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Warner v. Place

United States District Court, E.D. Michigan, Southern Division

May 28, 2015

DONALD WARNER, #730246, Petitioner,
v.
SHANE PLACE, Respondent.

OPINION AND ORDER (1) SUMMARILY DISMISSING PETITION FOR WRIT OF HABEAS CORPUS (Dkt. 1) WITHOUT PREJUDICE; (2) DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY; AND (3) DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

MARK A. GOLDSMITH, District Judge.

I. INTRODUCTION

Petitioner Donald Warner, confined at the Baraga Maximum Correctional Facility in Baraga, Michigan, filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Dkt. 1), in which he challenges his convictions for first-degree premeditated murder, conspiracy to commit first-degree murder, felon in possession of a firearm, and possession of a firearm during the commission of a felony, second offense. Petitioner raises three claims for relief. For the reasons stated below, the Court finds that Petitioner failed to exhaust his state-court remedies for any of the claims raised in the petition and dismisses the petition without prejudice.

II. BACKGROUND

Petitioner was convicted by a jury in Wayne County Circuit Court. On March 29, 2012, he was sentenced to concurrent terms of life imprisonment for the murder and conspiracy convictions, two-to-ten years' imprisonment for the felon-in-possession conviction, to be served consecutively to five years' imprisonment for the felony-firearm conviction.

Petitioner filed an appeal of right in the Michigan Court of Appeals, raising the following claims: (i) trial court's failure to appoint an expert witness violated his right to due process; and (ii) trial counsel was ineffective for not moving to suppress evidence seized at the time of his and his co-defendant's arrest. See People v. Warner, No. 311034, 2014 WL 2553303, at *1-4 (Mich. Ct. App. June 3, 2014). The Michigan Court of Appeals affirmed Petitioner's convictions. Id. at *13. The Michigan Supreme Court denied Petitioner's application for leave to appeal on October 28, 2014. People v. Warner, 854 N.W.2d 890 (Mich. Oct. 28, 2014).

Petitioner filed the pending habeas petition on March 18, 2015, raising the following claims:

i. Ineffective assistance of trial counsel for failing to object to weapons being used at trial;
ii. Prosecutor committed misconduct by advancing a civic-duty argument to the jury; and
iii. Ineffective assistance of appellate counsel.

See Pet. at 4, 6, 7.

III. STANDARD OF REVIEW

Upon the filing of a habeas corpus petition, the Court must promptly examine the petition to determine "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief." Rules Governing § 2254 Cases, Rule 4, 28 U.S.C. foll. § 2254. If the Court determines that the petitioner is not entitled to relief, the Court shall summarily dismiss the petition. McFarland v. Scott, 512 U.S. 849, 856 (1994) ("Federal courts are authorized to dismiss summarily any habeas petition that appears legally insufficient on its face[.]"). The claims ...


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