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Matthews v. Harry

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

April 12, 2018

JEROME MATTHEWS, Petitioner,
v.
SHIRLEE HARRY, Respondent.

          OPINION

          JANET T. NEFF UNITED STATES DISTRICT JUDGE

         This is 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 Petitioner has failed to exhaust available state-court remedies with respect to all of his claims. Accordingly, Petitioner must show cause why he is entitled to a stay of these proceedings while he exhausts his unexhausted claim in the state courts or, alternatively, the Court will proceed with the petition but will only consider Petitioner's exhausted claims.

         Discussion

         I. Factual allegations

         Petitioner Jerome Matthews presently is incarcerated at the Earnest C. Brooks Correctional Facility. Following a two-day jury trial in the Kent County Circuit Court, Petitioner was convicted of possession with intent to deliver less than 50 grams of cocaine, Mich. Comp. Laws § 333.7401(2)(a)(iv). On May 11, 2015, the trial court sentenced Petitioner to a prison term of 6 to 50 years.

         Petitioner appealed his conviction and sentence to the Michigan Court of Appeals, raising in the brief filed by counsel and in the pro per supplemental brief the following issues, some of which were characterized as sub-issues: (1) ineffective assistance of counsel in failing to object to prior bad acts evidence; (2) improper denial of mistrial for impermissible reference to Petitioner being on parole; (3) improper scoring of Offense Variable (OV) 19; (4) impermissible mandatory sentencing findings under People v. Lockridge, 870 N.W.2d 502 (Mich. 2015); (5) prosecutorial misconduct in failing to produce endorsed res gestae witnesses and error in failing to give “missing witness” instruction; (6) insufficient evidence to support the conviction; (7) ineffective assistance of counsel in failing to acquire the discovery package, waiving the preliminary examination, and failing to object to the prosecutor's withholding of police reports and Petitioner's statement; (8) ineffective assistance of counsel in failing to object to the use of Petitioner's statement to police; and (9) the action should be remanded for resentencing because of misscoring of OV 19 and application of the mandatory sentencing guidelines. In a lengthy, unpublished opinion issued on September 13, 2016, the court of appeals affirmed Petitioner's conviction, but remanded for further proceedings under Lockridge. (Mich. Ct. App., ECF No. 1-1, PageID.71-84.)

         Petitioner filed an application for leave to appeal to the Michigan Supreme Court, raising five issues, the first four of which directly correspond to his grounds for habeas relief:

I. DEFENSE TRIAL COUNSEL WAS CONSTITUTIONALLY INEFFECTIVE IN FAILING TO OBJECT TO THE PRIOR BAD ACTS EVIDENCE USED AT TRIAL AND THE ERROR SATISFIES THE PLAIN ERROR DOCTRINE.
II. THE DANGER OF UNDUE PREJUDICE SUBSTANTIALLY OUTWEIGHED ANY PROBATIVE VALUE IN TELLING THE JURY THAT DEFENDANT WAS ON PAROLE, MRE 403. A MISTRIAL SHOULD HAVE BEEN GRANTED.
III. THE PROSECUTOR COMMITTED MISCONDUCT AND DENIED DEFENDANT A FAIR TRIAL BY VIOLATING HIS DUTY TO PRODUCE ENDORSED RES GESTAE WITNESSES, AND THE TRIAL [COURT] REVERSIBLY ERRED BY REFUSING TO GIVE A MISSING WITNESS INSTRUCTION.
IV. THE PROSECUTION SUBMITTED INSUFFICIENT EVIDENCE TO CONVICT APPELLANT OF POSSESSION WITH THE INTENT TO DELIVER UNDER 50 GRAMS OF COCAINE AND THAT CONVICTION VIOLATED HIS STATE AND FEDERAL CONSTITUTION[AL] RIGHT TO BE FREE OF CONVICTION IN THE ABSENCE OF PROOF BEYOND A REASONABLE DOUBT THAT THE SUBSTANCE HAS NEVER BEEN TESTED OR PROVEN TO BE COCAINE.
V. DEFENSE COUNSEL WAS INEFFECTIVE WHERE HE FAILED TO ACQUIRE THE DISCOVERY PACKAGE WAIVING DEFENDANT'S PRELIMINARY EXAMINATION AND DID NOT OBJECT TO THE PROSECUTION WITHHOLDING THE POLICE REPORTS OF DEFENDANT'S STATEMENT.

         (Appl. for Leave to Appeal, ECF No. 1-1, PageID.104-108.) In addition, Petitioner filed a motion to amend his application in the Michigan Supreme Court. (Mot. to Amend, ECF No. 1-1, PageID.114-120.) In that motion, Petitioner reiterated a variety of previously ...


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