1

As set forth infra, the Parole Board released Petitioner on parole after he filed the

pending petition and he was discharged from parole on November 21, 2011.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

MICHAEL FREEMAN,

Petitioner, Civil No. 2:09-CV-10518

Honorable Patrick J. Duggan

v.

BLAINE LAFLER,

Respondent,

________________________________/

OPINION AND ORDER DENYING THE PETITION FOR WRIT OF HABEAS

CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY

OR LEAVE TO APPEAL IN FORMA PAUPERIS

On February 12, 2009, Petitioner Michael Freeman (“Petitioner”), then in the

custody of the Michigan Department of Corrections, filed a pro se petition for a writ of

habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is challenging his 1996 juvenile

court adjudication out of the Circuit Court for Alpena County, Michigan, for seconddegree criminal sexual conduct in violation of Michigan Compiled Laws § 750.520b; his

conviction in the Circuit Court for Antrim County, Michigan, in 2000, for second-degree

criminal sexual conduct in violation of Michigan Compiled Laws § 750.520b; and the

Michigan Parole Board’s prior refusal to release him on parole for the Antrim County

conviction.1

 For the reasons stated below, Petitioner’s application for a writ of habeas

corpus is denied. 

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This Court is permitted to take judicial notice of the information contained on

OTIS. See Ward v. Wolfenbarger, 323 F. Supp. 2d 818, 821, n. 3 (E.D. Mich. 2004).

2

I. Background

In 1996, Petitioner was adjudicated as a juvenile delinquent following his plea of

guilty in the Alpena County Circuit Court for the offense of second-degree criminal

sexual conduct. On November 4, 1997, Petitioner was placed on probation for this

offense and was made a ward of the court. Petitioner was discharged from this case on

February 4, 1999.

Thereafter, on November 16, 2000, Petitioner pleaded guilty to second-degree

criminal sexual conduct in the Antrim County Circuit Court. The trial court sentenced

Petitioner to five to fifteen years in prison on December 11, 2000.

The Michigan Parole Board denied Petitioner parole several times following his

Antrim County conviction. However, on May 21, 2009, the parole board released

Petitioner on parole. According to the Michigan Department of Corrections’ Offender

Tracking Information System (OTIS), Petitioner was discharged from parole on

November 21, 2011.2

Petitioner never filed a direct appeal from his Antrim County conviction, nor did

he seek the appointment of appellate counsel. Petitioner did file a motion for transcripts

at public expense in the Alpena County Circuit Court, which the court denied on

December 27, 2007. People v. Freeman, No. 96-004310-DL (Alpena County Circuit

Court, December 27, 2007) (unpublished opinion). Petitioner’s appeal of this decision to

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the Michigan Court of Appeals was dismissed for lack of jurisdiction, on the ground that

an order denying a motion to have transcripts prepared at public expense is not a final

order under Michigan Court Rule 7.202(6)(b). People v. Freeman, No. 283350 (Mich.

Ct. App. May 8, 2008) (unpublished opinion). Petitioner then filed an application for

leave to appeal to the Michigan Supreme Court, in which he challenged his Alpena

County juvenile conviction. On September 9, 2008, the Michigan Supreme Court denied

petitioner leave to appeal. People v. Freeman, 482 Mich. 976, 754 N.W.2d 884 (2008).

On February 12, 2009, Petitioner filed the pending petition for writ of habeas

corpus. In his application, Petitioner asserts the following grounds in support of his

request for habeas relief:

I. Petitioner has a right to file a habeas corpus action as he has a liberty

interest at the bare minimum to fair and untainted parole hearings.

Petitioner should be granted an excuse of the exhaustion doctrine.

II. Petitioner does have a liberty interest in gaining an early release on

parole.

III. There is a clear abuse of discretion and power within the Michigan

Parole Board which greatly affects [P]etitioner’s liberty.

IV. The Michigan Court of Appeals erred in dismissing [P]etitioner’s

appeal for lack of jurisdiction.

V. The circuit court erred in denying [P]etitioner his transcripts so he can

appeal post-conviction relief pursuant to M.C.R. 6.500 et seq.

