UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

CHARLES WILSON,

Petitioner,

v. Case Number: 09-cv-13637

Honorable Bernard A. Friedman

HUGH WOLFENBARGER,

Respondent.

__________________________/

OPINION AND ORDER

SUMMARILY DISMISSING PETITION FOR WRIT OF HABEAS CORPUS AND

DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY

This is a habeas corpus action brought by a state prisoner pursuant to 28 U.S.C. § 2241.

Promptly after the filing of a petition for habeas corpus, the Court must undertake a preliminary

review of the petition to determine whether “it plainly appears from the petition and any attached

exhibits that the petitioner is not entitled to relief in the district court.” Rule 4, Rules Governing §

2254 Cases; see 28 U.S.C. § 2243. If so, the petition must be summarily dismissed. Rule 4; see

Allen v. Perini, 26 Ohio Misc. 149, 424 F.2d 134, 141 (6th Cir. 1970) (district court has the duty to

“screen out” petitions that lack merit on their face). A dismissal under Rule 4 includes those

petitions which raise legally frivolous claims, as well as those containing factual allegations that are

palpably incredible or false. Carson v. Burke, 178 F.3d 434, 436-37 (6th Cir. 1999). After

undertaking the review required by Rule 4, the Court concludes that Petitioner should have brought

this habeas corpus action under 28 U.S.C. § 2254 rather than 28 U.S.C. § 2241.

I. BACKGROUND

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Petitioner is currently incarcerated at Macomb Correctional Facility in New Haven,

Michigan. On February 11, 2009, Petitioner pleaded guilty to indecent exposure by a sexually

delinquent person, MICH.COMP.LAWS §§ 750.335A, 750.10A, in Oakland County, Michigan, circuit

court. He was sentenced as a habitual offender to five years imprisonment for each conviction. See

Offender Tracking Information System. Petitioner was on parole from the same offense. In his pro

se pleadings, Petitioner does not inform the Court of the status of his appeals, if any such appeals

were filed. Moreover, it is difficult to understand what Petitioner is alleging as his claims.

II. DISCUSSION

A. Habeas Corpus Petition under 28 U.S.C. § 2241

Petitioner filed his application for habeas relief under 28 U.S.C. § 2241. Section 2241

authorizes district courts to issue a writ of habeas corpus to a state or federal prisoner who is in

custody in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. §

2241(c)(3). Section 2254 is more specific and confers jurisdiction on district courts to “entertain

an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment

of a State court 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). It is a well-established canon of statutory

construction that when two statutes cover the same situation, the more specific statute takes

precedence over the more general one. See Edmund v. United States, 520 U.S. 651, 657 (1997);

Prieser v. Rodriquez, 411 U.S. 475, 488 (1973) (holding that a prisoner challenging the validity of

his confinement on federal constitutional grounds must rely on federal habeas corpus statutes, which

Congress specifically designed for that purpose, rather than broad language of Section 1983). In this

case, Petitioner challenges his custody pursuant to the state court judgment of the Oakland County

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circuit court.

Even though both Sections 2241 and 2254 authorize a petitioner to challenge the legality of

his state custody, allowing a petitioner to file his “petition in federal court pursuant to Section 2241

without reliance on Section 2254 would . . . thwart Congressional intent.” Thomas v. Crosby, 371

F.3d 782, 786 (11th Cir. 2004) ( citing Coady v. Vaughn, 251 F.3d 480, 484-85 (3d Cir. 2001)).

Many circuits have also held that regardless of the label on the statutory underpinning for the

petition, habeas petitions of state prisoners are governed by § 2254. Byrd v. Bagley, 37 F.App’x 94,

95 (6th Cir. 2002) ( citing Coady, 251 F.3d at 484-85 (noting that Congress restricted the availability

of second and successive petitions with respect to habeas petitions filed by state prisoners pursuant

to § 2254 by way of § 2244(b). Allowing a petitioner to file a petition in federal court pursuant to

§ 2241 without reliance on § 2254 circumvents the procedural restrictions of § 2254.)) In Greene

v. Tennessee Dep’t of Corr., 265 F.3d 369 (6th Cir. 2001), the Sixth Circuit agreed with the

following language from the Seventh Circuit:

[W]hen a prisoner begins in the district court, § 2254 and all associated statutory

requirements [including COA’s under § 2253, if applicable] apply no matter what

statutory label the prisoner has given the case. (Roughly speaking, this makes §

2254 the exclusive vehicle for prisoners in custody pursuant to a state court judgment

who wish to challenge anything affecting that custody, because it makes clear that

bringing an action under § 2241 will not permit the prisoner to evade the

requirements of § 2254.)

Id. at 371 (quoting Walker v. O’Brien, 216 F.3d 626, 633 (7th Cir. 2000)). See also Long v.

