UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

NATHANIEL LIVINGSTON, JR.,

Petitioner, 

v.

NANCY FRANCIS,

Respondent. 

/

Case Number: 2:08-CV-14965

HON. LAWRENCE P. ZATKOFF 

ORDER OF SUMMARY DISMISSAL WITHOUT PREJUDICE

Petitioner Nathaniel Livingston, Jr., an inmate currently incarcerated at the Hamilton County

Jail, in Cincinnati, Ohio, has filed a pro se petition for a writ of habeas corpus. The petition was

originally filed in the United States District Court for the Southern District of Ohio, which

transferred the matter to this Court. Petitioner has failed to exhaust his state court remedies with

respect to the claims presented in his habeas petition. The Court, therefore, shall dismiss the petition

without prejudice.

I.

In his petition, Petitioner challenges a detainer lodged against him based upon a civil

contempt order and sentence entered in Washtenaw County Circuit Court. Petitioner claims that the

detainer is unconstitutional because it is based upon a sentence rendered without the benefit of

counsel and in his absence. He further argues that the contempt order was the product of judicial

incompetence and bias. 

The doctrine of exhaustion of state remedies requires state prisoners to “fairly present” their

claims as federal constitutional issues in the state courts before raising those 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.
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838, 842 (1999); McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000); Rust v. Zent, 17 F.3d 155,

160 (6th Cir. 1994). The exhaustion requirement is satisfied if a prisoner invokes one complete

round of the state’s established appellate review process, including a petition for discretionary

review to a state supreme court. O’Sullivan, 526 U.S. at 845. A prisoner “‘fairly presents’ his

claims to the state courts by citing a provision of the Constitution, federal decisions using

constitutional analysis, or state decisions employing constitutional analysis in similar fact patterns.”

Levine v. Torvik, 986 F.2d 1506, 1516 (6th Cir. 1993); see also Prather v. Reese, 822 F.2d 1418,

1420 (1987) (holding that “[o]rdinarily, the state courts must have had the opportunity to pass on

defendant’s claims of constitutional violations”). A prisoner must present each ground to both

Michigan appellate courts before seeking federal habeas corpus relief. See Mohn v. Bock, 208 F.2d

796, 800 (E.D. Mich. 2002); see also Hafley v. Sowders, 902 F.2d 480, 483 (6th Cir. 1990). The

petitioner bears the burden of showing that state court remedies have been exhausted. Rust, 17 F.3d

at 160. 

Petitioner has failed to show that he has attempted to exhaust his Michigan state court

remedies prior to filing his habeas corpus petition. Further, he has failed to show that state court

remedies are unavailable or ineffective. Therefore, the Court will dismiss the petition without

prejudice to allow Petitioner to exhaust his state court remedies. 

II.

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

DISMISSED WITHOUT PREJUDICE.

S/Lawrence P. Zatkoff 

LAWRENCE P. ZATKOFF

UNITED STATES DISTRICT JUDGE

Dated: December 11, 2008
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CERTIFICATE OF SERVICE

The undersigned certifies that a copy of this Order was served upon the attorneys of record

by electronic or U.S. mail on December 11, 2008.

S/Marie E. Verlinde 

Case Manager

(810) 984-3290