VI. Since there was no affidavit showing probable cause to issue the arrest

warrant against [P]etitioner, though one was required to issue the

warrant, [P]etitioner’s U.S. Constitution Amend. IV and Mich. Const.

1963, Art. § 11 civil rights against unreasonable search and seizure, and

[P]etitioner’s U.S. Const. Amend. XIV civil right to equal protection of

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the law was violated when [P]etitioner was arrested.

VII. Where the magistrate used a felony complaint that is conclusory to find

probable cause to issue the arrest warrant against [P]etitioner, though

barred from doing so, [P]etitioner’s U.S. Const. Amend. IV and Mich.

Const. 1963 Art. 1 § 11 civil rights against unreasonable search and

seizure, and [P]etitioner’s U.S. Const. Amend. XIV civil right to equal

protection of the law was violated when [P]etitioner was arrested.

VIII. When the magistrate used sworn, yet unrecorded, oral testimony to find

probable cause to issue the arrest warrant against unreasonable search

and seizure, [P]etitioner’s U.S. Const. Amend. XIV civil right to equal

protection of the law was violated when [P]etitioner was arrested.

IX. When the magistrate used additional facts to find probable cause to

issue the arrest warrant against [P]etitioner that were not incorporated

into an affidavit, presented under oath, or recorded, though barred from

doing so, [P]etitioner’s U.S. Const. Amend. IV and Mich. Const. 1963

Art. 1 § 11 civil rights against unreasonable search and seizure, and

[P]etitioner’s U.S. Const. Amend. XIV civil right to equal protection of

the law was violated when [P]etitioner was arrested.

X. The Court of Appeals erred in not appointing counsel, and relief

required in Halbert v. Michigan.

XI. Petitioner was denied due process and his sentence is therefore invalid

where his sentence was based on materially inaccurate information

prejudicial to [P]etitioner and [P]etitioner’s counsel failed to object.

Respondent filed an answer to the petition on December 7, 2009.

Subsequent to the filing of his petition, Petitioner filed a post-conviction motion

for relief from judgment in the Antrim County Circuit Court on July 30, 2009, which the

trial court denied on October 8, 2009. People v. Freeman, 00-3422 (Antrim County

Circuit Court, October 8, 2009) (unpublished opinion). Petitioner did not appeal this

decision.

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II. Petitioner’s 1996 Alpena County Juvenile Conviction

Several of Petitioner’s claims challenge his 1996 juvenile conviction for seconddegree criminal sexual conduct in Alpena County. Respondent argues that Petitioner is

not entitled to habeas relief from this conviction because he was no longer “in custody”

with respect to this conviction when he filed his present petition. Because Petitioner was

discharged from this conviction in 1999, this Court agrees.

28 U.S.C. §§ 2241(c)(3) and 2254(a) require that a habeas petitioner be “in

custody” under the conviction or sentence under attack at the time that a habeas petition is

filed in the federal court. Maleng v. Cook, 490 U.S. 488, 490-91, 109 S. Ct. 1923, 1925

(1989). A habeas petitioner is no longer “in custody” for purposes of a conviction once

the sentence imposed on that conviction has fully expired, even if that conviction is being

used to enhance a subsequent sentence. Id. at 492-93, 109 S. Ct. at 1926; see also

Lackawanna Cnty. Dist. Attorney v. Coss, 532 U.S. 394, 403-04, 121 S. Ct. 1567, 1574

(2001).

In Lackawanna, the Supreme Court recognized an exception to this general rule

for challenges to an enhanced sentenced based on a prior conviction where there was a

failure to appoint counsel for the petitioner in violation of the Sixth Amendment. See id.

at 404, 121 S. Ct. at 1574. The Supreme Court noted that the “‘failure to appoint counsel

for an indigent [is] a unique constitutional defect . . . ris[ing] to the level of a

jurisdictional defect,’ which therefore warrants special treatment among alleged

constitutional violations.” Id. (quoting Custis v. United States, 511 U.S. 485, 496, 114 S.

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In Lackawanna, three justices recognized that there may be two additional

exceptions to the general rule: (1) where a state court, without justification, refuses to rule

on a constitutional claim that has been properly presented; and (2) where a defendant

subsequently obtains “compelling evidence that he is actually innocent.” 532 U.S. at 405-

06, 121 S. Ct. at 1575. Petitioner, however, has not shown that the state courts refused to

rule on constitutional claims that he properly presented for review; nor has Petitioner

presented this Court with compelling evidence that he is actually innocent of the 1996

second-degree criminal sexual conduct charge out of Alpena County.

