United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING THE PETITION FOR WRIT OF
HABEAS CORPUS, DECLINING TO ISSUE A CERTIFICATE OF
APPEALABILITY, AND GRANTING LEAVE TO APPEAL IN FORMA
VICTORIA A. ROBERTS UNITED STATES DISTRICT JUDGE.
John Edward Smith, a state prisoner proceeding pro
se, seeks a writ of habeas corpus under 28 U.S.C. §
2254. Petitioner challenges two larceny convictions on
grounds that (1) the trial court abused its discretion by
denying his motion to have his arrest declared illegal, (2)
his arraignment was unnecessarily delayed, (3) the
preliminary examination was untimely, and (4) the prosecutor
violated discovery rules, stand-by attorney contributed to
the evidentiary error, and the trial court abused its
discretion when the evidentiary issue arose. The State filed
an answer to the petition in which it urges the Court to deny
the petition on grounds that Petitioner’s claims are
barred from review or meritless. For the reasons that follow,
the Court denies the habeas corpus petition and closes this
The Charges, Conviction, Sentence, and Direct Appeal
2013, the Wayne County Prosecutor charged Petitioner with
larceny from a person, Mich. Comp. Laws § 750.357, and
larceny in a building, Mich. Comp. Laws § 750.360. The
charges arose from allegations that Petitioner brushed
against a sixty-seven-year-old man at a casino in Detroit,
Michigan, removed a winning slot-machine ticket or voucher
from the man’s pocket, cashed the ticket for $450, and
left the casino. The victim was playing the slot machines at
the time, and he did not realize that the winning ticket had
been removed from his shirt pocket until he was ready to
leave the casino. He then notified a security officer, and
law enforcement authorities were informed of the incident.
following day, Detroit police officer Jeffrey Robert reviewed
video surveillance tapes maintained by the casino. He was
able to identify Petitioner in the videotape because he was
familiar with Petitioner. Officer Robert or his partner
subsequently notified Petitioner’s parole officer, who
asked Petitioner to report to her office. Petitioner was
arrested when he appeared at the parole agent’s office.
represented himself, with the help of standby counsel, at his
jury trial in Wayne County Circuit Court. The prosecution
witnesses were the victim, Officer Robert, and a video
surveillance officer from the casino.
victim identified Petitioner at trial as the person who
approached him and brushed against him at the casino while he
was playing the slot machines on the day in question.
Although he did not see Petitioner take the slot machine
ticket from his pocket, he claimed that no one else was near
him at the time and that he did not leave the machines from
the time he put the winning ticket in his shirt pocket until
he noticed that it was missing. Officer Robert testified
about his role in the investigation, and the casino employee
explained how the casino’s surveillance videotape and
machine records implicated Petitioner in the larcenies.
only defense witness was Petitioner’s former parole
officer who testified that her office arrested Petitioner
after a police officer called and informed her that
Petitioner had engaged in felony behavior. The parole officer
admitted that the victim’s age may have been
incorrectly reported to her as ninety, but she did not think
that the police provided false information. She pointed out
that the victim was, in fact, a senior citizen, and even
though the police report showed the date of the incident as
July 27, the probation-violation-violation report was not
necessarily incorrect, because it stated that the incident
occurred “on or about July 29th.”
defense was that the prosecution had no evidence and that its
case was “smoke and mirrors.” He also stated to
the jury during closing arguments that his arraignment and
preliminary examination were not held in a timely manner and
that he was initially accused of intimidating a
ninety-year-old man on July 29, but he was actually talking
to counselors in the Veterans’ Hospital at the time.
The jury deliberated the case for less than thirty minutes
and found Petitioner guilty, as charged, of larceny from a
person and larceny in a building.
March 14, 2014, the trial court sentenced Petitioner as a
habitual offender, fourth offense, to concurrent terms of
nine to twenty years in prison for the larceny from a person
and one to four years in prison for the larceny in a
building. The Michigan Court of Appeals affirmed
Petitioner’s convictions and sentence, see People
v. Smith, No. 321099, 2015 WL 4635015 (Mich. Ct. App.
Aug. 4, 2015), and on June 28, 2016, the Michigan Supreme
Court denied leave to appeal. See People v. Smith,
499 Mich. 967; 880 N.W.2d 580 (2016).
The Habeas Petition and the State’s Answer to the
January 31, 2017, Petitioner filed his habeas petition. As
noted above, the State argues in an answer to the petition
that Petitioner’s claims are barred from substantive
review or meritless.
habeas context, a procedural default is “a critical
failure to comply with state procedural law.” Trest
v. Cain, 522 U.S. 87, 89 (1997). Under the doctrine of
procedural default, “a federal court will not review
the merits of [a state prisoner’s] claims, including
constitutional claims, that a state court declined to hear
because the prisoner failed to abide by a state procedural
rule.” Martinez v. Ryan, 566 U.S. 1, 9 (2012).
procedural default is not a jurisdictional bar to review of
the merits of a claim, Howard v. Bouchard, 405 F.3d
459, 476 (6th Cir. 2005), and “federal courts are not
required to address a procedural-default issue before
deciding against the petitioner on the merits.”
