United States District Court, W.D. Michigan, Southern Division
HONORABLE JANET T. NEFF UNITED STATES DISTRICT JUDGE.
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
David Henry Johnson is incarcerated with the Michigan
Department of Corrections at the Muskegon Correctional
Facility in Muskegon, Michigan. Following a four-day jury
trial in the Tuscola County Circuit Court, Petitioner was
found guilty of operating a methamphetamine laboratory, Mich.
Comp. Laws § 333.7401c(2)(f); manufacture of
methamphetamine, Mich. Comp. Laws § 333.7401(2)(b)(i);
and possession of methamphetamine, Mich. Comp. Laws §
333.7403(2)(b)(i). As to each offense, it was
Petitioner's second; therefore, he was subject to twice
the term of imprisonment otherwise authorized. Mich. Comp.
Laws § 333.7413(2). On October 4, 2013, the trial court
sentenced Petitioner to concurrent terms of imprisonment of
10 to 20 years for operating the laboratory, 10 to 20 years
for manufacture, and 2 to 10 years for
the assistance of counsel, Petitioner directly appealed his
convictions and sentences raising five issues:
I. DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO A SPEEDY
TRIAL AND WAS DENIED THE RIGHT TO BE TRIED WITHIN 180 DAYS
WHEN, THROUGH NO FAULT OF DEFENDANT, TRIAL DID NOT COMMENCE.
II. DEFENDANT WAS DENIED HIS CONSTITUTION RIGHT TO EFFECTIVE
ASSISTANCE OF COUNSEL WHEN TRIAL COUNSEL'S CUMULATIVE
ERRORS DENIED DEFENDANT A FAIR TRIAL.
III. DEFENDANT'S CONVICTION WAS BASED ON THE TESTIMONIAL
HEARSAY STATEMENTS OF UNAVAILABLE DECLARANTS AND SINCE THERE
WAS NO OPPORTUNITY TO CROSS EXAMINE THE DECLARANTS, THE TRIAL
COURT VIOLATED DEFENDANT'S SIXTH AMENDMENT RIGHT TO
CONFRONT WITNESSES BY ADMITTING THE STATEMENTS.
IV. DEFENDANT WAS DENIED THE RIGHT TO DUE PROCESS AND
FUNDAMENTAL FAIRNESS TO PRESENT A DEFENSE WHEN THE POLICE
FAILED TO PRESERVE KEY EVIDENCE.
V. DEFENDANT IS ENTITLED TO RESENTENCING BECAUSE THE
STATUTORY SENTENCING GUIDELINES WERE MISSCORED AS TO THE
OFFENSE VARIABLES, WHICH AFFECTED THE STATUTORY SENTENCING
(Def.'s-Appellant's Br., ECF No. 1-3, PageID.52-53.)
By unpublished opinion issued March 12, 2015, the Michigan
Court of Appeals affirmed the convictions and sentences.
Petitioner filed an application for leave to appeal in the
Michigan Supreme Court. In lieu of granting leave to appeal
with regard to the sentencing issue, the court reversed and
remanded to the trial court “to determine whether the
court would have imposed a materially different sentence
under the sentencing procedure described in People v.
Lockridge, 498 Mich. 358[, 870 N.W.2d 502]
(2015).” People v. Johnson, 873 N.W.2d 565
(Mich. 2016). In all other respects, however, the court
denied leave to appeal. Id.
trial court held a resentencing hearing on May 19, 2016. The
court reaffirmed it original sentences. With the assistance
of counsel, Petitioner appealed his new judgment of sentence,
raising two issues:
VI. THE TRIAL COURT IMPOSED AN UNREASONABLE SENTENCE OF 120
TO 240 MONTHS IMPRISONMENT FOR OPERATING/MAINTAINING A
LABORATORY INVOLVING METHAMPHETAMINE AND ...