United States District Court, E.D. Michigan, Southern Division
JOHN R. PORTER, Petitioner,
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)
PAGE HOOD CHIEF JUDGE, UNITED STATES DISTRICT COURT
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.
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.
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
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).
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). 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
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).
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.
Petitioner's Challenge to his Convictions
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 ...