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Mosher v. Trierweiler

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

February 17, 2017

JOSHUA LEE MOSHER, Petitioner,
v.
TONY TRIERWEILER, 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 Joshua Lee Mosher is presently incarcerated with the Michigan Department of Corrections at the Bellamy Creek Correctional Facility in Ionia, Michigan. Petitioner is serving three concurrent sentences of 25 to 50 years' imprisonment following his February 17, 2014 conviction on three counts of first-degree criminal sexual conduct, Mich. Comp. Laws § 750.520b(1)(a).

         With the assistance of counsel, Petitioner appealed his convictions to the Michigan Court of Appeals. He raised two issues:

I. DETECTIVE TAMMINGA REPEATEDLY VOUCHED FOR THE TRUTH AND CREDIBILITY OF THE COMPLAINANT THROUGHOUT THE COURSE OF THE VIDEO INTERROGATION OF MR. MOSHER THAT WAS PLAYED FOR THE JURY. WAS THIS INCESSANT VOUCHING IMPROPER AND PREJUDICIAL, DID IT INVADE THE JURY'S PROVINCE AS SOLE FACT FINDERS, AND ULTIMATELY DEPRIVE MR. MOSHER OF HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL? WAS TRIAL COUNSEL INEFFECTIVE FOR PERMITTING THE ADMISSION OF INADMISSIBLE EVIDENCE VOUCHING FOR THE COMPLAINANT'S CREDIBILITY?
II. DID THE TRIAL COURT VIOLATE MR. MOSHER'S DUE PROCESS RIGHTS BY PERMITTING THE PROSECUTOR TO INTRODUCE A SEPARATE SEXUAL ASSAULT ALLEGATION BY [ANOTHER ALLEGED VICTIM]? DID THE PREJUDICIAL EFFECT OF HER TESTIMONY SUBSTANTIALLY OUTWEIGH THE PROBATIVE VALUE?

         (Appellant's Br., ECF No. 12-1, PageID.85.) The Michigan Court of Appeals affirmed the trial court by opinion entered May 21, 2015. (Op., ECF No. 12-1, PageID.149-151.)

         Petitioner filed an application for leave to appeal to the Michigan Supreme Court raising the same two issues. (Appellant's Br., ECF No. 12-2, PageID.159.) That court denied leave by order entered May 2, 2016. (Order, ECF No. 12-2, PageID.216.)

         Petitioner then returned to the trial court and, on November 17, 2016, filed a pro per motion for relief from judgment in accordance with Mich. Ct. R. 6.500 et seq. Petitioner raised five new issues in his motion:

III. THE INSUFFICIENT EVIDENCE RESULTING IN A CONVICTION WAS AGAINST THE GREAT WEIGHT OF THE EVIDENCE THEREBY HARMING HIS CONSTITUTIONAL RIGHT TO A FAIR TR[IA]L.
IV. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY ALLOWING ADMISSION OF HEARSAY (MRE 803.A) IN VIOLATION OF THE DEFENDANT[‘]S CONSTITUTIONAL RIGHT TO A FAIR TRIAL.
V. THE TRIAL COURT ABUSED ITS DISCRETION WHERE THE SITTING TRIAL COURT JUDGE HAD PREVIOUSLY PROSECUTED THE DEFENDANT IN A PRIOR COURT MATTER RESULTING IN EXTREME JUDIC[I]AL ...

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