson, 237 F.3d 751, 755 (6th Cir. 2001)); Owens v. Boyd, 

235 F. 3d 356, 360 (7th Cir. 2000). Because petitioner remains in state custody, he cannot

seek relief from his conviction or sentence by means of a writ of coram nobis. Owens, 235

F. 3d at 360. 

When a pro se prisoner files a mislabeled civil action that should have been filed

under 28 U.S.C. § 2254, the suit should not be converted into an action under section 2254

and decided on the merits. Instead, the proper action is to dismiss the action without

prejudice. See Staples v. Casperson, 6 Fed. Appx. 481, 483-84 (7th Cir. 2001). Thus,

rather than re-characterizing petitioner’s current application as a petition for writ of habeas

corpus brought pursuant to 28 U.S.C. § 2254, this Court shall dismiss his claims without

prejudice to avoid any adverse consequences with respect to any § 2254 claim or claims

that petitioner may wish to file in the future. See Martin v. Overton, 391 F. 3d 710, 713 (6th

Cir. 2004)(holding that the district court should have dismissed the habeas petitioner’s §

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2241 petition without prejudice to allow petitioner to raise his potential civil rights claims

properly as a § 1983 action rather than to re-characterize it as a § 2254 petition without

notice to petitioner). 

II. ORDER

IT IS HEREBY ORDERED that the Petition for Writ of Habeas Corpus brought

pursuant to 28 U.S.C. § 1651 is DISMISSED WITHOUT PREJUDICE. The dismissal is

without prejudice to petitioner filing a petition for writ of habeas corpus pursuant to 28

U.S.C. § 2254. 

s/ Nancy G. Edmunds 

HONORABLE NANCY G. EDMUNDS

UNITED STATES DISTRICT JUDGE

Dated: February 5, 2015

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