United States District Court, W.D. Michigan, Northern Division
HONORABLE GORDON J. QUIST JUDGE.
REPORT AND RECOMMENDATION
Maarten Vermaat United States Magistrate Judge.
a habeas corpus action brought by a state prisoner under 28
U.S.C. § 2254. Petitioner Joseph Jay Ford is
incarcerated with the Michigan Department of Corrections at
the Kinross Correctional Facility (KCF) in Kincheloe,
Michigan. Following a six-day jury trial in the Kent County
Circuit Court, Petitioner was convicted of one count of
operating a vehicle while intoxicated (OWI) causing death and
one count of a moving violation causing death. On May 14,
2014, the court sentenced Petitioner as a third habitual
offender to concurrent prison terms of 12 years, 6 months to
30 years for the OWI offense and 1 year for the moving
26, 2017, Petitioner timely filed his habeas corpus petition
raising three grounds for relief, as follows:
I. Trial court failed to suppress the hospital blood draw.
II. Insufficient probable cause for the search warrant to
draw Petitioner's blood. Michigan State Police blood draw
should have been suppressed.
III. Trial court violated due process and engaged in judicial
fact finding at sentencing.
(Pet., ECF No. 1, PageID.6-7.) Respondent has filed an answer
to the petition (ECF No. 7) stating that the grounds should
be denied because they are noncognizable or without merit.
Upon review and applying the standards of the Antiterrorism
and Effective Death Penalty Act of 1996, Pub. L. 104-132, 110
Stat. 1214 (AEDPA), I find that the grounds are noncognizable
or without merit. Accordingly, I recommend that the petition
October 10, 2013, Petitioner ran a red light at the
intersection of 36th Street and Patterson Avenue in Kentwood,
Michigan. He collided with a vehicle driven by Eric Fischer.
Andrea Herrera, a passenger in Fischer's vehicle, died by
the time she arrived at the hospital. Fischer died on the
operating table. The Michigan Court of Appeals summarized the
relevant trial evidence as follows:
A forensic pathologist testified that both victims had died
as a result of the collision. Fischer's blood alcohol
level was .11 percent at autopsy, although the pathologist
was unsure whether the test was serum or whole blood. The
pathologist testified that Fischer's blood alcohol level
was not a significant contributing factor to his death.
Kent County Deputy Christopher Goehring testified that he
spoke with defendant while defendant was in the back of an
ambulance. He could smell a moderate amount of alcohol coming
from defendant. Defendant told Goehring that he could not
remember the whole night. He remembered where he was coming
from, but nothing else. Defendant also said that he had had
two beers. Other than the smell of alcohol and
defendant's admission that he had been drinking, Goehring
did not note any signs that defendant was intoxicated. The
ambulance took defendant to St. Mary's Hospital. Goehring
also went to the hospital.
Dr. Julie Shanaver, an emergency room physician at St.
Mary's Hospital, treated defendant. For medical purposes,
she requested a chemical analysis of defendant's blood.
Defendant's blood was drawn at 11:37 p.m. Defendant's
blood alcohol result was .125 percent. The hospital uses a
At the hospital, Goehring filled out an affidavit for a
search warrant for defendant's blood. The warrant was
signed by a magistrate. Suanne Unger, a nurse in the
emergency room, drew two samples of defendant's blood at
12:04 a.m. and 12:05 a.m. on October 11, 2013. The samples
were sent to the Michigan State Police (MSP) crime
After defendant was released from the hospital, Goehring
arrested defendant and then interviewed him. Defendant waived
his Miranda rights. Defendant said that he
remembered more. He had dropped his friend off in Kentwood
and then got lost. He made a wrong turn, and then was going
north on Patterson. He approached the 36th Street
intersection; the light was green. The black Mazda entered
the intersection and there was an accident. He was going the
speed limit, which was 55 miles per hour. He had had two
beers earlier that night.
Experts from the MSP crime laboratory testified that the two
samples of defendant's blood showed a blood alcohol level
.086 and .088 percent by whole blood test. Further,
controlled substances were found in defendant's blood,
including amphetamines, morphine, and promethazine and
Michele Glinn testified as an expert in forensic toxicology,
the analysis of blood, and procedures for a crime laboratory.
Glinn reviewed the results and reports from the crime
laboratory and St. Mary's Hospital. Glinn testified that
“whole blood” is blood that comes from a
person's arm. It contains red and white blood cells, as
well as other proteins and clotting factors. Hospitals often
separate out the red blood cells and proteins, ending up with
the water fraction of the blood. Depending on the amount of
filtering, this part of the blood is plasma or serum.
