United States District Court, W.D. Michigan, Southern Division
L. MALONEY 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
Roger Driver is incarcerated with the Michigan Department of
Corrections at the Carson City Correctional Facility (DRF) in
Carson City, Montcalm County, Michigan. In 2017, Petitioner
pleaded nolo contendere in the Genesee County
Circuit Court to the following offenses: assault with a
dangerous weapon, in violation of Mich. Comp. Laws §
750.82; possession of ammunition as a felon, in violation of
Mich. Comp. Laws § 750.224f(6); possession of firearms
as a felon, in violation of Mich. Comp. Laws § 750.224f;
larceny by stealing a firearm, in violation of Mich. Comp.
Laws § 750.357b; assault with intent to commit murder
(“AWIM”), in violation of Mich. Comp. Laws §
750.83; armed robbery, in violation of Mich. Comp. Laws
§ 750.529; and six counts of possession of a firearm
while committing a felony (“felony-firearm”), in
violation of Mich. Comp. Laws § 750.227b. On December
11, 2017, the court sentenced Petitioner to respective prison
terms of 2 to 4 years for the assault-with-a-dangerous-weapon
conviction, 2 to 5 years for the possession and larceny
convictions, 22 years and 6 months to 40 years for the AWIM
and armed-robbery convictions, and a consecutive 2 years for
the felony-firearms convictions.
applied for leave to appeal his sentence to the Michigan
Court of Appeals and the Michigan Supreme Court. Those courts
summarily denied leave to appeal on March 30, 2018, and
February 4, 2019, respectively.
filed his petition in April 2019. The petition raises two
grounds for relief, as follows:
I. Disproportionate sentencing. The trial court erred when it
did not produce an SIR form on the Armed Robbery count.
II. Due process right violated. Offense variables were scored
incorrectly [and] the error increased the range.
(Pet., ECF No. 1, PageID.6, 7.) He contends that these are
the same claims that he raised on appeal.
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, 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 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, 574 U.S. 1, 4
(2014); Marshall v Rodgers, 569 U.S. 58, 64 (2013);
Parker v Matthews, 567 U.S. 37, 48-49 (2012);
Williams, 529 U.S. at 381-82; Miller v.
Straub, 299 F.3d 570, 578-79 (6th Cir. 2002). 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, 37-38 (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 ...