Hudson v. Jones, 351 F.3d 212, 215 (6th Cir. 2003)
(citing Lambrix v. Singletary, 520 U.S. 518, 525
(1997)). Because Petitioner’s claims do not warrant
habeas relief, the Court bypasses the procedural-default
analysis and proceeds directly to the merits of
Petitioner’s claims, using the following standard of
Standard of Review
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”) requires habeas petitioners who
challenge “a matter ‘adjudicated on the merits in
State court’ to show that the relevant state court
‘decision’ (1) ‘was contrary to, or
involved an unreasonable application of, clearly established
Federal law, ’ or (2) ‘was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceedings.’
” Wilson v. Sellers, 138 S.Ct. 1188, 1192
(2018) (quoting 28 U.S.C. § 2254(d)). “[A] federal
habeas court may not issue the writ simply because that court
concludes in its independent judgment that the relevant
state-court decision applied clearly established federal law
erroneously or incorrectly. Rather, that application must
also be unreasonable.” Williams v. Taylor, 529
U.S. 362, 411 (2000). “AEDPA thus imposes a
‘highly deferential standard for evaluating state-court
rulings, ’ Lindh v. Murphy, 521 U.S. 320, 333,
n. 7 (1997), and ‘demands that state-court decisions be
given the benefit of the doubt, ’ Woodford v.
Visciotti, 537 U.S. 19, 24 (2002) (per
curiam).” Renico v. Lett, 559 U.S. 766,
state court’s determination that a claim lacks merit
precludes federal habeas relief so long as ‘fairminded
jurists could disagree’ on the correctness of the state
court’s decision.” Harrington v.
Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough
v. Alvarado, 541 U.S. 652, 664 (2004)). To obtain a writ
of habeas corpus from a federal court, a state prisoner must
show that the state court’s ruling on his or her claim
“was so lacking in justification that there was an
error well understood and comprehended in existing law beyond
any possibility for fairminded disagreement.”
Id. at 103. Thus, “[o]nly an
‘objectively unreasonable’ mistake, [White v.
Woodall, 572 U.S. 415, 419 (2014)], one ‘so
lacking in justification that there was an error well
understood and comprehended in existing law beyond any
possibility for fairminded disagreement, ’ slips
through the needle’s eye of § 2254.”
Saulsberry v. Lee, __ F.3d __,, No. 17-6157, 2019 WL
4126667, at *2 (6th Cir. Aug. 30, 2019) (quoting
Richter, 562 U.S. at 103). A state-court’s
factual determinations, moreover, are presumed correct on
federal habeas review, 28 U.S.C. § 2254(e)(1), and
review is “limited to the record that was before the
state court.” Cullen v. Pinholster, 563 U.S.
170, 181 (2011).
Petitioner’s State-Court Motion to Declare his Arrest
first claim alleges that the state trial court abused its
discretion and violated his constitutional rights by failing
to examine evidence that he presented to the court in a
pretrial motion to declare his arrest illegal. Petitioner
argued at a hearing on his motion that the Detroit Police
Department provided his parole officer with erroneous
information that the Department had probable cause to arrest
to Petitioner, Officer Robert falsely informed
Petitioner’s parole officer that Petitioner intimidated
an elderly man and took money from the man without the
man’s permission on July 29, 2013. The police arrest
report, however, states that Petitioner was arrested for a
larceny that occurred at a casino on July 27, 2013.
Petitioner maintained at the hearing on his pretrial motion
that, after he informed his parole officer he had an alibi
for July 29, 2013, the prosecution modified the charging
document to state that the larcenies occurred on July 27,
2013. See 2/14/14 Mot. Tr. at 3-6. The trial court
denied Petitioner’s motion to declare his arrest
illegal because Petitioner’s alibi argument and the
legitimacy of the charges were matters for the jury to
decide. Id. at 5-6.
contends in his habeas petition that the trial court failed
to conduct an objective review of the evidence at the motion
hearing, and if the trial court had reviewed the evidence, it
would have noticed that Officer Jeffrey Robert made false
statements to his probation officer to establish probable
cause to arrest Petitioner without a warrant. The Michigan
Court of Appeals found no merit in Petitioner’s
argument because, in its opinion, Officer Robert had probable
cause to arrest Petitioner.
Clearly Established Federal Law
Supreme Court has made clear that the Fourth Amendment
requires probable cause to arrest, ” Evans v.
Etowah, Tenn., 312 F. App’x 767, 771 (6th Cir.
2009) (citing Beck v. Ohio, 379 U.S. 89, 91 (1964)),
but a state prisoner is not entitled to review of a Fourth
Amendment claim if he had an opportunity for “full and
fair consideration” or “full and fair
litigation” of his claim in state court. Stone v.
Powell, 428 U.S. 465, 489, 494 (1976). “[T]he
Powell “opportunity for full and fair
consideration” means an available avenue for the
prisoner to present his claim to the state courts, not an
inquiry into the adequacy of the procedure actually used to
resolve that particular claim.” Good v.
Berghuis, 729 F.3d 636, 639 (6th Cir. 2013).
raised his Fourth Amendment claim in a state-court motion to
declare his arrest illegal and to suppress evidence.
See Defendant’s Mot. to Have Arrest Declared
Illegal and Evidence Suppressed (ECF No. 1, PageID. 147).
Petitioner also raised his Fourth Amendment claim on appeal.
The presentation of his claim to the state courts
“suffices to preclude review of the claim through a
habeas corpus petition under Stone v. Powell.”
Good, 729 F.3d at 640; see also Rashad v.
Lafler, 675 F.3d 564, 570 (6th Cir. 2012) ...