According to Glinn, because “alcohol partitions into
the water, ” the serum alcohol level is higher than the
whole blood alcohol level. By reducing a serum alcohol level
by 16 or 18 percent, one can obtain the whole blood alcohol
level. According to Glinn, if defendant's serum alcohol
level was reduced by 16 percent, his whole blood alcohol
level was .105 percent for the hospital blood draw. Glinn
further testified that, because a body metabolizes alcohol,
the difference in time between the blood draws for the
hospital and for the police could explain the difference in
the whole blood alcohol levels. Specifically, because the
blood draw for the police was done at a later time, Glinn
would expect that the alcohol level in the blood from that
draw to be lower than in the blood drawn for the hospital.
According to Glinn, a decrease in defendant's blood
alcohol level from .105 to .087 percent is consistent with
the general metabolic range. Glinn further testified that the
amphetamine level of defendant's blood was consistent
with one dose of the prescription medication Adderall.
(Mich. Ct. App. Op., ECF No. 8-16,
jurors deliberated for an entire day. They appeared to
struggle with reconciling victim Eric Fischer's blood
alcohol test results with the conclusion that Petitioner had
caused Fischer's death by operating a vehicle while
intoxicated. (Trial Tr. VI, ECF No. 8-13.) That struggle was
manifested in the jury's questions for the trial court
and in the jury's seemingly inconsistent resolution of
the charge that Petitioner caused the deaths of the two
victims by operating a vehicle while intoxicated. The jury
found Petitioner guilty of that offense with respect to
victim Herrera but not guilty of that offense with respect to
victim Fischer. (Id., PageID.522.) The jury also
found Petitioner guilty of reckless driving causing death
with respect to victim Herrera, but guilty of the lesser
offense of a moving violation causing death with respect to
victim Fischer. (Id.)
with the assistance of counsel, directly appealed his
convictions and sentences raising the same three issues in
the Michigan Court of Appeals that he raises now in this
Court, plus two issues relating to the jury instructions for
the “moving violation causing death” conviction.
(Pet'r's Appeal Br., ECF No. 8-16, PageID.575.) The
court of appeals rejected Petitioner's challenges
generally and affirmed the trial court; but, because of an
issue regarding the instructions relating to the moving
violation conviction, remanded to the trial court with
instructions to determine which party asked for the
“moving violation” instruction. (Mich. Ct. App.
Op., ECF No. 8-16, PageID.540-548.) The Kent County Circuit
Court docket sheet indicates that the parties stipulated to a
resolution of the remand issue that left standing the moving
violation conviction. (ECF No. 8-1,
filed a pro per application for leave to appeal in the
Michigan Supreme Court raising only the three issues he
raises in this Court. (Pet'r's Appl. for Leave to
Appeal, ECF No. 8-17, PageID.672-674.) The supreme court
denied leave by order entered May 2, 2016. (Mich. Order, ECF
No. 8-17, PageID.670.) Petitioner did not file a petition for
writ of certiorari in the United States Supreme Court. (Pet.,
ECF No. 1, PageID.3.) Instead, he filed the instant petition.
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. 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
landscape as it would have appeared to the Michigan state
courts in light of Supreme Court precedent at the time of the
state-court adjudication on the merits. Miller v.
Stovall, 742 F.3d 642, 644 (6th Cir. 2014) (citing
Greene, 565 U.S. at 38).
federal habeas court may issue the writ under the
“contrary to” clause if the state court applies a
rule different from the governing law set forth in the
Supreme Court's cases, or if it decides a case
differently than the Supreme Court has done on a set of
materially indistinguishable facts. Bell, 535 U.S.
at 694 (citing Williams, 529 U.S. at 405-06).
“To satisfy this high bar, a habeas petitioner is
required to ‘show that the state court's ruling on
the claim being presented in federal court was so lacking in
justification that there was an error well understood and
comprehended in existing law beyond any possibility for
fairminded disagreement.'” Woods, 135
S.Ct. at 1376 (quoting Harrington v. Richter, 562
U.S. 86, 103 (2011)). In other words, “[w]here the
precise contours of the right remain unclear, state courts
enjoy broad discretion in their adjudication of a
prisoner's claims.” White v. Woodall, 572
U.S. 415, 424 (2014) (internal quotations omitted).
AEDPA requires heightened respect for state factual findings.
Herbert v. Billy, 160 F.3d 1131, 1134 (6th Cir.
1998). A determination of a factual issue made by a state
court is presumed to be correct, and the petitioner has the
burden of rebutting the presumption by clear and convincing
evidence. 28 U.S.C. § 2254(e)(1); Davis v.
Lafler, 658 F.3d 525, 531 (6th Cir. 2011) (en banc);
Lancaster v. Adams, 324 F.3d 423, 429 (6th Cir.
2003); Bailey, 271 F.3d at 656. This presumption of
correctness is accorded to findings of state appellate
courts, as well as the trial court. See Sumner v.
Mata, 449 U.S. 539, 546 (1981); Smith v. Jago,
888 F.2d 399, 407 n.4 (6th Cir. 1989).
Admission of the hospital ...