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Petitioner was incarcerated at the Bellamy Creek Correctional Facility when he

originally filed his habeas petition; however, he has since been transferred to the Alger

Correctional Facility. The proper respondent in a habeas case is the habeas petitioner’s

custodian, which in the case of an incarcerated petitioner is the warden of the facility

where the petitioner is incarcerated. Rule 2(a) of the Rule Governing § 2254 Cases; see

also Edwards v. Johns, 450 F.Supp.2d 755, 757 (E.D. Mich. 2006). In most cases where

a petitioner is transferred to a different facility after the petition has been filed, the Court

would order an amendment of the case caption. However, because the Court is

dismissing the petition in this case, it finds no reason to do so. 

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

JOBEY HENDERSON, # 237781,

Petitioner,

v. Case Number: 09-cv-11225

Honorable John Corbett O’Meara

KENNETH T. MCKEE,

Respondent.

_______________________________/

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

CORPUS WITHOUT PREJUDICE, (2) DECLINING TO ISSUE A CERTIFICATE OF

APPEALABILITY, AND (3) DENYING AN APPLICATION FOR LEAVE TO

PROCEED ON APPEAL IN FORMA PAUPERIS

I. INTRODUCTION

Pending before the Court is Petitioner Jobey Henderson’s pro se petition for writ of

habeas corpus filed under 28 U.S.C. § 2241 and 2254. Petitioner is currently incarcerated at the

Alger Correctional Facility in Munising, Michigan.1 He was convicted by a Gratiot County

circuit court jury of assaulting a prison employee, MICH. COMP. LAWS § 750.197(c)(1), while he

was an inmate at the St. Louis Correctional Facility in St. Louis, Michigan, where he was serving

a seven to twenty-two year and six month prison term for second-degree criminal sexual
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conduct. Petitioner was sentenced as a habitual offender, fourth offense, to four to fifteen years

in prison for the assaulting-a-prison-employee conviction, to be served consecutively to the

sentence he was then serving. In his pro se habeas petition, Petitioner challenges various

conditions of his confinement. For the reasons stated below, the Court will dismiss the petition

without prejudice. The Court also will decline to issue Petitioner a certificate of appealability

and will deny him an application for leave to proceed on appeal in forma pauperis.

II. BACKGROUND

The Michigan Court of Appeals summarized the facts of the case. The recitation of those

facts are entitled to a presumption of correctness under 28 U.S.C. § 2254(e)(1). They are as

follows:

On March 25, 2005, defendant was an inmate in the St. Louis Correctional

Facility. Officer Charles Cowling testified that he first noticed defendant in the

programs building of the prison, getting resized for new inmate clothing. 

Cowling later saw defendant at the inmate bathroom, putting orange shorts and

green sweat pants on under his inmate clothing. Cowling told defendant that it

was “against policy to be wearing orange shorts or anything else underneath his

[inmate clothing].” Defendant replied with expletives directed toward Cowling,

and then defendant threatened to kill Cowling and another corrections officer. 

Cowling immediately radioed for assistance because defendant needed to be put

in the segregation unit due to his threatening behavior. Defendant then said, “If

I’m going to the hole, I’m going for real,” he hit Cowling twice with his fist on

the right side of Cowling’s neck, and he ran down the hall.

People v. Henderson, No. 279861, 2009 WL 153280, at *1 (Mich.Ct.App. Jan. 22, 2009).

The jury found Petitioner guilty as charged.

Following his conviction and sentence, Petitioner filed a direct appeal with the Michigan

Court of Appeals, raising the following claims: (1) the trial court erred in refusing to instruct the

jury on the lesser included offense of assault and battery, and (2) his sentence was improperly

enhanced on factual findings not found by the jury. He also filed pro per motions for an
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interlocutory appeal in the Michigan Supreme Court and for peremptory reversal in the Court of

Appeals. The Court of Appeals denied the motion for peremptory reversal. People v.

Henderson, No. 279861 (Mich.Ct.App. May 13, 2008). The Michigan Supreme Court denied his

interlocutory motion on July 29, 2008. People v. Henderson, 482 Mich. 898, 753 N.W.2d 165

(2008).

Subsequently, Petitioner filed a pro per supplemental brief in the Court of Appeals,

raising the following additional claims: (1) double jeopardy, (2) prosecutorial misconduct, (3) he

was denied his right to present certain defenses, (4) ineffective assistance of trial counsel, and (5)

incompetency to stand trial. On January 22, 2009, the Court of Appeals affirmed his

convictions. Henderson, 2009 WL 153280, at *3. The Court of Appeals also denied Petitioner’s

motion for reconsideration. People v. Henderson, No. 279861 (Mich.Ct.App. Feb. 24, 2009).

Petitioner then filed an application for leave to appeal the Court of Appeals’s decision

with the Michigan Supreme Court, raising the same claims. The Supreme Court denied the

application on June 23, 2009. People v. Henderson, 483 Mich. 1113, 766 N.W.2d 842 (2009).

Petitioner neither filed a post-conviction motion with the state trial court nor a writ of

certiorari with the United States Supreme Court. Rather, on April 2, 2009, he filed this habeas

petition, raising the following claims: (1) the Court of Appeals erred in denying his motion for

peremptory reversal, (2) he is entitled to relief regarding erroneous time review, computation,

and programs and work assignment, (3) he was denied due process based on his indigence, (4)

his conditions of confinement are inhumane and resulted in his conviction, and (5) his conditions

of confinement warrant court intervention.

