UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

DERRICK LEE SMITH, 

 Petitioner, 

v. CASE NO. 14-14790 

 HONORABLE TERRENCE G. BERG 

MICHIGAN DEPARTMENT 

OF CORRECTIONS HEARINGS 

DIVISION, et al.,

 Respondents. 

_________________________________/ 

OPINION AND ORDER DENYING PETITIONER’S MOTION TO 

GRANT THE WRIT OF HABEAS CORPUS (Dkt. #10), DISMISSING 

THE HABEAS CORPUS PETITION (Dkt. #1), DECLINING TO 

ISSUE A CERTIFICATE OF APPEALABILITY, BUT GRANTING 

LEAVE TO APPEAL IN FORMA PAUPERIS

 State prisoner Derrick Lee Smith (“Petitioner”) has filed a pro se habeas 

corpus petition challenging a prison misconduct proceeding that resulted in the 

forfeiture of certain privileges. Because Petitioner has not exhausted state 

remedies for his claims, nor demonstrated that he is in custody in violation of the 

Constitution, the Court must dismiss his petition. 

I. BACKGROUND

A. The Prison Disciplinary Proceeding

 Petitioner alleges that, on October 19, 2014, a correctional officer charged 

him with major prison misconduct for allegedly being an accomplice to (1) 

possession of forged documents and (2) possession of stolen property. The charges 

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arose from allegations that Petitioner gave his identification card to a prisoner 

named Greer so that Greer could receive a second meal tray. On October 29, 2014, 

a prison hearing officer found Petitioner guilty of being an accomplice to forgery, but 

not guilty of being an accomplice to possession of stolen property. The hearing 

officer punished Petitioner with three days loss of privileges. Petitioner appealed 

the hearing officer’s decision to a deputy warden, but the deputy warden affirmed 

the hearing officer and denied the appeal. 

B. The Habeas Petition

 On December 18, 2014, Petitioner filed a habeas corpus petition and a 

certified statement of his prison trust fund account. See ECF Nos. 1 and 2. On 

December 20, 2014, the Magistrate Judge ordered Petitioner to pay the $5.00 filing 

fee or to submit an application to proceed in forma pauperis within twenty-one days 

of the date of the order. See ECF No. 3. On January 8, 2015, Petitioner filed a 

document raising new claims, see ECF No. 5,1

 but he did not pay the $5.00 filing fee, 

nor submit a proper application to proceed in forma pauperis. Accordingly, on July 

31, 2015, the Court dismissed the petition for want of prosecution. See ECF No. 6. 

 On August 24, 2015, Petitioner moved for reconsideration of the order of 

dismissal, see ECF No. 7, and on September 25, 2015, Petitioner moved for 

reinstatement of the habeas petition, see ECF No. 8. On October 6, 2015, the Court 

received the $5.00 filing fee from Petitioner, and on November 3, 2015, the Court 

 

1

 The new claims pertain to other prison misconduct charges brought against 

Petitioner and for sanctions involving loss of privileges and “top lock” (confinement 

in one’s cell). 

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entered an order that granted Petitioner’s motions for reconsideration and 

reinstatement of the habeas petition. The order also vacated the order of dismissal 

and directed the Clerk of Court to re-open this case. 

 Finally, on November 17, 2015, Petitioner moved to grant his habeas corpus 

petition as to the forgery charge. See ECF No. 10.2

 In his motion, Petitioner 

disputes the hearing officer’s finding that Petitioner never reported losing his 

identification card. Petitioner maintains that he did report the identification card 

as being lost and that prisoner Greer found the card and used it. Petitioner denies 

giving the card to Greer, as charged by prison officials. 

 Petitioner claims that the hearing officer violated his right to due process by 

failing to conduct the misconduct proceedings according to departmental policy and 

procedure and by issuing a decision based on false information. Petitioner seeks to 

have the major misconduct charge dismissed and removed from his files and a “not 

guilty” plea entered on the record. 

II. DISCUSSION

A. Exhaustion of State Remedies

 A threshold question is whether Petitioner fairly presented his claims to the 

state courts. A federal court may not grant habeas corpus relief to a state prisoner 

unless the prisoner exhausted state remedies for his claims. See 28 U.S.C. § 

2254(b)(1); O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); Nali v. Phillips, 681 

 

2

 Petitioner abandoned his claims about the other prison misconduct charges that 

were brought against him.

