UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

DAVID A. JOHNSON,

Petitioner,

CASE NO. 15-10667

v. HONORABLE VICTORIA A. ROBERTS

DUNCAN MACLAREN,

Respondent.

____________________________/

ORDER DISMISSING THE HABEAS CORPUS PETITION,

DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY, BUT

GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

I. Introduction

Petitioner David A. Johnson, a state prisoner at Kinross Correctional Facility in

Kincheloe, Michigan, filed a pro se application for the writ of habeas corpus under 28

U.S.C. § 1651(a) (the All Writs Act).1

 The petition and attachments indicate that, on

February 7, 2007, Petitioner was arraigned on criminal charges before Magistrate Judge

Renee R. McDuffee in Michigan’s 36th District Court. On June 4, 2007, Petitioner

pleaded guilty to second-degree murder, possession of a firearm by a felon, and

possession of a firearm during the commission of a felony (felony firearm), second

offense. On June 19, 2007, the state trial court sentenced Petitioner to five years in

prison for the felony firearm conviction, one to five years in prison for the felon-in1

 Section 1651(a) reads:

(b) The Supreme Court and all courts established by Act of Congress

may issue all writs necessary or appropriate in aid of their respective

jurisdictions and agreeable to the usages and principles of law.

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possession conviction, and eighteen to forty years in prison for the murder conviction. 

Petitioner claims that he was not represented by counsel at his arraignment and

that he did not waive his right to counsel. He asserts that Magistrate Judge McDuffee’s

failure to appoint counsel for him at the arraignment violated his Sixth Amendment right

to counsel at a critical stage of the criminal proceedings. As a result of the lack of

counsel, Petitioner claims that the state trial court lacked jurisdiction and the state

court’s judgment is void. He seeks immediate release from custody. 

II. Discussion

Upon receipt of a habeas corpus petition, a federal court must “promptly examine

[the] petition to determine ‘if it plainly appears from the face of the petition and any

exhibits annexed to it that the petitioner is not entitled to relief.’ ” Crump v. Lafler, 657

F.3d 393, 396 n.2 (6th Cir. 2011) (quoting Rule 4 of the Rules Governing Section 2254

Cases in the United States District Courts).2

 “Federal courts are authorized to dismiss

summarily any habeas petition that appears legally insufficient on its face . . . .” 

McFarland v. Scott, 512 U.S. 849, 856 (1994); see also Martin v. Overton, 391 F.3d

710, 714 (6th Cir. 2004) (stating that Rule 4 allows the summary dismissal of a petition if

it appears that the petitioner is not entitled to relief). 

The habeas petition in this case is legally insufficient for a few reasons. First,

Petitioner has not alleged or otherwise demonstrated that he exhausted state remedies

for his claim. “[A] state prisoner seeking federal habeas relief must first ‘exhaus[t] the

remedies available in the courts of the State,’ 28 U.S.C. § 2254(b)(1)(A), thereby

2

 Pursuant to Rule 1(b) of the Rules Governing Section 2254 Cases, a district

court may apply the rules to a habeas corpus petition that was not filed under § 2254. 

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affording those courts ‘the first opportunity to address and correct alleged violations of

[the] prisoner's federal rights.’ ” Walker v. Martin, 562 U.S. 307, __, 131 S. Ct. 1120,

1127 (2011) (quoting Coleman v. Thompson, 501 U.S. 722, 731 (1991)). 

Second, it appears that the petition is barred by the one-year statute of limitations

set forth in 28 U.S.C. § 2244(d)(1). Furthermore, 

[t]he All Writs Act is a residual source of authority to issue writs that

are not otherwise covered by statute. Where a statute specifically

addresses the particular issue at hand, it is that authority, and not the All

Writs Act, that is controlling. Although that Act empowers federal courts to

fashion extraordinary remedies when the need arises, it does not

authorize them to issue ad hoc writs whenever compliance with statutory

procedures appears inconvenient or less appropriate.

Pennsylvania Bureau of Corr. v. United States Marshals Serv., 474 U.S. 34, 43 (1985). 

The statute governing challenges to state court convictions is 28 U.S.C. § 2254. 

It authorizes federal 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 . . . .” 

The All Writs Act may not be “used to evade the strictures of § 2254,” and because

[Petitioner] is in custody pursuant to the judgment of a state court, his request for relief

is governed by § 2254.” Brennan v. Wall, 100 F. App’x 4, 5 (1st Cir. 2004). In other

words, 

every collateral attack by a state prisoner on a final judgment of conviction

necessarily depends on § 2254. It is not possible to escape its limitations

by citing some other statute . . . . Persons still in custody must look to §

2254 or § 2255 for relief; they cannot use § 1651(a) to escape statutory

restrictions on those remedies.

Owens v. Boyd, 235 F.3d 356, 360 (7th Cir. 2000).

III. Conclusion

The All Writs Act is not a proper mechanism for Petitioner’s challenge to the

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constitutionality of his state conviction. It further appears that Petitioner has not

exhausted state remedies for his claim and that his claim is barred by the statute of

limitations. Accordingly, the habeas corpus petition is summarily dismissed without

prejudice.

IV. Regarding a Certificate of Appealability

Before Petitioner may appeal this Court’s decision, a certificate of appealability

must issue. 28 U.S.C. § 2253(c)(1)(A); Fed. R. App. P. 22(b)(1). A certificate of

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

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this

standard by demonstrating that jurists of reason could disagree with the district court’s

resolution of his constitutional claims or 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) (citing Slack v. McDaniel, 529 U.S. 473, 484 (2000)). 

Reasonable jurists would not debate the Court’s assessment of Petitioner’s

claim, nor conclude that claim deserves encouragement to proceed further. The Court

therefore declines to issue a certificate of appealability. But because an appeal could

be taken in good faith, the Court grants Petitioner leave to proceed in forma pauperis on

appeal if he appeals this decision. 28 U.S.C. § 1915(a)(3). 

S/Victoria A. Roberts 

Victoria A. Roberts

Dated: April 13, 2015 United States District Judge

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The undersigned certifies that a copy of this

document was served on the attorneys of

record and David Johnson by electronic

means or U.S. Mail on April 13, 2015.

S/Carol A. Pinegar 

Deputy Clerk

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