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Hullihen v. Klee

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

February 21, 2017

BLAKE DANIEL HULLIHEN, Petitioner,
v.
PAUL KLEE, Respondent.

          OPINION

          Honorable Paul L. Maloney 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 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 felony-firearm convictions.

         The Michigan Court of Appeals described the underlying facts as follows:

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 -
Q. Okay.
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 sure.”
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 off.
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).

         Petitioner 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 PE[]RSON, 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 COUNSEL.

         (Attach. A to Pet., ECF No. 1-1, PageID.16.) In an opinion issued on May 22, 2014, the court of appeals affirmed the convictions and sentences.

         Petitioner 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 INSANITY DEFENSE.
VII. A PARTY MAY MOVE FOR A NEW TRIAL ON THE BASIS OF NEW EVIDENCE.

         (Attach. 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 P ...


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