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Jones v. Rewerts

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

June 21, 2019

DEZMAN ROSHEA JONES, 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 concludes that the petition must be dismissed because it fails to raise a meritorious federal claim.

         Discussion

         I. Factual allegations

         Petitioner Dezman Roshea Jones is incarcerated with the Michigan Department of Corrections at Carson City Correctional Facility (DRF) in Carson City, Montcalm County, Michigan. Following a five-day jury trial in the Calhoun County Circuit Court, Petitioner was convicted of first-degree murder, Mich. Comp. Laws § 750.316, carrying a dangerous weapon with unlawful intent, Mich. Comp. Laws § 750.226, carrying a concealed weapon, Mich. Comp. Laws § 750.227, and two counts of possessing a firearm during the commission of a felony, Mich. Comp. Laws § 750.227b. On August 26, 2016, the court sentenced Petitioner to respective prison terms of life imprisonment, 47 to 90 months, and two consecutive terms of two years.

         On April 18, 2019, Petitioner filed his 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 signed his application on April 18, 2019. (Pet., ECF No. 1, PageID.3.) The petition was received by the Court on April 24, 2019. For purposes of this Report and Recommendation, I have 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 one ground for relief, as follows:

I. THE PETITIONER WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL BECAUSE HIS TRIAL ATTORNEY ANNOUNCED TO THE JURY THAT HE WOULD CALL ALIBI WITNESSES WHO WOULD TESTIFY BUT WHOM HE DID NOT CALL AS WITNESSES. U.S. CONST. AM VI.
A. THE MICHIGAN APPELLATE COURT'S DECISION WAS CONTRARY TO AND INVOLVED AN UNREASONABLE APPLICATION OF STRICKLAND, AND THEIR DECISION TO
AFFIRM PETITIONER'S CONVICTION WAS BASED ON AN UNREASONABLE DETERMINATION IN LIGHT OF THE EVIDENCE PRESENTED IN THE STATE COURT PROCEEDINGS WHERE PETITIONER'S TRIAL ATTORNEY ANNOUNCED TO THE JURY THAT HE WOULD CALL ALIBI WITNESSES WHO WOULD TESTIFY BUT WHOM HE DID NOT CALL AS WITNESSES.

(Pet'r's Br. in Supp. of Pet., ECF No. 2, PageID.7.)

         The following facts are taken from the opinion of the Michigan Court of Appeals:

The prosecution presented evidence showing that defendant shot and killed the victim. Two witnesses, defendant's cousin and a friend, were with defendant and defendant's father in a vehicle around the time the shooting occurred, and they testified that defendant shot the victim, who was standing near a sidewalk when the vehicle carrying the four men pulled up. The only difference between the two accounts was that defendant's cousin testified that he believed that defendant exited the car and started shooting, whereas defendant's friend testified that defendant shot the victim from inside the car after rolling down the rear, passenger-side window. Another witness at the scene testified that she observed a hand reach out from the rear, passenger-side window and that gunshots then rang out. According to defendant's friend, after the shooting started, he heard defendant state, “I got him.” The car carrying defendant sped off, and other witnesses at the scene identified the vehicle, which eventually led to arrests. Evidence was presented that defendant disposed of the firearm after the shooting, which gun was never recovered. The jury also heard testimony from an inmate who had been incarcerated with defendant, and he testified that defendant told him that he “wished he never killed that little n****r.” Additionally, there was evidence that shortly before the shooting, the victim and defendant's father had engaged in a verbal altercation at a local nightclub.

(1/23/18 Mich. Ct. App. Op. at 1, No. 334955, http://publicdocs.courts.mi.gov/opinions/final/ coa/20180123c33495572334955.opn.pdf (last visited June 6, 2019).[1]

         Petitioner appealed his convictions to the Michigan Court of Appeals, raising the claim presented in his habeas application, together with a claim that the verdict was against the great weight of the evidence. In an opinion issued on January 23, 2018, the court ...


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