United States District Court, W.D. Michigan, Southern Division
T. Neff 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
Felix Lavell Washington is incarcerated with the Michigan
Department of Corrections at the Bellamy Creek Correctional
Facility (IBC) in Ionia, Michigan. On November 10, 2014, a
Oakland County Circuit Court judge took Petitioner's plea
of nolo contendere to charges of assault with intent
to do great bodily harm, Mich. Comp. Laws § 750.84,
felon in possession of a firearm, Mich. Comp. Laws §
750.224f, and two counts of felony firearm, Mich. Comp. Laws
§ 750.227b. On December 15, 2014, the court sentenced
Petitioner as a habitual offender-third offense, Mich. Comp.
Laws § 769.11, to terms of imprisonment as follows: 7
years, 1 month to 20 years for assault concurrent to 3 years,
7 months to 10 years for felon in possession of a firearm.
Those sentences are to be served consecutively to concurrent
sentences of 2 years on each felony firearm count.
filed a post-judgment motion to withdraw his plea. After the
motion, as amended, was denied, he filed an application for
leave to appeal in the Michigan Court of Appeals raising the
same issues he raises in this habeas petition. By order
entered November 30, 2016, the court of appeals denied
Petitioner's application “for lack of merit in the
grounds presented.” (Mich. Ct. App. Order, ECF No. 1-1,
PageID.18.) Petitioner then filed an application for leave to
appeal the court of appeals' denial in the Michigan
Supreme Court. By order entered June 21, 2017, that court
remanded the case to the Oakland County Circuit Court for a
determination regarding the trial court's inclination to
impose a different sentence, armed with the knowledge that
the sentencing guidelines are discretionary instead of
mandatory under People v. Lockridge. (Mich. Order,
ECF No. 1-1, PageID.17.) In all other respects, the Michigan
Supreme Court declined to consider the issues raised by
February 27, 2018, Petitioner timely filed his habeas corpus
petition. The petition raises 2 grounds for relief,
paraphrased as follows:
I. Petitioner was deprived of his Fifth and Fourteenth
Amendment rights when Offense Variable 3 was improperly
II. Petitioner was deprived of his Fifth, Sixth, and
Fourteenth Amendment rights when his trial counsel failed to
employ an expert to demonstrate that the injuries to the
victim did not fall within Offense Variable 3.
(Pet., ECF No.1, PageID.5, 9.)
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 omitted).
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