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Cummings v. Campbell

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

March 13, 2017

WALTER CUMMINGS, Petitioner,
v.
SHERMAN CAMPBELL, Respondent.

          OPINION AND ORDER SUMMARILY DENYING THE PETITION FOR WRIT OF HABEAS CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY OR LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

          ROBERT H. CLELAND UNITED STATES DISTRICT JUDGE

         Walter Cummings, (“Petitioner”), incarcerated at the Carson City Correctional Facility in Carson City, Michigan, seeks the issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his pro se application, Petitioner challenges his sentence for four counts of armed robbery, Mich. Comp. Laws § 750.529, and one count of felony-firearm, Mich. Comp. Laws § 750.227(b). For the reasons that follow, the court will summarily deny the petition.

         I. BACKGROUND

         Petitioner was convicted following a jury trial in the Wayne County Circuit Court. Petitioner was sentenced to concurrent terms of two hundred and eighty-five months to sixty years on the armed robbery convictions and received a consecutive two-year sentence on the felony-firearm conviction.

         Direct review of Petitioner's conviction ended in the Michigan courts on March 29, 1995, when the Michigan Supreme Court denied Petitioner leave to appeal following the affirmance of his conviction on his direct appeal by the Michigan Court of Appeals. People v. Cummings, 693 N.W.2d 818 (Mich. 1995). Petitioner later filed a post-conviction motion for relief from judgment, which was denied. People v. Cummings, No. 01-012985-FC (Wayne Cty. Cir. Ct. Jan. 12, 2016). The Michigan appellate courts denied leave to appeal. People v. Cummings, No. 332981 (Mich. Ct. App. Aug. 22, 2016); lv. den. 889 N.W.2d 252 (Mich. 2017).

         Petitioner now seeks a writ of habeas corpus on the following ground:

Contrary to the Michigan Supreme Court in applying a procedural bar of MCR 6.508(D), the Michigan Supreme Court employed an irrebutable (sic) presumption that Petitioner['s] constitutional claim can be denied by forfeiture that caused a fundamental miscarriage of justice, thus denied (sic) the due process of law.

(Dkt. # 1, Pg. ID 3-4.)

         II. STANDARD

         28 U.S.C. § 2254(d), as amended by The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), imposes the following standard of review for habeas cases:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim-
(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 on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

         A decision of a state court is “contrary to” clearly established federal law if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if the state court decides a case differently than the Supreme Court has on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). An “unreasonable application” occurs when “a state court decision unreasonably applies the law of [the Supreme Court] to the facts of a prisoner's case.” Id. at 409. A federal habeas court may not “issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly.” Id. at 410-11. “[A] state court's determination that a claim lacks merit precludes federal habeas ...


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