                           STATE OF MICHIGAN

                            COURT OF APPEALS


GREGORY LYNN JEFFERSON,                                               UNPUBLISHED
                                                                      October 18, 2018
               Plaintiff-Appellant,

v                                                                     No. 341955
                                                                      Ionia Circuit Court
MICHIGAN REFORMATORY WARDEN,                                          LC No. 2017-032819-AH

               Defendant-Appellee.


Before: BOONSTRA, P.J., and O’CONNELL and TUKEL, JJ.

PER CURIAM.

        This case arises from plaintiff’s 1986 jury trial convictions for second-degree murder,
MCL 750.317, and assault with intent to commit murder, MCL 750.83, for which plaintiff is
serving a life sentence at the Michigan Reformatory. In this habeas corpus action, plaintiff
appeals as of right the trial court’s order denying his complaint for a writ of habeas corpus.1 We
affirm.

        In October 2017, plaintiff filed with the trial court a petition for a writ of habeas corpus,
arguing that he was unlawfully detained and that the Eaton Circuit Court (“circuit court”) lacked
jurisdiction because a criminal complaint and amended complaint had not been filed before his
preliminary examination had been held. The trial court denied plaintiff’s petition, explaining
that there was a scrivener’s error with the original complaint listing a charge other than what was
authorized and that plaintiff was originally arraigned on the correct charge listed in the amended
complaint. The trial court noted that plaintiff received a copy of the amended complaint before


1
  Although this Court in Triplett v Deputy Warden, 142 Mich App 774, 779-780; 371 NW2d 862
(1985), stated that “[o]rders of denial in habeas corpus proceedings are not appealable as of
right,” Triplett was based on the common law that existed before the implementation of the
Michigan Court Rules of 1985 (effective March 1, 1985). MCR 1.101; MCR 1.102. And MCR
7.203(A) allows for an appeal of right from a “final order,” which is defined in MCR
7.202(6)(a)(i) as an “order that disposes of all the claims and adjudicates the rights and liabilities
of all the parties.” Thus, because the only claim presented to the trial court was plaintiff’s
request for a writ of habeas corpus and the trial court’s order disposes of that claim, the order
constitutes a final order and therefore is appealable as of right.


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his preliminary examination and that plaintiff could not appeal his convictions by way of a
complaint of habeas corpus. Accordingly, the trial court denied plaintiff habeas corpus relief.

        Plaintiff moved for reconsideration of the trial court’s order. Plaintiff argued that the
circuit court’s failure to conduct his preliminary examination within 12 days of his arraignment
established a “radical” jurisdictional defect. Again, the trial court found that plaintiff’s claim
lacked merit and denied plaintiff’s motion. This appeal followed.

        Plaintiff claims that the trial court erred in dismissing his petition for habeas corpus
because the circuit court lacked jurisdiction over him due to the purported failure to file a
criminal complaint, warrant, petition and order amending the complaint and warrant, and the
affidavit in support of the complaint prior to his preliminary examination. We disagree. We
review constitutional issues de novo. People v Pipes, 475 Mich 267, 274; 715 NW2d 290
(2006).

         “A prisoner’s right to file a complaint for habeas corpus relief is guaranteed by Const
1963, art 1, § 12.” Moses v Dep’t of Corrections, 274 Mich App 481, 484; 736 NW2d 269
(2007). A prisoner has both a constitutional and state statutory right to petition for habeas corpus
relief. See Moses, 274 Mich App at 484, citing Const 1963, art 1, § 12 and MCL 600.4304.
“The object of the writ of habeas corpus is to determine the legality of the restraint under which a
person is held.” Id. at 485 (quotation marks and citation omitted). A convicted prisoner only
qualifies for habeas corpus relief when the convicting court had no jurisdiction to try the
defendant for the crime at issue, and a jurisdictional defect is so radical as to render the
conviction absolutely void. Id. at 486. “A radical defect in jurisdiction contemplates . . . an act
or omission by state authorities that clearly contravenes an express legal requirement in existence
at the time of the act of omission.” Id. (quotation marks and citation omitted). A plaintiff may
not appeal his criminal conviction by way of a complaint of habeas corpus. Id.

       In support of his argument, plaintiff cites MCL 750.217c(7)(b), which defines “legal
process” as a

        summons, complaint, pleading, writ, warrant, injunction, notice, subpoena, lien,
        order, or other document issued or entered by or on behalf of a court or lawful
        tribunal or lawfully filed with or recorded by a governmental agency that is used
        as a means of exercising or acquiring jurisdiction over a person or property, to
        assert or give notice of a legal claim against a person or property, or to direct
        persons to take or refrain from an action.


