United States District Court, W.D. Michigan, Southern Division
Honorable Paul L. Maloney 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.
Blake Daniel Hullihen presently is incarcerated at the Gus
Harrison Correctional Facility. Following a jury trial in the
Osceola County Circuit Court, Petitioner was convicted of two
counts of second-degree murder, Mich. Comp. Laws §
750.317, and two counts of possessing a firearm during the
commission of a felony (felony firearm), Mich. Comp. Laws
§ 750.227b. On March 1, 2013, the trial court sentenced
him to two prison terms of 37 to 75 years on the murder
convictions, and two consecutive terms of 2 years on the
Michigan Court of Appeals described the underlying facts as
This case arises out of the shooting deaths of Gabrielle
Woodworth and Donald Feneis. Woodworth was defendant's
former girlfriend and the mother of his daughter, and Feneis
was Woodworth's boyfriend at the time of the shooting.
Both victims were shot when they met with defendant at a
Chuck's Corners gas station that had been the exchange
point for defendant and Woodworth when transferring custody
of their daughter. Woodworth was expecting to pick up her
daughter at the time, but defendant had not b[r]ought her
with him to that location. Defendant admitted to shooting
both victims, but argued that he acted in self-defense.
Defendant testified that Woodworth began yelling at him when
he told her that he had not brought his daughter. Defendant
further testified that Feneis exited his truck and
“then him basically screaming at me, he's going to
kill me.” Defendant testified it was cold and dark and
there were no lights on that portion of the gas station. He
said Woodworth and Feneis “were coming towards me a
little bit; I was backing up.” Defendant testified that
Feneis pulled something “shiny” and
“black” out of his pocket:
Q. Okay. Once you see Mr. Feneis pull his hands out of his
pockets, what do you do?
A. At that point, I just - I snapped or something, and
instinct took over, and I swear it was a gun -
A. - and I pulled mine -
Q. What did you do?
A. I pulled my side arm and started shooting.
When asked about the object from the pocket, defendant
testified he “didn't know what it was for
Defendant did not remember who he shot or how many bullets he
fired. Nor did he recall Woodworth falling to the ground and
Feneis running away from him. He testified that when Feneis
turned toward him, he “started shooting again”
because he “thought [Feneis] still had a gun.”
When Feneis fell to the ground, defendant testified he backed
away to his truck. He then left and headed back to his
parents' home, where he told his father he had shot two
people who had attacked him. Defendant's father
accompanied him when he turned himself in to police.
Evidence was presented at trial that Woodworth was shot eight
times, including a total of five gunshot wounds to her face
and neck. Woodworth was also shot three times in the torso.
Feneis was shot eleven times, including three times in the
head and six times in the torso. Defendant's gun's
magazine had an eight-round capacity and could carry one
round in the chamber.
An eyewitness, Penny Savage, testified that she heard the
gunshots and saw defendant shoot a man as he ran toward the
store. She then testified that defendant inserted a new
magazine in his gun and “very methodically walked up
and emptied it” into the man's body lying on the
ground. The eyewitness also testified that she did not hear
any argument or altercation before the shooting started, and
that defendant ran over the woman's body with his truck
as he left the scene. Another eyewitness, Carl Asher,
testified that he heard the gunshots, did not hear any
argument or altercation beforehand, and saw the shooter drive
Defendant testified that Feneis had previously threatened him
when he dropped off or picked up his daughter with Woodworth.
He testified that Feneis said that his friends would come to
his house, “get” him, and kill him.
Defendant's father testified that he was present when
Feneis threatened defendant, including a time when Feneis and
his father told defendant something like “this is
Osceola County and out here we live way back here in the
country in this farm, we can bury your butt and no one will
ever find you.” Defendant and his father admitted that
defendant had never been assaulted, nor had they seen a
weapon displayed, prior to the occasion of the shooting.
Defendant testified that he left his daughter at home and
drove to Chuck's Corners on the day of the shooting to
talk to Woodworth about keeping his daughter longer.
People v. Hullihen, No. 315371, 2014 WL 2158149, at
**1-2 (Mich. Ct. App. May 22, 2014).
appealed his convictions and sentences to the Michigan Court
of Appeals, raising five issues:
I. IN A MURDER CASE THE MANSLAUGHTER INSTRUCTION IS REQUIRED
WHERE (1) THERE IS A HISTORY OF THREATS TO KILL DEFENDANT;
(2) DECEDENT PULLED A SMALL DARK OBJECT FROM HIS POCKET; (3)
THE PROSECUTOR'S SUMMARY OF EVIDENCE TO THE JURY ARGUED
FROM THE EVIDENCE THAT DEFENDANT WAS “PISSED”;
(4) DEFENDANT'S FIRST STATEMENT AFTER THE SHOOTING WAS
THAT “I JUST LOST IT AND STARTED SHOOTING AND
SHOOTING”; (5) THERE WERE 17 SHOTS KILLING TWO PEOPLE;
AND (6) DEFENDANT'S TESTIMONY WAS THAT “I SNAPPED
OR SOMETHING, I SWEAR IT WAS A GUN.”
II. IN A SELF DEFENSE CASE BASED, INTER ALIA, ON UNCONTESTED
EVIDENCE THAT ONE OF THE DECEASED PULLED A DARK OBJECT FROM
HIS POCKET, FALSE ARGUMENT BY THE PROSECUTOR THAT THE[R]E WAS
NO SELF DEFENSE BECAUSE THE DEFENDANT FIRST SHOT THE OTHER
PERSON, REQUIRES A NEW TRIAL.
III. AT SENTENCING NO SPECIFIC REASON AND FACTS W[E]RE
A[RT]ICULATED TO JUSTIFY THE UPWARD DEPARTURE.
IV. DEFENDANT'S SIXTH AND FOURTEENTH AMENDM[E]NT RIGHTS
WERE VIOLATED BY JUDICIAL FACT FINDING WHICH INCREASED THE
FLOOR OF THE PERMISSIBLE SENTENCE IN VIOLATION OF ALLEYNE V
UNITED STATES, 133 S.Ct. 2151');">133 S.Ct. 2151 (2013).
V. DEFENSE COUNSEL'S FAILURE TO MAKE PROPER OBJECTIONS
AND RECORD WAS CONSTITUTIONALLY INEFFECTIVE ASSISTANCE OF
A to Pet., ECF No. 1-1, PageID.16.) In an opinion issued on
May 22, 2014, the court of appeals affirmed the convictions
sought leave to appeal to the Michigan Supreme Court, raising
the same five grounds presented to the court of appeals,
together with two new grounds:
V. I WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL BECAUSE MY
ATTORNEY REFUSED TO/FAILED TO INVESTIGATE A MERITORIOUS
VII. A PARTY MAY MOVE FOR A NEW TRIAL ON THE BASIS OF NEW
B to Pet., ECF No. 1-1, PageID.17.) On February 3, 2015, the
supreme court ordered that the case be held in abeyance
pending that court's resolution of People v.
Lockridge, No. 149073. See People v. Hullihen,
858 N.W.2d 445 2015). On October 28, 2015, the supreme court
denied leave to appeal, concluding that Petitioner had failed
to establish the threshold showing of plain error under