4

To the extent Petitioner claims that the Alpena County Circuit Court erred in

denying his motion for transcripts at public expense to help him prepare a post-conviction

motion, he would not be entitled to habeas relief. A criminal defendant has no federal

constitutional right to a transcript to prepare a post-conviction proceeding. Rickard v.

Burton, 2 F. App’x 469, 470 (6th Cir. 2001) (citing Ruark v. Gunter, 958 F.2d 318, 319

(10th Cir. 1992); United States v. MacCollom, 426 U.S. 317, 325-26, 96 S. Ct. 2086

(1976)).

6

Ct. 1732 (1994)). This exception, however, does not apply in the present case.3

Petitioner does not allege that the Alpena County Circuit Court failed to appoint

counsel to represent him in his juvenile case. Although Petitioner claims that his trial

counsel was ineffective, this is not akin to the trial court’s failure to appoint counsel to

represent him. See Daniels v. United States, 532 U.S. 374, 121 S. Ct. 1578 (2001); see

also Tatarinov v. Superior Court of California, No. 07cv2033, 2008 WL 7985604, at *6-

7, (S.D. Cal. July 10, 2008). Therefore, because Petitioner was not “in custody” with

respect to his Alpena County conviction when he filed his application for federal habeas

corpus relief, relief from this conviction under § 2254 is unavailable.4

III. Petitioner’s 2000 Antrim County Conviction

Petitioner also challenges his conviction for second-degree criminal sexual

conduct in the Antrim County Circuit Court in 2000. Respondent argues in his answer to

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Petitioner does assert claims regarding the denial of appellate counsel based on

the Supreme Court’s decision in 2005 in Halbert v. Michigan, 545 U.S. 605, 125 S. Ct.

2582. In Halbert, the Court held that the Due Process and Equal Protection Clauses of

the Fourteenth Amendment require the appointment of counsel for defendants who have

pleaded guilty or nolo contendere and who seek access to first-tier review of their

7

the petition that Petitioner’s challenges to this conviction are time-barred pursuant to the

applicable statute of limitations. 

Under the Antiterrorism and Effective Death Penalty Act (AEDPA), a one (1) year

statute of limitations applies to an application for writ of habeas corpus by a person in

custody pursuant to a judgment of a state court. 28 U.S.C. § 2244(d). The limitation

period runs from the latest of:

(A) the date on which the judgment became final by the conclusion of direct

review or the expiration of the time for seeking such review;

(B) the date on which the impediment to filing an application created by

State action in violation of the Constitution or laws of the United States is

removed, if the applicant was prevented from filing by such State action;

(C) the date on which the constitutional right asserted was initially

recognized by the Supreme Court, if the right has been newly recognized by

the Supreme Court and made retroactively applicable to cases on collateral

review; or

(D) the date on which the factual predicate of the claim or claims presented

could have been discovered through the exercise of due diligence.

28 U.S.C. § 2244(d)(1). Petitioner does not assert any impediment to the filing of his

application for habeas relief, nor do the grounds asserted in support of his petition rest on

a right recently recognized and made retroactively applicable to cases on collateral 

review or a newly discovered fact.5

 Thus his petition is timely only if it was filed within

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conviction in the Michigan Court of Appeals, even when such appeals are discretionary

rather than as of right. 545 U.S. at 609-10, 125 S. Ct. at 2586. However, pursuant to the

AEDPA’s statute of limitations, Petitioner had one year from the Court’s decision to seek

habeas relief based on its holding. See 28 U.S.C. § 2244(d)(1)(C). He did not file his

habeas petition until 2009. Moreover, the Sixth Circuit has held that the Supreme Court’s

decision in Halbert does not apply retroactively to cases on collateral habeas corpus

review. Simmons v. Kapture, 516 F.3d 450, 451 (6th Cir. 2008). As set forth above,

Petitioner’s Antrim County conviction became final on December 11, 2001, and his

Alpena County conviction became final well before that date. Therefore, any challenge

to those convictions based on Halbert would be made on collateral review.

