UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

EBONY CRYSTAL MALCOM,

Petitioner, Case No. 15-11175

v. 

HON. AVERN COHN

ANTHONY STEWART, 

Respondent.

_________________________________/

MEMORANDUM AND ORDER DISMISSING THE PETITION WITHOUT PREJUDICE 

AND

DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY

I. Introduction

This is a habeas case under 28 U.S.C. § 2254. Petitioner Ebony Crystal Malcom

(Petitioner) is a state inmate who is currently confined at the Huron Valley Women’s

Correctional Facility in Ypsilanti, Michigan. Petitioner filed a pro se petition for a writ of

habeas corpus challenging her convictions for operating a criminal enterprise, two

counts of false pretenses with intent to defraud, nine counts of forgery, nine counts of

uttering and publishing, seventeen counts of identity theft, and one count of recording a

false conveyance of realty. As will be explained, although this is Petitioner’s third

habeas petition filed in this district, she still has not fully exhausted her state court

remedies. Therefore, the petition, like her prior two petitions, will be dismissed without

prejudice so Petitioner may fully exhaust all of her claims.

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II. Background

While awaiting trial, Petitioner filed her first habeas petition in this district. 

The petition was dismissed without prejudice on exhaustion grounds because

Petitioner’s criminal case was pending in the trial court. Malcom v. Napoleon, No.

13-10332, 2013 WL 980204 (E.D. Mich. Mar. 13, 2013). Petitioner was subsequently

convicted by a jury as described above. 

Following her convictions, Petitioner filed a complaint for writ of habeas corpus

with the Michigan Court of Appeals, which was denied. In Re Malcom, No. 315499

(Mich.Ct.App. June 6, 2013). Petitioner filed a second complaint for writ of habeas

corpus, which was also denied. Malcom v. Warren, No. 319875 (Mich.Ct.App. May 21,

2014); lv. den. 496 Mich. 868 (2014). 

Petitioner also filed an appeal of right with the court of appeals. The court of

appeals affirmed her conviction. People v. Malcom, No. 315265; 2014 WL 3547236

(Mich.Ct. App. July 17, 2014). 

During the pendency of her appeal of right, Petitioner filed a second petition for

writ of habeas corpus in this district. It too was dismissed without prejudice on the

ground that petitioner failed to exhaust her state court remedies. Malcom v. Warren,

No. 2:14-CV-13059, 2014 WL 4272788, at *1 (E.D. Mich. Aug. 29, 2014);

reconsideration denied, No. 14-CV-13059, 2014 WL 5605087 (E.D. Mich. Nov. 4, 2014). 

On March 3, 2015, the Michigan Supreme Court denied Petitioner’s application

for leave to appeal from her appeal of right. People v. Malcom, 859 N.W.2d 515 (2015).

On March 20, 2015, Petitioner filed her third petition for writ of habeas corpus in

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this district.4

Although Petitioner’s claims are difficult to understand, it appears she is seeking

habeas relief on the following grounds:

I. The state court lacked jurisdiction to prosecute petitioner because it is

not an Article III court.

II. The state trial court lacked jurisdiction over petitioner’s case because

she was illegally arrested.

III. Petitioner was denied her Sixth Amendment right to the counsel of her

choice.

IV. The trial judge improperly departed above the sentencing guidelines

range.

V. Petitioner was denied a fair trial and sentencing because the judge

was biased against her. 

VI. First Amendment violation. The state trial judge expressed her dislike

against petitioner for exercising her constitutional rights.

VII. Petitioner’s Fifth Amendment rights were violated because her case

was never presented to a grand jury for an indictment.

VIII. 8th Amendment violation. Excessive bail was set by the judge.

IX. 13th Amendment violation. Petitioner’s Thirteenth Amendment rights

were violated because she was placed in custody prior to being convicted.

X. Due Process violation. Petitioner was never given any notice of the

charges against her by the State of Michigan, as required by the Foreign

Sovereign Immunities Act. In addition, the Michigan state officials violated

Mich. Comp. Laws § 600.4352 by failing to show cause for petitioner’s

current restraint. 

XI. The state courts erred in denying petitioner’s state habeas applications. 

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Under the prison mailbox rule, this Court will assume that petitioner actually filed

her habeas petition on March 20, 2015, the date that it was signed and dated. See

Towns v. U.S., 190 F. 3d 468, 469 (6th Cir. 1999).

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III. Discussion

The petition must be dismissed because it contains a number of claims which

were not properly exhausted with the state courts. As a general rule, a state prisoner

seeking federal habeas relief must first exhaust his or her available state court remedies

before raising a claim in federal court. 28 U.S.C. § 2254(b) and (c). See Picard v.

Connor, 404 U. S. 270, 275-78 (1971). Although exhaustion is not a jurisdictional

matter, “it is a threshold question that must be resolved” before a federal court can

reach the merits of any claim contained in a habeas petition. See Wagner v. Smith, 581

F. 3d 410, 415 (6th Cir. 2009). Therefore, each claim must be reviewed by a federal

court for exhaustion before any claim may be reviewed on the merits by a federal court.

