1

Plaintiff is still incarcerated at the Cooper Street Correctional Facility.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

DARNELL WILEY-BEY,

Plaintiff, CIVIL ACTION NO. 09-11423

vs. DISTRICT JUDGE LAWRENCE P. ZATKOFF

 MAGISTRATE JUDGE DONALD A. SCHEER

U.S. DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN,

Defendant.

______________________________/

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

RECOMMENDATION: Plaintiff’s Complaint for Mandamus Relief should be DISMISSED,

sua sponte, as Plaintiff must proceed by way of a writ of habeas corpus, and must first

show that he has exhausted available state remedies.

* * *

Plaintiff, while a state prisoner at the Cooper Street Correctional Facility in Jackson,

Michigan,1

 filed the instant Complaint seeking mandamus relief, pursuant to 28 U.S.C.

§ 1361, on April 16, 2009. He requests federal review of his Michigan prison sentence in

order to secure a state credit that would reduce his maximum prison term. Plaintiff alleges

that he is entitled to this credit based on cumulative changes in Michigan’s sentencing laws

enacted since his incarceration in 1982. The case was referred to the magistrate judge

on June 2, 2009.

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A writ of habeas corpus is available to a person in custody pursuant to a state court

judgment "only on the ground that he is in custody in violation of the Constitution or laws

or treaties of the United States." 28 U.S.C. § 2254(a).

2

Plaintiff seeks injunctive and declaratory relief in the form of an order of mandamus

reducing the maximum length of his state court sentence. Such request can either be

interpreted as one for release on parole, or an application for unconditional release. In

either case, Plaintiff clearly seeks freedom from prison. A prisoner civil rights complaint,

however, is an improper means for attacking the length of incarceration. In Preiser v.

Rodriquez, 411 U.S. 475, 500 (1973), the Supreme Court held that when a state prisoner

is challenging the fact or duration of his physical confinement, his sole remedy is a writ of

habeas corpus. The Preiser court stated that the writ was the "exclusive remedy" for

attacking the validity of state confinement. Id. at 489.

Before a state prisoner is entitled to habeas review, however, he must exhaust his

available state remedies by "fairly presenting" the substance of each federal constitutional

claim2 to the state appellate courts before raising them again in a petition for habeas

corpus. Picard v. Connor, 404 U.S. 270, 277-278 (1971). A prisoner challenging a

Michigan conviction is required to raise each issue in both the Michigan Court of Appeals

and Supreme Court before seeking relief in federal court. Dombkowski v. Johnson, 488

F.2d 68, 70 (6th Cir. 1973); Hafley v. Sowders, 902 F.2d 480 (6th Cir. 1990). Accordingly,

the instant Complaint seeking federal review of Plaintiff’s state court sentence should be

DISMISSED, sua sponte. Plaintiff must proceed by way of a writ of habeas corpus, and

must first show that he has exhausted available state remedies. 

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The parties are advised that any objections to this Report and Recommendation

must be filed with the Court within ten (10) days after they are served with a copy, or further

appeal from Judge Zatkoff's acceptance thereof is waived.

 s/Donald A. Scheer

 DONALD A. SCHEER

 UNITED STATES MAGISTRATE JUDGE

DATED: June 8, 2009

______________________________________________________________________

CERTIFICATE OF SERVICE

I hereby certify on June 8, 2009 that I electronically filed the foregoing paper with the

Clerk of the Court sending notification of such filing to all counsel registered electronically.

I hereby certify that a copy of this paper was mailed to the following non-registered ECF

participants on June 8, 2009: Darnell Wiley-Bey

s/Michael E. Lang 

Deputy Clerk to 

Magistrate Judge Donald A. Scheer

(313) 234-5217

 

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