8

one year of the date on which the judgment became final.

Petitioner was sentenced in the Antrim County Circuit Court on December 11,

2000. He never filed a direct appeal from his conviction. As set forth above, the

limitations period runs from “the date on which the judgment became final by the

conclusion of direct review or the expiration of the time for seeking such review,”

whichever comes later. 28 U.S.C. § 2244(d)(1)(A); Wilberger v. Carter, 35 F. App’x

111, 114 (6th Cir. 2002). 

Pursuant to Michigan Court Rule 7.205(F)(3), Petitioner had twelve months from

the judgment of his conviction and sentence to file a delayed application for leave to

appeal in the Michigan Court of Appeals. Because Petitioner never filed a direct appeal

from the judgment entered December 11, 2000, the judgment became final for purposes

of § 2244(d)(1)(A) one year later, or on December 11, 2001. See Jagodka v. Lafler, 148

F. App’x 345, 346 (6th Cir. 2005) (citing 28 U.S.C. § 2244(d)(1)(A) and M.C.R.

7.205(F)(3)). The AEDPA’s statute of limitations therefore expired one year later, on

December 11, 2002. As Petitioner did not file the instant petition until February 2009,

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any challenge to his Antrim County Circuit Court conviction is untimely.

The AEDPA’s statute of limitations “is subject to equitable tolling in appropriate

cases.” Holland v. Florida, – U.S. – , 130 S. Ct. 2549, 2560 (2010). A habeas petitioner

is entitled to equitable tolling “only if he shows ‘(1) that he has been pursuing his rights

diligently, and (2) that some extraordinary circumstance stood in his way’” and prevented

the timely filing of the habeas petition. Id. at 2562 (quoting Pace v. DiGuglielmo, 544

U.S. 408, 418, 125 S. Ct. 1807 (2005)). A habeas petitioner bears the burden of

establishing that he is entitled to equitable tolling. Jurado v. Burt, 337 F.3d 638, 642 (6th

Cir. 2003). 

Petitioner is not entitled to equitable tolling because he fails to present

circumstances warranting equitable relief. See Giles v. Wolfenbarger, 239 F. App’x 145,

147 (6th Cir. 2007).

The Sixth Circuit also has held that the AEDPA’s statute of limitations may be

equitably tolled based upon a credible showing of actual innocence under the standard

enunciated in Schlup v. Delo, 513 U.S. 298, 115 S. Ct. 851 (1995). See Souter v. Jones,

395 F.3d 577, 599-600 (6th Cir. 2005). To establish actual innocence, “a petitioner must

show that it is more likely than not that no reasonable juror would have found petitioner

guilty beyond a reasonable doubt.” Id. at 590 (quoting Schlup, 513 U.S. at 327, 115 S. Ct.

at 867). For an actual innocence exception to be credible, such a claim requires a habeas

petitioner to support his or her allegations of constitutional error “with new reliable

evidence– whether it be exculpatory scientific evidence, trustworthy eyewitness accounts,

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or critical physical evidence– that was not presented at trial.” Schlup, 513 U.S. at 324,

115 S. Ct. at 865; Souter, 395 F.3d at 590. “[A]ctual innocence means factual innocence,

not mere legal insufficiency.” Bousley v. United States, 523 U.S. 614, 623, 118 S. Ct.

1604, 1611 (1998). In Souter, the Sixth Circuit recognized the Supreme Court’s

admonition that the actual innocence exception should “remain rare” and “only be applied

in the ‘extraordinary case.’” 395 F.3d at 590 (quoting Schlup, 513 U.S. at 321, 115 S. Ct.

at 864).

Petitioner presents no new, reliable evidence to establish that he was actually

innocent of the crime charged. Thus he is not entitled to equitable tolling pursuant to the

actual innocence exception. Petitioner’s habeas challenge to his conviction in the Antrim

County Circuit Court in 2000 therefore is barred by the one year limitations period found

in 28 U.S.C. § 2244(d). 

IV. Petitioner’s Parole Denial Claims

Several of Petitioner’s grounds in support of his request for habeas relief relate to

the Michigan Parole Board’s prior denial of his parole. Respondent argues in his answer

that Petitioner’s claims have been mooted by his release on parole.

