United States District Court, E.D. Michigan, Southern Division
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
V. PARKER, U.S. DISTRICT JUDGE
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. 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.
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
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
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.)
Standard of Review
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;
(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.
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.
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,
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).
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).
The motion for an order to show cause is DENIED.
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
The motion to supplement the habeas petition is
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
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).
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 ...