UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

CLIFFORD HARVEY, 

Petitioner, 

v. 

SHIRLEE HARRY, 

Respondent. 

 / 

Case No. 15-cv-12134 

UNITED STATES DISTRICT COURT JUDGE

GERSHWIN A. DRAIN

MEMORANDUM AND ORDER SUMMARILY DISMISSING THE 

PETITION FOR WRIT OF HABEAS CORPUS, AND DECLINING TO 

ISSUE A CERTIFICATE OF APPEALABILITY AND LEAVE TO APPEAL 

IN FORMA PAUPERIS 

 Clifford Harvey, (“Petitioner”), who is serving a two-year parole term, filed 

a petition for writ of habeas corpus challenging his state court conviction. After a 

bench trial, Michigan’s Genesee County Circuit Court found the Petitioner guilty 

of assault with intent to do great bodily harm, MICH. COMP. LAWS § 750.84, and 

possession of a firearm during the commission of a felony. MICH. COMP. LAWS 

§ 750.227b. Petitioner received a sentence of 58 to 240 months for the assault 

conviction and a consecutive two-year sentence for the firearm conviction. 

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Petitioner’s pro se pleading is difficult to interpret. As best as the Court can 

determine, Petitioner asserts nine claims: (1) the criminal complaint filed in his 

case was not signed and filed on paper; (2) the state court did not acquire 

jurisdiction over his case because the charging documents did not comply with 

state law; (3) state actors altered computer entries on the state court docket; (4) 

there were defects in the arrest warrant; (5) there was a variance between the 

charging documents and the case; (6) Petitioner’s arraignment did not comply with 

state law; (7) Petitioner was not present at his preliminary hearing; (8) the police 

and prosecutors perpetrated fraud during the criminal proceedings; and (9) 

Petitioner was not informed of the charges against him or of his right to remain 

silent. 

Before this Court may reach the merits of any of the Petitioner’s claims, the 

petition will be summarily dismissed because the Petitioner failed to demonstrate 

exhaustion of available state remedies. 

I. Exhaustion of Remedies 

Exhaustion of state remedies requires state prisoners to fairly present all of 

their claims to the state courts before raising their claims in a federal habeas corpus 

petition. See 28 U.S.C. § 2254(b)(1); O’Sullivan v. Boerckel, 526 U.S. 838, 842 

(1999). A prisoner is required to comply with the exhaustion requirement as long 

as there is still a state-court procedure available for him to do so. See Adams v. 

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Holland, 330 F.3d 398, 401 (6th Cir. 2003). Exhaustion is satisfied when a 

prisoner “invoke[es] one complete round of the State’s established appellate 

review process,” including a petition for discretionary review in the state supreme 

court, “when that review is part of the ordinary appellate review procedure in the 

State.” See 28 U.S.C. § 2254(b)(1); O'Sullivan v. Boerckel, 526 U.S. 838, 847 

(1999). “It is the [P]etitioner’s burden to prove exhaustion.” Rust v. Zent, 17 F.3d 

155, 160 (6th Cir. 1994). Habeas corpus petitions must meet heightened pleading 

requirements. McFarland v. Scott, 512 U.S. 849, 856 (1994). “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). 

In Michigan, ordinary appellate review procedure requires prisoners to 

appeal trial court decisions to the Michigan Court of Appeals and also to the 

Michigan Supreme Court before seeking federal habeas corpus relief. See

generally Delisle v. Rivers, 161 F.3d 370, 381 (6th Cir. 1998). Therefore, to satisfy 

exhaustion in Michigan, the Petitioner must demonstrate that he invoked review in 

the Michigan Court of Appeals and in the Michigan Supreme Court. 

 In this case, Harvey failed to invoke a complete round of appellate review. 

Petitioner describes numerous alleged errors performed by the Genesee County 

Circuit Court. Also, Petitioner recites the various petitions and exhibits that he 

filed with this Court. However, absent from Harvey’s petition is any mention that 

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he appealed the trial court’s decisions to either the Michigan Court of Appeals or 

the Michigan Supreme Court, as required to exhaust state remedies. 

A review of Michigan Court records indicates that, in 2012, the Petitioner 

did file a direct appeal of his convictions with the Michigan Court of Appeals. His 

2012 appeal appears to have raised two claims: (1) denial of his right to a speedy 

trial, and (2) a sentencing guidelines error. The Petitioner does not raise either of 

those two claims in his current application for habeas relief. In 2012, The Michigan 

Court of Appeals affirmed Petitioner’s convictions, but it remanded the case for 

resentencing. People v. Harvey, No. 306303 (Mich. Ct. App. Nov. 20, 2012). 

