United States District Court, W.D. Michigan, Southern Division
L. Maloney United States District Judge
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.
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 §
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.
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.)
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.
filed the instant habeas action on or about September 22,
2017. 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
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).
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