United States District Court, W.D. Michigan, Southern Division
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 will dismiss the petition without
prejudice for failure to exhaust available state-court
Robin Hammock is incarcerated with the Michigan Department of
Corrections at the Earnest C. Brooks Correctional Facility,
(LRF) in Muskegon Heights, Michigan. On April 2, 2007, a
Wayne County Circuit Court judge, found Petitioner guilty of
second-degree murder, Mich. Comp. Laws § 750.317,
assault with intent to commit murder, Mich. Comp. Laws §
750.83, felony firearm, Mich. Comp. Laws § 750.227b, and
felon in possession of a firearm, Mich. Comp. Laws §
750.224f. On April 19, 2007, the court sentenced Petitioner
as a habitual offender-second offense, Mich. Comp. Laws
§ 769.10, to concurrent sentences of 35 to 70 years for
the murder conviction, 20 to 60 years for the assault
conviction, and time served for the felon-in-possession
conviction, all consecutive to a 2-year sentence for the
appealed his convictions and sentences, raising several
issues. By opinion issued September 23, 2008, the Michigan
Court of Appeals affirmed the trial court. According to the
docket, Petitioner did not pursue his appeal beyond the state
court of appeals.
to the Wayne County Circuit Court docket,
(last visited January 29, 2018), Petitioner filed motions for
relief from judgment in the circuit court during 2012. The
motions were denied. Petitioner sought leave to appeal the
denial in the Michigan Court of Appeals. The appeal was
dismissed on August 28, 2013, because Petitioner failed to
pay the filing fee.
filed a new motion for relief from judgment in the trial
court on October 14, 2015. The motion was based on new
exculpatory testimony from a previously unknown witness. The
trial court denied relief on January 4, 2016. Petitioner
sought leave to appeal in the Michigan Court of Appeals. By
order entered July 15, 2016, the court of appeals, in lieu of
granting the application for leave to appeal, vacated the
trial court's order denying the motion for relief from
judgment and directed the trial court to consider the motion
because the new evidence sufficed to remove the bar against
successive motions. (Mich. Ct. App. Ord., ECF No. 1-1,
March 21, 2017, the circuit court entered an order permitting
the successive motion for relief from judgment. (Wayne Cnty.
Cir. Ct. Ord., ECF No. 1-1, PageID.5-9.) The court appointed
counsel for Petitioner and directed the prosecutor to respond
to the motion. (Id.)
characterizes the trial court's March 21, 2017 order as
an order that reversed Petitioner's convictions.
Petitioner contends that because his conviction was reversed,
he is entitled to a new trial. Moreover, because months have
now passed without any action, Petitioner contends he is
entitled to release under the Sixth Amendment's speedy
characterization of the March 21, 2017 order is simply wrong,
as is his claim that nothing has happened since. There were
several additional filings by Petitioner and the prosecutor.
On September 15, 2017, the circuit court held a hearing on
the motion. The court denied the motion in an order signed
the same day as the hearing. Petitioner has not filed an
application for leave to appeal the trial court's denial
of the successive motion for relief from judgment. Petitioner
still has several weeks, until March 15, 2018, to file a late
application for leave to appeal. Mich. Ct. R. 7.205(G)(3).
January 5, 2018, 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 has not supplied that date. Nor
does Petitioner date a signature on the document. The
petition, however, includes the following statement:
“It is now Jan. 2, 2018 . . . .” (Pet., ECF No.
1, PageID.2.) I will consider January 2, 2018, to be the date
Petitioner signed the petition. 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.
petition raises one ground for relief: Petitioner is
illegally detained because his Sixth Amendment right to a
speedy trial has been violated. (Pet., ECF No.1, PageID.1-2.)
Exhaustion of ...