United States District Court, W.D. Michigan, Southern Division
L. MALONEY, UNITED STATES DISTRICT JUDGE
a habeas corpus proceeding brought pro se by a state
prisoner pursuant to 28 U.S.C. § 2254. Petitioner seeks
to overturn his plea-based conviction in Kalamazoo County
Circuit Court for manufacture/possession of an explosive or
incendiary device causing property damage. The trial court
judge summarized the events giving rise to the challenged
criminal conviction as follows:
On September 15, 2007, Defendant James Frank Lienemann shot
bullets through the window of a home. Lienemann and his
co-defendant also possessed a device commonly called a
Molotov cocktail: a bottle filled with flammable liquid with
a cloth wick inserted in the neck of the bottle. The
co-defendant attempted to throw the Molotov cocktail through
the living room picture window. The occupants were inside,
asleep, until awoken by a “sound of a loud explosion
type.” One of the occupants testified at the
preliminary examination that she got up and went to the
living room, where she saw several small holes and a
“big major hole” in the window, with a bottle
“hanging from the window with a rag hanging out of
it.” There was a strong smell of gasoline. The Molotov
cocktail did not explode or start a fire, but it was
recovered from the scene and it appeared the wick had been
lighted at some point.
(ECF No. 10-5, PageID.413).
8, 2009, petitioner entered his guilty plea to two felonies
pursuant to a plea agreement through which petitioner
obtained dismissal of five felony charges (one of which
carried a potential life sentence), dismissal of the notice
charging him as an habitual offender (third felony offense),
and the promise of a sentencing recommendation from the
prosecution for a minimum sentence of no more than 8 years on
his conviction for manufacture/possession of an explosive or
incendiary device causing property damage. Petitioner was
subsequently sentenced in accordance with the terms of his
unsuccessful attempts to overturn his convictions and
sentence in state court, petitioner filed this habeas corpus
petition. Petitioner seeks federal habeas corpus relief on
the following grounds:
I. Petitioner's rights under the Fourteenth
Amendment's Due Process Clause were violated because his
guilty plea “was unlawfully induced or not made
voluntarily with an understanding of the nature of the charge
and the consequences of the plea.”
II. Petitioner's rights under the Fourteenth
Amendment's Due Process Clause were violated because the
prosecution failed to disclose a police report.
III. Petitioner's Sixth and Fourteenth Amendment rights
to effective assistance of counsel were violated by deficient
advice regarding the plea agreement.
IV. Petitioner's Sixth and Fourteenth Amendment rights to
effective assistance of appellate counsel were violated.
Counsel advised petitioner that there were no non-frivolous
issues to raise in an appeal from his guilty plea and counsel
failed to withdraw in a manner consistent with Anders v.
California, 386 U.S. 738 (1967). Petitioner
“unknowingly signed an returned” the Affidavit
and Stipulation and Order indicating that he would not be
seeking appellate review.
V. The trial court violated petitioner's Sixth Amendment
right to the assistance of appellate counsel when it denied
petitioner's motion requesting appointment of a second
(Petition, 5-8, ECF No. 1, PageID.5-8).
argues that all grounds raised by petitioner lack merit. (ECF
No. 9). In addition, respondent argues that Ground V is
barred by procedural default and that petitioner has not
established cause and prejudice or actual innocence to excuse
his procedural default. (Id. at 6-7, 58-59,
review of the state-court record, the Court concludes
petitioner has not established grounds for federal habeas
corpus relief. Petitioner has not shown that the state court
decisions rejecting the grounds raised in the petition
“were contrary to, or involved an unreasonable
application of, clearly established Federal law, as
determined by the Supreme Court of the United States”
or were “based on an unreasonable determination of the
facts in light of the evidence presented in the State court
proceeding[s].” 28 U.S.C. § 2254(d). The petition
will be denied.
Court's review of this petition is governed by the
provisions of the Antiterrorism and Effective Death Penalty
Act, Pub. L. No. 104-132, 110 Stat. 1214 (AEDPA). See
Penry v. Johnson, 532 U.S. 782, 792 (2001). AEDPA
“dictates a highly deferential standard for evaluating
state-court rulings which demands the state court decisions
be given the benefit of the doubt.” Bell v.
