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Weaver v. Harry

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

November 21, 2017

DANIEL WEAVER, Petitioner,
v.
SHIRLEE HARRY, Respondent.

          OPINION

          Janet T. Neff 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 will dismiss the petition without prejudice for failure to exhaust available state-court remedies.

         Discussion

         I. Factual allegations

         Petitioner Daniel Weaver is incarcerated with the Michigan Department of Corrections at the West Shoreline Correctional Facility (MTF) in Muskegon Heights, Michigan. Petitioner is serving sentences imposed in two separate cases from the Newaygo County Circuit Court. In Case No. 15-010994 (herein the drunk driving case), Petitioner entered a plea of guilty to a charge of OWI-3rd Offense on July 29, 2015. On August 26, 2015, in Case No. 15-011046 (herein the fleeing and eluding case), a jury found Petitioner guilty of operating a motor vehicle without a valid license, Mich. Comp. Laws § 257.904(3)(b), third-degree fleeing and eluding, Mich. Comp. Laws § 257.602a(3), and resisting and obstructing a police officer, Mich. Comp. Laws § 750.81d(1).

         On October 13, 2015, the court sentenced Petitioner in the drunk driving case. It is not clear what sentence was imposed; however, the documents submitted by Petitioner suggest that the sentence included a two year minimum. On the same date, in the fleeing and eluding case, the court sentenced Petitioner, as a habitual offender-fourth offense, to 46 months to 40 years for fleeing and eluding, 46 months to 15 years for resisting and obstructing, and one year for driving without a license. Because Petitioner had committed the fleeing and eluding offenses while he was out on bond for the drunk driving, the court ordered the fleeing and eluding sentences to be served consecutively to the drunk driving sentence.

         According to Petitioner, because of a structural error, he was permitted to withdraw his plea in the drunk driving case. On August 22, 2016, Petitioner proceeded to a bench trial on the drunk driving charge. The judge found Petitioner guilty and, on October 11, 2016, sentenced Petitioner to 6 to 18 years' imprisonment.

         Petitioner directly appealed his convictions and sentences. In the fleeing and eluding case, he raised several issues, some in the brief filed with the assistance of appointed counsel and others in a Standard 4 brief, including the following:

I. Petitioner's 5th and 14th Amendment rights were violated by the trial court when Judge Monton arbitrarily “canceled” one bond, and revoked another, already posted bond without a hearing. His actions were contrary to Section 17 of the Michigan Constitution, Michigan Law, and court rules. Judge Monton thereafter kept petitioner imprisoned unlawfully, denying me my rights to due process of law, my liberty pending trial, and caused irreparable harm, thereby forever denying me any chance of a fair trial.
II. Petitioner's 6th Amendment right to the assistance of counsel was violated when his appointed attorney, Melissa Dykman, colluded with other court officials, conspired to inflict physical and mental duress in order to force or coerce a plea deal. Petitioner's 14th Amendment right to fair due process was violated by Ms. Dykman when she intentionally sabotaged court proceedings to deny petitioner a fair hearing.
III. Petitioner was denied his 14th Amendment right to fair due process of law before a detached and impartial arbiter. Judge Monton was biased toward petitioner from the beginning and made prejudiced decisions throughout the proceedings. He knowingly and maliciously abused his discretion repeatedly to deny me my legal and constitutional rights to fair due process of law, and thereby caused irreparable harm to Petitioner.
IV. Judge Monton constructively denied me my 6th Amendment right to counsel and abused his discretion by never giving me a meaningful hearing to ascertain my complaints before denying me substitution of counsel, thereby forcing me to represent myself without a valid and voluntary waiver of my right to counsel.
V. Petitioner was denied his 5th Amendment right when the State committed prosecutorial misconduct by impermissibly shifting the burden of proof to him to prove his innocence by using his silence and invocation of his Miranda rights against him-to imply to the jury that the Petitioner had no alibi and had made one up.
VI. Petitioner's 14th Amendment rights were violated when Judge Monton abused his judicial discretion and proved himself to be vindictive by punishing me for ...

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