1 

UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

DUSTIN W. TOMASZYCKI, 

Petitioner, 

 Case No. 15-cv-12298 

v. 

 HON. MARK A. GOLDSMITH 

TIMOTHY TURKELSON, 

 Respondent. 

_______________________________/ 

OPINION AND ORDER 

(1) SUMMARILY DENYING PETITION FOR WRIT OF HABEAS CORPUS; (2) 

DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY; AND (3) GRANTING 

LEAVE TO APPEAL IN FORMA PAUPERIS

I. INTRODUCTION 

Petitioner Dustin W. Tomaszycki, presently confined at the Lakeland Correctional 

Facility in Coldwater, Michigan, filed a pro se petition for writ of habeas corpus pursuant to 28 

U.S.C. § 2254. Petitioner challenges his sentence for two counts of third-degree criminal sexual 

conduct, Mich. Comp. Laws § 750.520d; and one count of accosting children for immoral 

purposes, Mich. Comp. Laws § 750.145a. For the reasons stated below, the Court summarily 

denies the petition for writ of habeas corpus. 

II. BACKGROUND 

Petitioner pleaded nolo contendere to the above charges in the Lapeer County Circuit 

Court. Petitioner was sentenced to 71⁄2-to-15 years’ imprisonment on the criminal sexual conduct 

charges, and 2-to-4 years’ imprisonment on the accosting charge. Petitioner’s conviction was 

2:15-cv-12298-MAG-RSW Doc # 4 Filed 10/30/15 Pg 1 of 7 Pg ID 13
2 

affirmed on appeal. People v. Tomaszycki, No. 323431 (Mich. Ct. App. October 14, 2014), 

leave denied, 862 N.W.2d 200 (Mich. 2015).1

 On June 9, 2015, Petitioner filed a motion to dismiss his criminal case for lack of 

jurisdiction, which was denied by the Lapeer County Circuit Court judge. There is no indication 

that Petitioner has appealed this decision to the Michigan appellate courts. 

 Petitioner has filed a petition for a writ of habeas corpus (Dkt. 1). Although his petition 

is rambling and difficult to understand, the gist of his petition is that the State of Michigan lacked 

jurisdiction to prosecute him because the trial judge never took or filed the oath of office. 

III. ANALYSIS

A. Merits 

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. See Perez v. Hemingway, 157 F. 

Supp. 2d 790, 796 (E.D. Mich. 2001). Federal courts are also authorized to dismiss any habeas 

petition that appears legally insufficient on its face. McFarland v. Scott, 512 U.S. 849, 856 

(1994). A federal district court is authorized to summarily dismiss a habeas corpus petition if it 

plainly appears from the face of the petition, or the exhibits that are attached to it, that the 

petitioner is not entitled to federal habeas relief. See Carson v. Burke, 178 F.3d 434, 436 (6th 

Cir. 1999); Rules Governing § 2254 Cases, Rule 4, 28 U.S.C. foll. § 2254. In fact, the Sixth 

Circuit indicated long ago that they “disapprove the practice of issuing a show cause order [to the 

 

1

 Petitioner does not indicate the convictions that he challenges in his petition. The Court 

obtained the information about Petitioner’s convictions from the Michigan Department of 

Corrections’ Offender Tracking Information System (OTIS), of which this Court is permitted to 

take judicial notice. See Ward v. Wolfenbarger, 323 F. Supp. 2d 818, 821 n.3 (E.D. Mich. 

2004). The Court obtained the information about Petitioner’s appeal from Westlaw’s website, 

www.westlaw.com. Public records and government documents, including those available from 

reliable sources on the Internet, are subject to judicial notice. See United States ex. rel. Dingle v. 

BioPort Corp., 270 F. Supp. 2d 968, 972 (W.D. Mich. 2003). 

2:15-cv-12298-MAG-RSW Doc # 4 Filed 10/30/15 Pg 2 of 7 Pg ID 14
3 

respondent] until after the District Court first has made a careful examination of the petition.” 

Allen v. Perini, 424 F.3d 134, 140 (6th Cir. 1970). A district court, therefore, has the duty to 

screen out any habeas corpus petition that lacks merit on its face. Id. at 141. No return to a 

habeas petition is necessary when the petition is frivolous, or obviously lacks merit, or where the 

necessary facts can be determined from the petition itself without consideration of a return by the 

state. Id. 

