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Johnson v. Gidley

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

May 20, 2019

JERRY JOHNSON, Petitioner,
v.
LORI GIDLEY, Respondent.

          OPINION AND ORDER DENYING PETITIONER'S HABEAS PETITION, DENYING A CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

          HONORABLE STEPHEN J. MURPHY, III JUDGE.

         On February 28, 2014, Petitioner Jerry Johnson filed his pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. ECF 1. Johnson challenges his conviction for being an inmate in possession of a weapon under Mich. Comp. Laws § 800.283(4). Johnson raises four claims: (1) prosecutorial misconduct; (2) the trial court improperly scored offense variable nine; (3) trial counsel provided ineffective assistance; and (4) insufficient evidence supported the conviction. Respondent argues that the claims are procedurally defaulted and meritless. For the reasons below, the Court will deny Johnson habeas corpus relief, will deny him a certificate of appealability, and will deny him leave to proceed on appeal in forma pauperis.

         BACKGROUND

         Johnson was incarcerated at Cotton Correctional Facility. People v. Johnson, No. 308024, 2013 WL 331650, at *1 (Mich. Ct. App. Jan. 29, 2013). On January 9, 2011, a corrections officer received a tip that Johnson had a weapon. Id. The officer informed other prison staff, who then "approached [Johnson] to perform a pat-down search and asked him to let them put him in restraints." Id. Johnson "refused and walked away." Id. After Johnson rebuffed another request to be restrained, a sergeant "grabbed [Johnson] and knocked him to the ground." Id. A different officer testified that, during the resulting pat-down search, he "found a shank in [Johnson]'s right coat sleeve." Id. At trial, Johnson "testified that he had asked to be walked, unrestrained, to the segregation unit to be searched because he knew that area was monitored" and he "denied being in possession of a weapon." Id. A Jackson County Circuit Court jury found Johnson guilty of being a prisoner in possession of a weapon. Id.

         On December 22, 2011, the state trial court sentenced Johnson to three to ten years' imprisonment, to be served consecutively to his prior sentence. Id. Johnson filed an appeal of right in the Michigan Court of Appeals, which affirmed his conviction and sentence. Id. at *2-*3. The Michigan Supreme Court then denied him leave to appeal. People v. Johnson, 494 Mich. 883 (2013).

         Johnson then filed his federal habeas petition. The Court stayed the case and held it in abeyance to allow Johnson to pursue further state court remedies. ECF 22. Then, Johnson filed a motion for relief from judgment in the state trial court. He raised the following claims: (1) counsel was ineffective in failing to object to prosecutorial misconduct; (2) counsel erred by stipulating that Johnson was lawfully imprisoned at the time of his crime; (3) insufficient evidence supported his conviction; and (4) appellate counsel was ineffective. The state trial court denied Johnson's motion. ECF 32-3. The Michigan Court of Appeals subsequently denied Johnson's request for leave to appeal. ECF 32-4. The Michigan Supreme Court also denied Johnson leave to appeal. People v. Johnson, 500 Mich. 895 (2016). On August 7, 2017, and upon Johnson's motion, the Court reopened his federal habeas case. ECF 31. Johnson raises the following claims in his federal habeas appeal: (1) prosecutorial misconduct deprived him of his due process right to a fair trial; (2) the trial court miscalculated his sentence; and (3) he is actually innocent.

         LEGAL STANDARD

         The Court may not grant habeas relief to a state prisoner unless his claims were adjudicated on the merits and the state court adjudication was "contrary to" or resulted in an "unreasonable application of" clearly established Supreme Court law. 28 U.S.C. § 2254(d)(1).

         "A state court's decision is 'contrary to' . . . clearly established law if it 'applies a rule that contradicts the governing law set forth in [Supreme Court cases]' or if it 'confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [this] precedent." Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003) (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000)).

         The state court unreasonably applies Supreme Court precedent not when its application of precedent is merely "incorrect or erroneous" but when its application of precedent is "objectively unreasonable." Wiggins v. Smith, 539 U.S. 510, 520-21 (2003) (internal citations omitted). "A state court's determination that a claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision." Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 654 (2004)).

         A federal court reviews only whether a state court's decision comports with clearly established federal law as determined by the Supreme Court at the time the state court renders its decision. Greene v. Fisher, 565 U.S. 34, 38 (2011). A state court need not cite to or be aware of Supreme Court cases, "so long as neither the reasoning nor the result of the state-court decision contradicts them." Early v. Packer, 537 U.S. 3, 8 (2002). Decisions by lower federal courts "may be instructive in assessing the reasonableness of a state court's resolution of an issue." Stewart v. Erwin, 503 F.3d 488, 493 (6th Cir. 2007) (citing Williams v. Bowersox, 340 F.3d 667, 671 (8th Cir. 2003)).

         Finally, a federal habeas court presumes the correctness of state court factual determinations. See 28 U.S.C. § 2254(e)(1). A petitioner may successfully rebut the presumption only by clear and convincing evidence. Id.

         DISCUSSION

         I. Prosecutorial ...


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