United States District Court, W.D. Michigan, Southern Division
J. JONKER CHIEF 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 will dismiss the petition without
prejudice for failure to exhaust available state-court
John Lee Carter is incarcerated with the Michigan Department
of Corrections at Carson City Correctional Facility (DRF) in
Carson City, Montcalm County, Michigan. Following a jury
trial in the Gladwin County Circuit Court, Petitioner was
convicted of felon in possession of a firearm, Mich. Comp.
Laws § 750.224f(1), felon in possession of ammunition,
Mich. Comp. Laws § 750.224f(3), and possession of a
firearm during the commission of a felony, Mich. Comp. Laws
§ 750.227b. On July 11, 2016, the circuit court
sentenced Petitioner as a habitual offender to respective
prison sentences of 34 months to 10 years for the
felon-in-possession convictions, and a consecutive two-year
term for the possession-of-a-firearm conviction.
appealed his judgment of conviction and sentence to the
Michigan Court of Appeals, which affirmed the circuit
court's judgment on August 10, 2017. See People v.
Carter, No. 331332, 2017 WL 3441396 (Mich. Ct. App. Aug.
10, 2017). Petitioner subsequently filed an application for
leave to appeal to the Michigan Supreme Court. On February
20, 2018, the Michigan Supreme Court entered an order staying
Petitioner's appeal pending a decision in another case,
People v. Straughter, No. 156198 (Mich.). However,
Petitioner subsequently moved to amend his application to
withdraw the issue under consideration in Straughter
and the Michigan Supreme Court granted the motion. The
Michigan Supreme Court then summarily denied Petitioner's
application for leave to appeal because it was not persuaded
that the remaining questions presented should be reviewed by
the court. People v. Carter, 503 Mich. 953 (Mich.
April 1, 2019, Petitioner filed this habeas corpus petition.
Under Sixth Circuit precedent, the application is deemed
filed when handed to prison authorities for mailing to the
federal court. Cook v. Stegall, 295 F.3d 517, 521
(6th Cir. 2002). Petitioner has not supplied that date.
Petitioner signed his application on March 25, 2019. (Pet.,
ECF No. 1, PageID.16.) The petition was received by the Court
on April 1, 2019. The Court has given Petitioner the benefit
of the earliest possible filing date. See Brand v.
Motley, 526 F.3d 921, 925 (6th Cir. 2008) (holding that
the date the prisoner signs the document is deemed under
Sixth Circuit law to be the date of handing to officials)
(citing Goins v. Saunders, 206 Fed.Appx. 497, 498
n.1 (6th Cir. 2006)).
petition raises four (4) grounds for relief, as follows:
I. THE CUMULATIVE ERRORS COMMITTED DURING MR. CARTER'S
TRIAL CREATED A FUNDAMENTAL MISCARRIAGE OF JUSTICE RESULTING
IN THE CONVICTION OF A PERSON WHO IS ACTUALLY INNOCENT OF THE
II. DEFENSE COUNSEL'S ALCOHOLISM AND PENDING OWI
(RESULTING IN INJURY) OFFENSE CAUSED HIM TO PERFORM
III. THE MAGISTRATE ABUSED HIS DISCRETION BY ISSUING A SEARCH
WARRANT FOR THE GLADWIN RESIDENCE WHEN PROBABLE CAUSE WAS NOT
ESTABLISHED IN VELTMAN'S AFFIDAVIT.
IV. THE PROSECUTOR AND THE DISTRICT JUDGE . . . ABUSED THEIR
AUTHORITY BY PURSUING CHARGES AGAINST MR. CARTER AFTER
DISMISSING THE CHARGE FOR WHICH PROBABLE CAUSE WAS BASED, AND
FOR ALLOWING PERJURED TESTIMONY TO SUPPORT THE AMENDED
(Pet., ECF No. 1, PageID.3-12.)
Exhaustion of ...