United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING THE PETITION FOR WRIT OF
HABEAS CORPUS, DENYING A CERTIFICATE OF APPEALABILITY, AND
GRANTING PETITIONER LEAVE TO APPEAL IN FORMA
PAGE HOOD CHIEF UNITED STATES DISTRICT JUDGE
Dude Nelson, (“Petitioner”), confined at the
Brooks Correctional Facility in Muskegon Heights, Michigan,
filed a petition for writ of habeas corpus pursuant to 28
U.S.C. § 2254, challenging his conviction for
second-degree murder, M.C.L.A. 750.317; reckless driving
causing death, M.C.L.A. 257.626(4) and being a third felony
habitual offender, M.C.L.A. 769.11. For the reasons that
follow, the petition for writ of habeas corpus is DENIED. The
Court grants petitioner's motion to file exhibits in a
traditional manner and the motions to expand the record but
denies the motion for an evidentiary hearing.
was convicted following a jury trial in the Wayne County
Circuit Court. This Court recites verbatim the relevant facts
relied upon by the Michigan Court of Appeals, which are
presumed correct on habeas review pursuant to 28 U.S.C.
§ 2254(e)(1). See e.g. Wagner v. Smith, 581
F.3d 410, 413 (6th Cir. 2009):
The evidence at trial indicated that defendant was driving a
car at a high rate of speed while repeatedly, aggressively,
and intentionally hitting the side of the victim's van.
Although defendant argues that the victim was also driving in
an irresponsible and dangerous manner, he does not refute
that he was driving as the witnesses described. Similarly,
there was no testimony indicating that defendant attempted to
stop ramming the victim's vehicle or slow down before the
collision. At trial there was also evidence that suggested
defendant intended to act aggressively towards the victim.
The victim's sister testified that on the day before the
crash defendant had shown up at her home unannounced when the
victim was there and had “kept texting [the
victim]” while she was out that day. The victim's
cousin testified that defendant had previously shown up
unannounced at a family member's home while the victim
was there and had attempted to prevent her from leaving. She
testified that defendant had parked his car right behind the
victim's car and didn't leave even after she asked
him to. The victim's cousin also testified that defendant
had acted in that manner before.
People of State v. Nelson, No. 323685, 2016 WL
155783, at *2 (Mich. Ct. App. Jan. 12, 2016).
conviction was affirmed on appeal. Id., lv. den. 499
Mich. 917, 877 N.W.2d 885 (2016), reconsideration
denied, __ Mich. __; 881 N.W.2d 811 (Mich. 2016).
Petitioner seeks a writ of habeas corpus on the following
I. Did the trial court lack jurisdiction / authority to try
and to convict petitioner because (1) the warrant was invalid
(2) the return was not properly filed, and (3) probable cause
was not established, thereby rendering all proceedings null
II. Was petitioner constructively deprived of counsel, and
deprived of his constitutional right to contract and forced
into being represented by counsel with conflict of interest.
III. Was petitioner denied his constitutional right to
effective assistance of counsel where counsel (1) failed to
investigate (2) failed to raise substantial defenses (3)
failed to produce expert and non-expert witnesses.
Standard of Review 28 U.S.C. § 2254(d), as
amended by The Antiterrorism and Effective Death Penalty Act
of 1996 (AEDPA), imposes the following standard of review for
An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court
shall not be granted with respect to any claim that was
adjudicated on the merits in State court proceedings unless
the adjudication of the claim-
(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States;
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.
decision of a state court is “contrary to”
clearly established federal law if the state court arrives at
a conclusion opposite to that reached by the Supreme Court on
a question of law or if the state court decides a case
differently than the Supreme Court has on a set of materially
indistinguishable facts. Williams v. Taylor, 529
U.S. 362, 405-06 (2000).
“unreasonable application” occurs when “a
state court decision unreasonably applies the law of [the
Supreme Court] to the facts of a prisoner's case.”
Id. at 409. A federal habeas court may not
“issue the writ simply because that court concludes in
its independent judgment that the relevant state-court
decision applied clearly established federal law erroneously
or incorrectly.” Id. at 410-11. “[A]
state court's determination that a claim lacks merit
precludes federal habeas relief so long as ‘fairminded
jurists could disagree' on the correctness of the state
court's decision.” Harrington v. Richter,
562 U.S. 86, 101 (2011)(citing Yarborough v.
Alvarado, 541 U.S. 652, 664 (2004)). Therefore, in order
to obtain habeas relief in federal court, a state prisoner is
required to show that the state court's rejection of his
claim “was so lacking in justification that there was
an error well understood and comprehended in existing law
beyond any possibility for fairminded disagreement.”
Harrington, 562 U.S. at 103. A habeas petitioner
should be denied relief as long as it is within the
“realm of possibility” that fairminded jurists
could find the state court decision to be reasonable. See
Woods v. Etherton, 136 S.Ct. 1149, 1152 (2016).
