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McKnight v. Palmer

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

November 28, 2016

HOWARD McKNIGHT, Petitioner,
v.
CARMEN PALMER, Respondent.

          OPINION

          GORDON J. QUIST UNITED STATES DISTRICT JUDGE.

         This is a habeas corpus action brought by a state prisoner under 28 U.S.C. § 2254. Promptly after the filing of a petition for habeas corpus, 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 28 U.S.C. § 2243. If so, the petition must be summarily dismissed. Rule 4; see Allen v. Perini, 424 F.2d 134, 141 (6th Cir. 1970) (district court has the duty to “screen out” petitions that lack merit on their face). A dismissal under Rule 4 includes those petitions which raise legally frivolous claims, as well as those containing factual allegations that are palpably incredible or false. Carson v. Burke, 178 F.3d 434, 436-37 (6th Cir. 1999). After undertaking the review required by Rule 4, the Court will dismiss the petition without prejudice for failure to exhaust available state-court remedies.

         Discussion

         I. Factual allegations

         Petitioner Howard McKnight presently is incarcerated at the Michigan Reformatory. On November 22, 2013, a Wayne County jury convicted him of two counts of kidnapping, Mich. Comp. Laws § 750.349, two counts of armed robbery, Mich. Comp. Laws § 750.529, one count of first-degree criminal sexual conduct (CSC I), Mich. Comp. Laws § 75-.520b, two counts of felonious assault, Mich. Comp. Laws § 750.82, one count of being a felon in possession of a firearm, Mich. Comp. Laws § 75-.224f, and one count of possession of a firearm during the commission of a felony (felony firearm), Mich. Comp. Laws § 750.227b. The trial court sentenced Petitioner on December 12, 2013 to imprisonment for 30 to 60 years on each count of kidnapping, 25 to 60 years on each count of armed robbery, 30 to 60 years for CSC I, 2 to 4 years for each count of felonious assault, 1 to 5 year for being a felon in possession, and 2 years for felony firearm.

         Petitioner appealed his convictions and sentences to the Michigan Court of Appeals, raising three issues:

1. Officer Tinsley's opinion that a photograph of appellant reflects a composite sketch prepared by him impermissibly encroached on the province of the jury.
2. The trial court violated appellant's due process rights by permitting the prosecutor to solicit from the officer in charge opinion evidence of appellant's alleged guilt.
3. Appellant was denied a fair trial and defense trial counsel was constitutionally ineffective in failing to move for a mistrial after a police officer testified that he compared the composite sketch with a mug shot of appellant and counsel was ineffective in failing to object.

(Pet., ECF No. 1, PageID.2.) In an unpublished opinion issued on April 21, 2015, the court of appeals denied all appellate grounds. Petitioner sought leave to appeal to the Michigan Supreme Court, raising similar, though somewhat differently worded, grounds for relief:

1. The testimony of Officer Tinsley's invaded the province of the jury where the officer used the computer program to create a sketch from a victim's memory and he testified that it reflects the defendant's Photograph.
2. The defense cross examination of the officer in charge, testimony was elicited to show that the investigation focused on Defendant rather than pursuing other suspects denied defendant a fair trial. And on redirect examination, the prosecutor asked the officer in charge to explain why he focused on the defendant rather than pursue other suspects, this testimony invaded the province of the jury.
3. Trial counsel was ineffective where he failed to object to the officer mentioning of a “mug shot” of a “Specific Individual” before arresting the defendant. The reference ...

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