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Fitzgerald v. Trierweiler

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

June 28, 2017

GREGORY JOSEPH FITZGERALD, Petitioner,
v.
TONY TRIERWEILER, Respondent.

          OPINION

          Janet T. Neff United States District Judge

         This is a habeas corpus action brought by a state prisoner pursuant to 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 concludes that the petition must be dismissed because it fails to raise a meritorious federal claim.

         Factual Allegations

         Petitioner Gregory Joseph Fitzgerald is presently incarcerated with the Michigan Department of Corrections at the Bellamy Creek Correctional Facility in Ionia, Michigan. Petitioner is serving concurrent sentences of 5 years, 10 months to 22 years following his August 28, 2015 plea of nolo contendere to one count of second-degree fleeing and eluding, Mich. Comp. Laws § 750.479a(4), and one count of operating while intoxicated, third-offense, Mich. Comp. Laws §257.625, in Muskegon County Circuit Court case #15066365-FH-F; and one count of second-degree fleeing and eluding, Mich. Comp. Laws § 750.479a(4), in Muskegon County Circuit Court case #15066366-FH-F. On September 28, 2015, the court sentenced Petitioner as a habitual offender, fourth-offense, Mich. Comp. Laws § 769.12, pursuant to a Cobbs agreement[1] that Petitioner's minimum sentence would not exceed 71 months.

         Petitioner, with the assistance of appointed appellate counsel, filed an application for leave to appeal his sentence in the Michigan Court of Appeals. He raised two issues:

I. THE TRIAL COURT UNLAWFULLY DEPRIVED THE DEFENDANT OF HIS DUE PROCESS, EQUAL PROTECTION, AND OTHER PROTECTED RIGHTS UNDER THE UNITED STATES AND MICHIGAN CONSTITUTIONS WHEN IT SCORED 10 POINTS ON OV-9, 10 POINTS ON OV-18, AND 10 POINTS ON OV-19; ON PLAIN ERROR AND/OR INEFFECTIVE ASSISTANCE OF COUNSEL GROUNDS THIS COURT SHOULD REVIEW THIS ISSUE.
II. THE TRIAL COURT UNLAWFULLY VIOLATED THE UNITED STATES AND MICHIGAN CONSTITUTIONS IN SENTENCING THE DEFENDANT TO A PRISON TERM OF 70 MONTHS TO 22 YEARS ON A HABITUAL OFFENDER 4th SUPPLEMENT ARISING OUT OF THE 2d-DEGREE FLEEING AND ELUDING A POLICE OFFICER CONVICTION; ON PLAIN ERROR AND/OR INEFFECTIVE ASSISTANCE OF COUNSEL GROUNDS THIS COURT SHOULD REVIEW THIS ISSUE.

(Pet'r's Mich. Ct. App. Br., ECF No. 1-1, PageID.22.) The Michigan Court of Appeals denied leave initially on May 5, 2016 (Mich. Ct. App. Ord., ECF No. 1-1, PageID.62), and upon reconsideration on June 13, 2016 (Mich. Ct. App. Ord., ECF No. 1-1, PageID.61), for lack of merit in the grounds presented. Petitioner then filed a pro per application for leave to appeal in the Michigan Supreme Court raising the same issues. The supreme court denied leave by order entered April 4, 2017 (Mich. Ord., ECF No. 1-1, PageID.86). Petitioner did not file a petition for writ of certiorari in the United States Supreme Court. (Pet., ECF No. 1, PageID.3.) Instead, he filed his habeas petition in this Court raising the same issues he raised in the Michigan appellate courts.

         Discussion

         This action is governed by the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. 104-132, 110 Stat. 1214 (AEDPA). See Penry v. Johnson, 532 U.S. 782, 792 (2001). The AEDPA “prevents federal habeas ‘retrials'” and ensures that state court convictions are given effect to the extent possible under the law. Bell v. Cone, 535 U.S. 685, 693-94 (2002). The AEDPA has “drastically changed” the nature of habeas review. Bailey v. Mitchell, 271 F.3d 652, 655 (6th Cir. 2001). An application for 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). This standard is “intentionally difficult to meet.” Woods v. Donald, 575 U.S. __, 135 S.Ct. 1372');">135 S.Ct. 1372, 1376 (2015) (internal quotation marks omitted).

         The AEDPA limits the source of law to cases decided by the United States Supreme Court. 28 U.S.C. § 2254(d). This Court may consider only the “clearly established” holdings, and not the dicta, of the Supreme Court. Williams v. Taylor, 529 U.S. 362, 412 (2000); Bailey, 271 F.3d at 655. In determining whether federal law is clearly established, the Court may not consider the decisions of lower federal courts. Lopez v. Smith, 135 S.Ct. 1, 3 (2014); Bailey, 271 F.3d at 655. Moreover, “clearly established Federal law” does not include decisions of the Supreme Court announced after the last adjudication of the merits in state court. Greene v. Fisher, 132 S.Ct. 38 (2011). Thus, the inquiry is limited to an examination of the legal landscape as it would have appeared to the Michigan state courts in light of Supreme Court precedent at the time of the state-court adjudication on the merits. Miller v. Stovall, 742 F.3d 642, 644 (6th Cir. 2014) (citing Greene, 132 S.Ct. at 44).

         A federal habeas court may issue the writ under the “contrary to” clause if the state court applies a rule different from the governing law set forth in the Supreme Court's cases, or if it decides a case differently than the Supreme Court has done on a set of materially indistinguishable facts. Bell, 535 U.S. at 694 (citing Williams, 529 U.S. at 405-06). “To satisfy this high bar, a habeas petitioner is required to ‘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.'” Woods, 2015 WL 1400852, at *3 (quoting Harrington v. Richter, 562 U.S. 86, 103 (2011)). In other words, “[w]here the precise contours of the right remain unclear, state courts enjoy broad discretion in their adjudication of a prisoner's claims.” White v. Woodall, 572 U.S., 134 S.Ct. 1697, 1705 (2014) (quotations marks omitted).

         The AEDPA requires heightened respect for state factual findings. Herbert v. Billy, 160 F.3d 1131, 1134 (6th Cir. 1998). A determination of a factual issue made by a state court is presumed to be correct, and the petitioner has the burden of rebutting the presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Lancaster v. Adams, 324 F.3d 423, 429 (6th Cir. 2003); Bailey, 271 F.3d at 656. This presumption of correctness is accorded to findings of state appellate courts, as well as the trial court. See Sumner v. Mata, 449 U.S. 539, 546 (1981); Smith v. Jago, 888 F.2d 399, 407 n.4 (6th Cir. 1989).

         Petitioner provides no detail with respect to his constitutional arguments beyond attaching his state court appellate briefs. Although this petition and Petitioner's appellate briefs purport to raise two issues, an examination of Petitioner's arguments reveal he has raised several more, all relating to his sentence.

         I. State law sentencing claims

         “[A] federal court may issue the writ to a state prisoner ‘only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.'” Wilson v. Corcoran, 131 S.Ct. 13, 16 (2010) (quoting 28 U.S.C. § 2254(a)). A habeas petition must “state facts that point to a ‘real possibility of constitutional error.'” Blackledge v. Allison, 431 U.S. 63, 75 n.7 (1977) (quoting Advisory Committee Notes on Rule 4, Rules Governing Habeas Corpus Cases). The federal courts have no power to intervene on the basis of a perceived error of state ...


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