Foster v. Smith

          Mag. Mona K. Majzoub, Judge

          OPINION AND ORDER (1) DENYING THE PETITION FOR WRIT OF HABEAS CORPUS, (2) DENYING THE MOTION FOR AN ORDER TO SHOW CAUSE (ECF NO. 23), (3) DENYING MOTION TO SUPPLEMENT THE WRIT OF HABEAS CORPUS (ECF NO. 24), AND (4) DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY OR LEAVE TO APPEAL IN FORMA PAUPERIS

          LINDA V. PARKER, U.S. DISTRICT JUDGE

         Robert Alan Foster, (“Petitioner”), confined at the Macomb Correctional Facility in New Haven, Michigan, filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.^[1] Petitioner challenges his conviction for unlawful imprisonment, MICH. COMP. LAWS § 750.349b, assault with intent to do great bodily harm less than murder, MICH. COMP. LAWS § 750.84, assault with a dangerous weapon, MICH. COMP. LAWS § 750.82, domestic violence, MICH. COMP. LAWS § 750.81(2), and being a fourth felony habitual offender, MICH. COMP. LAWS § 769.12. For the reasons that follow, the petition for writ of habeas corpus is DENIED WITH PREJUDICE.

         I. Background

         Petitioner was convicted of severely beating his girlfriend over a four-day period after becoming upset with her when a flat screen television and home theater system that Petitioner ordered was not delivered. Petitioner accused his girlfriend of stealing it and demanded her to pay him back. When the victim was unable to get money from her grandmother, Petitioner began physically assaulting her. The victim testified that she was unable to leave the house until four days after the beating commenced. Although Petitioner left the house several times during this four-day period, the victim did not leave because Petitioner told her not to, and the victim was afraid that he would look for her and bring her back to the apartment and that the beating would be even worse. Petitioner finally ordered the victim to “get the hell out.” The victim ran to a nearby Jehovah Witness Kingdom Hall, where persons called the police. The victim suffered severe injuries to her head, scalp, eyes, hip, and had two-to-three stab wounds. The victim's lower body was completely bruised. The paramedics initially thought the victim was wearing a wig because her scalp could be peeled back. The victim was in the hospital for a month and a half and in a rehabilitation center for another month and a half.

         Petitioner's conviction was affirmed on appeal. People v. Foster, No. 320868, 2015 WL 4488606 (Mich. Ct. App. July 23, 2015); lv. den. 498 Mich. 957, 872 N.W.2d 497 (2015). Petitioner filed a post-conviction motion for relief from judgment in the trial court pursuant to Michigan Court Rule 6.500. The trial court denied the motion. People v. Foster, No. 12-010678-01-FH (Wayne Cnty. Cir. Ct. Apr. 22, 2016). Petitioner filed this petition for writ of habeas corpus, which was dismissed without prejudice because Petitioner had not exhausted his post-conviction claims in that he had not yet appealed the denial of his post-conviction motion to the Michigan appellate courts. Foster v. Smith, No. CV 16-11898, 2016 WL 4608180 (E.D. Mich. Sept. 6, 2016). The Michigan appellate courts ultimately denied Petitioner's post-conviction appeal. People v. Foster, No. 334826 (Mich. Ct. App. Feb. 8, 2017); lv. den. 501 Mich. 945, 904 N.W.2d 602 (2017).

         On August 21, 2018, this Court granted Petitioner's motion to reopen the case and to amend the habeas petition. The Court ordered Respondent to file an answer and the Rule 5 materials within 180 days of the Court's order. (ECF No. 16.) Respondent filed the answer and Rule 5 materials on February 14, 2019. (ECF No. 21.) Petitioner filed a motion for an order to show cause, (ECF No. 23), a motion to supplement the petition for writ of habeas corpus with an additional jurisdictional argument, (ECF No. 24), and a reply brief. (ECF No. 25.)

         II. Standard of Review

         28 U.S.C. § 2254(d), as amended by The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), imposes the following standard of review for habeas cases:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim-

(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 on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

         A state court's decision is “contrary to” clearly established federal law if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if the state court decides a case differently than the Supreme Court has on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). An “unreasonable application” occurs when “a state court decision unreasonably applies the law of [the Supreme Court] to the facts of a prisoner's case.” Id. at 409. A federal habeas court may not “issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly.” Id. at 410-11.

