UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

SCOTT ANDREW WITZKE,

Petitioner,

CIVIL NO. 2:15-CV-12429

v. HONORABLE DENISE PAGE HOOD

UNITED STATES DISTRICT JUDGE

SHAWN BREWER,

Respondent.

________________________________/

OPINION AND ORDER SUMMARILY DISMISSING WITHOUT

PREJUDICE THE PETITION FOR WRIT OF HABEAS CORPUS,

DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY, AND

GRANTING LEAVE TO APPEAL IN FORMA PAUPERIS 

Scott Andrew Witzke, (“Petitioner”), confined at the G. Robert Cotton

Correctional Facility in Jackson, Michigan, filed a petition for writ of habeas

corpus pursuant to 28 U.S.C. § 2254. In his application, filed pro se,

petitioner challenges the Michigan Parole Board’s 2014 decision to revoke

his parole for several convictIons for uttering and publishing. For the

reasons stated below, the petition for writ of habeas corpus is DISMISSED

WITHOUT PREJUDICE.

I. Background

Petitioner is currently serving sentences for four convictions of

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uttering and publishing out of Hillsdale, Oakland, and Wayne Counties. 

Petitioner was placed on parole in May of 2013. Petitioner was later

charged with violating several terms of parole. On May 23, 2014, petitioner

pleaded guilty before a parole hearing officer to violating two terms of his

parole, namely, by possessing a debit card and a credit card. A hearing on

the remaining parole violations was conducted on August 13, 2014. 

Petitioner was found guilty of violating a separate condition of his parole by

being convicted of a new felony offense. The hearing examiner

recommended that petitioner’s incarceration be continued. On September

24, 2014, the Michigan Parole Board adopted the recommendation,

revoked petitioner’s parole, and continued his incarceration for 12 months.

Petitioner filed a petition for writ of habeas corpus, claiming that the

Michigan Parole Board violated his right to due process by revoking his

parole without first conducting an in-person hearing with petitioner and

without giving petitioner an opportunity to present mitigating evidence. By

his own admission, petitioner did not attempt to seek relief in the state

courts but claims he has no remedy. Respondent has filed an answer to

the petition. As part of the answer, respondent argues that the petition is

subject to dismissal because petitioner did not exhaust his claims with the

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state courts and has a remedy with which to do so.

II. Discussion

The instant petition is subject to dismissal because petitioner has yet

to exhaust his claims with the state courts and has an available remedy to

do so.

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); See also Foster v. Withrow, 159 F. Supp. 2d 629,

638 (E.D. Mich. 2001). 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 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 exhaustion doctrine, in the context of habeas cases, turns upon

an inquiry of whether there are available state court procedures for a

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habeas petitioner to exhaust his claims. See Adams v. Holland, 330 F. 3d

398, 401 (6th Cir. 2003). Petitioner has an available remedy to exhaust his

parole revocation claims.

In Caley v. Hudson, 759 F. Supp. 378, 379-81 (E.D. Mich.

1991)(Duggan, J.), another judge in this district held that an inmate who

challenged his confinement for a parole violation by the Michigan Parole

Board had an available state remedy in the form of a state habeas corpus

action and the failure of the inmate to exhaust that available state court

remedy required dismissal of his federal habeas petition. 

The judge in Caley based his decision on the case of Triplett v.

Deputy Warden, Jackson Prison, 142 Mich. App. 774, 779; 371 N. W. 2d

862 (1985), in which the Michigan Court of Appeals held that review of a

parole revocation decision was permissible upon the prisoner filing a

complaint for writ of habeas corpus in the state trial court. Id. (citing to In

Re Casella, 313 Mich. 393; 21 N. W. 2d 175 (1946). There is no limitation

on the time in which a complaint for writ of habeas corpus is filed, so long

as the prisoner is in custody at the time that the judgment becomes

effective. Triplett, 142 Mich. App. at 779. Although orders of denial in a

state habeas corpus proceeding in Michigan are not appealable by right,

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these orders may be reviewed by filing an original complaint for a writ of

habeas corpus in the Michigan Court of Appeals. Triplett, 142 Mich. App. at

779-780; Parshay v. Warden of Marquette Prison, 30 Mich. App. 556, 558;

186 N. W. 2d 859 (1971). Denial of this petition by the Michigan Court of

Appeals is reviewable by the Michigan Supreme Court by filing an

application for leave to appeal. M.C.R. 7.301 (A)(2); M.C.R. 7.302. 1

A number of other judges have likewise ruled that a state habeas

action can be used to exhaust a parole revocation claim. Johnson v.

