United States District Court, W.D. Michigan, Southern Division
T. Neff, 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 concludes that the petition must be
dismissed because it fails to raise a meritorious federal
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
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
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.)
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
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
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
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.
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
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).
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.
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).
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 ...