III. DISCUSSION
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When a prisoner is challenging the very fact or duration of his physical imprisonment and

the relief that he is seeking is a determination that he is entitled to immediate release or a

speedier release from that imprisonment, his sole federal remedy is a petition for writ of habeas

corpus. Preiser v. Rodriguez, 411 U.S. 475, 500 (1973). Thus, a habeas petition is accepted as

the specific instrument to obtain release from unlawful custody. Wilkinson v. Dotson, 522 U.S.

74, 78-79 (2005). Habeas relief is also appropriate for claims challenging the execution or the

manner in which a sentence is served. United States v. Peterman, 249 F.3d 458, 461 (6th Cir.

2001). However, habeas relief is not available to prisoners who are complaining only of

mistreatment during their legal incarceration. See Lutz v. Hemingway, 476 F.Supp.2d 715, 718

(E.D. Mich. 2007). Complaints like the ones raised by Petitioner, which involve conditions of

confinement, “do not relate to the legality of the petitioner’s confinement, nor do they relate to

the legal sufficiency of the criminal court proceedings which resulted in the incarceration of the

petitioner.” Id. (quoting Maddux v. Rose, 483 F.Supp. 661, 672 (E.D. Tenn. 1980)). An inmate

like Petitioner may, however, bring claims that challenge the conditions of confinement under 42

U.S.C. § 1983. Id.; see also, Austin v. Bell, 927 F.Supp. 1058, 1066 (M.D. Tenn. 1996). 

Because Petitioner challenges only the conditions of his confinement, his claims “fall outside of

the cognizable core of habeas corpus relief.” Hodges v. Bell, 170 F.App’x. 389, 393 (6th Cir.

2006).

This Court, will not, however, convert Petitioner’s habeas petition into a civil rights
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The Prisoner Litigation Reform Act of 1995 (PLRA) states that “if a prisoner brings a

civil action or files an appeal in forma pauperis, the prisoner shall be require to pay the full

amount of a filing fee.” 28 U.S.C.1915(b)(1) (as amended); see also, In Re Prison Litigation

Reform Act, 105 F.3d 1131, 1138 (6th Cir. 1997). If a prisoner wishes to file a civil action and

seek pauper status, the prisoner must file an affidavit of indigency as well as a certified copy of

his or her prison account statement showing the activity in the inmate’s prison account for the

previous six months. McGore v. Wrigglesworth, 114 F.3d 601, 604 (6th Cir. 1997). The PLRA

also requires that district courts screen all civil cases brought by prisoners. Id. at 608. Finally, a

federal district court may dismiss an incarcerated plaintiff’s civil case if, on three or more

previous occasions, a federal court dismissed the incarcerated plaintiff’s action because it was

frivolous and malicious or failed to state a claim for which relief may be granted. 28 U.S.C. §

1915(g) ( (1996); Thaddeus-X v. Blatter, 175 F.3d 378, 400 (6th Cir. 1999).

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The Court expresses no view concerning whether or not Petitioner’s claims would be

sustainable in the event he were to choose to file them in the proper manner.

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cause of action. Because of the vastly different procedural requirements2 for habeas petitions

and other civil actions brought by prisoners, a court confronted with a habeas petition that is

properly brought under § 1983 should dismiss the petition without prejudice to allow the

petitioner to raise his potential civil rights claims properly as a § 1983 action.3

 See Martin v.

Overton, 391 F.3d 710, 714 (6th Cir. 2004).

Against that backdrop, the Court concludes that Petitioner’s habeas petition is dismissed

without prejudice because his claims relate to the conditions of his confinement and are not

cognizable in a federal-habeas proceeding. Furthermore, it is not clear to the Court whether

Petitioner is raising a claim involving the computation of his sentence. Because Petitioner has

already filed a habeas action, Henderson v. Woods, No. 08-12139 (E.D. Mich.), which has been

assigned to The Honorable Stephen J. Murphy, III, and because a response has not yet been filed 

in that case, he can amend that petition to add the additional claim if he so wishes. If
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Respondent files his response, then Petitioner must ask the Court for permission to amend his

habeas petition.

IV. CONCLUSION

For the reasons stated, the Court dismisses the instant petition because Petitioner is 

challenging the conditions of his confinement.

The Court will also decline to issue a certificate of appealability (COA) to Petitioner.

A court may issue a COA “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 merits, a COA 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.

The Court concludes that jurists of reason would not find its assessment of Petitioner’s

case debatable or wrong. The Court thus declines to issue him a COA. Nor should he be granted
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leave to proceed on appeal in forma pauperis, as any appeal would be frivolous. See

Fed.R.App.P. 24(a).

Accordingly,

IT IS HEREBY ORDERED that Petitioner’s “Petition for Writ of Habeas Corpus”

[Dkt. # 1] is DISMISSED WITHOUT PREJUDICE.

IT IS FURTHER ORDERED that the Court declines to issue Petitioner a certificate of

appealability and denies him an application for leave to proceed on appeal in forma pauperis.

s/John Corbett O’Meara 

United States District Judge

Date: December 21, 2010

I hereby certify that on December 21, 2010, a copy of the foregoing document was served

upon counsel of record using the ECF system, and upon Petitioner at Alger Correctional Facility

(LMF) N6141 Industrial Park Drive, Munising, MI 49862 using first-class U.S. mail.

s/William Barkholz 

Case Manager