Michigan Court records indicate that the Petitioner never appealed the Michigan 

Court of Appeal’s decision to the Michigan Supreme Court. Therefore, although 

the Petitioner did file a direct review of his speedy trial and sentencing guidelines 

claims, he did not exhaust state remedies with regard to those two claims because 

he failed to pursue review in the Michigan Supreme Court. 

 Also, for the nine habeas claims, Petitioner again failed to invoke a complete 

round of appellate review. The Michigan Constitution grants “an appeal as a matter 

of right” in every criminal prosecution. MICH. CONST. Art. 1, § 20 (preempted on 

assistance of counsel grounds by Bulger v. Curtis, 328 F. Supp. 2d 692 (E.D. Mich. 

2004)). If an appeal of right is not available, the Petitioner can file a motion for 

relief from judgement in the state trial court, pursuant to Michigan Court Rule 

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6.502. If that motion is denied, the Petitioner may seek review by the Michigan 

Court of Appeals and the Michigan Supreme Court by filing an application for 

leave to appeal. See Mich. Ct. R. 6.509; Mich. Ct. R. 7.203; Mich. Ct. R. 7.302. In 

this case, Petitioner fails to demonstrate that he attempted to bring his nine habeas 

claims on direct review, or via motion for relief from judgement, or by a leave of 

appeal to the Michigan Court of Appeals or the Michigan Supreme Court. 

Therefore, because the Petitioner failed to invoke a complete round of appellate 

review with regard to his nine habeas claims, the Petitioner fails to prove 

exhaustion of state court remedies. 

 There is no evidence or suggestion that the Petitioner ever attempted to seek 

review of his current convictions with the Michigan Supreme Court. The Court 

will dismiss the petition without prejudice so that Petitioner may pursue exhaustion 

of his state court remedies. 

II. Certificate of Appealability 

Petitioner is in state custody and seeks habeas relief in federal court, 

therefore 28 U.S.C. § 2254 applies. In cases involving a petitioner under 28 U.S.C. 

§ 2254, “the district court must issue or deny a certificate or appealability when it 

enters a final order adverse to the applicant.” Rules Governing § 2254 Cases, Rule 

11(a), 28 U.S.C. foll. § 2254. An appeal of a habeas proceeding may not proceed 

unless a certificate of appealability (“COA”) is issued. FED. R. APP. P. 22. 

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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). When a district 

court denies a habeas petition on the merits of the claims presented, a certificate 

may be issued if the petitioner demonstrates that reasonable jurists would find the 

district court’s assessment of the constitutional claims debatable or wrong. Slack v. 

McDaniel, 529 U.S. 473, 484 (2000). However, when a district court denies habeas 

relief on procedural grounds without reaching the petitioner’s constitutional 

claims, a certificate may be issued only if the petitioner shows that jurists of reason 

would find it debatable whether (1) the petition states a valid claim of a denial of a 

constitutional right; and (2) the district court was correct in its procedural ruling. 

Id. at 484–85. 

 This case is denied on procedural grounds. The Court concludes that 

reasonable jurists would not debate the Court’s conclusion that the petition should 

be summarily dismissed without prejudice. Therefore, the Court denies a certificate 

of appealability. Furthermore, leave to appeal in forma pauperis will be denied 

because any appeal of this order would be frivolous. 

 Accordingly, for the foregoing reasons, 

IT IS ORDERED, that the petition for a writ of habeas corpus is 

DISMISSED WITHOUT PREJUDICE; 

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IT IS FURTHER ORDERED, that a certificate of appealability and 

permission to proceed on appeal in forma pauperis is DENIED. 

 s/Gershwin A. Drain 

 Gershwin A. Drain 

 United States District Court 

Dated: September 12, 2016 

CERTIFICATE OF SERVICE 

 The undersigned certifies that the foregoing document was served upon 

counsel of record and any unrepresented parties via the Court's ECF System to 

their respective email or First Class U.S. mail addresses disclosed on the Notice of 

Electronic Filing on September 12, 2016. 

 s/Teresa McGovern 

 Teresa McGovern 

 Case Manager Generalist 

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