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Hullihen v. Klee

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

December 19, 2016

BLAKE DANIEL HULLIHEN, Petitioner,
v.
PAUL KLEE, Respondent.

          OPINION

          Paul L. Maloney, 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 concludes that Petitioner has failed to exhaust his available state-court remedies as to all claims raised in the petition. Because Petitioner has fewer than 60 days remaining in the limitations period for filing a habeas petition, the Court will not dismiss the action at this time, pending Petitioner's compliance with the further directions of this Court set forth in this opinion and attached order.

         Discussion

         I. Factual allegations

         Petitioner Blake Daniel Hullihen presently is incarcerated at the Gus Harrison Correctional Facility. Following a jury trial in the Osceola County Circuit Court, Petitioner was convicted of two counts of second-degree murder, Mich. Comp. Laws § 750.317, and two counts of possessing a firearm during the commission of a felony (felony firearm), Mich. Comp. Laws § 750.227b. On March 1, 2013, the trial court sentenced him to two prison terms of 37 to 75 years on the murder convictions, and two consecutive terms of 2 years on the felony-firearm convictions.

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

I. IN A MURDER CASE THE MANSLAUGHTER INSTRUCTION IS REQUIRED WHERE (1) THERE IS A HISTORY OF THREATS TO KILL DEFENDANT; (2) DECEDENT PULLED A SMALL DARK OBJECT FROM HIS POCKET; (3) THE PROSECUTOR'S SUMMARY OF EVIDENCE TO THE JURY ARGUED FROM THE EVIDENCE THAT DEFENDANT WAS “PISSED”; (4) DEFENDANT'S FIRST STATEMENT AFTER THE SHOOTING WAS THAT “I JUST LOST IT AND STARTED SHOOTING AND SHOOTING”; (5) THERE WERE 17 SHOTS KILLING TWO PEOPLE; AND (6) DEFENDANT'S TESTIMONY WAS THAT “I SNAPPED OR SOMETHING, I SWEAR IT WAS A GUN.”
II. IN A SELF DEFENSE CASE BASED, INTER ALIA, ON UNCONTESTED EVIDENCE THAT ONE OF THE DECEASED PULLED A DARK OBJECT FROM HIS POCKET, FALSE ARGUMENT BY THE PROSECUTOR THAT THE[R]E WAS NO SELF DEFENSE BECAUSE THE DEFENDANT FIRST SHOT THE OTHER PE[]RSON, REQUIRES A NEW TRIAL.
III. AT SENTENCING NO SPECIFIC []REASON AND FACTS W[E]RE A[RT]ICULATED TO JUSTIFY THE UPWARD DEPARTURE.
IV. DEFENDANT'S SIXTH AND FOURTEENTH AMENDM[E]NT RIGHTS WERE VIOLATED BY JUDICIAL FACT FINDING WHICH INCREASED THE FLOOR OF THE PERMISSIBLE SENTENCE IN VIOLATION OF ALLEYNE V UNITED STATES, 133 S CT 2151 (2013).
V. DEFENSE COUNSEL'S FAILURE TO MAKE PROPER OBJECTIONS AND RECORD WAS CONSTITUTIONALLY INEFFECTIVE ASSISTANCE OF COUNSEL.

(Attach. A to Pet., ECF No. 1-1, PageID.16.) In an opinion issued on May 22, 2014, the court of appeals affirmed the convictions and sentences.

         Petitioner sought leave to appeal to the Michigan Supreme Court, raising the same five grounds presented to the court of appeals, together with two new grounds:

V. I WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL BECAUSE MY ATTORNEY REFUSED TO/FAILED TO INVESTIGATE A ...

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