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Gibson v. Trierweiler

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

November 3, 2017

JERRY L. GIBSON, Petitioner,
v.
TONY TRIERWEILER, Respondent.

          OPINION

          Paul L. Maloney, 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 concludes that the petition must be dismissed because it fails to raise a meritorious federal claim.

         Discussion

         I. Factual allegations

         Petitioner Jerry L. Gibson is incarcerated with the Michigan Department of Corrections at the Bellamy Creek Correctional Facility (IBC) in Ionia, Michigan. On May 6, 2015, a Genessee County Circuit Court jury, found Petitioner guilty of armed robbery, Mich. Comp. Laws § 750.529, and resisting arrest, Mich. Comp. Laws § 750.81d(1). On June 15, 2015, the court sentenced Petitioner as a habitual offender, second-offense, Mich. Comp. Laws § 769.12, to concurrent prison terms of 25 to 50 years for armed robbery and 5 to 15 years for resisting arrest. On August 29, 2017, Petitioner filed his habeas corpus petition raising two grounds for relief, as follows:

I. The armed robbery statute requires that the prosecutor submit objective evidence of the existence of a dangerous weapon used during the robbery, subjective fear that the robber might be armed, standing alone, is insufficient as a matter of law. Only a subjective fear was proven at this trial. Under the Due Process Clause of both our state and federal constitutions, the armed robbery conviction is not supported by sufficient evidence and must be vacated. Defendant should be resentenced on an unarmed robbery conviction.
II. The [Michigan] Legislature's 25-year mandatory minimum for certain habitual offenders, Mich. Comp. Laws § 769.12(1)(a), violates the Separation of Powers Clause.

(Pet., ECF No.1, PageID.5-7.)

         The facts underlying Petitioner's conviction are essentially undisputed for purposes of the habeas petition. The Michigan Court of Appeals summarized those facts as follows:

This case stems from a robbery that occurred at a Save-A-Lot store in Flint, Michigan. Deshaun Frazier, a store employee, was ringing up a customer's merchandise at the register when he noticed a man, wearing a black hat and a black hooded sweatshirt, standing near one of the refrigerators and staring at him. When Frazier saw that the man was approaching the cash register, he tried to rush through the customer's transaction so that he could close the register drawer as soon as possible. Before Frazier was able to close the drawer, however, the man grabbed the drawer and took out cash totaling $96. Frazier testified that, immediately before grabbing the cash, the man ordered him to “get back, ” pushed Frazier back with his left forearm, and “with his other hand, he made a-he made a reach like he had a weapon.” The police were called after the robber left the store with the money.
Shortly thereafter, two Michigan State Police Troopers saw a man matching the robber's description walking down the street. When the troopers turned their patrol car around and drove toward him, the suspect ran off. Trooper Steven Fisher got out of the patrol car and chased the man on foot. When the suspect saw Fisher, Fisher twice identified himself as a police officer and yelled for the suspect to stop, but the man turned and ran in the opposite direction. Fisher eventually apprehended the suspect, who was hiding behind a bush. Upon his arrest, Fisher found a 10 or 11-inch knife in the suspect's right, rear pocket, and discovered $96 in cash in his front pocket. Immediately after being advised that he was being arrested for armed robbery, defendant stated, “How do you know he didn't give that to me, ” and “I didn't pull a weapon on him.” At trial, a customer who observed the robbery identified defendant as the man who robbed the store. In addition, Fisher identified defendant as the man he apprehended.

People v. Gibson, No. 327748, 2016 WL 6139105 at *1 (Mich. Ct. App. Oct. 20, 2016).

         After Petitioner's conviction, his appointed appellate counsel filed a motion for directed verdict of acquittal in the Genessee County Circuit Court, raising the same issues he raises in this petition. The circuit court denied relief by order entered December 14, 2015. Petitioner then raised those issues, to no avail, in the Michigan Court of Appeals and the Michigan Supreme Court. The Michigan Court of Appeals issued an unpublished decision affirming Petitioner's convictions and sentences on October 20, 2016. The Michigan Supreme Court denied Petitioner's application for leave to appeal on May 2, 2017.

         II. ...


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