UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

DAREN PORTER,

Petitioner,

v.

RICHARD IVERS,

Respondent. 

 /

Case Number: 2:15-12172

HONORABLE SEAN F. COX

OPINION AND ORDER DISMISSING PETITION FOR WRIT OF

HABEAS CORPUS WITHOUT PREJUDICE

Petitioner Daren Porter has filed what this Court construes as a pro se petition for a

writ of habeas corpus under 28 U.S.C. § 2254. He challenges a first-degree murder

conviction rendered in Wayne County Circuit Court in 1982. Although Petitioner is

incarcerated pursuant to a conviction and sentence imposed by a Michigan state court, he

is currently in the custody of the Bureau of Prisons (BOP) and confined at the United

States Penitentiary Victorville, in Adelanto, California, pursuant to 18 U.S.C. § 5003,

which allows a state to contract with the BOP to provide for the custody of state inmates. 

See Memorandum and Order Transferring Petition, dkt. # 2. The Court finds that

Petitioner has not properly exhausted his state court remedies and dismisses the petition

without prejudice. 

I.

Upon the filing of a habeas corpus petition, the Court must promptly examine the

petition to determine “if it plainly appears from the face of the petition and any exhibits

2:15-cv-12172-SFC-PTM Doc # 4 Filed 08/12/15 Pg 1 of 5 Pg ID 20
annexed to it that the petitioner is not entitled to relief.” Rule 4, Rules Governing Section

2254 cases. If the Court determines that the petitioner is not entitled to relief, the Court

shall summarily dismiss the petition. 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”). A petition may be summarily dismissed where the

allegations are so “vague (or) conclusory” that they do not “point to a real possibility of

constitutional error.” Blackledge v. Allison, 431 U.S. 63, 76 (1977) (internal citations

omitted). “[A] claim for relief in habeas corpus must include reference to a specific

federal constitutional guarantee, as well as a statement of the facts which entitle the

Petitioner to relief.” Gray v. Netherland, 518 U.S. 152, 162-63 (1996) (internal citations

omitted). See also Perez v. Hemingway, 157 F. Supp. 2d 790, 796 (E.D. Mich. 2001) (“A

petition for a writ of habeas corpus must set forth facts that give rise to a cause of action

under federal law or it may summarily be dismissed.”).

II.

The pending habeas petition will be dismissed because Petitioner fails to satisfy his

burden of demonstrating exhaustion of state court remedies. 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

2

2:15-cv-12172-SFC-PTM Doc # 4 Filed 08/12/15 Pg 2 of 5 Pg ID 21
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 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

conviction or his sentence and current incarceration in the Michigan appellate courts. 

Petitioner should present his claims to the state courts in the first instance. A prisoner is

required to comply with this exhaustion requirement as long as there is still a state-court

procedure available for him to do so. See Adams v. Holland, 330 F.3d 398, 401 (6th Cir.

2003). In this case, a procedure is available to Petitioner. Petitioner may file a motion for

relief from judgment in the Wayne County Circuit Court under Michigan Court Rule

6.502. If that motion is denied, he may seek review by the Michigan Court of Appeals

and Michigan Supreme Court by filing an application for leave to appeal. Mich. Ct. R.

6.509; Mich. Ct. R. 7.203; Mich. Ct. R. 7.302. 

Where a petition contains both exhausted and unexhausted claims, a district court

may dismiss the unexhausted claims, retain jurisdiction over the exhausted claims, and

3

2:15-cv-12172-SFC-PTM Doc # 4 Filed 08/12/15 Pg 3 of 5 Pg ID 22
stay proceedings pending exhaustion. Rhines v. Weber, 544 U.S. 269, 278, 125 S. Ct.

1528, 1535 (2005); Griffin v. Rogers, 308 F.3d 647, 652, n.1 (6th Cir. 2002). In this case,

the petition contains no exhausted claims over which the Court may retain jurisdiction. 

Thus, the Court will dismiss the petition. 

III.

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 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, 484 (2000)

(citation omitted). 

In this case, 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.

4

2:15-cv-12172-SFC-PTM Doc # 4 Filed 08/12/15 Pg 4 of 5 Pg ID 23
IV.

For the foregoing reasons, IT IS ORDERED that the petition for writ of habeas

corpus [dkt. # 1] is DISMISSED WITHOUT PREJUDICE.

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

Dated: August 12, 2015 S/ Sean F. Cox 

Sean F. Cox

U. S. District Judge

I hereby certify that on August 12, 2015, the foregoing document was served on counsel

of record via electronic means and upon Daren Porter via First Class mail at the address

below:

Daren Porter 23594-039 

USP Victorville 

PO Box 3900 

Adelanto, CA 92301 

S/ J. McCoy 

Case Manager 

5

2:15-cv-12172-SFC-PTM Doc # 4 Filed 08/12/15 Pg 5 of 5 Pg ID 24