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Kirk v. Fenby

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

November 7, 2017

DAVE FENBY, Respondent.

          Honorable Paul L. Maloney, Judge.



         This is a habeas corpus action brought by a state prisoner under 28 U.S.C. § 2254. Petitioner Maurice Poche Kirk is presently incarcerated with the Michigan Department of Corrections at the Thumb Correctional Facility in Lapeer, Michigan. Petitioner is serving a term of imprisonment of 18 to 33 years, imposed by the Muskegon County Circuit Court on December 12, 2012, after a jury convicted Petitioner of armed robbery, Mich. Comp. Laws § 750.529. In his pro se petition, Petitioner raises nine grounds for relief, which can be summarized as follows:

I. Petitioner was deprived of state and federal rights to liberty and equal protection of the law where the magistrate judge for the 60th District Court authorized an arrest warrant that was based upon an unconstitutional felony complaint.
II. Felony complaint and felony warrant both use conclusory language divesting the 60th judicial court and the 14th circuit court of Muskegon of subject matter jurisdiction. Petitioner's attorneys were ineffective in failing to object.
III. Judge M. Wiewiora committed malfeasance in office where he authorized an arrest warrant even though the sworn declaration did not provide an adequate basis.
IV. Trial court erred in failing to quash the information.
V. Petitioner's 6th Amendment right to the effective assistance of counsel and his 14th Amendment right to due process were violated when neither of his attorneys investigated or even attempted to challenge the invalid arrest warrant and other irregularities.
VI. Petitioner was deprived of his federal and state constitutional rights, privileges and immunities at the inception of the case where the issuing magistrate failed to conduct a “fair and impartial” probable cause hearing prior to issuance of the arrest warrant.
VII. There was a fatal jurisdictional defect that entitles Petitioner to relief.
VIII. Trial court did not obtain a valid waiver of Petitioner's state and federal constitutional rights to counsel prior to granting Petitioner's motion for self-representation.
IX. Trial court plainly erred in denying Petitioner credit for time served in the instant case. The trial court likewise plainly erred in ordering that Petitioner's sentence in the instant case be served consecutively to the federal sentence for which he was on supervised release at the time of the commission of the instant state offense. Alternatively, trial counsel rendered ineffective assistance in failing to object.

(Pet., ECF No. 1, PageID.42-51.) Respondent has filed an answer to the petition (ECF No. 7) stating that the grounds should be denied because they were procedurally defaulted or lack merit. Upon review and applying the standards of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. 104-132, 110 Stat. 1214 (AEDPA), I find that the grounds raised are without merit. Accordingly, I recommend that the petition be denied.


         I. Factual allegations

         On January 16, 2012, Petitioner Maurice Poche Kirk and Cameron Nelson visited Theretius Knight at his home at 760 Catawba, Muskegon, Michigan. (Trial Tr. II, ECF No. 8-6, PageID.522-523.)[1] Moments later, the three men were watching the Chicago Bulls game on television when three other men came through Mr. Knight's front door. (Id., PageID.527.) The door had been left ajar by Mr. Nelson. (Id.) Mr. Knight knew two of the men, Jermaine Brown and Carlton Porter. (Id., PageID.525, 529.) Mr. Brown put a gun to Mr. Knight's head and demanded money. (Id., PageID.530.) Mr. Kirk and Mr. Nelson walked out the front door without a word to the robbers or Mr. Knight. (Id., PageID.530-531.) Mr. Nelson came back into the home shortly after he left. (Id., PageID.533.) Mr. Porter and the third man searched Mr. Knight's home while Mr. Brown held Mr. Knight at gunpoint. (Id., PageID.530.) Mr. Brown grabbed Mr. Knight's cell phones and a PlayStation 3 game console. (Id., PageID.531.) After all of the men left, Mr. Knight contacted the police. (Id., PageID.532.)

         A police officer spotted Petitioner's vehicle. (Id., PageID.610-611.) Officers followed the vehicle. (Id., PageID.610-613.) Petitioner parked and left the vehicle. (Id., PageID.613.) Officers on foot apprehended and arrested Petitioner. (Id., PageID.600, 613.) Mr. Knight's PlayStation 3 game console was in the back seat of Petitioner's vehicle. (Trial Tr. III, ECF No. 8-8, PageID.640-642, 647-649.)

         Petitioner was represented by attorney Joseph Fisher at his preliminary examination. Based on Mr. Knight's preliminary examination testimony, Petitioner was bound over to circuit court on a charge of armed robbery. (Prelim. Tr., ECF No. 8-2, PageID.187.) Attorney Fred Lesica was appointed to represent Petitioner for the circuit court proceedings. (Arraignment Tr., ECF No. 8-3, PageID.194; Muskegon Cnty. Cir. Ct. Docket Sheet, ECF No. 8-1, PageID.144.) Petitioner expressed his desire to forego Mr. Lesica's representation and, instead, represent himself. (Mot. Tr. I, ECF No. 8-4, PageID.204.) Following an October 15, 2012 hearing, approximately one week before the scheduled trial, the trial court granted Petitioner's request. (Id., PageID.242.) Petitioner did a creditable job representing himself at subsequent hearings and the trial. The jury was apparently sympathetic to his position;[2] however, following testimony from Mr. Knight, his sister, police officers involved in the investigation and in Petitioner's apprehension, and Mr. Nelson, it took the jury less than two hours to unanimously conclude that Petitioner was guilty of armed robbery.

