United States District Court, W.D. Michigan, Southern Division
L. Maloney United States District Judge.
a habeas corpus action brought by a state prisoner pursuant
to 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 the petition must be dismissed because it
fails to raise a meritorious federal claim.
Steven Gilliard is presently incarcerated with the Michigan
Department of Corrections at the Lakeland Correctional
Facility in Coldwater, Michigan. Petitioner pleaded nolo
contendere in the Calhoun County Circuit Court to one
count each of first-degree home invasion, Mich. Comp. Laws
§ 750.110a(2); assault with intent to do great bodily
harm less than murder, Mich. Comp. Laws § 750.84; and
second-degree arson, Mich. Comp. Laws § 750.73. On
October 11, 2007, he was sentenced, as a fourth felony
offender, Mich. Comp. Laws § 769.12, to a prison term of
26 years, 8 months to 50 years on the home-invasion charge,
consecutive to concurrent sentences of 12 years, 6 months to
40 years on the assault and arson charges. Because of
Petitioner's plea, the prosecutor dismissed a capital
offense charge: assault with intent to commit murder.
the circuit court had sentenced Petitioner, his case took a
circuitous and tortuous procedural path, traveling three
separate times from the circuit court through the Michigan
Court of Appeals to the Michigan Supreme Court. Petitioner
was forced into pursuing three separate appeals by the
choices of his first and second appointed appellate counsel.
Petitioner's first appointed appellate counsel was
permitted to withdraw. By the time his second appellate
counsel was appointed, it was too late to pursue a
“direct review” application for leave to appeal,
so counsel instead filed a motion for relief from judgment
pursuant to Rule 6.500 in the trial court. The trial court
denied relief and Petitioner then pursued his appeals through
applications for leave in the Michigan Court of Appeals and
the Michigan Supreme Court. Both courts denied leave.
that the issue he raised had been considered under the
standard applicable to Rule 6.500 motions instead of the
standard for direct review, Petitioner sought the appointment
of appellate counsel for direct review of his claims. The
trial court denied his motion. (Pet. Ex. D, ECF No. 1-1,
PageID.29.) The court of appeals refused to grant leave to
appeal that issue. (Id., PageID.30.) In lieu of
granting leave to appeal, based upon Halbert v.
Michigan, 545 U.S. 605 (2005), the Michigan Supreme
Court remanded to the trial court for appointment of
appellate counsel and authorized counsel to raise any issue,
including issues that had been previously raised, as if on
direct review. (Pet. Ex. E, ECF No. 1-1, PageID.32.)
appointed counsel chose to start again in the trial court,
filing a motion to vacate Petitioner's plea. The trial
court considered the issue as if it were raised for the first
time. (Pet. Ex. F, ECF No. 1-1, PageID.34-36.) The trial
court denied relief initially and upon reconsideration.
(Id.; Pet. Ex. G, ECF No. 1-1, PageID.38.) The court
of appeals denied leave to appeal. The supreme court also
denied leave to appeal, initially and upon reconsideration.
On September 6, 2016, Petitioner's case completed its
journey through the state courts. On January 17, 2017,
Petitioner filed the instant petition.
events which led to Petitioner's convictions occurred on
December 26, 2006. In Petitioner's supporting brief, he
describes those events as follows:
Rannetta Dilling testified that [Petitioner] is the father of
her three children and that she and [Petitioner] were
together for about 10 years (Preliminary Examination
Transcript April 6, 2007 [PEI], p 7). On December 26, 2006,
she was residing at 1037 W. Michigan in Battle Creek with her
children, ages 18, 17, 13, 12. and 9. Id, 8. She
fell asleep on the couch in the living room. She was awakened
by [Petitioner] as he had his hands around her neck.
Id, 9. She then described through her testimony what
[Petitioner] must admit was a violent assault on her by
[Petitioner]. Id, pp. 9-17. They were on the floor
when police officers walked in. Id, 17.
The police sprayed [Petitioner] with a chemical irritant
which allowed Ms. Dilling and her children to get out of the
house. Id, 18. When the officers confronted
[Petitioner], he backed away from them and ran downstairs
into the basement. Id, 52. A standoff ensued which
included cutting the power to the home. Eventually the first
responders saw flames coming out of the building.
Id., 56-63. Fire personnel ultimately brought
[Petitioner] out of the building. Id, 65.
(Pet.'s Br., ECF No. 2, PageID.51.)
constitutional challenges to his convictions do not relate to
his assault of Ms. Dilling or the arson. The challenges focus
solely on his conviction for first-degree home invasion.
Petitioner contends that he could not commit the crime of
home invasion because he had a legal right to enter the home.
trial court spoke directly to that issue in resolving
Petitioner's first motion for relief from judgment. The
After reviewing the Preliminary Examination testimony of the
victim, Ms. Dilling, this Court finds that a trier of fact
could find, if her testimony is accepted as true, that Mr.
Gilliard was not living in the home; all his clothes had been
removed from the home; that he did not have a key to enter
the home; and that he entered the home on December 26, 2006
without lawful permission.
(Pet. Ex. A, ECF No. 1-1, PageID.23.) Five years later, after
an evidentiary hearing on the issue, the trial court
reiterated that conclusion:
The hearing was held on July 10, 2015 to inquire into the
alleged inadequacy of the factual basis for a plea to home
invasion first degree and allegations of incompetence of
trial counsel in recommending such a plea to the defendant.
This Court has, in the earlier MCR 6.500 motion, found
allegations of inadequacy of the factual basis for acceptance
of a plea to home invasion first degree to be without merit
and sees no reason to address those again.
The testimony of the [Petitioner] and the affidavit of a
family member presented at the July 10, 2015 evidentiary
hearing which this Court ordered does not justify a different
This Court adopts its earlier finding and Order and denies
the [Petitioner's] motion on that issue.
(Pet. Ex. F, ECF No. 1-1, PageID.35.) Critically, Petitioner does
not dispute that Ms. Dilling testified as represented by the
trial court. He simply argues that other evidence in the
preliminary examination record supports a contrary conclusion
and that the judge presiding over his preliminary examination
curtailed further exploration during Petitioner's
counsel's cross-examination of Ms. Dilling.
raises three issues in this Court:
I. Petitioner cannot be convicted of home invasion because he
had lawful permission to ...