Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Porter v. Stewart

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

January 31, 2018

JOHN R. PORTER, Petitioner,
v.
ANTHONY STEWART, Respondent.

          OPINION AND ORDER (1) DENYING AS MOOT PETITIONER'S MOTION TO PROCEED IN FORMA PAUPERIS (ECF NO. 3), (2) GRANTING PETITIONER'S MOTION FOR LEAVE TO AMEND HIS PETITION (ECF NO. 8), AND (3) DISMISSING THE HABEAS PETITION (ECF NO. 1)

          DENISE PAGE HOOD CHIEF JUDGE, UNITED STATES DISTRICT COURT

         This matter has come before the Court on petitioner John R. Porter's pro se petition for the writ of habeas corpus under 28 U.S.C. § 2254. See ECF No. 1. The petition challenges Petitioner's state convictions and the Michigan Parole Board's decision denying Petitioner release on parole. Petitioner filed his petition on September 6, 2017, along with an application to proceed without prepayment of the fees and costs for this action, ECF No. 2, and a motion to proceed in forma pauperis, ECF No. 3. On September 18, 2017, the Magistrate Judge granted Petitioner's application to proceed without prepayment of the fees and costs for this action, see ECF No. 5, and on November 7, 2017, Petitioner moved for leave to amend his petition to include a reference to the stipulated remedial order in Sweezer v. Heyns, No. 13-14382 (E.D. Mich. Aug. 25, 2016). See ECF No. 8. For the reasons given below, the motion for leave to amend the habeas petition is granted, the motion to proceed in forma pauperis is denied as moot, and the habeas petition is summarily dismissed.

         I. Background

         Following a bench trial in 1978, a judge in the former Detroit Recorder's Court found Petitioner guilty of second degree murder, Mich. Comp. Laws § 750.317, assault with intent to do great bodily harm less than murder, Mich. Comp. Laws § 750.84, and felony firearm, Mich. Comp. Laws § 750.227b. The trial judge sentenced Petitioner to life imprisonment with the possibility of parole for the murder conviction, six to ten years in prison for the assault conviction, and two years in prison for the felony-firearm conviction. The Michigan Court of Appeals affirmed Petitioner's convictions, and the Michigan Supreme Court denied leave to appeal in 1982.

         In subsequent years Petitioner filed several post-conviction motions without success, and the Michigan Parole Board interviewed him several times, but declined to release him on parole. Petitioner then filed a delayed motion for new trial based on Lafler v. Cooper, 566 U.S. 156 (2012), and Missouri v. Frye, 566 U.S. 134 (2012), and an application for leave to appeal the Michigan Parole Board's most recent decision denying him release on parole.

         The state trial court denied Petitioner's application for leave to appeal the Parole Board's decision because the application was untimely and lacked merit. See People v. Porter, No. 77-006407 (Wayne Cty. Cir. Ct. Apr. 18, 2016). The trial court denied Petitioner's motion for new trial on grounds that it was precluded from reviewing the Lafler/Frye issue. The Court noted that Petitioner had unsuccessfully raised the same issue in previous motions and that he was not entitled to retroactive application of Lafler and Frye. Id. The Michigan Court of Appeals denied leave to appeal the trial court's decision “for lack of merit in the grounds presented, ” People v. Porter, No. 333163 (Mich. Ct. App. Oct. 19, 2016), and on June 7, 2017, the Michigan Supreme Court denied leave to appeal because it was not persuaded to review the issues. See People v. Porter, 500 Mich. 1009; 896 N.W.2d 7 (2017).

         Petitioner also sought habeas corpus relief without success. His first petition was denied on the merits, see Porter v. Foltz, No. 85-60510 (E.D. Mich. Oct. 8, 1986), and his second petition was dismissed as an abuse of the writ. See Porter v. Grayson, No. 91-75759 (E.D. Mich. Sept. 15, 1993).[1] Petitioner subsequently sought permission to file a second or successive petition, but the United States Court of Appeals for the Sixth Circuit denied his requests. See In re John Porter, No. 15-1960 (6th Cir. Feb. 5, 2016) (ECF No. 42 in District Court case number 91-75759); In re John Porter, No. 14-2451 (6th Cir. Apr. 20, 2015) (ECF No. 41 in District Court case number 91-75759).

         Petitioner's third habeas petition was transferred to the Sixth Circuit Court of Appeals as a second or successive petition under 28 U.S.C. § 2244(b)(3)(A). See Porter v. Jackson, No. 04-71211 (E.D. Mich. Oct. 28, 2004). The Sixth Circuit denied leave to file a second or successive petition. See In re John Porter, No. 04-2351 (6th Cir. Mar. 22, 2005) (ECF No. 15 in District Court case number 04-71211). Petitioner's fourth habeas petition also was transferred to the Sixth Circuit as a second or successive petition, see Porter v. Brewer, No. 15-11076 (E.D. Mich. Apr. 22, 2015), but the Sixth Circuit dismissed that application for want of prosecution. See In re John Porter, No. 15-1471 (6th Cir. June 10, 2015) (ECF No. 8 in District Court case number 15-11076).

         Finally, on September 6, 2017, Petitioner filed his fifth habeas corpus petition. He alleges as grounds for relief that (1) trial counsel rendered incompetent advice during the plea bargaining process, and (2) the Parole Board abused its discretion, violated state law, and deprived him of due process when it failed to provide adequate reasons for denying him release on parole.

         II. Analysis

         A. Petitioner's Challenge to his Convictions

         1. Legal Framework

         “The Antiterrorism and Effective Death Penalty Act of 1996 (‘AEDPA'), limits the authority of federal courts to grant relief to individuals who previously filed a habeas petition . . . .” In re Tibbetts, 869 F.3d 403, 405 (6th Cir. 2017) (citing 28 U.S.C. § 2244(b)), pet. for certiorari filed, No. 17-6449 (U.S. Oct. 20, 2017). AEDPA “requires petitioners challenging state court judgments to seek authorization in a federal appeals court before filing a ‘second or successive' petition in district court.” Id. But because Petitioner's first habeas petition was filed pre-AEDPA, the Court must analyze whether his current petition

would have survived under the pre-AEDPA “abuse of the writ” standard as set out in McCleskey v. Zant, 499 U.S. 467, 493-95, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991). That standard did not require prior authorization from the court of appeals and “allows a second motion containing a new claim where the inmate can ‘show cause for failing to raise [the issue in the first motion] and prejudice therefrom.' ” In re Hanserd, 123 F.3d 922, 929 (6th Cir.1997) (quoting McCleskey, 499 U.S. at 494, 111 S.Ct. 1454) (alteration in Hanserd ); see also McCleskey, 499 U.S. at 494, 111 S.Ct. 1454 (“To excuse his failure to raise the ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.