United States District Court, W.D. Michigan, Northern Division
ANDRE K. DAVIS, Petitioner,
CONNIE HORTON, Respondent.
Honorable Janet T. Neff Judge.
REPORT AND RECOMMENDATION
MAARTEN VERMAAT U.S. MAGISTRATE 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). The Court may sua sponte
dismiss a habeas action as time-barred under 28 U.S.C. §
2244(d). Day v. McDonough, 547 U.S. 198, 209 (2006).
After undertaking the review required by Rule 4, I conclude
that the petition is barred by the one-year statute of
Andre K. Davis is incarcerated with the Michigan Department
of Corrections at the Chippewa Correctional Facility (URF) in
Kincheloe, Chippewa County, Michigan. Following a trial in
the Kalamazoo County Circuit Court, a jury convicted
Petitioner of the following offenses: armed robbery, in
violation of Mich. Comp. Laws § 750.529; breaking and
entering of an occupied dwelling, in violation of Mich. Comp.
Laws § 750.110; assault with intent to commit great
bodily harm less than murder, in violation of Mich. Comp.
Laws § 750.84; and unlawful driving away of an
automobile, in violation of Mich. Comp. Laws § 750.413.
On February 5, 1996, the trial court sentenced Petitioner to
life in prison for the armed robbery conviction, 40 to 60
years for the breaking and entering conviction, life in
prison for the assault conviction, and 40 to 60 years for the
unlawful driving away of an automobile conviction.
appealed the judgment of conviction to the Michigan Court of
Appeals, which affirmed the judgment on June 13, 1997.
People v. Davis, No. 193484 (Mich. Ct. App. June 13,
1997). He did not appeal that decision to the Michigan
apparently attempted to file a motion for relief from
judgment in state court in July 2014, along with a motion for
appointment of counsel. Unfortunately, the state court did
not recognize the motion for relief from judgment. Instead,
the court deemed his motion to be “supporting
documentation attached to [his] Petition to Appoint
Counsel.” (See 7/27/2016 Order Denying
Def.'s Mot. to Amend J., ECF No. 1-1, PageID.30.) In
January 2015, the state court sent Petitioner a letter
expressly informing him that his motion for relief from
judgment was not accepted for filing. (Attach. to Pet., ECF
No. 1-1, PageID.120 (quoting the letter).)
year later, Petitioner followed up with another motion for
relief from judgment. (See 7/27/2016 Order Denying
Def.'s Mot. to Amend J., ECF No. 1-1, PageID.30
(referring to Petitioner's 2016 motion for relief from
judgment).) Apparently, the state court denied that motion on
the merits in June 2016 (see id.) and he appealed
that decision. The Michigan Court of Appeals denied leave to
appeal on April 25, 2017. See People v. Davis, No.
336014 (Mich. Ct. App. Apr. 25, 2017). He did not appeal that
decision to the Michigan Supreme Court.
those proceedings were ongoing, Petitioner attempted to get
the state court to recognize his first motion for relief from
judgment by amending the court's docket. The state court
denied that request in July 2016. (See Order Denying
Def.'s Mot. to Amend J., ECF No. 1-1, PageID.30.)
appears that Petitioner subsequently attempted to obtain
other relief in state court, based on “newly discovered
evidence” that the state court removed reference to his
2014 motion for relief from judgment from its docket sheet.
(See Pet., ECF No. 1, PageID.2.) The state court
denied that relief, and in February 2017, he appealed that
decision to the Michigan Court of Appeals. See
Appellate Docket Sheet for People v. Kirk, No.
337201 (Mich. Ct. App.), available at
https://courts.michigan.gov/. The Michigan Court of Appeals
and Michigan Supreme Court denied leave to appeal on May 26,
2017, and July 3, 2018, respectively. Id.
filed his habeas corpus petition in July 2019. The body of
the petition asserts claims regarding the state court's
handling of his 2014 motion for relief from judgment. For
instance, Petitioner claims that the state court deprived him
of due process and equal protection by not recognizing his
motion for relief from judgment. (See Pet., ECF No.
1, PageID.9.) Those sort of claims are not cognizable in this
action. The Constitution does not guarantee any right to
collaterally attack a criminal conviction in the state
courts. See, e.g., Pennsylvania v. Finley,
481 U.S. 551, 557 (1987) (“States have no obligation to
provide this [post-conviction] avenue of relief.”);
accord United States v. MacCollom, 426 U.S. 317, 323
(1976) (plurality opinion).
errors in Petitioner's post-conviction proceedings have
no bearing on the legality of the Petitioner's
confinement. See Kirby v. Dutton, 794 F.2d 245,
245-46 (6th Cir. 1986); accord Williams-Bey v.
Trickey, 894 F.2d 314, 317 (8th Cir. 1989). A finding by
this Court that the state court wrongly denied Petitioner
post-conviction review would not entitle him to release.
Id. at 246. It would only mean that the state's
post-conviction process was defective. An action under 28
U.S.C. § 2254 is not the place to correct those defects,
as the habeas statute is only concerned about whether
Petitioner is “in custody in violation of the
Constitution or laws or treaties of the United States.”
28 U.S.C. § 2254(a). It is not concerned with issues
unrelated to the validity of his custody.
other hand, it appears that Petitioner seeks habeas
relief based on the claims asserted in his motion for relief
from judgment. (See Pet., ECF No. 1, PageID.15
(asking the Court to “grant habeas relief from claims
in motion [for relief from judgment] and order release from
asserted the following claims in his motion for relief from
1. [PETITIONER'S] DUE PROCESS RIGHT TO A FAIR TRIAL, AND
TO AN IMPARTIAL JURY WERE COMPROMISED BY THE SEATING OF A
JUROR THAT DATED AND BOLSTERED THE CREDIBILITY OF THE
ACCOMPLICE AND CRITICAL PROSECUTION WITNESS CHARLES HANNAH.
2. IN A MATTER OF “FIRST IMPRESSION”
[PETITIONER'S] SIXTH AMENDMENT RIGHT TO CONFRONT
WITNESSES WAS VIOLATED WHEN THE JURY PANEL HEARD A
PROSPECTIVE JUROR MAKE STATEMENTS BOLSTERING A KEY
PROSECUTION WITNESS' CREDIBILITY.
3. [PETITIONER] RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL
I[N] THE CONDUCT OF PLEA NEGOTIATIONS WHERE ASSIGNED COUNSEL
FAILED TO RELAY A FAVORABLE PLEA OFFER RESULTING IN A SEVERE
A. The Sixth Amendment Right to Effective Assistance of
Counsel Ensures the fairness of all Criminal Prosecutions,