         The Supreme Court explained that “[A] federal court's collateral review of a state-court decision must be consistent with the respect due state courts in our federal system.” Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). The “AEDPA thus imposes a ‘highly deferential standard for evaluating state-court rulings,' and ‘demands that state-court decisions be given the benefit of the doubt.'” Renico v. Lett, 559 U.S. 766, 773 (2010) (quoting Lindh v. Murphy, 521 U.S. 320, 333, n. 7 (1997)); Woodford v. Viscotti, 537 U.S. 19, 24 (2002) (per curiam). “[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) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). To obtain habeas relief in federal court, a state prisoner is required to show that the state court's rejection of his or her claim “was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington, 562 U.S. at 103. A habeas petitioner should be denied relief as long as it is within the “realm of possibility” that fairminded jurists could find the state court decision to be reasonable. See Woods v. Etherton, 136 S.Ct. 1149, 1152 (2016).

         The Michigan Court of Appeals reviewed and rejected Petitioner's first claim alleging prosecutorial misconduct under a plain error standard because Petitioner failed to preserve his prosecutorial misconduct claim as a constitutional issue at the trial court level. The AEDPA deference applies to any underlying plain-error analysis of a procedurally defaulted claim. See Stewart v. Trierweiler, 867 F.3d 633, 638 (6th Cir. 2017); cert. den. 138 S.Ct. 1998 (2018).

         Petitioner's sixth claim was denied, in part, by the trial court on post-conviction review, pursuant to M.C.R. 6.508(D)(3), on the ground that Petitioner failed to show cause and prejudice for not raising this claim on his direct appeal. Although the state court judge mentioned M.C.R. 6.508(D)(3), the AEDPA's deferential standard of review also applies to the judge's opinion because she alternatively rejected the claims on the merits. See Moritz v. Lafler, 525 Fed.Appx. 277, 284 (6th Cir. 2013).

         III. Discussion

         A. The motion for an order to show cause is DENIED.

         Petitioner filed a motion for an order for Respondent to show cause why the answer should not be stricken for being untimely. Petitioner claims that the answer is untimely because it was due on January 21, 2019 but was not filed until February 14, 2019. Respondent's answer is not untimely. The Court gave Respondent 180 days from the date of the reopening of this case, August 21, 2018, to file an answer to the petition. The answer was filed on February 14, 2019, within the 180-day limit. Thus, the motion to show cause or strike the answer is denied.

         B. The motion to supplement the habeas petition is DENIED.

         Petitioner filed a motion to supplement his habeas petition by adding a claim that the state circuit court lacked jurisdiction over his case because Petitioner should not have been bound over for trial because the victim committed perjury at the preliminary examination.

         Petitioner has failed to state a claim upon which habeas relief can be granted. A prior judicial hearing is not a prerequisite to prosecution by information. Gerstein v. Pugh, 420 U.S. 103, 119 (1975). There is no federal constitutional right to a preliminary examination. United States v. Mulligan, 520 F.2d 1327, 1329 (6th Cir. 1975); Dillard v. Bomar, 342 F.2d 789, 790 (6th Cir. 1965). Petitioner's claim that there was insufficient evidence presented at his preliminary examination to bind him over for trial thus raises only a matter of state law and procedure that cannot form a basis for federal habeas relief. See Tegeler v. Renico, 253 Fed.Appx. 521, 525-26 (6th Cir. 2007). Moreover, even if the Prosecution presented perjured testimony at the preliminary examination, as Petitioner suggests, this would not call into question the validity of Petitioner's subsequent conviction or entitle him to habeas relief. See Cardenas-Borbon v. Burt, No. 10-13548, 2014 WL 793629, at * 21 (E.D. Mich. Feb. 27, 2014). A guilty verdict renders harmless any error in the charging decision. See United States v. Mechanik, 475 U.S. 66, 73 (1986). Any insufficiency of evidence at Petitioner's preliminary examination would be harmless error in light of Petitioner's subsequent conviction. See Redmond v. Worthinton, 878 F.Supp.2d 822, 844 (E.D. Mich. 2012).

         Therefore, the Court denies the motion to supplement or amend the petition; any amendment to the petition would be futile in light of the fact that this Court cannot grant habeas relief to Petitioner on this claim. See ...