UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

JOVAN CHANDRE PAYNE,

Petitioner, 

v.

WILLIE SMITH,

Respondent. 

/

Case Number: 2:09-CV-11763

HON. VICTORIA A. ROBERTS

OPINION AND ORDER OF SUMMARY DISMISSAL WITHOUT PREJUDICE

Petitioner Jovan Payne, a state inmate incarcerated at the Ionia Maximum Correctional

Facility in Ionia, Michigan has filed a pro se habeas corpus petition pursuant to 28 U.S.C. §

2254, challenging his conviction for unarmed robbery. Because the petitioner has not exhausted

his state court remedies, the Court shall dismiss the petition without prejudice. 

I.

Petitioner pleaded no contest in Wayne County Circuit Court to unarmed robbery. On

July 19, 2005, he was sentenced to six to fifteen years’ imprisonment. 

Petitioner filed an application for leave to appeal in the Michigan Court of Appeals

raising a claim of ineffective assistance of counsel and insufficiency of the evidence. The

Michigan Court of Appeals denied leave to appeal. People v. Payne, No. 273566 (Mich. Ct.

App. Jan. 19, 2007). 

Petitioner filed an application for leave to appeal in the Michigan Supreme Court. The

Michigan Supreme Court denied leave to appeal. People v. Payne, 478 Mich. 927 (2007). 

While his appeal was pending in the Michigan Court of Appeals, Petitioner filed a

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petition for a writ of habeas corpus in this Court. Payne v. Burt, No. 2:06-cv-12873. The Court

dismissed the petition without prejudice because Petitioner’s direct appeal was still pending and,

therefore, Petitioner had not yet exhausted his state court remedies with respect to the challenged

conviction. See Opinion and Order of Summary Dismissal, 7/6/06. 

On May 5, 2009, Petitioner filed the pending petition for a writ of habeas corpus, raising

the following claims:

I. Illegal extradition across state border/illega[l] detention by Toledo Ohio Police.

II. Mr. Borge only victim did not point . . . out they held me for interrogation on nonwitness statement.

III. Toledo Police Department violated 14th Amendment extradition . . . illegal arrest

racial profil[ing].

IV. Ineffective assistance of counsel. 

II.

Rule 4, Rules Governing Section 2254 cases, provides that the court shall promptly

examine a 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.” 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”). 

A Michigan prisoner challenging his confinement by way of a habeas corpus petition in

this Court must first exhaust all available remedies in the courts of the state wherein he was

convicted. Coleman v. Thompson, 501 U.S. 722, 731 (1991). “Ordinarily, the state courts must

have had the opportunity to pass on defendant’s claims of constitutional violations.” Prather v.

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Rees, 822 F.2d 1418 (6th Cir. 1987). The petitioner bears the burden of showing that state court

remedies have been exhausted. Id. at 1420, n.3. The exhaustion requirement may be excused

where there is no opportunity to obtain relief in state court, or if the process to do so is so

deficient as to render futile any effort to obtain relief in state court. Duckworth v. Serrano, 454

U.S. 1, 3 (1981). 

Petitioner states that he has not exhausted the first claim raised in his habeas petition, and

it is unclear whether he has exhausted his third and fourth claims. The Michigan Court Rules

provide a process through which the petitioner may raise his unexhausted claim. Petitioner can

file a motion for relief from judgment pursuant to Mich. Ct. R. 6.500 et seq., which allows the

trial court to appoint counsel, seek a response from the prosecutor, expand the record, permit oral

argument and conduct an evidentiary hearing on the petitioner’s claim. Petitioner may appeal

the trial court’s disposition of his motion for relief from judgment to the Michigan Court of

Appeals and Michigan Supreme Court. To obtain relief, he will have to show cause for failing to

raise his unexhausted claim on direct review and resulting prejudice or a significant possibility

of innocence. See Mich. Ct. R. 6.508(D)(3). However, he would have to make a similar

showing here if the Court concluded that there was no state remedy to exhaust. Gray v.

Netherland, 518 U.S. 152, 161-62 (1996); Hannah v. Conley, 49 F.3d 1193, 1195-96, n.3 (6th

Cir. 1995); Rust, 17 F.3d at 160. Petitioner’s unexhausted claim should be addressed to, and

considered by, the state courts in the first instance.

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III.

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

is DISMISSED WITHOUT PREJUDICE.

s/Victoria A. Roberts 

Victoria A. Roberts

United States District Judge

Dated: July 6, 2009

The undersigned certifies that a copy of this

document was served on the attorneys of record

and Jovan Payne by electronic means or U.S. Mail

on July 6, 2009.

s/Linda Vertriest 

Deputy Clerk

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