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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

CLIFFORD HARVEY, #807398,

Petitioner,

 CASE NO. 2:08-CV-14988

v. HONORABLE ANNA DIGGS TAYLOR

SHERIFF PECKELL, et al.,

Respondents.

________________________________/

OPINION AND ORDER (1) DISMISSING PETITION FOR WRIT OF HABEAS

CORPUS, (2) DENYING A CERTIFICATE OF APPEALABILITY AND

LEAVE TO PROCEED ON APPEAL IN FORMA PAUPERIS, AND

(3) DENYING REQUEST FOR RESTRAINING ORDER AND BOND

I. Introduction

Clifford Harvey (“Petitioner”), a pre-trial detainee presently confined at the Genesee

County Jail in Flint, Michigan, has filed a pro se petition for writ of habeas corpus pursuant to 28

U.S.C. § 2254 challenging his pending prosecution on state criminal charges in the Genesee

County Circuit Court. He has also filed a letter request for a restraining order and bond. 

Petitioner raises several claims concerning the criminal complaint, the bond proceedings, the

arraignment (or lack thereof), and the impartiality of the police, prosecutors, and judges in his

habeas petition.

Promptly after the filing of a petition for habeas corpus, the Court must undertake a

preliminary review of the petition to determine whether “it plainly appears from the face of the

petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district

C L O S E D

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court.” Rule 4, RULES GOVERNING § 2254 CASES; see also 28 U.S.C. § 2243. If, after

preliminary consideration, the Court determines that the petitioner is not entitled to relief, the

Court must summarily dismiss the petition. Id.; Allen v. Perini, 424 F.2d 134, 141 (6th Cir.

1970) (district court has the duty to “screen out” petitions that lack merit on their face). A

dismissal under Rule 4 includes those petitions which raise legally frivolous claims, as well as

those containing factual allegations that are palpably incredible or false. See Carson v. Burke,

178 F.3d 434, 436-37 (6th Cir. 1999). After undertaking the review required by Rule 4, the

Court concludes that the petition for writ of habeas corpus must be dismissed.

II. Discussion

Petitioner challenges his pending criminal prosecution in the Genesee Court Circuit

Court in this habeas action. A petitioner may bring a habeas action in federal court to demand

enforcement of the state’s affirmative constitutional obligation to bring him promptly to trial, but

may not generally seek habeas relief to forestall state prosecution altogether. See Braden v. 30th

Judicial Circuit Court of Kentucky, 410 U.S. 484, 489-91 (1973); Capps v. Sullivan, 13 F.3d

350, 354 (10th Cir. 1993). Although 28 U.S.C. § 2241 establishes jurisdiction in the federal

courts to consider pretrial habeas corpus petitions, the courts should abstain from the exercise of

that jurisdiction if the issues raised in the petition may be resolved either by trial on the merits in

the state courts or by other state procedures available to the petitioner. See Atkins v. People of

the State of Michigan, 644 F.2d 543, 546 (6th Cir. 1981). Principles of comity and federalism

require federal courts to abstain from deciding pre-conviction habeas challenges unless the

petitioner demonstrates that: (1) he has exhausted available state court remedies, and (2)

“special circumstances” warrant federal intervention. See Martin-Trigona v. Shiff, 702 F.2d 380,

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To the extent that Petitioner complains about the conditions of confinement at the

Genesee County Jail in his petition, he is also not entitled to habeas relief. A habeas corpus

petition is an appropriate vehicle for challenging the fact or duration of prisoner’s confinement,

but is not appropriate vehicle for challenging the conditions of his confinement. See Preiser v.

Rodriguez, 411 U.S. 475, 486-87 (1973); see also Nelson v. Campbell, 541 U.S. 637, 643 (2004);

Hodges v. Bell, 170 Fed. Appx. 389, 393 (6th Cir. 2006); Lutz v. Hemingway, 476 F. Supp. 2d

715, 718 (E.D. Mich. 2007). Such claims are more properly brought in a civil rights action

under 42 U.S.C. § 1983 after the completion of available administrative remedies. See Preiser,

411 U.S. at 484.

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388 (2d Cir. 1983); Carden v. Montana, 626 F.2d 82, 83-84 (9th Cir. 1980); see also Bronston v.

Sabbatine, 12 F.3d 211, 1993 WL 473792, *1 (6th Cir. 1993) (unpublished).

Petitioner has not met his burden here. To the extent that he seeks dismissal of his

pending state charges and release from custody, federal habeas relief is unavailable. See Braden,

410 U.S. at 493. Additionally, to the extent that Petitioner may be seeking a speedy trial or other

resolution of the charges, he has not exhausted his claims in the state courts by filing a request

for a speedy trial or dismissal with the appropriate state court and pursuing his appellate

remedies as necessary. See, e.g., O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). He has also

not shown that special circumstances warrant federal habeas review. The state courts must first

be given a fair opportunity to rule upon the merits of Petitioner’s claims before he presents them

for federal habeas review. The instant petition is premature and must be dismissed.1

III. Conclusion

For the reasons stated, the Court concludes that Petitioner’s challenge to his ongoing

state criminal proceedings is premature and that he is not entitled to habeas relief at this time. 

His petition must therefore be denied.

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

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

constitutional right.” 28 U.S.C. § 2253(c)(2).

When a federal district 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 this 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 336-37.

When a federal district court denies a habeas claim on procedural grounds without

addressing the claim’s merits, a certificate of appealability should issue if it is shown 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. See Slack, 529 U.S. at 484-85.

Having considered the matter, the Court concludes that reasonable jurists would not find

the Court’s ruling debatable and that Petitioner has failed to make a substantial showing of the

denial of a constitutional right at this time. A certificate of appealability is not warranted. The

Court further concludes that Petitioner should not be granted leave to proceed on appeal in forma

pauperis. as any appeal would be frivolous. See Fed. R. App. P. 24(a).

Accordingly, the Court DISMISSES WITHOUT PREJUDICE the petition for writ of

habeas corpus and DENIES a certificate of appealability and leave to proceed on appeal in

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forma pauperis. Given this determination, the Court also DENIES Petitioner’s letter request for

a restraining order and for bond [d/e-4].

IT IS SO ORDERED.

 

DATED: January 14, 2009 s/Anna Diggs Taylor

ANNA DIGGS TAYLOR

UNITED STATES DISTRICT JUDGE

CERTIFICATE OF SERVICE

The undersigned certifies that a copy of the foregoing Order of Dismissal was served upon Petitioner by

First Class U.S. mail on January 14, 2009.

Clifford Harvey, #807398 

Genesee County Jail 

1002 S. Saginaw Street 

Flint, MI 48502 s/Johnetta M. Curry-Williams

Case Manager

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