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Carter v. Rewerts

United States District Court, W.D. Michigan, Southern Division

June 21, 2019

JOHN LEE CARTER, Petitioner,
v.
RANDEE REWERTS, Respondent.

          OPINION

          ROBERT J. JONKER CHIEF UNITED STATES DISTRICT JUDGE.

         This is 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 remedies.

         Discussion

         I. Factual allegations

         Petitioner 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.

         Petitioner 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. 2019).

         On 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)).

         The 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 ALLEGED OFFENSES.
II. DEFENSE COUNSEL'S ALCOHOLISM AND PENDING OWI (RESULTING IN INJURY) OFFENSE CAUSED HIM TO PERFORM DEFICIENTLY.
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 COMPLAINT.

(Pet., ECF No. 1, PageID.3-12.)

         II. Exhaustion of ...


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