United States District Court, W.D. Michigan, Southern Division
CROBERT J. JONKER CHIEF 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 it fails to raise a meritorious federal
Joshua Levi Adams is incarcerated with the Michigan
Department of Corrections at the Lakeland Correctional
Facility (LCF) in Coldwater, Branch County, Michigan.
Petitioner initially was charged with three alternative
offenses arising out of his operation of a motor vehicle
while drunk, causing an accident leading to death of a
passenger: second-degree murder, operating a motor vehicle
while intoxicated causing death, and operating with a
suspended license causing death. (Mot. to Withdraw Plea, ECF
No. 1-1, PageID.99-100.) Petitioner also was charged as a
third-offense felony offender, Mich. Comp. Laws §
769.11. On October 22, 2015, in exchange for an agreement to
sentence Petitioner to a minimum sentence of 13 years and
maximum sentence of 30 years and dismissal of the other
charges and habitual-offender notice, Petitioner pleaded
guilty in the Van Buren County Circuit Court to second-degree
murder, Mich. Comp. Laws § 750.317. On November 16,
2015, the court sentenced Petitioner to imprisonment for 13
to 30 years.
16, 2016, Petitioner, through appellate counsel, filed a
motion to withdraw his guilty plea, raising three theories of
why his conviction and sentence were improper: (1) he was
prosecuted under the wrong statute; (2) the prosecutor abused
his charging authority; and (3) the conviction on
second-degree murder was not supported by a sufficient
factual basis. (See Register of Action, ECF No. 1-1,
PageID.52; Mot. to Withdraw Guilty Plea, ECF No. 1-1,
PageID.83.) Following a hearing held on June 20, 2016, the
trial court denied the motion, holding that numerous factors
set forth in the presentence report, to which Petitioner
posed no objection, elevated the charge to second-degree
murder, rather than operating a motor vehicle while
intoxicated causing death: Petitioner was driving on a
suspended license; his blood alcohol content was .185, over
twice the legal limit; he was speeding on a gravel road
during the evening hours; his car was littered with beer
cans, some with beer still in them, and it contained a
partially consumed whiskey bottle; Petitioner and his
passengers rode without seatbelts; music was blaring from the
stereo; and Petitioner previously had been involved in an
alcohol-related driving crash and had been warned by his
probation agent of the dangers of drinking and driving. (Mot.
to Withdraw Guilty Plea, ECF No. 1-1, PageID.103-104.) Under
the circumstances, the court found more than sufficient
evidence to support a finding of the malice necessary to
prove second-degree murder.
sought leave to appeal to both the Michigan Court of Appeals
and the Michigan Supreme Court, raising the same three
grounds presented to the trial court on the motion to
withdraw the plea. Those courts denied leave to appeal on
July 28, 2016, and January 5, 2017, respectively.
September 2017, Petitioner filed a motion for relief from
judgment in the Van Buren County Circuit Court. In his
motion, Petitioner argued two new issues: (1) his appellate
attorney rendered ineffective assistance of counsel by
failing to raise obvious and significant issues on appeal;
and (2) his trial attorney failed to inform him of the
intoxication defense to second-degree murder, rendering his
guilty plea involuntary. (Mot. for Relief from J., ECF No.
1-1, PageID.123, 125.) In an order issued on October 18,
2017, the circuit court denied the motion, because
Petitioner's claims had not been raised on appeal and
Petitioner failed to demonstrate either cause or actual
prejudice arising out of the alleged errors, since voluntary
intoxication is not a defense to second-degree murder. The
court further reiterated that the case involved a level of
misconduct beyond that of drunk driving, given the many
aggravating circumstances showing malice. (Id.,
PageID.136-137.) Petitioner has not sought leave to appeal
the trial court's determination.
