MOORE v. CHRISTIANSEN (2023)

OPINION AND ORDER SUMMARILY DISMISSING CASE WITHOUT PREJUDICE

Petitioner Dominique Moore is imprisoned at the St. Louis Creek Correctional Facility. He has filed a “Motion Stay and Abeyance,” seeking to initiate and to stay a habeas corpus proceeding under 28 U.S.C. § 2254 while he exhausts his state-court remedies. Because the pleading is insufficient to initiate a habeas proceeding, the case will be summarily dismissed.

I.

Petitioner's pleading does not indicate the cause of his incarceration. Yet he cites a Michigan Supreme Court case, which shows he was convicted by a jury in the Third Circuit Court of Wayne County for armed robbery and other offenses. ECF No. 1 at PageID.1. Petitioner asserts that his direct appeal ended on April 4, 2023, when the Michigan Supreme Court denied his application for leave to appeal his conviction. Id.; see also People v. Moore, 986 N.W.2d 906 (Mich. 2023) (mem.). Petitioner states that he has since filed a motion for relief from judgment in the trial court. ECF No. 1 at PageID.1.

II.

Federal courts must dismiss a habeas petition that is legally insufficient on its face. McFarland v. Scott, 512 U.S. 849, 856 (1994); Carson v. Burke, 178 F.3d 434, 436–37 (6th Cir. 1999) (“Rule 4 dismissals are not limited to petitions that raise legally frivolous claims, but also extend to petitions containing factual allegations that are palpably incredible or false.” (citing Small v. Endicott, 998 F.2d 411, 414 (7th Cir. 1993))); Rules Governing § 2254 Cases, Rule 4, 28 U.S.C. foll. § 2254. A habeas petition filed under § 2254 must:

(1) specify all the grounds for relief available to the petitioner,

(2) state the facts supporting each ground,

(3) state the relief requested,

(4) be printed, typewritten, or legibly handwritten, and

(5) be signed under penalty of perjury by the petitioner or by a person authorized to sign it for the petitioner under 28 U.S.C. § 2242.

§ 2254 Rules, Rule 2; see also Gray v. Netherland, 518 U.S. 152, 162–63 (1996) (“[F]or purposes of exhausting state remedies, a claim for relief in habeas corpus must include reference to a specific federal constitutional guarantee, as well as a statement of the facts that entitle the petitioner to relief.” (citing Picard v. Connor, 404 U.S. 270 (1971))). “Notice pleading” is not sufficient. See § 2254 Rules advisory committee's note to Rule 4; Mayle v. Felix, 545 U.S. 644, 655 (2005) (observing that Rule 2 is “more demanding” than Civil Rule 8(a)).

Petitioner's motion does not meet any of the minimum requirements for commencing a habeas case. He does not state any grounds for habeas relief, the supporting facts, or the habeas relief he is requesting. See generally ECF No. 1. Indeed, it's not even clear that Petitioner is attempting to file a habeas petition at this time. Rather, it appears he is concerned with the one-year statute of limitations. Such a placeholder motion, however, is insufficient to commence a habeas action, thus warranting summary dismissal. E.g., Hancock v. Stewart, No. 2:21-CV-10410, 2021 WL 858955 (E.D. Mich. March 8, 2021) (“Petitioner ․ merely requests prospective tolling of the statute of limitations so that he has time to prepare a habeas petition. The case is therefore subject to summary dismissal for Petitioner's failure to comply with Rule 2.” (citing Robertson v. Eppinger, No. 17-4107, 2018 WL 1940414, at *2 (6th Cir. Mar. 27, 2018))).

III.

In order to appeal this Order, Petitioner must obtain a certificate of appealability. 28 U.S.C. § 2253(c)(2); Fed. R. App. P. 22(b). Although a federal district court may grant or deny a certificate of appealability if it issues a ruling on the habeas petition, Castro v. United States, 310 F.3d 900, 901 (6th Cir. 2002), it “must issue or deny a certificate of appealability when it enters a final order adverse to the applicant,” § 2254 Rules, Rule 11(a) (emphasis added).

Petitioner will be denied a certificate of appealability because has not demonstrated “that jurists of reason would find it debatable whether the petitioner states a valid claim of the denial of a constitutional right” or “that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Wright v. Shaver, 606 F. Supp. 3d 724, 732 (E.D. Mich. 2022) (citing Slack v. McDaniel, 529 U.S. 473, 484 (2000)).

And an appeal of this Order would not be in good faith because Petitioner's arguments against it would have no merit. See Fed. R. App. P. 24(a); see Royster v. Warden, Chillicothe Corr. Inst., No. 17-3205, 2017 WL 8218911, at *2 (6th Cir. Sept. 29, 2017). Consequently, Petitioner may not appeal in forma pauperis. 28 U.S.C. § 1915(a)(3).

IV.

Accordingly, Petitioner's Motion to Stay and Abeyance, ECF No. 1, is SUMMARILY DISMISSED WITHOUT PREJUDICE.

Further, it is ORDERED that Petitioner is DENIED a certificate of appealability.

Further, it is ORDERED that Petitioner is DENIED leave to appeal in forma pauperis.

This is a final order and closes the above-captioned case.

THOMAS L. LUDINGTON, United States District Judge