Id. A prisoner confined under a Michigan conviction must raise each habeas issue in

both the Michigan Court of Appeals and in the Michigan Supreme Court before seeking

federal habeas corpus relief. See Matson v. Michigan Parole Bd., 175 F. Supp. 2d 925,

928 (E.D. Mich. 2001). Federal district courts must dismiss mixed habeas petitions

which contain both exhausted and unexhausted claims. See Pliler v. Ford, 542 U.S.

225, 230 (2004)(citing Rose v. Lundy, 455 U.S. 509, 510, 522 (1982)). A habeas

petitioner has the burden of proving that he or she has exhausted his or her state court

remedies. See Sitto v. Bock, 207 F. Supp. 2d 668, 675 (E.D. Mich. 2002). The failure to

exhaust state court remedies may be raised sua sponte by a federal district court. See

Benoit v. Bock, 237 F. Supp. 2d 804, 806 (E.D. Mich. 2003); 28 U.S.C. § 2254(b)(3). 

Here, Petitioner has not alleged or indicated that she properly exhausted all of

her claims with the state courts. The only claim that Petitioner raised on her appeal of

right before the Michigan Court of Appeals and the Michigan Supreme Court was her

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claim that the trial court improperly departed above the sentencing guidelines range. 

Although Petitioner may have presented some of her additional claims in one or

more of her state habeas actions, this is not sufficient to satisfy the exhaustion

requirement. Michigan law provides that an action for writ of habeas corpus may not be

brought by or on behalf of persons convicted, or in execution, upon legal process, civil

or criminal. See M.C.L. § 600.4310(3). Michigan courts have concluded that habeas

corpus cannot serve as a substitute for an appeal and cannot be used to review the

merits of a criminal conviction. Cross v. Department of Corrections, 103 Mich. App.

409, 414-415 (1981)(citing People v. Price, 23 Mich. App. 663, 669 (1970)). Thus,

Petitioner did not satisfy the exhaustion requirement by challenging her conviction in

such an action. See Nabors v. Warden, U.S. Penitentiary at Lewisburg, Pa., 848 F.2d

192 (Table), 1988 WL 50635, * 1 (6th Cir. May 23, 1988); see also McPharlin v. Woods,

No. 2008 WL 4534234, * 1 (E.D. Mich. October 6, 2008). Moreover, even if Petitioner’s

two jurisdictional claims amounted to a jurisdictional defect that could properly be

challenged in a state habeas action, her other remaining claims have not been properly

exhausted with the state courts. 

Importantly, Petitioner has an available state court remedy with which to exhaust

her claims. Petitioner may file a motion for relief from judgment with the trial court under

Michigan Court Rule 6.500 et seq. raising the unexhausted claims and pursue these

claims in the state appellate courts as necessary. See Wagner v. Smith, 581 F. 3d at

419; Mohn v. Bock, 208 F. Supp. 2d 796, 800 (E.D. Mich. 2002). The unexhausted

claims concern a matter of federal law which may warrant further review. These claims

should, therefore, be addressed to and considered by, the state courts in the first

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instance. Otherwise, the Court cannot apply the standard found at 28 U.S.C. § 2254.

Moreover, there are no exceptional or unusual circumstances present which

would justify holding the instant petition for writ of habeas corpus in abeyance pending

Petitioner’s return to the state courts. The Court notes that there appears to be no

statute of limitations problem in dismissing, rather than staying, the petition. The

Michigan Supreme Court denied Petitioner’s application for leave to appeal on March 3,

2015. Because Petitioner did not seek certiorari in the Supreme Court, the one year

statute of limitations under 28 U.S.C. § 2244(d)(1) begins to run on the date that the 90

day time period for seeking certiorari with the Supreme Court expires. See Jimenez v.

Quarterman, 555 U.S. 113, 119 (2009). Thus, Petitioner’s judgment would become

final, for the purpose of commencing the running of the one year limitations period, on

June 1, 2015 and the statute would not expire until a year later, on or about June 1,

2016. Thus, because Petitioner has an entire year remaining under the limitations

period, and the unexpired portion of that period would be tolled during the pendency of

Petitioner’s state post-conviction proceedings, she is not prejudiced by a dismissal. 

IV. Conclusion

For the reasons stated above, the petition is DISMISSED WITHOUT

PREJUDICE.

Before Petitioner can appeal this decision, if she chooses to appeal, a certificate

of appealability must issue. See Rules Governing § 2254 Cases, Rule 11(a), 28 U.S.C.

foll. § 2254. In order to obtain a certificate of appealability, Petitioner must make a

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

demonstrate this denial, Petitioner is required to show that reasonable jurists could

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debate whether, or agree that, the petition should have been resolved in a different

manner, or that the issues presented were adequate to deserve encouragement to

proceed further. Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). 

Here, “jurists of reason” would not find it debatable whether the Court was correct

in its procedural ruling that Petitioner has failed to exhaust an available state court

remedy with respect to her conviction. Thus, a certificate of appealability is DENIED. 

SO ORDERED.

 S/Avern Cohn 

AVERN COHN

UNITED STATES DISTRICT JUDGE

Dated: April 22, 2015

Detroit, MI 

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

record on this date, April 22, 2015, by electronic and/or ordinary mail.

S/Sakne Chami 

Case Manager, (313) 234-5160

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