Commonwealth of Kentucky, 80 F.App’x 410, 414 (6th Cir. 2003). Petitioner cannot evade the

procedural requirements of § 2254 by filing a § 2241 petition. If § 2254 was not a restriction on §

2241's authority to grant the writ of habeas corpus, then § 2254 would serve no function at all as a

state prisoner could avoid § 2254 limitations simply by writing ‘ § 2241’ on his petition for federal

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post-conviction relief. See Thomas v. Crosby, 371 F.3d 782, 787 (11th Cir. 2004).

Rather than re-characterizing Petitioner’s claims to § 2254 claims, this Court shall dismiss

his claims without prejudice to avoid any adverse consequences with respect to any § 2254 claim

he may file in the future. See Martin v. Overton, 391 F.3d 710, 713 (6th Cir. 2004) (finding the

court should have dismissed petitioner’s § 2241 petition without prejudice to allow petitioner to raise

his potential civil rights claims properly as a § 1983 action rather than re-characterize it as a § 2254

petition without notice to petitioner). 

Against that backdrop, the Court will summarily dismiss Petitioner’s petition, pursuant to

Rule 4, because it should have been brought under 28 U.S.C. § 2254 rather than 28 U.S.C. § 2241.

Petitioner’s petition is dismissed without prejudice.

B. Certificate of Appealability

Under 28 U.S.C. § 2253(c)(2), the Court must determine whether a certificate of

appealability should be granted. A certificate should issue if Petitioner has demonstrated a

“substantial showing of a denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This Court’s

dismissal of Petitioner’s action under Rule 4 of the Rules Governing § 2254 Cases is a determination

that the habeas action, on its face, lacks sufficient merit to warrant service. It would be highly

unlikely for this Court to grant a certificate, thus indicating to the Sixth Circuit Court of Appeals that

an issue merits review, when the Court has already determined that the action is so lacking in merit

that service is not warranted. See Love v. Butler, 952 F.2d 10, 15 (1st Cir. 1991) (it is “somewhat

anomalous” for the court to summarily dismiss under Rule 4 and grant a certificate); Hendricks v.

Vasquez, 908 F.2d 490, 492 (9th Cir. 1990) (requiring reversal where court summarily dismissed

under Rule 4 but granted certificate); Dory v. Comm’r of Corr. of the State of New York, 865 F.2d

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44, 46 (2d Cir. 1989) (it was “intrinsically contradictory” to grant a certificate when habeas action

does not warrant service under Rule 4); Williams v. Kullman, 722 F.2d 1048, 1050 n. 1 (2d Cir.

1983) (issuing certificate would be inconsistent with a summary dismissal).

The Sixth Circuit Court of Appeals has disapproved issuance of blanket denials of a

certificate of appealability. Murphy v. Ohio, 263 F.3d 466, 467 (6th Cir. 2001). Rather, the district

court must “engage in a reasoned assessment of each claim” to determine whether a certificate is

warranted. Id. at 467. Each issue must be considered under the standards set forth by the Supreme

Court in Slack v. McDaniel, 529 U.S. 473 (2000). Consequently, this Court has examined

Petitioner’s petition under the Slack standard.

This Court denied Petitioner’s application on procedural grounds for failing to file his habeas

petition under 28 U.S.C. § 2254. Under Slack, when a habeas petition is denied on procedural

grounds, a certificate of appealability may issue only “when the prisoner shows, at least, (1) that

jurists of reason would find it debatable whether the petition states a valid claim of the denial of a

constitutional right and (2) that jurists of reason would find it debatable whether the district court

was correct in its procedural ruling.” Slack, 529 U.S. at 484. Both showings must be made to

warrant the grant of a certificate. Id. The Court finds that reasonable jurists could not debate that

this Court correctly dismissed Petitioner’s petition on procedural grounds for failing to file his

habeas petition under 28 U.S.C. § 2254. “Where a plain procedural bar is present and the district

court is correct to invoke it to dispose of the case, a reasonable jurist could not conclude either that

the district court erred in dismissing the petition or that the petitioner should be allowed to proceed

further.” Id. Therefore, the Court will decline to issue Petitioner a certificate of appealability.

III. CONCLUSION

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Accordingly, 

IT IS ORDERED that Petitioner’s “Petition for Writ of Habeas Corpus” [dkt. # 1] is

DISMISSED WITHOUT PREJUDICE, because it should have been brought under 28 U.S.C. §

2254 rather than 28 U.S.C. § 2241.

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

appealability.

SO ORDERED.

S/Bernard A. Friedman 

Bernard A. Friedman

United States District Judge

Dated: October 23, 2009

I hereby certify that a copy of the foregoing document was served upon Charles Wilson and counsel

of record on October 23, 2009, by electronic and/or ordinary mail.

S/Carol Mullins 

Case Manager

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