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Gilliard v. Hoffner

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

February 17, 2017

BONITA J. HOFFNER, Respondent.


          Paul L. Maloney United States District Judge.

         This is 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.

         Factual Allegations

         Petitioner 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.[1] Because of Petitioner's plea, the prosecutor dismissed a capital offense charge: assault with intent to commit murder.

         Once 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.

         Dissatisfied 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.)

         Newly 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.[2]

         The 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.)

         Petitioner's 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.

         The trial court spoke directly to that issue in resolving Petitioner's first motion for relief from judgment. The court stated:

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 result.
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.)[3] 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.

         Petitioner raises three issues in this Court:

I. Petitioner cannot be convicted of home invasion because he had lawful permission to ...

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