Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Lienemann v. Harry

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

March 2, 2017

JAMES FRANK LIENEMANN, # 673962, Petitioner,
v.
SHIRLEE HARRY, Respondent.

          MEMORANDUM OPINION

          PAUL L. MALONEY, UNITED STATES DISTRICT JUDGE

         This is 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).

         On May 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 plea agreement.

         After 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 appellate attorney.

(Petition, 5-8, ECF No. 1, PageID.5-8).

         Respondent 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, PageID.300-01, 352-53).

         After 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].”[1] 28 U.S.C. § 2254(d). The petition will be denied.

         Standard of Review

         The 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).

         If a 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).

         The 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).

         The 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 citations omitted).

         An 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 Court.'”).

         “[A] 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).

         Findings of Fact

         A. District Court Proceedings

         Petitioner 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).

         On or 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 charges.

         B. Circuit Court Proceedings

         On 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.[2] (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).

         On May 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).

         Petitioner 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.