December 15, 2017, Petitioner filed his habeas corpus
petition. Under Sixth Circuit precedent, the application is
deemed filed when handed to prison authorities for mailing to
the federal court. Cook v. Stegall, 295 F.3d 517,
521 (6th Cir. 2002). Petitioner signed his application on
December 15, 2017. (Pet., ECF No. 1, PageID.14.) The petition
was received by the Court on December 27, 2017. For purposes
of this Report and Recommendation, I have given Petitioner
the benefit of the earliest possible filing date. See
Brand v. Motley, 526 F.3d 921, 925 (6th Cir. 2008)
(holding that the date the prisoner signs the document is
deemed under Sixth Circuit law to be the date of handing to
officials) (citing Goins v. Saunders, 206 F.
App'x 497, 498 n.1 (6th Cir. 2006)).
petition raises only the three grounds presented to the state
courts on direct appeal:
I. The conviction and sentence in this case are invalid
because there was no appropriate authority to prosecute and
convict defendant on Second Degree Murder, Drunk Driving
Causing Death was the more appropriate criminal statute,
accordingly the prosecution and conviction under the Murder
Second Degree statute violated Defendant's Due Process
II. The prosecution abused its charging authority by
selecting murder as the charged offense in this case.
III. Defendant's plea to Second Degree Murder is invalid
for having an insufficient factual basis in violation of
defendant's Constitutional Fifth and Sixth Amendment
(Pet., ECF No. 1, PageID.18-19.)
review, the Court concludes that Petitioner's grounds for
relief should be dismissed because they are either
noncognizable or lack merit.
] 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
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
appeared to the Michigan state courts in light of Supreme
Court precedent at the time of the state-court adjudication
on the merits. Miller v. Stovall, 742 F.3d 642, 644
(6th Cir. 2014) (citing Greene, 565 U.S. at 38).
federal habeas court may issue the writ under the
“contrary to” clause if the state court applies a
rule different from the governing law set forth in the
Supreme Court's cases, or if it decides a case
differently than the Supreme Court has done on a set of
materially indistinguishable facts. Bell, 535 U.S.
at 694 (citing Williams, 529 U.S. at 405-06).
“To satisfy this high bar, a habeas petitioner is
required to ‘show that the state court's ruling on
the claim being presented in federal court was so lacking in
justification that there was an error well understood and
comprehended in existing law beyond any possibility for
fairminded disagreement.'” Woods, 135
S.Ct. at 1376 (quoting Harrington v. Richter, 562
U.S. 86, 103 (2011)). In other words, “[w]here the
precise contours of the right remain unclear, state courts
enjoy broad discretion in their adjudication of a
prisoner's claims.” White v. Woodall, 572
U.S. ___, 134 S.Ct. 1697, 1705 (2014) (internal quotations
AEDPA requires heightened respect for state factual findings.
Herbert v. Billy, 160 F.3d 1131, 1134 (6th Cir.
1998). A determination of a factual issue made by a state
court is presumed to be correct, and the petitioner has the
burden of rebutting the presumption by clear and convincing
evidence. 28 U.S.C. § 2254(e)(1); Lancaster v.
Adams, 324 F.3d 423, 429 (6th Cir. 2003);
Bailey, 271 F.3d at 656. This presumption of
correctness is accorded to findings of state appellate
courts, as well as the trial court. See Sumner v.
Mata, 449 U.S. 539, 546 (1981); Smith v. Jago,
888 F.2d 399, 407 n.4 (6th Cir. 1989).
Impermissible Charging and Conviction for Second-Degree
first ground for relief, Petitioner argues that the court
lacked authority to prosecute him on the charge of
second-degree murder. In Ground II, he argues that the
prosecution abused its authority by charging him with
second-degree murder. The two grounds are intertwined, and
the Court will address them together.
argues that second-degree murder, which authorizes a maximum
sentence of life imprisonment, is a general offense that did
not constitute an appropriate offense for the crime
committed. Instead, he argues that the prosecutor should have
charged him with and he should have been convicted of the
more specific statute of operating a vehicle while
intoxicated (OUIL), causing death, Mich. Comp. Laws §
257.625(4), which has a 15-year maximum sentence. Petitioner
contends that his criminal conduct was no more serious than
that required for the lesser offense of drunk driving causing
death, and he argues that, under the usual rules of statutory
construction, where there exists a statutory conflict, the
specific controls over the general. In the state courts,
Petitioner raised his argument primarily under state law.
