UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

SHAWN C. WEM,

Petitioner,

v.

SHERRY BURT,

Respondent. 

/

Case Number: 5:09-CV-13754

HON. JOHN CORBETT O’MEARA

OPINION AND ORDER OF DISMISSAL WITHOUT PREJUDICE

Petitioner Shawn C. Wem has filed a pro se petition for a writ of habeas corpus pursuant

to 28 U.S.C. § 2254. Petitioner, who is currently incarcerated at the Parnall Correctional Facility

in Jackson, Michigan, challenges the revocation of his parole. For the reasons stated, the Court

dismisses the petition without prejudice. 

I.

A federal court may not grant habeas corpus relief to a state prisoner unless the prisoner

first exhausts his remedies in state court. O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). The

exhaustion requirement applies to petitions challenging state parole revocation decisions. See

Brewer v. Dahlberg, 942 F.2d 328, 337-339 (6th Cir. 1991); Lee v. Trombley, No. 02-72279,

2003 WL 1119913, *4 (E.D. Mich. Feb. 11, 2003). “Ordinarily, the state courts must have had

the opportunity to pass on defendant’s claims of constitutional violations.” Prather v. Rees, 822

F.2d 1418 (6th Cir. 1987). “This rule of comity reduces friction between the state and federal

court systems by avoiding the unseemliness of a federal district court’s overturning a state court

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conviction without the state courts having had an opportunity to correct the constitutional

violation in the first instance.” O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (internal

quotation omitted). State prisoners in Michigan must raise each claim in both state appellate

courts before seeking federal habeas corpus relief. See Manning v. Alexander, 912 F.2d 878, 881

(6th Cir. 1990). The petitioner bears the burden of establishing exhaustion. Rust v. Zent, 17

F.3d 155, 160 (6th Cir. 1994); Caver v. Straub, 349 F.3d 340, 345 (6th Cir.2003).

In this case, Petitioner fails to show exhaustion of state court remedies. The Court finds

that Petitioner still has available to him a state court remedy to challenge his parole revocation

proceedings. 

In Michigan, a prisoner may challenge his continued confinement pursuant to a parole

revocation by filing a complaint for habeas corpus in the circuit court. Triplett v. Deputy

Warden, 142 Mich. App. 774, 779 (Mich. Ct. App. 1985). If the circuit court denies the

complaint for habeas corpus, a prisoner may file an original complaint in the Michigan Court of

Appeals. Id. at 779-80. If the Michigan Court of Appeals also denies relief, the prisoner may

file an application for discretionary review in the Michigan Supreme Court. Mich. Ct. R.

7.301(A)(2). Petitioner will not be time barred from filing a complaint for habeas corpus in state

court because “there is no limitation on the time in which a complaint for habeas corpus must be

filed, as long as the prisoner will be in custody at the time judgment becomes effective.” 

Triplett, 142 Mich. App. at 779. Therefore, the Court concludes that Petitioner has failed to

exhaust his state court remedies and that a process remains available through which Petitioner

may present his claims in state court. 

II.

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Federal Rule of Appellate Procedure 22 provides that an appeal may not proceed unless a

certificate of appealability (COA) is issued under 28 U.S.C. § 2253. Rule 11 of the Rules

Governing Section 2254 Proceedings now requires that the Court “must issue or deny a

certificate of appealability when it enters a final order adverse to the applicant.” 

A COA may be issued “only if the applicant has made a substantial showing of the denial

of a constitutional right.” 28 U.S.C. § 2253(c)(2). The substantial showing threshold is satisfied

when a 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 (2000). 

In this case, the Court concludes that reasonable jurists would not debate the Court’s

conclusion that the petition should be dismissed without prejudice. Therefore, the Court denies a

certificate of appealability.

III.

Accordingly, for the foregoing reasons, IT IS ORDERED that the petition for a writ of

habeas corpus is DISMISSED WITHOUT PREJUDICE.

It is further ORDERED that a certificate of appealability is DENIED and Petitioner’s

Motion for Appointment of Counsel is DENIED WITHOUT PREJUDICE. 

s/John Corbett O’Meara 

United States District Judge

Date: March 3, 2011

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I hereby certify that a copy of the foregoing document was served upon counsel of record

on this date, March 3, 2011, using the ECF system, and upon Petitioner at Parnall Correctional

Facility, 1780 E. Parnall, Jackson, MI 49201 by first-class U.S. mail.

s/William Barkholz 

Case Manager

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