Brewer, No. 15-CV-11208, 2015 WL 4642862, at *2 (E.D. Mich. Aug. 4,

2015)(Berg, J.); Pajer v. Gidley, No. 15-CV-10376, 2015 WL 669319, at *2

(E.D. Mich. Feb. 17, 2015)(Leitman, J.); Proulx v. Bell, No. 09-CV-11992,

2009 WL 1637031, at * 1-2 (E.D. Mich. June 11, 2009)(Battani, J.);

Knuckles v. Bell, No. 08–CV–10942, 2008 WL 1743494, at * 1 (E.D.Mich.

April 14, 2008)(Duggan, J.); Swantak v. Romanowski, No. 08–CV–10126,

2008 WL 186127, at *1–2 (E.D.Mich. Jan.18, 2008) (Zatkoff, J.); Simmons

v. Michigan Dept. of Corrections Parole Bd., No. 2:07–CV–15442, 2008 WL

1

 The court in Caley recognized, as does this Court, that an alternative method of challenging the

revocation of parole would be for an inmate to institute an action under the Michigan Administrative

Procedures Act ("APA"), Mich. Comp Laws § 24.303(3). However, the APA requires that appeals from

Parole Board rulings must be made within 60 days of the ruling. Caley, 759 F. Supp. at 379, fn. 1, citing to

Mich. Comp Laws § 24.304 (1). Because the Parole Board revoked petitioner’s parole on September 24,

2014, the time to seek relief from the Parole Board’s ruling under the APA has expired.

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62459, at * 1 (E.D.Mich. Jan.3, 2008)(Cohn, J.). 

Petitioner claims that it would be futile to attempt to use a state

habeas petition to exhaust his parole revocation claim because Michigan

law permits the use of a state habeas petition only to challenge radical

jurisdictional defects.

An exception to the exhaustion requirement exists only if there is no

opportunity to obtain relief in the state courts or if the corrective process is

so clearly deficient as to render futile any effort to obtain relief in the state

courts. Duckworth v. Serrano, 454 U.S. 1, 3 (1981); Sitto, 207 F. Supp. 2d

at 676. A habeas petitioner, however, has the burden of showing that all

available state court remedies have been exhausted or that exceptional

circumstances exist which would make exhaustion unnecessary. See Doty

v. Lund, 78 F. Supp. 2d 898, 901 (N.D. Iowa 1999).

Although petitioner claims that it would be futile to exhaust his

remedies in state court, petitioner’s actual failure to pursue his claims in

state court “disqualifies his case from consideration under the narrow

exception [to the exhaustion requirement]”. See Dillon v. Hutchinson, 82

Fed.Appx. 459, 462 (6th Cir. 2003). Petitioner’s 1988 habeas case, in

which he challenged a prior parole revocation, is distinguishable from his

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current petition because in that case petitioner did make an attempt to

challenge his parole revocation in the state courts. See Witzke v. Withrow,

702 F. Supp. 1338, 1350 (W.D. Mich. 1988); See also Caley, 759 F. Supp.

at 379-80 (distinguishing the Witzke case by noting that the judge in that

case noted that the petitioner had sought relief in the Michigan Court of

Appeals and that the clerk of that court twice refused to accept petitioner’s

application). 

The recent Michigan Supreme Court case of Kenney v. Booker, 494

Mich. 852; 830 N.W. 2d 382 (2013) does not alter this Court’s conclusion

that petitioner can utilize the state habeas procedure to challenge his

parole revocations. The Supreme Court in Kenney noted that the prisoner

in that case challenged the legal standard employed by the Parole Board to

revoke his parole and claimed that the evidence was insufficient to

establish an actual violation of parole. The Supreme Court held that these

errors did not constitute radical defects that rendered void the proceedings

of the Parole Board. Id.

Petitioner in this case, claims that the Michigan Parole Board violated

his due process rights by revoking his parole based on the

recommendation of the parole hearing officer without the Parole Board first

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conducting an in-person interview with petitioner to entertain mitigating

evidence from him before revoking his parole. 

In Morales v. Michigan Parole Board, 260 Mich. App. 29; 676 N.W.

2d 221 (2003), the Michigan Court of Appeals indicated that a prisoner

could file a petition for writ of habeas corpus in the state courts to challenge

a parole revocation. Id. at 40. Although acknowledging that a state habeas

petition could be brought only to challenge a radical jurisdictional defect,

the Michigan Court of Appeals noted that: “‘A radical defect in jurisdiction

contemplates ... an act or omission by state authorities that clearly

contravenes an express legal requirement in existence at the time of the

act or omission.’” Id. (internal quotations omitted). The Michigan Court of

Appeals concluded:

Therefore, under certain radical circumstances, a prisoner has a

right to file a complaint for habeas corpus. Although not a

completely exhaustive list, in the unlikely scenario where the

Parole Board has denied a prisoner parole exclusively on the

basis of his race, religion, or national origin, a complaint for

habeas corpus would be proper.