Cone, 543 U.S. 447, 455 (2005) (citations omitted).
“AEDPA requires heightened respect for state court
factual and legal determinations.” Lundgren v.
Mitchell, 440 F.3d 754, 762 (6th Cir. 2006).
“State-court factual findings  are presumed correct;
the petitioner has the burden of rebutting the presumption by
clear and convincing evidence.” Davis v.
Ayala, 135 S.Ct. 2187, 2199-2200 (2015) (citations and
internal quotations omitted).
state court adjudicated the claim, deferential AEDPA
standards must be applied. 28 U.S.C. § 2254(d); see
Premo v. Moore, 562 U.S. 115, 121 (2011); Waddington
v. Sarausad, 555 U.S. 179, 190 (2009); Holder v.
Palmer, 588 F.3d 328, 341 (6th Cir. 2009) ((“[A]ny
claim that was adjudicated on the merits in State court
proceedings' is subject to AEDPA deference.”)
(quoting 28 U.S.C. § 2254(d)). AEDPA prevents federal
habeas “retrials” and ensures that state court
convictions are given effect to the extent possible under
law. Bell v. Cone, 535 U.S. 685, 693-94 (2002). It
prohibits “using federal habeas corpus review as a
vehicle to second-guess the reasonable decisions of state
courts.” Parker v. Matthews, 132 S.Ct. 2148,
2149 (2012) (per curiam).
AEDPA standard is difficult to meet “because it was
meant to be.” Harrington v. Richter, 562 U.S.
86, 102 (2011). “Section 2254(d) reflects the that
habeas corpus is a guard against extreme malfunctions in the
state criminal justice systems, not a substitute for ordinary
error corrections through appeal.” Id. at
102-03 (citation and internal quotation omitted); see
Woods v. Donald, 135 S.Ct. 1372, 1376 (2015). Section
2254(d) states that an application for a writ of habeas
corpus on behalf of a person who is incarcerated pursuant to
a state conviction cannot be granted with respect to any
claim that was adjudicated on the merits in state court
unless the adjudication “(1) resulted in a decision
that was contrary to, or involved an unreasonable application
of, clearly established Federal law, as determined by the
Supreme Court of the United States; or (2) resulted in a
decision that was based upon an unreasonable determination of
the facts in light of the evidence presented in the State
court proceeding.” 28 U.S.C. § 2254(d); see
White v. Wheeler, 136 S.Ct. 456, 460 (2015); Davis
v. Ayala, 135 S.Ct. at 2198; White v. Woodall,
134 S.Ct. 1697, 1702 (2014).
only definitive source of clearly established federal law for
purposes of § 2254(d)(1) is the holdings-not dicta-of
Supreme Court decisions. White v. Woodall, 134 S.Ct.
at 1702; see Woods v. Donald, 135 S.Ct. at 1377
(“Because none of our cases confront ‘the
specific question presented by this case, ' the state
court's decision could not be ‘contrary to' any
holding from this Court.”). “[W]here the precise
contours of a right remain unclear, state courts enjoy broad
discretion in their adjudication of a prisoner's
claims.” Id. (quotations and internal
unreasonable application of the Supreme Court's holding
must be “‘objectively unreasonable, ' not
merely wrong; even ‘clear error' will not
suffice.” White v. Woodall, 134 S.Ct. at 1702
(quoting Lockyer v. Andrade, 538 U.S. 63, 75-76
(2003)). Rather, “[a]s a condition for obtaining habeas
corpus from a federal court, a state prisoner must show that
the state court's ruling on the claim being presented in
federal court was so lacking in justification that there was
an error well understood and comprehended in existing law
beyond any possibility for fairminded disagreement.”
White v. Woodall, 134 S.Ct. at 1702 (quoting
Harrington v. Richter, 562 U.S. at 103).
“[C]ircuit precedent does not constitute ‘clearly
established Federal law, as determined by the Supreme Court,
' ” and “[i]t therefore cannot form the basis
for habeas relief under AEDPA.” Hill v.