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F.3d 837, 851 (6th Cir. 2012). The exhaustion requirement is satisfied if a prisoner 

“give[s] the state courts one full opportunity to resolve any constitutional issues by 

invok[ing] one complete round of the State’s established appellate review process,” 

including a petition for discretionary review to a state supreme court when that 

review is part of the state’s ordinary appellate review procedure. O’Sullivan, 526 

U.S. at 845, 847. A Michigan petitioner must present each ground to both state 

appellate courts before seeking federal habeas corpus relief. Wagner v. Smith, 581 

F.3d 410, 414 (6th Cir. 2009). 

 Petitioner alleges that he filed a state complaint for the writ of habeas corpus 

in Branch County Circuit Court, which dismissed the complaint for lack of 

jurisdiction. See Mot. to Grant Writ of Habeas Corpus, ECF No. 10, at 3. Petitioner 

apparently took no other action on his state complaint and never raised his claims 

in the Michigan Court of Appeals or in the Michigan Supreme Court. Therefore, he 

has failed to exhaust state remedies for his claims. 

B. The “In Custody” Requirement

 Petitioner’s claims are not only unexhausted; they also lack merit. First, 

Petitioner is challenging the conditions of confinement, and a civil rights complaint 

under 42 U.S.C. § 1983 is the “proper remedy for a state prisoner who is making a 

constitutional challenge to the conditions of his prison life.” Preiser v. Rodriguez, 

411 U.S. 475, 499 (1973). A petition for the writ of habeas corpus generally is 

limited to challenges to the fact or duration of imprisonment. Id. at 500. Although 

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a habeas corpus petition may be used to challenge prison conditions “[w]hen a 

prisoner is put under additional and unconstitutional restraints during his lawful 

custody,” Preiser, 411 at 499, Petitioner has not demonstrated that “additional and 

unconstitutional restraints” were imposed on him as a result of the misconduct 

proceeding. The proceeding resulted only in the loss of privileges. Petitioner is not 

attacking the fact or length of his imprisonment, and he has not alleged that he lost 

any good-time or disciplinary credits as a result of the misconduct proceeding. 

Thus, habeas corpus is not the proper remedy for Petitioner’s claims. 

 Second, the writ of habeas corpus is available only to persons “in custody in 

violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. §§ 

2241(c)(3) and 2254(a). A prisoner may not challenge the loss of privileges in a 

habeas corpus petition because it does not affect the duration of his incarceration. 

Pernokis v. McBride, 67 F. App’x 931, 932 (7th Cir. 2003). Therefore, even though 

Petitioner is still incarcerated, he is not “in custody” for purposes of the habeas 

corpus statute as a result of the disciplinary sanctions. Id; see also Homen v. Hasty, 

229 F. Supp.2d 290, 295 (S.D. N.Y. 2002) (stating that a “challenge [to] disciplinary 

procedures having only a speculative or incidental effect on the length of [prisoner’s] 

sentence is not close to the core of habeas corpus and cannot be raised under § 

2241”) (quotation marks omitted) (alterations in original); Johnson v. Freeburn, 29 

F. Supp. 2d 764, 776 n. 3 (E.D. Mich. 1998) (stating that the prisoner was not “in 

custody” within the meaning of § 2254 and could not bring a habeas action with 

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respect to his misconduct ticket and its sanction). 

 Because Petitioner is not “in custody” as a result of the disciplinary 

proceedings, he cannot challenge his misconduct ticket and its sanction in this 

habeas corpus action. Accordingly, the habeas corpus petition (ECF No. 1) is 

summarily DISMISSED, and the motion to grant the writ of habeas corpus (ECF 

No. 10) is DENIED. 

III. CERTIFICATE OF APPEALABILITY

 A “district court must issue or deny a certificate of appealability when it 

enters a final order adverse to the applicant.” Rule 11(a) of the Rules Governing 

Section 2254 Cases in the United States District Courts. A certificate of 

appealability 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 

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). 

 The Court declines to issue a certificate of appealability here, because 

reasonable jurists would not find the Court’s assessment of Petitioner’s claims 

debatable or wrong. Reasonable jurists also would not conclude that the issues 

deserve encouragement to proceed further. Petitioner nevertheless may appeal this 

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Court’s decision in forma pauperis, because an appeal could be taken in good faith. 

28 U.S.C. § 1915(a)(3). 

SO ORDERED.

s/Terrence G. Berg 

TERRENCE G. BERG 

UNITED STATES DISTRICT JUDGE 

Dated: May 17, 2016 

Certificate of Service 

I hereby certify that this Order was electronically submitted on May 17, 

2016, using the CM/ECF system, which will send notification to each party. 

s/A. Chubb 

 Case Manager 

 

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