United States District Court, E.D. Michigan, Southern Division
OPINION & ORDER (1) DISMISSING THE PETITION FOR A
WRIT OF HABEAS CORPUS; (2) DENYING AS MOOT PETITIONER'S
MOTION TO EXPEDITE HABEAS PROCEEDING; (3) DENYING A
CERTIFICATE OF APPEALABILITY; AND (4) DENYING LEAVE TO
PROCEED IN FORMA PAUPERIS ON APPEAL
V. PARKER U.S. DISTRICT JUDGE.
prisoner Lorenzo Johnson (“Petitioner”) has filed
a pro se petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254, challenging his conviction following a
jury trial in Wayne County Circuit Court of possession of a
firearm during the commission of a felony, second offense.
Petitioner raises a Fourth Amendment claim in support of his
request for habeas relief. Petitioner recently filed a motion
asking the Court to expedite its review of his petition.
Standard of Review
after the filing of a habeas petition, the court must
undertake a preliminary review of the petition to determine
whether “it plainly appears from the face of the
petition and any exhibits annexed to it that the petitioner
is not entitled to relief in the district court.” Rule
4, Rules Governing § 2254 Cases; see also 28
U.S.C. § 2243. If, after preliminary consideration, the
court determines that the petitioner is not entitled to
relief, the court must summarily dismiss the petition.
Id.; Allen v. Perini, 424 F.2d 134, 141
(6th Cir. 1970) (a district court has the duty to
“screen out” petitions that lack merit on their
face). A dismissal under Rule 4 includes petitions raising
legally frivolous claims, as well as those containing factual
allegations that are palpably incredible or false. See
Carson v. Burke, 178 F.3d 434, 436-37 (6th Cir. 1999).
sole claim on habeas review is a Fourth Amendment challenge
to the search and seizure of the weapons found in his home
when police effectuated an arrest warrant for his son, who
Petitioner says did not live there. Petitioner asserts that
the state trial court erred in denying his motion to suppress
the evidence at trial. Petitioner raised this claim on direct
appeal before the Michigan Court of Appeals, which denied
relief on the claim and affirmed his conviction. People
v. Johnson, No. 323312, 2016 WL 191996, *1-4 (Mich. Ct.
App. Jan. 14, 2016) (unpublished). Petitioner also filed an
application for leave to appeal with the Michigan Supreme
Court, which the Court denied in a standard order. People
v. Johnson, 499 Mich. 930, 878 N.W.2d 869 (2016).
courts will not address a Fourth Amendment claim on habeas
review if the petitioner had a full and fair opportunity to
litigate the claim in state court and the presentation of the
claim was not thwarted by any failure of the state's
corrective processes. See Stone v. Powell, 428 U.S.
465, 494-95 (1976). A court must perform two distinct
inquiries when determining whether a petitioner may raise
such a claim in a habeas action. First, the “court must
determine whether the state procedural mechanism, in the
abstract, presents the opportunity to raise a Fourth
Amendment claim. Second, the court must determine whether
presentation of the claim was in fact frustrated because of a
failure of that mechanism.” Machacek v.
Hofbauer, 213 F.3d 947, 952 (6th Cir. 2000) (quoting
Riley v. Gray, 674 F.2d 522 (6th Cir. 1982)).
has a procedural mechanism which presents an adequate
opportunity for a criminal defendant to raise a Fourth
Amendment claim.” Robinson v. Jackson, 366
F.Supp.2d 524, 527 (E.D. Mich. 2005). This procedural
mechanism is a motion to suppress, ordinarily filed before
trial. See People v. Ferguson, 135 N.W.2d 357,
358-59 (Mich. 1965) (describing the availability of a
pre-trial motion to suppress); see also People v.
Harris, 291 N.W.2d 97, 99 (Mich. 1980) (analyzing the
legality of a warrantless search, seizure, and arrest even
though raised for the first time on appeal). Consequently,
Petitioner is entitled to relief only if he establishes that
a failure of Michigan's procedural mechanism prevented
him from litigating his Fourth Amendment claim. Petitioner
has not done so.
record reveals that Petitioner moved to suppress the evidence
at the time of trial. The state trial court conducted a
hearing and denied the motion. Petitioner raised the issue
again on direct appeal and the state appellate courts denied
relief. Consequently, it is clear that the Michigan courts
were cognizant of Petitioner's Fourth Amendment claim and
that he received all the process he was due.
reasons stated, Petitioner's Fourth Amendment claim is
not cognizable on habeas review pursuant to Stone v.
Powell. Thus the Court must summarily dismiss
Petitioner's application for habeas relief.
Petitioner's motion to expedite review of his petition is
Petitioner may appeal the Court's 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
court denies a habeas claim on the merits, the substantial
showing threshold is met if the petitioner demonstrates that
reasonable jurists would find the court's assessment of
the constitutional claim debatable or wrong. Slack v.
McDaniel, 529 U.S. 473, 484-85 (2000). Petitioner fails
to make a substantial showing of the denial of a
jurists would not find the Court's evaluation of
Petitioner's Fourth Amendment claim debatable or wrong.
Thus, a certificate of appealability is not warranted. The
Court further concludes that Petitioner should not be granted
leave to proceed in forma pauperis on ...