The United States Constitution requires the existence of a case or controversy

through all stages of federal judicial proceedings. U.S. Const. Art. III, § 2. A case

becomes moot “when the issues presented are no longer ‘live’ or the parties lack a legally

cognizable interest in the outcome.’” Demis v. Sniezek, 558 F.3d 508, 512 (6th Cir. 2009)

(quoting Int’l Union v. Dana Corp., 697 F.2d 718, 720-21 (6th Cir.1983) (additional

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quotation marks and citation omitted)). “‘The parties must continue to have a personal

stake in the outcome of the lawsuit.’” Id. (quoting Lewis v. Cont’l Bank Corp., 494 U.S.

472, 477-78, 110 S. Ct. 1249, 1253 (1990)). A case becomes moot and is beyond the

jurisdiction of the courts if “events occur during the pendency of [the] litigation which

render the court unable to grant the requested relief.” Id. (quoting Abela v. Martin, 309

F.3d 338, 343 (6th Cir.2002)).

Petitioner’s release on parole renders his parole claims moot, because there is no

longer a case or controversy to litigate with respect to these claims. See Townsend v.

Vasbinder, 365 F. App’x 657, 660 (6th Cir. 2010).

V. Conclusion

For the reasons set forth above, the Court denies Petitioner’s request for habeas

relief pursuant to 28 U.S.C. § 2254. When he filed this federal habeas corpus petition,

Petitioner was not “in custody” with respect to his conviction out of the Alpena County

Circuit Court, as required under 28 U.S.C. §§ 2241 and 2254. Petitioner’s challenges to

his conviction in the Antrim County Circuit Court in 2000 are barred by the AEDPA’s

one year statute of limitations, 28 U.S.C. § 2244(d). Finally, Petitioner’s challenges to

the Michigan Parole Board’s denial of parole are moot as a result of Petitioner’s

subsequent release on parole.

When a district court enters a final order adverse to a habeas petitioner, the court

must determine whether the petitioner is entitled to a certificate of appealability. Rule 11

of the Rules Governing Section 2254 Cases; see also Fed. R. App. P. 22(b) (“If an appeal

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is taken by the applicant, the district judge who rendered the judgment shall either issue a

certificate of appealability or state the reasons why such a certificate should not issue.”) 

A district court must make the initial determination of appealability. Kincade v.

Sparkman, 117 F.3d 949, 953 (6th Cir. 1997).

28 U.S.C. § 2253 states, in pertinent part: “A certificate of 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). The Supreme Court has interpreted

§ 2253(c)(2) to mean that when a district court denies a habeas petition on the merits of

the claims presented, a certificate may issue only if the petitioner demonstrates that

reasonable jurists would find the district court’s assessment of the constitutional claims

debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484, 120 S. Ct. 1595, 1604 (2000). 

When a district court denies habeas relief on procedural grounds without reaching the

petitioner’s constitutional claims, the Slack Court held that a certificate may issue only if

the petitioner shows that jurists of reason would find it debatable whether (1) the petition

states a valid claim of a denial of a constitutional right and (2) the district court was

correct in its procedural ruling. Id.

This Court concludes that jurists of reason would not find the correctness of its

procedural rulings with respect to Petitioner’s claims debatable. The Court therefore

denies Petitioner a certificate of appealability. The Court also believes that any appeal of

its decision would be frivolous. The Court therefore is also denying Petitioner leave to

appeal in forma pauperis. See 28 U.S.C. § 1915(a)(3) (“An appeal may not be taken in

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forma pauperis if the trial court certifies in writing that it is not taken in good faith.”)

Accordingly,

IT IS ORDERED, that the Petitioner’s application for the writ of habeas corpus

pursuant to 28 U.S.C. § 2254 is DENIED;

IT IS FURTHER ORDERED, that Petitioner is denied a certificate of

appealability and leave to appeal in forma pauperis. 

Dated: January 6, 2012

s/PATRICK J. DUGGAN

UNITED STATES DISTRICT JUDGE

Copies to:

Michael Freeman

530 Dashaway Road

Chuckey, TN 37641

AAG Raina I. Korbakis

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