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