 After undertaking the review required by Rule 4, the Court concludes, for reasons stated 

in greater detail below, that Petitioner’s claim does not entitle him to habeas relief, and that the 

petition must be summarily denied. See McIntosh v. Booker, 300 F. Supp. 2d 498, 499 (E.D. 

Mich. 2004). 

 Petitioner claims that the State of Michigan lacked jurisdiction over his criminal case 

because his state trial judge, Judge John Conover, either did not take his oath of office or did not 

register it with the Michigan Secretary of State. 

 The determination of whether a state court is vested with jurisdiction under state law over 

a criminal case is a function of the state courts, not the federal courts. Wills v. Egeler, 532 F.2d 

1058, 1059 (6th Cir. 1976); see also Daniel v. McQuiggin, 678 F. Supp. 2d 547, 553 (E.D. Mich. 

2009). The Sixth Circuit has noted that “[a] state court’s interpretation of state jurisdictional 

issues conclusively establishes jurisdiction for purposes of federal habeas review.” Strunk v. 

Martin, 27 F. App’x 473, 475 (6th Cir. 2001). Judge Conover, in rejecting Petitioner’s postconviction motion to dismiss, determined that he and the Lapeer County Circuit Court had 

jurisdiction over Petitioner’s case. Petitioner’s claim that Judge Conover lacked jurisdiction over 

his state criminal case raises an issue of state law, because it questions the interpretation of 

Michigan law, and is, therefore, not cognizable in federal habeas review. See, e.g., Toler v. 

2:15-cv-12298-MAG-RSW Doc # 4 Filed 10/30/15 Pg 3 of 7 Pg ID 15
4 

McGinnis, 23 F. App’x 259, 266 (6th Cir. 2001) (district court lacked authority on habeas review 

to review the petitioner’s claim that the state court erred in refusing to instruct jury on the 

requirements for extraterritorial jurisdiction, because the claim was contingent upon an 

interpretation of an alleged violation of state law).2

The Sixth Circuit has rejected a similar jurisdictional challenge made by a federal 

prisoner. See United States v. Conces, 507 F.3d 1028, 1041 (6th Cir. 2007) (rejecting as 

frivolous the defendant’s claim that the federal district court judge’s failure to keep his “oaths of 

office” on file and to produce them upon the request of the defendant deprived the court of 

subject matter jurisdiction over the defendant’s criminal case). Other judges in this district have 

rejected similar jurisdictional claims. See Thompson v. Foltz, No. 5:86-CV-60201, 2015 WL 

1600446, at *2 (E.D. Mich. Apr. 9, 2015) (Roberts, J.) (habeas petitioner not entitled to relief 

from judgment from the denial of his habeas petition based on his claim that the state court 

lacked jurisdiction over his criminal case because the state judge failed to register his oath of 

office with the Secretary of State); Robertson v. Howes, No. 11-12325, 2011 WL 2490602, at *3 

(E.D. Mich. June 21, 2011) (Lawson, J.) (petitioner not entitled to habeas relief on the ground 

that the judge who presided over his trial failed to register his oath of office with the Michigan 

Secretary of State). 

 In addition, Petitioner’s claim that the State of Michigan did not have jurisdiction over 

him because he is a “private citizen” and not a citizen of the “corporate” entities of the State of 

 

2 See also Jurich v. Campbell, No. 2:13-12544, 2014 WL 109489, at *2 (E.D. Mich. Jan. 13, 

2014) (Roberts, J.) (“[T]he failure of a judge to demonstrate that he or she has taken an oath of 

office does not divest a court of subject-matter jurisdiction”); Blackburn v. Norman, No. 3:09-

mc-125, 2009 WL 3614052, at *2 (M.D. Tenn. Nov. 2, 2009) (holding that a petitioner’s claim 

that a state-court judge did not take his oath of office under state law is not cognizable on habeas 

review); Dean v. Cockrell, No. 3:01-CV-1102-H, 2003 WL 21467571, at *3 (N.D. Tex. June 23, 

2003) (“Petitioner’s claims that he is entitled to habeas corpus review based upon the state 

judge’s failure to take or file required oaths of office are not cognizable on federal habeas corpus 

review.”). 

