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Varner v. Gidley

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

September 7, 2017

KEVIN SCOTT VARNER, Petitioner,
v.
LORI GIDLEY, Respondent.

          MEMORANDUM AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DISPOSING OF PENDING MOTIONS (DOCS. 23, 24, 25)

          AVERN COHN, UNITED STATES DISTRICT JUDGE

         I. Introduction

         This is a habeas case under 28 U.S.C. § 2254. Petitioner Kevin Scott Varner, (“Petitioner”), a state prisoner proceeding pro se, challenges his conviction for unlawful possession of controlled substances with intent to deliver, M.C.L. § 333.7401(2)(a)(iv), and resisting and obstructing a police officer, M.C.L. § 750.81d(1). As will be explained, the petition was held in abeyance so Petitioner could exhaust a claim in state court.

         Before the Court is Petitioner's motion to reinstate the petition and motion amend the petition and expand the record.[1] See Docs. 24, 25. The motions are GRANTED. See Rule 7 (a) of the Rules Governing § 2254 Cases, 28 U.S.C. foll. § 2254. For the reasons that follow, the petition, as amended, will be denied.

         II. Procedural History

         Petitioner was charged with the above offenses following a traffic stop in Baroda Lake Township, Michigan on June 17, 2014.

         Petitioner elected to represent himself in the pre-trial proceedings and at trial, with the assistance of stand-by counsel. Prior to trial, petitioner filed a motion to suppress the evidence as the fruit of an illegal search and seizure. An evidentiary hearing was held, after which the trial court denied the motion.

         Petitioner proceeded to a jury trial. Prior to the second day of trial, Petitioner filed a motion for reconsideration of the denial of his motion to suppress. The trial court denied the motion. Petitioner was ultimately convicted.

         Petitioner's conviction was affirmed by the Michigan Court of Appeals on his appeal of right. People v. Varner, No. 324705, 2016 WL 1072203 (Mich. Ct. App. Mar. 17, 2016); reconsideration den. No. 324705 (Mich.Ct.App. Apr. 27, 2016).

         Petitioner filed an application for leave to appeal with the Michigan Supreme Court, which was denied. People v. Varner, 500 Mich. 897 (2016).

         Petitioner then filed an application for writ of habeas corpus with this Court, seeking relief on the following grounds:

I. Petitioner was not provided a full and fair opportunity to litigate his Fourth Amendment claim in state court.
II. Petitioner was patted down for weapons without reasonable suspicion and the frisk went beyond what was necessary to determine if he was armed.
III. Petitioner received ineffective assistance of counsel during the plea-bargaining process in violation of his 6th ...

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