Osborne v. Macauley

          OPINION

          Janet T. Neff, 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 Loyd Donald Osborne is incarcerated with the Michigan Department of Corrections at the Bellamy Creek Correctional Facility (IBC) in Ionia, Michigan. Following a one-day jury trial in the Eaton County Circuit Court, Petitioner was convicted of operating a motor vehicle while intoxicated-third offense in violation of Mich. Comp. Laws § 257.625 and resisting or obstructing a police officer in violation of Mich. Comp. Laws § 750.81(d). On January 5, 2017, the court sentenced Petitioner, as a habitual offender-fourth offense, Mich. Comp. Laws § 769.12, to concurrent prison terms of 11 to 25 years for operating while intoxicated and 5 to 15 years for resisting and obstructing a police officer.

         On July 22, 2019, Petitioner filed his habeas corpus petition raising seven grounds for relief, as follows:

I. Trial court erred in denying motion to suppress blood alcohol evidence.

II. Defendant's OWI 3rd conviction must be vacated because the evidence is insufficient to find that he had operated a vehicle under the influence of alcohol.

III. Defendant's resisting and obstructing a police officer conviction must be vacated the evidence is insufficient to find the officer gave a lawful order.

IV. Defendant is entitled to resentencing because his minimum term was an unreasonable and disproportionate sentence.

V. Petitioner had ineffective assistance of counsel when Attorney Havis advised Defendant to waive Prelim. Examination so that he [could] be accepted into drug program.

VI. Defendant had ineffective counsel when Attorney Havis conducted critical stages of the proceedings without Defendant being present.

VII. Defendant had ineffective counsel when Attorney Havis only gave [the] prosecutor the opportunity to arraign him on 3-16-16 and serve him with a notice of enhancement on 3-23-16 which Defendant had no knowledge nor was he present.

(Pet., ECF No. 1, PageID.5, 7-8, 10, 17-20.)

         The Michigan Court of Appeals summarized the facts underlying Petitioner's prosecution as follows:

At trial, eyewitness testimony established that on January 29, 2016, at around 11:00 p.m., defendant was driving erratically in the parking lot of his apartment complex. A fellow resident called the police after she heard the sound of squealing tires and observed defendant strike either a pole or tree, circle around in “donuts, ” and drive in and out of parking spaces. The witness observed defendant get out of his vehicle and exhibit signs of extreme intoxication before he reentered his vehicle and continued to drive.

Upon his arrival, Sheriff's Deputy Nicklaus Newton observed a vehicle parked out of place, which fit the description he received when dispatched. Defendant's vehicle was “parked half on the sidewalk, in the fire lane, half in the parking lot” with what appeared to be fresh damage on the front driver's side bumper. Newton performed a data search of defendant's vehicle license plate, and continued his investigation by following leads from bystanders directing him toward defendant's apartment. When Newton encountered defendant, he noted that defendant matched the description of the person at issue that he had received when he was dispatched, and he observed defendant's bloodshot and glassy eyes, slurred speech, unsteady stance, and the odor of alcohol on defendant's breath.

Newton testified that defendant admitted to driving “approximately 30 minutes” prior to their encounter, admitted to consuming “two to three beers, ” and identified the vehicle as his. At some point, defendant walked outside to the parking lot with Newton, at which point Newton observed defendant's unsteady walk. After defendant refused Newton's request to participate in a field sobriety test and a breathalyzer test, Newton placed defendant under arrest, and defendant began resisting. Once defendant was secured, Newton obtained a search warrant and then a blood draw, which revealed that defendant's blood alcohol level was .233 grams per 100 milliliters of blood.

People v. Osborne, No. 336716, 2018 WL 2422336, at *1 (Mich. Ct. App. May 29, 2018). On the strength of this evidence, the jury convicted Petitioner and the trial court sentenced him as described above.

         Petitioner appealed his convictions and sentences. In the brief Petitioner filed with the assistance of counsel, Petitioner raised four issues-the same issues identified as habeas issues I-IV above. Petitioner also filed a pro per brief raising three additional issues-the same issues identified as habeas issues V-VII above. By opinion issued May 29, 2018, the Michigan Court of Appeals rejected Petitioner's challenges and affirmed his convictions and sentences.

         Petitioner then filed a pro per application for leave to appeal in the Michigan Supreme Court raising the same issues he raised in the court of appeals. (Pet., ECF No. 1, PageID.3.) By order entered February 4, 2019, the supreme court denied leave to appeal because the justices were “not persuaded that the questions presented should be reviewed by [the] Court.” People v. Osborne, 922 N.W.2d 128 (Mich. 2019).

         Petitioner then filed a motion for relief from judgment in the trial court raising several new issues. The trial court denied relief by order entered May 29, 2019. (Eaton Cty. Cir. Ct. Order, ECF No. 1-1, PageID.25-27.) Petitioner has not appealed the trial court's order because he “has voluntarily and knowingly abandoned those issues . . . .” (Pet., ECF No. 1, PageID.12.) Instead, Petitioner filed his petition raising the same seven issues he raised on his direct appeal.

         II. AEDPA standard

         This action is governed by the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. 104-132, 110 Stat. 1214 (AEDPA). The AEDPA “prevents federal habeas ‘retrials'” and ensures that state court convictions are given effect to the extent possible under the law. Bell v. Cone, 535 U.S. 685, 693-94 (2002). An application for writ of habeas corpus on behalf of a person who is incarcerated pursuant to a state conviction cannot be granted with respect to any claim that was adjudicated on the merits in state court unless the adjudication: “(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; or (2) resulted in a decision that was based upon an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.” 28 U.S.C. § 2254(d). This standard is “intentionally difficult to meet.” Woods v. Donald, 575 U.S. __, 135 S.Ct. 1372, 1376 (2015) (internal quotation omitted).

         The AEDPA limits the source of law to cases decided by the United States Supreme Court. 28 U.S.C. § 2254(d). This Court may consider only the holdings, and not the dicta, of the Supreme Court. Williams v. Taylor, 529 U.S. 362, 412 (2000); Bailey v. Mitchell, 271 F.3d 652, 655 (6th Cir. 2001). In determining whether federal law is clearly established, the Court may not consider the decisions of lower federal courts. Lopez v. Smith, 574 U.S. 1, 4 (2014); Marshall v. Rodgers, 569 U.S. 58, 64 (2013); Parker v Matthews, 567 U.S. 37, 48-49 (2012); Williams, 529 U.S. at 381-82; Miller v. Straub, 299 F.3d 570, 578-79 (6th Cir. 2002). Moreover, “clearly established Federal law” does not include decisions of the Supreme Court announced after the last adjudication of the merits in state court. Greene v. Fisher, 565 U.S. 34, 37-38 (2011). Thus, the inquiry is limited to an examination of the legal ...