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Bally v. Campbell

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

March 14, 2017

CHARLES STANLEY BALLY, Petitioner,
v.
SHERMAN CAMPBELL, Respondent.

          OPINION

          ROBERT J. JONKER CHIEF UNITED STATES DISTRICT JUDGE

         This is 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 remedies.

         Discussion

         I. Factual Allegations

         Petitioner is incarcerated in the Carson City Correctional Facility. He was convicted in the Wayne County Circuit Court of making a terrorist threat or false report of terrorism (“threat or false report of terrorism”), Mich. Comp. Laws § 750.543m, felon in possession of a firearm (“felon-in-possession”), Mich. Comp. Laws § 750.224f, carrying a concealed weapon (“CCW”), Mich. Comp. Laws § 750.227, possession of a dangerous weapon, Mich. Comp. Laws § 750.224(1)(a), and possession of a firearm during the commission of a felony (“felony-firearm”), Mich. Comp. Laws § 750.227b. On January 29, 2014, the trial court sentenced Petitioner, as a second habitual offender, Mich. Comp. Laws § 769.10, to 6 to 30 years' imprisonment for the threat or false report of terrorism conviction, 1 to 7 ½ years' imprisonment for the felon-in-possession, CCW, and possession of a dangerous weapon convictions, and 2 years' imprisonment for the felony-firearm conviction.

         Petitioner appealed as of right to the Michigan Court of Appeals raising the following three claims of error:

I. Insufficient evidence to support the false report or threat of terrorism conviction.
II. The trial court erred by admitting evidence of a prior conviction for an unrelated sex offense.
III. The trial court abused its discretion by denying the defense motion to adjourn for counsel to prepare for trial.

(Pet., ECF No. 1, PageID.2.) The Michigan Court of Appeals affirmed Petitioner's convictions in an unpublished opinion issued on July 9, 2015. Petitioner sought leave to appeal in the Michigan Supreme Court raising the same three claims presented in the court of appeals, as well as the following new claims of ineffective assistance of trial counsel:

Trial counsel was ineffective when he failed to: (a) investigate and prepare for trial; (b) present substantial evidence to the jury and attempt to impeach the complaining witness' testimony; (c) advise petitioner not to testify in a credibility contest; and (d) voir dire a juror after being informed of a conflict of interest.

(Pet., PageID.3, 9.) The Michigan Supreme Court denied Petitioner's application for leave to appeal on March 30, 2016.

         In his application for habeas corpus relief, Petitioner raises the three claims presented in the Michigan Court of Appeals and the Michigan Supreme Court and the new claims of ineffective assistance of counsel presented only in the supreme court.

         II. Exhaustion of ...


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