However, he also invoked the rule of lenity set forth in
United States v. Santos, 553 U.S. 507 (2008), which
is the longstanding principle of statutory construction that
“ambiguous criminal laws [are] to be interpreted in
favor of the defendants subjected to them.”
Id. at 514 (citing, inter alia, United States v.
Gradwell, 243 U.S. 476, 485 (1917); McBoyle v.
United States, 283 U.S. 25, 27 (1931); United States
v. Bass, 404 U.S. 336, 347-349 (1971)).
consolidated case of People v. Goecke, 579 N.W.2d
868 (Mich. 1998), the Michigan Supreme Court held that not
all drunk driving cases that result in death support a trial
for second-degree murder, but instead should be prosecuted
under the offense of OUIL causing death, Mich. Comp. Laws
§ 257.625(4). See Goecke, 579 N.W.2d at 880.
Nevertheless, the Goecke court held that, where
sufficient evidence exists to support the existence of
malice, a charge of second-degree murder can arise from drunk
driving causing death. Under Michigan law, “[m]alice is
defined as the intent to kill, the intent to cause great
bodily harm, or the intent to do an act in wanton and wilful
disregard of the likelihood that the natural tendency of such
behavior is to cause death or great bodily harm.”
Id. at 878 (citing People v. Aaron, 409
Mich. 672, 728, 299 N.W.2d 304 (1980)). The Goecke
court indicated that it was the third form of malice - the
willful disregard of the likelihood that such behavior will
cause death or great bodily harm - is implicated in cases
such as Petitioner's. Id. And the court
recognized that voluntary intoxication was not a defense to
the crime. Id. The court nevertheless concluded that
the circumstances in Goecke itself supported a
charge of second-degree murder, based on facts involving a
high alcohol content, an ongoing fight, and several
apparently intentional attempts to drive another vehicle off
the road. Id. at 881. More importantly, however, in
another of the consolidated cases, People v. Baker,
a charge of second-degree murder was supported by evidence
that “the defendant lived within one mile of the scene
of the accident, had a blood-alcohol content of 0.18 percent,
drove well in excess of the speed limit, ran a red stoplight,
drove through an intersection at a time when he could have
seen at least three vehicles properly traveling through the
intersection, narrowly missed hitting two cars before hitting
the victims' car, and killed two people.”
Goecke, 579 N.W.2d at 881-82. Similarly, in the
other consolidated case at issue in Goecke,
People v. Hoskinson, the court found sufficient
evidence of malice from the following facts:
Defendant was highly intoxicated when he left the bar in the
early evening hours. While still in the bar's parking
lot, defendant twice backed into the same parked vehicle. It
could be inferred that these collisions put the defendant on
notice that he should not be driving. Despite such awareness,
defendant drove at a high rate of speed through a residential
subdivision. Having driven through this area before,
defendant was aware of the speed dips in the road. He swerved
to avoid hitting a car stopped at a stop sign, ran through
the stop sign, and nearly hit a car driving in the opposite
direction. The occupants of defendant's car advised him
that he was driving too fast and that he should slow down.
After colliding with a vehicle parked at the side of the
road, defendant traveled across the eastbound lane, over a
curb, across some grass, and struck the victim. Defendant
continued to drive along the grass and sidewalk until he
finally reentered the street several hundred yards from the
point of impact. Despite the fact that defendant's
passengers jumped from the moving vehicle after informing the
defendant that he had hit a child, the defendant proceeded to
drive another several blocks before coming to a stop.