The motion to file exhibits in a traditional manner is
5, 2016, petitioner sent a letter to the Court, in which he
asked that several compact discs be added to his exhibits as
Appendix J. Neither the letter nor the compact discs have
been added into the Court's record.
Court has listened to the five compact discs, which are all
identical copies of an eighteen minute, fifty one second
taped conversation between petitioner and his trial counsel
concerning trial strategies and several motions that
petitioner wanted filed. Petitioner also apparently wanted to
argue several motions himself in court.
June 1, 2004, the official record of filed cases within the
United States District Court for the Eastern District of
Michigan was maintained electronically. As of this date,
attorneys were permitted to file pleadings and other
documents in all cases by electronic means. See E.D.
Mich. LR 5.1.1. As of October 1, 2005, LR 5.1.1 was amended
to require electronic filing of all court papers after
November 30, 2005. The Rule permits the Court to
“excuse a party from electronic filing on motion for
good cause shown.” LR 5.1.1(a).
order to demonstrate good cause within the meaning of LR
5.1.1(a), “a litigant must set forth reasons beyond the
resistance to modernization, reluctance to invest in new
equipment, or an aversion to technology” to qualify for
an exception to electronic filing. Smith v. Port Hope
School Dist., 407 F.Supp.2d 865, 868 (E.D. Mich. 2006).
Instead, “there must be evidence that unusual,
unanticipated, or extraordinary circumstances beyond the
control of counsel” that would justify relieving a
litigant from the electronic filing requirement. Id.
least one judge in this district has permitted compact discs
to be filed with the court in a traditional manner. See
Hawthorne-Burdine v. Oakland Univ., 158 F.Supp.3d 586,
592, n. 8 (E.D. Mich. 2016). In addition, petitioner is
currently incarcerated. Pursuant to Rule 3(a) of the
Electronic Filing (ECF) Procedures for the Eastern District
of Michigan, “[A] filing user must be an attorney
admitted and in good standing to practice in the Eastern
District of Michigan, an attorney authorized to represent the
United States Government, or a non-incarcerated pro
se party granted access permission.” Petitioner,
as an incarcerated prisoner, by definition does not qualify
as a filing user pursuant to the ECF Procedures of this
Court. Because petitioner does not have access to the
Court's electronic docketing system, this Court will
permit him to file his exhibits in a traditional manner.
The motions to expand the record are GRANTED.
has filed motions to supplement the record. Petitioner filed
a motion to supplement his habeas petition to add several
exhibits as Appendix I and Appendix M, which were filed with
the Court's docket. (Doc. Nos. 12 and 14). Petitioner
also raised arguments regarding the Rule 5 Materials (Doc.
No. 13). As mentioned above, petitioner has also filed a
motion to supplement the record to include an audiotaped
conversation between himself and his trial lawyer.
(a) of the Rules Governing § 2254 Cases, 28 U.S.C. foll.
§ 2254, indicates that if a habeas petition is not
summarily dismissed, the district court judge “may
direct the record be expanded by the parties by the inclusion
of additional materials relevant to the determination of the
merits of the petition.” A federal district court judge
may employ a variety of measures to avoid the necessity of an
evidentiary hearing in a habeas case, including the direction
to expand the record to include evidentiary materials that
may resolve the factual dispute without the need for an
evidentiary hearing. See Blackledge v. Allison, 431
U.S. 63, 81-82 (1977). The decision whether to expand a
habeas record is within the sound discretion of the district
court. See West v. Bell, 550 F.3d 542, 551 (6th Cir.
2008). The Court will grant petitioner's motions to
expand the record.
The motion for an evidentiary hearing is denied.
also filed a motion for an evidentiary hearing.
deciding whether to grant an evidentiary hearing, a federal
court must consider whether such a hearing could enable the
habeas petitioner to prove the petition's factual
allegations, which, if true, would entitle the petitioner to
federal habeas relief on his claim or claims. Schriro v.
Landrigan, 550 U.S. 465, 474 (2007). “[B]ecause
the deferential standards prescribed by § 2254 control
whether to grant habeas relief, a federal court must take
into account those standards in deciding whether an
evidentiary hearing is appropriate.” Id. If
the record refutes the habeas petitioner's factual
allegations or otherwise precludes habeas relief, a district
court is not required to hold an evidentiary hearing.
Id. Stated differently, a habeas petitioner is not
entitled to an evidentiary hearing on his claims if they lack
merit. See Stanford v. Parker, 266 F.3d 442, 459-60
(6th Cir. 2001). Because petitioner's claims lack merit,
as will be discussed in greater detail below, petitioner is
not entitled to an evidentiary hearing.
Claim # 1. The jurisdiction/arrest warrant/defective
first claims that the circuit court lacked jurisdiction over
his case because the felony complaint and arrest warrant were
not supported by probable cause because they were Dated:ly by
an assistant prosecutor but not the complaining witness.
Petitioner further claims that the complaint was not properly
“sworn to.” Petitioner further claims that the
circuit court lacked jurisdiction because there was no ...