Morales v. Michigan Parole Bd., 260 Mich. App. at 40-41.

Petitioner contends that the Michigan Parole Board violated his

Fourteenth Amendment right to due process by revoking his parole without

first giving petitioner an opportunity to be heard on the issue of mitigation

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and on possible dispositions of his case, which could include continuing

him on parole. Petitioner cites to Morrissey v. Brewer, 408 U.S. 471

(1972), in which the Supreme Court held that among the due process rights

that are to be afforded to a parolee who is accused of violating his or her

parole is a revocation hearing, in which the parolee “must have an

opportunity to be heard and to show, if he can, that he did not violate the

conditions, or, if he did, that circumstances in mitigation suggest that the

violation does not warrant revocation.” Id. at 488.

Petitioner argues that the Michigan Parole Board violated an express

legal requirement by revoking his parole without allowing petitioner an

opportunity to be heard and to offer mitigating evidence. Because the

Michigan Parole Board’s alleged act or omission could qualify as a radical

jurisdictional defect, petitioner would be able to file a state habeas petition

to challenge his parole revocation. 

Accordingly, the Court will dismiss the instant petition without

prejudice. 

The Court will also deny a certificate of appealability. In order to

obtain a certificate of appealability, a prisoner must make a substantial

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

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demonstrate this denial, the applicant is required to show that reasonable

jurists could 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). When a district court denies a habeas petition on

procedural grounds without reaching the prisoner’s underlying

constitutional claims, a certificate of appealability should issue, and an

appeal of the district court’s order may be taken, if the petitioner shows that

jurists of reason would find it debatable whether the petitioner states a valid

claim of the denial of a constitutional right, and that jurists of reason would

find it debatable whether the district court was correct in its procedural

ruling. Id. When a plain procedural bar is present and the district court is

correct to invoke it to dispose of the case, a reasonable jurist could not

conclude either that the district court erred in dismissing the petition or that

the petition should be allowed to proceed further. In such a circumstance,

no appeal would be warranted. Id. “The district court must issue or deny a

certificate of appealability when it enters a final order adverse to the

applicant.” Rules Governing § 2254 Cases, Rule 11(a), 28 U.S.C. foll. §

2254.

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The Court declines to issue a certificate of appealability, because

“jurists of reason” would not find it debatable whether this Court was

correct in its procedural ruling that petitioner had failed to exhaust an

available state court remedy with respect to these claims. See Colbert v.

Tambi, 513 F. Supp. 2d 927, 939 (S.D. Ohio 2007).

Although this Court will deny a certificate of appealability to petitioner,

the standard for granting an application for leave to proceed in forma

pauperis (IFP) is a lower standard than the standard for certificates of

appealability. See Foster v. Ludwick, 208 F. Supp. 2d 750, 764 (E.D. Mich.

2002)(citing United States v. Youngblood, 116 F. 3d 1113, 1115 (5th Cir.

1997)). Whereas a certificate of appealability may only be granted if

petitioner makes a substantial showing of the denial of a constitutional

right, a court may grant IFP status if it finds that an appeal is being taken in

good faith. Id. at 764-65; 28 U.S.C. § 1915(a)(3); Fed. R.App.24 (a). “Good

faith” requires a showing that the issues raised are not frivolous; it does not

require a showing of probable success on the merits. Foster, 208 F. Supp.

2d at 765. Although jurists of reason would not debate this Court’s

resolution of petitioner’s claims, the issues are not frivolous; therefore, an

appeal could be taken in good faith and petitioner may proceed in forma

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pauperis on appeal. Id.

III. CONCLUSION

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

corpus is DISMISSED WITHOUT PREJUDICE. The Court further DENIES

a certificate of appealability. The Court grants petitioner leave to appeal in

forma pauperis.

IT IS FURTHER ORDERED that the Motion to Compel Service of

Rule 5 Materials (#17) is MOOT and DENIED without prejudice.

S/Denise Page Hood 

Denise Page Hood

United States District Judge

Dated: October 16, 2015

I hereby certify that a copy of the foregoing document was served upon

counsel of record on October 16, 2015, by electronic and/or ordinary mail.

S/LaShawn Saulsberry 

 Case Manager

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