United States District Court, W.D. Michigan, Southern Division
L. Maloney, 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.
Kesean Calvin Wilson presently is incarcerated at the Bellamy
Creek Correctional Facility. Petitioner pleaded guilty in the
Jackson County Circuit Court to two counts of armed robbery,
Mich. Comp. Laws § 750.529, and one count of possessing
a firearm during the commission of a felony (felony firearm),
Mich. Comp. Laws § 750.227b. According to the facts
admitted by Petitioner at the plea hearing, Petitioner
entered the Jackson City County Credit Union on the morning
of October 10, 2012. (Plea. Tr., ECF No. 1-1, PageID.112.) He
was armed with a pistol and intended to rob the credit union.
(Id., PageID.113.) Petitioner admitted at the plea
hearing that he had demanded money from tellers Heather
Schorndorf and Karen Garver and that he had placed both in
fear. (Id., PageID.112-113.) In
addition, Petitioner acknowledged that a bank customer,
Charles Bennett, was present at the bank at the time of the
robbery. Petitioner admitted that Bennett had money on the
counter, which had been withdrawn from Bennett's account,
and that Petitioner used his pistol to place Bennett in fear
in order to take the money. (Id., PageID.113-114.)
exchange for his guilty plea, the prosecution agreed to
dismiss a third count of armed robbery, one count of bank
robbery, Mich. Comp. Laws § 750.531, and one count of
third-degree fleeing and eluding, Mich. Comp. Laws §
257.602a(3). On October 31, 2013, the court sentenced
Petitioner to two prison terms of 14-30 years on the
armed-robbery convictions, to be served consecutively to a
term of 2 years on the felony-firearm conviction.
sought leave to appeal to the Michigan Court of Appeals,
claiming that he was denied his rights to due process when
the sentencing court considered an unreliable needs
assessment in determining the length of the sentence.
Petitioner argued that his motion to withdraw the plea should
have been granted, as he was promised a lower sentence in the
plea bargain. In an unpublished order issued on July 18,
2014, the court of appeals denied leave to appeal for lack of
merit in the grounds presented.
sought leave to appeal to the Michigan Supreme Court, raising
the same issue presented to and rejected by the Michigan
Court of Appeals. The supreme court denied leave to appeal on
February 3, 2015.
to the petition, on January 15, 2016, Petitioner filed a
motion for relief from judgment in the Jackson County Circuit
Court. In his motion, Petitioner raised seven claims: (1) the
conviction for armed robbery against bank customer Charles
Bennett violated double jeopardy, because Bennett did not
separately possess monies that were taken in the bank
robbery; (2) ineffective assistance of trial and appellate
counsel; (3) violation of due process; (4) illusory plea
bargain; (5) trial court's abuse of discretion; (6)
prosecutorial misconduct; (6) involuntary guilty plea; and
(7) insufficiency of the evidence. The trial court denied the
motion on June 2, 2016, and denied reconsideration on
September 27, 2016.
sought leave to appeal to both the Michigan Court of Appeals
and the Michigan Supreme Court, apparently raising the same
claims presented in his motion for relief from judgment. In
the supreme court, he also added a claim that he is being
held in violation of a United States treaty, the
International Covenant on Civil and Political Rights (ICCPR),
and the Thirteenth Amendment. The Michigan appellate courts
denied leave to appeal on October 14, 2016, and July 25,
about August 7, 2017,  Petitioner filed his habeas petition. He
raises the following four grounds for relief:
I. Defendant's plea was illusory and involuntary in
violation of his 5th & 14th Amendments due process
II. Defendant was deprived of his 6th [A]mendment [right] of
effective Assi[s]tance of counsel, based on Trial Court's
abuse of discretion.
III. Defendant's V Amendment Right was violated when he
was convicted of the same offense twice, by way of illusory
IV. Defendant is being held in violation of U.S. Treaty
(ICCPR) &XIII Amendment of the U.S.
(Pet., ECF No. 1, PageID.6-7, 9-10.)
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