United States District Court, W.D. Michigan, Southern Division
T. Neff United States District Judge
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.
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 that Petitioner's minimum sentence
would not exceed 71 months.
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.
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).
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).
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).
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).
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.
State law sentencing claims
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 ...