1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

ERNEST GREEN, JR.,

Petitioner,

CASE NO. 09-CV-12899 

v. HONORABLE BERNARD A. FRIEDMAN

DEBRA SCUTT,

Respondent.

 /

OPINION AND ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS

AND DENYING A CERTIFICATE OF APPEALABILITY AND

LEAVE TO PROCEED ON APPEAL IN FORMA PAUPERIS

I. Introduction

This is a habeas case brought pursuant to 28 U.S.C. § 2241. Petitioner Ernest Green, a

Michigan prisoner currently confined at the G. Robert Cotton Correctional Facility in Jackson,

Michigan, is challenging his extradition from California to Michigan on a parole violation warrant.

He contends that the State of Michigan “had actual and constructive knowledge” of his whereabouts

since January, 2005 and “failed to proceed with reasonable diligence to issue and execute a warrant

for [his] arrest or to enact a violation of [his] parole.” Petitioner claims that the State of Michigan

lost jurisdiction to extradite him and violated his due process rights. He seeks release from custody.

For the reasons stated herein, the Court dismisses without prejudice the petition for writ of habeas

corpus. The Court also denies a certificate of appealability and leave to proceed on appeal in forma

pauperis.

II. Analysis

2:09-cv-12899-BAF-RSW Doc # 5 Filed 08/26/09 Pg 1 of 4 Pg ID 11
2

A prisoner filing a petition for a writ of habeas corpus under 28 U.S.C. §2254 must first

exhaust all state remedies. See O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (“state prisoners

must give the state courts one full fair opportunity to resolve any constitutional issues by invoking

one complete round of the State’s established appellate review process”); Rust v. Zent, 17 F.3d 155,

160 (6th Cir. 1994). This holds true for habeas petitions challenging state parole revocation

proceedings and decisions. See Brewer v. Dahlberg, 942 F.2d 328, 337-39 (6th Cir. 1991); Blosser

v. Scutt, No. 2:08-CV-12453, 2008 WL 4965348, *1-2 (E.D. Mich. Nov. 17, 2008) (Zatkoff, J.);

Knuckles v. Bell, No. 08-CV-10942, 2008 WL 1743494, *1 (E.D. Mich. April 14, 2008) (Duggan,

J.); Simmons v. Michigan Dept. of Corrections Parole Bd., No. 2:07-CV-15442, 2008 WL 62459,

*1 (E.D. Mich. Jan. 3, 2008) (Cohn, J.). Exhaustion requires that a prisoner “fairly present” the

substance of each federal constitutional claim to the state courts using citations to the United States

Constitution, federal decisions using constitutional analysis, or state decisions employing

constitutional analysis in similar fact patterns. See Levine v. Torvik, 986 F.2d 1506, 1516 (6th Cir.

1993). The exhaustion requirement is satisfied when the state appellate courts have been given “a

full and fair opportunity” to rule on the petitioner’s claims. Rust, 17 F.3d at 160. The burden is on

the petitioner to prove exhaustion. Id.

In this case, Petitioner fails to indicate what steps he has taken, if any, to exhaust available

remedies in the state courts by challenging his extradition or the revocation of his parole. Petitioner

has available state court remedies to challenge his parole revocation proceedings and current

confinement which must be exhausted before he seeks federal habeas review. The Michigan

Administrative Procedures Act, Mich. Comp. L. § 24.201 et seq., provides an inmate whose parole

has been revoked with the right to seek judicial review of the revocation decision with the Michigan

2:09-cv-12899-BAF-RSW Doc # 5 Filed 08/26/09 Pg 2 of 4 Pg ID 12
1

The APA requires that an appeal from an agency ruling be made within 60 days of the

ruling. See Mich. Comp. L. § 24.304(1). This remedy may therefore no longer be available to

Petitioner.

3

circuit courts. See Penn v. Department of Corrections, 100 Mich. App. 532, 298 N.W.2d 756

(1980). Petitioner has not done so with respect to his claims challenging his parole revocation. Nor

has he pursued his claims in the Michigan Court of Appeals or the Michigan Supreme Court. See

Mich. Ct. R. 7.205, 7.302.1

Petitioner may also challenge the revocation of his parole by filing a complaint for writ of

habeas corpus in the appropriate state circuit court. See Mich. Comp. L. § 600.4301 et seq., Mich.

Ct. R. 3.303; Triplett v. Deputy Warden, 142 Mich. App. 774, 371 N.W.2d 862 (1985); see also

Caley v. Hudson, 759 F. Supp. 378, 380-81 (E.D. Mich. 1991). There is no time limitation for when

such a complaint may be filed, so long as the prisoner will be in custody when the circuit court

enters judgment. See Triplett, 142 Mich. App. at 778. Although the denial of such a writ is not

appealable by right, the petition may be renewed by filing an original complaint for writ of habeas

corpus with the Michigan Court of Appeals. Id. Denial of such a complaint by the Michigan Court

of Appeals is subject to review by the Michigan Supreme Court. See Mich. Ct. R. 7.301. Petitioner

has failed to demonstrate that he has exhausted available state court remedies prior to filing his

federal habeas petition. Absent the exhaustion of those remedies, his petition is premature and must

be dismissed.

III. Conclusion

For the reasons stated, the Court concludes that Petitioner has failed to establish that he has

fully exhausted his state court remedies concerning the matters at issue in this case. 

Accordingly, the Court DISMISSES WITHOUT PREJUDICE the petition for writ of

2:09-cv-12899-BAF-RSW Doc # 5 Filed 08/26/09 Pg 3 of 4 Pg ID 13
4

habeas corpus. The Court makes no determination as to the merits of Petitioner’s claims.

Before Petitioner may appeal this Court’s dispositive decision, a certificate of appealability

must issue. See 28 U.S.C. § 2253(c)(1)(a); Fed. R. App. P. 22(b). 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). When a federal district court denies a habeas claim on procedural grounds

without addressing the claim’s merits, a certificate of appealability should issue if it is shown that

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

a constitutional right, and that jurists of reason would find it debatable whether the district court was

correct in its procedural ruling. See Slack v. McDaniel, 529 U.S. 473, 484-85 (2000).

Having considered the matter, the Court concludes that reasonable jurists could not debate

whether the Court was correct in its procedural ruling. 

Accordingly, the Court DENIES a certificate of appealability. 

 The Court further DENIES Petitioner leave to proceed in forma pauperis on appeal as any

appeal would be frivolous. See Fed. R. App. P. 24(a).

SO ORDERED.

S/Bernard A. Friedman 

BERNARD A. FRIEDMAN

UNITED STATES DISTRICT JUDGE

Dated: August 26, 2009

2:09-cv-12899-BAF-RSW Doc # 5 Filed 08/26/09 Pg 4 of 4 Pg ID 14