United States District Court, W.D. Michigan, Southern Division
J. JONKER, CHIEF UNITED STATES DISTRICT JUDGE
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
is presently incarcerated with the Michigan Department of
Corrections in the Muskegon Correctional Facility in Muskegon
Heights, Michigan. Petitioner is presently serving a number
of sentences for offenses committed on November 2, 2001; July
11, 2006; October 20, 2008; and February 8, 2014. This
petition challenges the convictions and sentences relating to
the offenses committed on February 8, 2014.
30, 2014, following Petitioner's jury conviction, the
Kent County Circuit Court sentenced Petitioner to terms of
imprisonment on three criminal counts: 2 to 5 years for felon
in possession of a firearm, Mich. Comp. Laws § 750.224f;
2 years to 5 years for carrying a concealed weapon, Mich.
Comp. Laws § 750.227; and 2 years for felony firearm,
Mich. Comp. Laws § 750.227b. Petitioner was sentenced as
an habitual offender, fourth offense, Mich. Comp. Laws §
the assistance of counsel, Petitioner directly appealed his
conviction raising two issues:
I. Defendant-Appellant's constitutional right to due
process of law, U.S. Const, Am, XIV; Const 1963, art I,
section 17, was violated when the evidence of Carrying a
Concealed Weapon, Felon in Possession of a Weapon, and Felony
Firearm was legally insufficient to convict him of those
offenses at trial.
II. The trial court abused its discretion by not ruling on
trial counsel's request to excuse the jury panel and pool
and Defendant-Appellant was denied his constitutional right
to be tried by a fair and impartial jury. U.S. Const, Amend
VI; Const 1963, Art 1 § 20.
Br., ECF No. 1-1, PageID.18.) The court of appeals affirmed
Petitioner's convictions. People v. Brandon, No.
323334, 2016 WL 1612750 (Mich. Ct. App. Apr. 21, 2016).
then filed a pro se application for leave to appeal in the
Michigan Supreme Court raising the two issues he raised in
the court of appeals and one new issue:
III. Defendant was deprived the full effective assistance of
competent counsel at trial level as guaranteed by the VI and
XIV Ams of the U.S. Const; Mich. Const 1963, Art I, § 2,
17 and 207.
for Leave to Appeal, ECF No. 1-1, PageID.39.) The supreme court
denied leave by order entered October 26, 2016. People v.
Brandon, 886 N.W.2d 625 (Mich. 2016).
December 13, 2016, Petitioner filed this petition raising the
three issues he raised in ...