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Diaz-Barrios v. Palmer

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

November 9, 2017

CARMEN PALMER, Respondent.


          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 the claims are procedurally defaulted and/or without merit.


         I. Factual allegations

         Petitioner Amilcar Epifamio Diaz-Barrios presently is incarcerated with the Michigan Department of Corrections at the Michigan Reformatory Correctional Facility. Petitioner is serving prison terms of 25 to 50 years and 10 to 15 years, imposed on August 7, 2014, after Petitioner pleaded guilty to one count of first-degree criminal sexual conduct (CSC I), Mich. Comp. Laws § 750.520a(2)(h), and one count of second-degree criminal sexual conduct (CSC II), Mich. Comp. Laws § 750.520c(2)(b).

         Petitioner was appointed counsel on appeal. Counsel, however, neglected to file an application for leave to appeal within the one-year period provided by the Michigan Court Rules. Mich. Ct. R. 7.05(G)(2). Instead, through counsel, Petitioner filed a motion for relief from judgment, seeking an evidentiary hearing on the ineffective assistance of trial counsel and seeking to withdraw his plea. Specifically, Petitioner argued that his trial attorney failed to consult with him sufficiently, failed to investigate and prepare for trial, and failed to inform him of his right to a preliminary examination. Petitioner averred that he was innocent of the offenses, but he pleaded guilty under pressure from his attorney. The trial court concluded that Petitioner was not entitled to relief on his motion, because he had not demonstrated entitlement to relief under Mich. Ct. Rules 6.508(D), since the issue could have been but was not presented on direct appeal.

         Petitioner, through counsel, sought leave to appeal to the Michigan Court of Appeals, raising the sole issue presented to the trial court. In the appeal, counsel admitted that she had failed to timely file either a motion to withdraw the plea or an application for leave to appeal. In an order issued on January 26, 2016, the court of appeals concluded that appellate counsel had rendered ineffective assistance, by not filing a timely application for leave to appeal from the judgment, thereby depriving Petitioner of his direct appeal. (Mich. Ct. App. Op., ECF No. 1-1, PageID.31.) As a consequence, the court reviewed the issue under the standard for direct appeals, rather than under the standard for appeals from orders denying relief from judgment. Upon review, however, the court of appeals denied Petitioner's claim on appeal because it lacked merit. (Id.)

         Petitioner filed an application for leave to appeal to the Michigan Supreme Court. Counsel also filed a motion to add an additional issue on appeal: ineffective assistance of appellate counsel for failing to file a timely application for leave to appeal from the judgment or a motion to withdraw the plea. (Mot. to Add Additional Issues on Appeal, ECF No. 1-1, PageID.35-37.) In an order issued on March 21, 2017, the Michigan Supreme Court granted the order to add an issue, but denied leave to appeal.

         Petitioner filed the instant habeas action on or about September 22, 2017.[1] He raises the following four issues:

I. The trial court erred by denying [Petitioner's] MCR 6.500 Motion to Withdraw His Plea.
II. Ineffective Assistance of Counsel
III. Denial of Evidentiary Hearing.
IV. Ineffective Assistance of Appellate Counsel

         II. AEDPA standard

         This action is governed by the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. 104-132, 110 Stat. 1214 (AEDPA). 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 ...

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