Curtin, 792 F.3d 670, 677 (6th Cir. 2015) (quoting
Parker v. Matthews, 132 S.Ct. at 2155); see
Glebe v. Frost, 135 S.Ct. 429, 431 (2014) (per
curiam) (“As we have repeatedly emphasized, 
circuit precedent does not constitute ‘clearly
established Federal law, as determined by the Supreme
state-court factual determination is not unreasonable merely
because the federal habeas court would have reached a
different conclusion in the first instance.” Wood
v. Allen, 558 U.S. 290, 301 (2010). Section 2254 (d)(2)
requires that this Court accord the state trial court
substantial deference. If reasonable minds reviewing the
record might disagree about the finding in question, on
habeas review that does not suffice to supersede the trial
court's determination. Brumfield v. Cain, 135
S.Ct. 2269, 2277 (2015); Burt v. Titlow, 134 S.Ct.
10, 15 (2013).
District Court Proceedings
was charged with seven felonies: (1) assault with intent to
murder, Mich. Comp. Laws § 750.83; (2)
explosives-manufacture/possession of a Molotov cocktail or
incendiary device causing property damage, Mich. Comp. Laws
§ 750.211a(2)(c); (3) arson-preparation to burn property
valued at $20, 000.00 or more, Mich. Comp. Laws §
750.77(1)(d)(I); (4) arson-personal property $1, 000.00 or
more but less than $20, 000.00, Mich. Comp. Laws §
750.74(1)(c)(I); (5) weapons-firearms discharge in or at a
building, Mich. Comp. Laws § 750.234b; (6)
weapons-felony firearm, Mich. Comp. Laws § 750.227b; and
(7) felon in possession of a firearm, Mich. Comp. Laws §
750.224f. Petitioner was also subject to an habitual offender
notice, third felony offense, Mich. Comp. Laws § 769.11.
(ECF No. 10-6, PageID.540; ECF No. 10-9, PageID.947).
about January 28, 2009, petitioner received a preliminary
examination. Petitioner's co-defendant, Cory McGrail,
gave testimony in support of the charges against petitioner.
(ECF No. 10-6, PageID.498-500). The district court also heard
testimony from one of the victims. (Id. at
PageID.493-97). The district court judge bound over
petitioner for trial in Kalamazoo County Circuit Court on all
Circuit Court Proceedings
March 25, 2009, Kalamazoo County Circuit Court Judge J.
Richard Johnson conducted a hearing on petitioner's
motion to quash the assault with intent to murder
charge. (ECF No. 10-2). Petitioner's attorney
argued that assault with intent to murder required specific
intent to kill or knowledge of a co-defendant's specific
intent to kill, and that the testimony received at
petitioner's preliminary examination had been
insufficient to support the specific intent element.
(Id. at 3-6, 8-9, PageID.373-76, 378-79). Judge
Johnson reviewed the evidence that had been presented at the
preliminary examination, including the testimony of
petitioner's co-defendant Cory McGrail. The judge noted
that “throwing a Molotov cocktail into a house and
shooting into a house repeatedly in the early morning hours
could reflect an intent to kill whoever was inside the
house.” (Id. at 13, PageID.383). Judge Johnson
denied the motion to quash. (Id. at 14, PageID.384).
8, 2009, petitioner pleaded guilty pursuant to a plea
agreement. (ECF No. 10-3). Through the plea agreement,
petitioner avoided a potential life sentence. He secured the
dismissal of five of the seven felony charges against him and
the habitual offender supplement. In addition, under the
agreement, the prosecution would recommend no more than an
eight-year minimum sentence on the primary charge to which
petitioner would plead guilty. Petitioner agreed and he
pleaded guilty to Counts II and IV. Petitioner confirmed that
the agreement summarized on the record was what he had agreed
to and that he was asking the court to accept the plea
agreement. (Id. at 3-5, PageID.388-90).
advised the judge that he had a full opportunity to discuss
the terms of the plea agreement with his attorney.
(Id. at PageID.388). Petitioner testified that he
had signed the advice of rights form and that he understood
all the rights that he would be giving up by pleading guilty.
(Id. at 6, PageID.391). Petitioner testified that he
was pleading guilty of his own free choice. He was not
pleading guilty ...