2:15-cv-12298-MAG-RSW Doc # 4 Filed 10/30/15 Pg 4 of 7 Pg ID 16
5 

Michigan or the United States of America is without merit. Other courts have rejected similar 

jurisdictional claims as being frivolous. See, e.g., Kerr v. Hedrick, 89 F. App’x 962, 963 (6th 

Cir. 2004) (rejecting the petitioner’s claim that he was exempt from punishment for his federal 

crimes because his rights derive exclusively from the Moorish Science Temple of America); 

State v. Arnold, 379 N.W.2d 322, 323 (S.D. 1986) (holding that the trial court had jurisdiction 

over criminal defendant, even though defendant had declared natural individual sovereignty and 

declared the revocation of his marriage license, birth certificate, limited liability for perpetual 

succession of debt and credit, and social security indentures); United States v. Studley, 783 F.2d 

934, 937 (9th Cir. 1986) (despite defendant’s contention that she was an absolute, freeborn and 

natural individual, she was a “person” under the Internal Revenue code and, thus, subject to 

prosecution for willful failure to file tax returns).3

 Therefore, Petitioner’s claims do not entitle 

him to habeas relief. 

B. Certificate of Appealability and Leave to Proceed In Forma Pauperis on Appeal 

 Before Petitioner may appeal this Court’s dispositive decision, a certificate of 

appealability must issue. See 28 U.S.C. § 2253(c)(1)(a); Fed. R. App. P. 22(b). A certificate of 

appealability may issue “only if the applicant has made a substantial showing of the denial of a 

 

3 See also McCaskill v. Terris, No. 4:15-cv-11335, 2015 WL 4065893, at *2 (E.D. Mich. July 2, 

2015) (“Not surprisingly, a prisoner cannot write his own get-out-of-jail-free card by making 

declarations that amount to a renunciation of his obligation to conform his conduct to the 

requirements of the nation's criminal laws”); Herrington v. Bezotte, No. 14-cv-13395, 2015 WL 

268412,at *4 (E.D. Mich. Jan. 21, 2015) (rejecting claim by federal pre-trial detainee that the 

U.S. Marshals Service could not detain her because they lacked any security interest in her 

person and did not have any contract with her or in admiralty to grant them jurisdiction over her 

case); Van Hazel v. Luoma, No. 05-CV-73401-DT, 2005 WL 2837356, at *2 (E.D. Mich. Oct. 

27, 2005) (“Petitioner cannot divest the State of Michigan of jurisdiction to prosecute him of a 

criminal offense simply by declaring a security interest in himself pursuant to the Uniform 

Commercial Code or having another person do so.”);United States v. Williams, 532 F. Supp. 

319, 320 (D.N.J. 1981) (rejecting claim that federal government lacked jurisdiction to prosecute 

defendant who claimed to be a citizen of the “Republic of New Afrika,” finding that this was not 

a sovereign nation recognized by the United States, but was, at most, a black separatist 

movement). 

2:15-cv-12298-MAG-RSW Doc # 4 Filed 10/30/15 Pg 5 of 7 Pg ID 17
6 

constitutional right.” 28 U.S.C. § 2253(c)(2). When a court rejects a habeas claim on the merits, 

the substantial showing threshold is met if the petitioner demonstrates that reasonable jurists 

would find the district court's assessment of the constitutional claim debatable or wrong. See 

Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). “A petitioner satisfies this standard by 

demonstrating 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). In 

applying that standard, a district court may not conduct a full merits review, but must limit its 

examination to a threshold inquiry into the underlying merit of the petitioner's claims. Id. at 336-

337. “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. 

 Having considered the matter, the Court concludes that Petitioner has failed to make a 

substantial showing of the denial of a constitutional right. Accordingly, a certificate of 

appealability is not warranted in this case. 

 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. 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 764-765; 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 

2:15-cv-12298-MAG-RSW Doc # 4 Filed 10/30/15 Pg 6 of 7 Pg ID 18
7 

reason would not debate this Court’s resolution of Petitioner’s claim, the issue is not frivolous; 

therefore, an appeal could be taken in good faith and Petitioner may proceed in forma pauperis 

on appeal. Id. 

V. CONCLUSION 

 For the reasons stated above, the Court summarily denies the petition for writ of habeas 

corpus is summarily denied. The Court further declines to issue a certificate of appealability is 

denied. However, the Court grants Petitioner leave to appeal in forma pauperis. 

 SO ORDERED. 

Dated: October 30, 2015 s/Mark A. Goldsmith 

 Detroit, Michigan MARK A. GOLDSMITH 

 United States District Judge 

 

 

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 October 30, 2015. 

 s/Karri Sandusky 

 Case Manager 

2:15-cv-12298-MAG-RSW Doc # 4 Filed 10/30/15 Pg 7 of 7 Pg ID 19