United States District Court, W.D. Michigan, Southern Division
Honorable Paul L. Maloney, Judge.
REPORT AND RECOMMENDATION
KENT UNITED STATES MAGISTRATE JUDGE.
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
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
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
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.
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.) 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.)
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.)
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
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.
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
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.)
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.
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
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).
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
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).
The complaint and the warrant (Habeas issues I-III, VI,
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.
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
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 ...