Id. at 882.
on Goecke, 579 N.W.2d 868, the trial court twice
rejected Petitioner's claims that he should not have been
charged or convicted of second-degree murder. At the hearing
on Petitioner's motion to withdraw the guilty plea, the
court recited the following aggravating facts that supported
a finding of malice necessary for second-degree murder:
Prosecution here had before it a person driving on a
suspended license with a blood alcohol level .185, over twice
the legal limit, evidence of speeding on a gravel road during
evening hours, a car that smelled strongly of alcohol
littered with beer cans, some with beer still in them and
partially consumed whiskey bottle. There was some evidence
that Defendant and his passengers rode without seatbelts and
that music may have been blaring. There was motion hearing
evidence that Defendant had previously been involved in an
alcohol-related driving crash and that he'd been warned
by his probation agent of the dangers of drinking and
driving. So I cannot conclude with all of these facts that
the prosecutor exceeded its appropriate charging authority in
charging this as a second degree murder case.
(Mot. to Withdraw Plea, ECF No. 1-1, PageID.103-104.) Later,
in denying Petitioner's motion for relief from judgment,
the trial court again summarized the facts supporting a
finding of malice:
An increased level of misconduct exists in this case.
Defendant summarily acknowledged such in his plea proceeding.
He re-affirmed the same at the sentence hearing when he
verified the accuracy of the contents of the Presentence
Investigation Report (“PSIR”) prepared by the
Michigan Department of Corrections. That report relayed
several facts. It noted that Defendant had on three prior
occasions been involved in the criminal court system for
drinking and driving related offenses. One can infer from
this that Defendant was aware of the unlawful nature of his
conduct. The PSIR also relayed that Defendant's blood
alcohol content was 0.185, over twice the legal limit. The
passenger in Defendant's vehicle stated that Defendant
was “flying down” the dirt road, the passenger
“wondering why they were going so fast.”
Defendant was “driving erratically” and
“slid off on the right side of the road several
times” as his passenger urged him to slow down. The
passenger estimated the speed of travel at 70 miles per hour.
Partially empty containers of alcohol were located inside the
vehicle. One could reasonably infer from this that alcohol
consumption was continuing to occur during the driving
activity. . . . The court concludes from all of this that
Defendant's decision to drive under these circumstances
with two passengers is “sufficient credible evidence of
probable malice to support . . . a charge of second-degree
(Order Den. Mot. for Relief from J., ECF No. 1-1,
PageID.136-137 (quoting PSIR and Goecke, 579 N.W.2d
at 881).) Applying Goecke and the consolidated
determinations in Baker and Hoskinson, the
trial court held that, under Michigan law, Petitioner was
properly prosecuted for and convicted of second-degree
extent that Petitioner disagrees with the trial court's
recitation and application of state law, his claim is not
cognizable on habeas review. “[A] federal court may
issue the writ to a state prisoner ‘only on the ground
that he is in custody in violation of the Constitution or
laws or treaties of the United States.'” Wilson
v. Corcoran, 562 U.S. 1, 5 (2010) (quoting 28 U.S.C.
§ 2254(a)). A habeas petition must “state facts
that point to a ‘real possibility of constitutional
error.'” Blackledge v. Allison, 431 U.S.
63, 75 n.7 (1977) (quoting Advisory Committee Notes on Rule
4, Rules Governing Habeas Corpus Cases). The federal courts
have no power to intervene on the basis of a perceived error
of state law. Wilson, 562 U.S. at 5; Bradshaw v.
Richey, 546 U.S. 74, 76 (2005); Estelle v.
McGuire, 502 U.S. 67-68 (1991); Pulley v.
Harris, 465 U.S. 37, 41 (1984). The Sixth Circuit
repeatedly has recognized “‘that a state
court's interpretation of state law, including one
announced on direct appeal of the challenged conviction,
binds a federal court sitting in habeas corpus.'”
Stumpf v. Robinson, 722 F.3d 739, 746 n.6 (6th Cir.
2013) (quoting Bradshaw, 546 U.S. at 76).
addition, the trial court's recitation of the supporting
evidence of malice is entitled to a presumption of
correctness, which may only be rebutted by clear and
convincing evidence. See 28 U.S.C. § 2254(e)(1);
Lancaster, 324 F.3d at 429; Bailey, 271
F.3d at 656. Petitioner makes no effort to rebut the facts
recited by the court. He therefore cannot meet the ...