        Plaintiff alleges that, in order for a trial court to acquire jurisdiction over a case, the trial
court must adhere to the procedures mandated by MCL 750.217c. However, plaintiff’s argument
falls short. First, MCL 750.217c was enacted in 1998 and, as such, was not in effect at the time
of plaintiff’s 1986 criminal proceedings. We could find no legal authority as of 1986 providing
that a complaint, warrant, affidavit in support of the complaint, or petition and order amending
the complaint and warrant must be filed before the preliminary examination is held, and plaintiff
does not present any. Second, defendant’s reliance on the circuit court’s register of actions to
purportedly show that the charging documents were filed on May 27, 1986 (or seven days after

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the preliminary examination was held) is misplaced. The register of actions was for the circuit
court, and, as the trial court here noted, any actions that occurred at the district court would not
have appeared in that register. Moreover, the transcript of the May 20, 1986 preliminary
examination shows that plaintiff was aware of the charges brought against him at the time of his
arraignment, over a month before his preliminary examination, and the petition and order
amending the complaint and warrant had been filed by the time of the arraignment as well.
Further, defense counsel admitted at the preliminary examination to having received a copy of
the petition and order amending the complaint. Thus, to the extent that any error may have
existed, it certainly did not rise to the level of a “radical” jurisdictional defect depriving the
circuit court of jurisdiction over plaintiff. For these reasons, plaintiff’s claim fails.

        Next, plaintiff argues that he is entitled to habeas corpus relief because the circuit court
did not have good cause for failing to schedule his preliminary examination within 12 days of his
arraignment—in violation of MCL 766.42 and MCL 766.73—and, as such, the circuit court
lacked jurisdiction. We disagree.

       In People v Weston, 413 Mich 371, 376; 319 NW2d 537 (1982), the Michigan Supreme
Court found that, under MCL 766.4 and MCL 766.7, the failure of a magistrate to hold a
preliminary examination within 12 days of the defendant’s arraignment entitled the defendant to
discharge from custody. In People v Crawford, 429 Mich 151; 414 NW2d 360 (1987), the Court
narrowed the extent of this remedy. The Crawford Court held that a defendant must invoke the
“Weston remedy” of dismissal and discharge from custody by raising the 12-day-issue in
advance of the preliminary examination being held. Crawford, 429 Mich at 157. And a



2
 Plaintiff properly cites MCL 766.4 and MCL 766.7 as they existed in 1986. At that time, MCL
766.4 provided:
                The magistrate before whom any person is brought on a charge of having
         committed a felony shall set a day for a preliminary examination not exceeding 12
         days thereafter, at which time a magistrate shall examine the complainant and the
         witnesses in support of the prosecution, on oath in the presence of the accused, in
         regard to the offense charged and in regard to any other matters connected with
         the charge which the magistrate considers pertinent.
3
    In 1986, MCL 766.7 provided, in pertinent part:
                 An adjournment, continuance, or delay of a preliminary examination shall
         not be granted by a magistrate except for good cause shown. A magistrate shall
         not adjourn, continue, or delay the examination of any cause by the consent of the
         prosecution and accused unless in his discretion it shall clearly appear by a
         sufficient showing to the magistrate to be entered upon the record that the reasons
         for such consent are founded upon strict necessity and that the examination of the
         cause cannot then be had, or a manifest injustice will be done. An action on the
         part of the magistrate in adjourning or continuing any case, shall not cause the
         magistrate to lose jurisdiction of the case.


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defendant who fails to raise such an issue before the commencement of the preliminary
examination has waived his right to any such remedy. See id. at 161.

        In this case, plaintiff raised the issue of 12-day-rule for the first time in his motion for
reconsideration of the trial court’s denial of his complaint for habeas corpus. Because plaintiff
did not raise the issue prior to his preliminary examination, he was precluded from raising the
issue in his complaint for habeas corpus. See id. at 156-157. Moreover, both the 1974 version
and the current version of MCL 766.7 provide that a magistrate’s action in adjourning or
continuing any case does not cause the magistrate to lose jurisdiction of the case. See also
People v Dunson, 139 Mich App 511, 513; 363 NW2d 16 (1984) (“The defect of not bringing
defendant to a timely preliminary examination is not, however, jurisdictional.”). Thus, to the
extent any error existed due to the timing of defendants’ preliminary examination, it was not
jurisdictional, which takes it outside the scope of a petition for habeas corpus. See Moses, 274
Mich App 486.

       Affirmed.

                                                             /s/ Mark T. Boonstra
                                                             /s/ Peter D. O'Connell
                                                             /s/ Jonathan Tukel




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