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Brandon v. Burt

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

January 17, 2017

MATTHEW BRANDON, Petitioner,
v.
SHERRY BURT, Respondent.

          OPINION

          ROBERT J. JONKER, CHIEF 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 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.[1]

         On July 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 § 769.12.

         With 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.

         (Appellant's Br., ECF No. 1-1, PageID.18.)[2] The court of appeals affirmed Petitioner's convictions. People v. Brandon, No. 323334, 2016 WL 1612750 (Mich. Ct. App. Apr. 21, 2016).

         Petitioner 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.

         (Appl. for Leave to Appeal, ECF No. 1-1, PageID.39.)[3] The supreme court denied leave by order entered October 26, 2016. People v. Brandon, 886 N.W.2d 625 (Mich. 2016).

         On December 13, 2016, Petitioner filed this petition raising the three issues he raised in ...


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