UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

MICHAEL CANNON,

Petitioner, No. 15-cv-11975

vs. Hon. Gerald E. Rosen

DUNCAN MACLAREN,

Respondent.

____________________________/

ORDER DENYING MOTION FOR RELIEF FROM JUDGMENT

At a session of said Court, held in

 the U.S. Courthouse, Detroit, Michigan

on March 04, 2016

PRESENT: Honorable Gerald E. Rosen

 United States District Judge

Petitioner Michael Cannon was convicted by a Wayne County jury of Felony

Firearms and First Degree Murder - Premeditated, and is currently serving a life sentence

at the Kinross Correctional Facility.1

 On June 1, 2015, Cannon filed a petition for writ of

habeas corpus which the Court summarily dismissed, without prejudice, on June 22,

2015. Presently before the Court is Petitioner’s Motion for Relief from Judgment. In this

Motion Petitioner raises the same issues he raised in his habeas corpus petition. 

Specifically, Petitioner argues that the state trial court was without jurisdiction due to the

1

 This information was obtained from the MDOC’s Offender Tracking

Information Service (“OTIS”), www.mdocweb.state.mi.us.

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failure of the state magistrate to provide him with counsel at his initial arraignment and

therefore, the judgment of conviction entered by the court is void. Therefore, he asks the

Court to order his immediate release from custody.

Petitioner is not entitled to the relief he requests. As the Court stated in is Opinion

and Order dismissing the petition for a writ of habeas corpus, Petitioner has not

demonstrated that he has exhausted his state court remedies.

As the Court explained in its June 22, 2015 Opinion and Order, the doctrine of

exhaustion of state remedies requires state prisoners to present their claims to the state

courts before raising their claims in a federal habeas corpus petition. See 28 U.S.C. §

2254(b)(1)(A) and (c); O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Rust v. Zent, 17

F.3d 155, 160 (6th Cir. 1994). Exhaustion requires that a prisoner “fairly present” the

substance of each federal constitutional claim to the state courts using citations to the

United States Constitution, federal decisions using constitutional analysis, or state

decisions employing constitutional analysis in similar fact patterns. See Levine v. Torvik,

986 F.2d 1506, 1516 (6th Cir. 1993).

The exhaustion requirement is satisfied if a prisoner invokes one complete round

of the State’s established appellate review process. O’Sullivan, 526 U.S. at 845,. A

Michigan prisoner must present each issue to both the Michigan Court of Appeals and the

Michigan Supreme Court before seeking habeas review in federal court. See Welch v.

Burke, 49 F. Supp. 2d 992, 998 (E.D. Mich. 1999); see also Hafley v. Sowders, 902 F.2d

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480, 483 (6th Cir. 1990). The burden is on the petitioner to prove exhaustion. Rust, 17

F.3d at 160.

Petitioner neither alleges nor establishes that he has sought any review of his

convictions or his sentences and current incarceration in the Michigan appellate courts. 

Therefore, there is no basis for granting Petitioner relief from the judgment dismissing

his habeas case, without prejudice.

Federal Rule of Appellate Procedure 22 provides that an appeal may not proceed

unless a certificate of appealability (COA) is issued under 28 U.S.C. § 2253. A COA

may be issued “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 must show “that reasonable

jurists could debate whether (or, for that matter, agree that) the matter 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, 484 (2000)

(citation omitted). 

In this case, the Court concludes that reasonable jurists would not debate the

Court’s conclusion that Petitioner is not entitled to relief from the judgment summarily

dismissing his petition without prejudice due to Petitioner’s failure to exhaust his state

remedies. Therefore, the Court will a certificate of appealability.

For the foregoing reasons,

IT IS HEREBY ORDERED that Petitioner’s Motion for Relief from Judgment

[Dkt. #6] is DENIED.

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It is further ORDERED that a certificate of appealability is DENIED. Leave to

appeal in forma pauperis also is DENIED.

s/Gerald E. Rosen 

United States District Judge

Dated: March 4, 2016

I hereby certify that a copy of the foregoing document was served upon the parties and/or

counsel of record on March 4, 2016, by electronic and/or ordinary mail.

s/Julie Owens 

Case Manager, (313) 234-5135

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