         Petitioner accepted the assistance of appointed counsel for his sentencing and accepted such assistance again for his direct appeal to the Michigan Court of Appeals. Counsel filed an appeal brief raising issues VIII and IX above. Petitioner supplemented counsel's effort with a Standard 4 brief[3] raising issues I-VII above. In an unpublished opinion dated July 10, 2014, the Michigan Court of Appeals affirmed the trial court, rejecting all of the arguments raised by Petitioner. (Mich. Ct. App. Op., ECF No. 8-14, PageID.979-990.)

         Petitioner filed an application for leave to appeal in the Michigan Supreme Court raising the same nine issues he had raised in the Michigan Court of Appeals. The supreme court denied leave to appeal by order entered February 3, 2015. (Mich. Ord., ECF No. 8-15, PageID.1118.) Petitioner did not file a petition for certiorari in the United States Supreme Court. (Pet., ECF No. 1, PageID.39.) Instead, he filed his petition in this Court on June 23, 2015.

         II. AEDPA standard

         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). 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 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 v. Mitchell, 271 F.3d 652, 655 (6th Cir. 2001). 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, 565 U.S. 34 (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, 565 U.S. at 38).

         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, 135 S.Ct. at 1376 (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) (internal quotations 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).

         III. The complaint and the warrant (Habeas issues I-III, VI, and VII)

         A criminal prosecution in the state of Michigan typically commences with a complaint, “a written accusation that a named or described person has committed a specified offense.” Mich. Ct. R. 6.101(A). A proper complaint, in turn, can provide the basis for the court to find probable cause to support the issuance of an arrest warrant. Mich. Ct. R. 6.102. After the accused has been arrested, the court must arraign him, Mich. Ct. R. 6.104, and thereafter conduct a preliminary examination to determine whether probable cause exists to believe that an offense has been committed and that the accused committed it, Mich. Ct. R. 6.110. If the court so determines, the accused is bound over for trial in the circuit court, id., and the prosecutor must file an information setting forth the substance of the accusation and, to the extent possible, the time and place of the alleged offense, Mich. Ct. R. 6.112. The accused is arraigned again in the circuit court based on the information, Mich. Ct. R. 6.113, the matter then proceeds through discovery and trial or entry of a plea, depending on the case.

         Petitioner contends there were flaws in the complaint and the warrant so that the trial court never obtained jurisdiction over him. Accordingly, Petitioner contends, his conviction violates due process. The Michigan Court of Appeals rejected the premise of Petitioner's argument. That court concluded that there were no flaws in the complaint or warrant procedures:

Kirk asserts that the trial court never obtained subject matter jurisdiction over the case because his arrest warrant was based on an unconstitutional complaint that contained conclusory language, and the magistrate improperly authorized the warrant without probable cause or a hearing. We disagree with Kirk's assertions. Kirk premises his assertions on several misapprehensions of law.
First, Kirk contends that MCR 2.201(B) applies to criminal actions and requires the victim to bring the criminal action and sign the complaint. Kirk is incorrect.
MCR 2.201 is a rule of civil procedure. The rules of civil procedure do not apply in criminal actions “when it clearly appears that they apply to civil actions only[.]” MCR 2.201(A) states that “[t]he party who commences a civil action is designated as plaintiff and the adverse party as defendant.” MCR 2 .201(B) then provides who may bring suits in specified types of civil actions. Thus, we conclude that MCR 2.201(B) is a rule of civil procedure that clearly applies to civil actions only, and does not apply in this case. Accordingly, the complaint was not deficient for failing to comply with MCR 2.201(B).
Second, our review of the complaint reveals that it contains all the necessary elements of a criminal complaint. Specifically, the complaining witness alleged that Kirk was involved in the armed robbery of Knight, that a gun was held to Knight's head during the robbery, and that officers found items that were reported stolen from Knight's home in Kirk's vehicle shortly after the robbery. The complaining witness signed the complaint. Neither statute nor court rule requires the complainant to be the victim. Further, the complaint is an accusation, and neither statute nor court rule precludes the complaint from containing conclusory language.
After reading the warrant and the underlying affidavit “in a common-sense and realistic manner, ” we conclude that the magistrate did not err when he found that the complaint provided probable cause to issue an arrest warrant. We conclude that neither the complaint nor the warrant were invalid. Accordingly, we reject Kirk's various assertions regarding the deficiency of the complaint and arrest warrant. Additionally, we note that even were we to accept Kirk's assertions, the trial court still had jurisdiction to try his case.
Third, Kirk contends that the complaint was not sufficient because the record regarding the warrant was not adequately preserved. We disagree.
MCR 6.102(B) allows the magistrate to rely on “the testimony of a sworn witness adequately preserved to permit review” to support a probable cause determination. But the magistrate may also rely on other sources. Here, there is no indication that the magistrate relied on oral testimony. Further, for the reasons described above, the factual allegations in the signed complaint itself were sufficient ...

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