UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

ROLAND CHARLES BROCKRIEDE,

Petitioner,

v.

SHERIFF RON KALANQUIN,

Respondent. 

/

Case Number: 2:08-CV-14050

HON. STEPHEN J. MURPHY, III

OPINION AND ORDER (1) SUMMARILY DISMISSING PETITION FOR WRIT

OF HABEAS CORPUS WITHOUT PREJUDICE; AND (2) DENYING

PETITIONER’S REQUEST FOR PRELIMINARY INJUNCTION

Petitioner Roland Brockriede has filed a pro se petition for a writ of habeas corpus. He is

currently incarcerated at the Lapeer County Jail in Lapeer, Michigan. Because Petitioner has not

yet exhausted his state court remedies with respect to the claims asserted in his habeas petition,

the Court shall dismiss the petition without prejudice. 

I.

Petitioner’s habeas corpus petition is confusing and rambling, making it difficult to

ascertain the substance of Petitioner’s claims. As best the Court can determine, Petitioner is

currently incarcerated at the Lapeer County Jail awaiting trial on charges of violating several

personal protection orders. Petitioner states that he has been in custody since August 12, 2008. 

He appears to challenge the legality of this custody on the following grounds: (i) he was not

advised of his rights under Miranda v. Arizona, 384 U.S. 436 (1966); (ii) he was not presented

with a formal complaint; (iii) the Lapeer County Circuit Court lacks jurisdiction; (iv) his arrest

deprived Petitioner of his First, Fifth and Sixth Amendment rights; and (v) the personal
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protection orders upon which his arrest was based are invalid. 

II.

As an initial matter, Petitioner has entitled his habeas petition “Affidavit in Bill of

Particulars to Claim and Support Article III in Equity Writ of Habeas Corpus.” He does not

specify whether he files the petition pursuant to 28 U.S.C. § 2254 or § 2241. Section 2254 is an

appropriate avenue for habeas corpus relief where a petitioner claims to be “in custody pursuant

to the judgment of a State court” in violation of the Constitution. 28 U.S.C. § 2254(a). In the

pending case, Petitioner is awaiting trial and therefore is not incarcerated pursuant to a state

court judgment. Pretrial petitions are properly brought under 28 U.S.C. § 2241 which applies to

persons who are in custody without regard to whether final judgment has been rendered. See

Atkins v. People of the State of Michigan, 644 F.2d 543, 546, n.1 (6th Cir. 1981). Thus, this

Court will construe the petition as having been filed pursuant to 28 U.S.C. § 2241. 

III.

A.

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 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”). The Rules

Governing Section 2254 cases may be applied at the discretion of the district court judge to

petitions not filed under § 2254. See Rule 1(b), Rules Governing Section 2254 Cases. The
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claims presented in the habeas petition are unexhausted and therefore do not present grounds

upon which this Court may grant habeas relief at this time. Accordingly, the petition will be

dismissed without prejudice. 

B.

A federal court may not grant habeas corpus relief to a state prisoner unless the prisoner

first exhausts his remedies in state court. O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). 

“Ordinarily, the state courts must have had the opportunity to pass on defendant’s claims of

constitutional violations.” Prather v. Rees, 822 F.2d 1418 (6th Cir. 1987). “This rule of comity

reduces friction between the state and federal court systems by avoiding the unseemliness of a

federal district court’s overturning a state court conviction without the state courts having had an

opportunity to correct the constitutional violation in the first instance.” O’Sullivan v. Boerckel,

526 U.S. 838, 845 (1999) (internal quotation omitted). State prisoners in Michigan must raise

each claim in the Michigan Court of Appeals and in the Michigan Supreme Court before seeking

federal habeas corpus relief. See Manning v. Alexander, 912 F.2d 878, 881 (6th Cir. 1990). 

Petitioner, who is awaiting trial in state court, has failed to allege exhaustion of state

court remedies with respect to any of his claims. The Court notes that, while a federal court may

address certain claims on habeas review before a trial is held in state court, exhaustion of state

court remedies is still a prerequisite for consideration of such claims. See Atkins, 644 F.2d at

548 (holding that federal court could address pretrial petition raising speedy trial claim where

Michigan Court of Appeals and Michigan Supreme Court had each addressed the speedy trial

claim on interlocutory appeal); Jenkins v. Montgomery County Jail, 641 F. Supp. 148 (M.D.

Tenn. 1986) (dismissing habeas petition filed by pretrial detainee alleging due process violations
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where petitioner failed to provide state courts with initial opportunity to pass upon claims). The

burden of establishing exhaustion of state court remedies rests with a habeas petitioner. Rust v.

Zent, 17 F.3d 155, 160 (6th Cir. 1994); Caver v. Straub, 349 F.3d 340, 345 (6th Cir.2003).

Petitioner has failed to allege that he has exhausted his claims in state court. 

A federal court may “sometimes appropriately interfere by habeas corpus in advance of

final action by the authorities of the State,” but such cases are “exceptional” and of “great

urgency.” Urquhart v. Brown, 205 U.S. 179, 182 (1907); Smith v. Evans, No. 08-11188, 2008

WL 880007, *2 (E.D. Mich. March 31, 2008). Petitioner has failed to allege any urgent

circumstances sufficient to warrant interference by this Court in a matter pending in state court. 

Similarly, this is not an extraordinary case justifying removal of the case from state court. 

Thus, the Court shall dismiss the petition without prejudice for failure to exhaust state

court remedies.

IV.

Also before the Court is Petitioner’s “Affidavit in Bill of Particulars to Claim and

Support an Article III in Equity Preliminary Injunction Pursuant to FRCP 65(a).” This pleading

is also confusing and rambling. Petitioner appears to argue that Frank and Beverly Clark are

attempting to unlawfully evict him from his residence. He alleges that “the quagmire is

controlled and operated by the Machiavellian Puppeteers the Michigan Attorney General and His

Gang of Thugs.” Petitioner’s Affidavit at 10. Petitioner further claims that the attempted

eviction is somehow related to the allegedly unlawful arrest which forms the basis for his habeas

corpus petition, though the purported nexus between the two is a mystery to the Court. 

A court generally must consider the following four factors in deciding whether to issue a
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preliminary injunction:

(1) whether the movant has shown a strong or substantial likelihood of success on

the merits;

(2) whether the movant has demonstrated irreparable injury;

(3) whether the issuance of a preliminary injunction would cause substantial harm

to others; and 

(4) whether the public interest is served by the issuance of an injunction. 

Rock and Roll Hall of Fame v. Gentile Prods., 134 F.3d 749, 754 (6th Cir. 1998). 

Considering the four factors enumerated above, Petitioner is not entitled to injunctive

relief. First, given that the Court is summarily dismissing the petition, that the basis for

Petitioner’s claims is not entirely clear, and that the relationship between the request for a

preliminary injunction and the habeas petition is questionable at best, Petitioner has not shown a

strong or substantial likelihood of success on the merits. Second, Petitioner has not shown that

he will suffer irreparable injury if he is required to exhaust his remedies in state court. Third, the

issuance of a preliminary injunction would interfere with the state court process without

substantial justification for doing so. Finally, issuing an injunction would not serve the public

interest. 

V.

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 Petitioner’s request for a preliminary injunction [dkt.

# 2] is DENIED.

s/Stephen J. Murphy, III 

Stephen J. Murphy, III

United States District Judge

Dated: October 7, 2008

I hereby certify that a copy of the foregoing document was served upon the parties and/or

counsel of record on October 7, 2008, by electronic and/or ordinary mail.

s/Alissa Greer 

Case Manager