United States District Court, W.D. Michigan
L. Maloney, 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 will dismiss Petitioner's
unexhausted claims (habeas issues IV-X) without prejudice for
failure to exhaust available state-court remedies, stay
proceedings on the exhausted issues (habeas issues I-III),
and hold the petition in abeyance pending Petitioner's
timely compliance with the Court's order.
is incarcerated with the Michigan Department of Corrections
at the Bellamy Creek Correctional Facility (IBC) in Ionia
County, Michigan. Following a six-day jury trial in the Wayne
County Circuit Court, Petitioner was convicted of
first-degree home invasion, torture, and second-degree
murder. On February 18, 2016, the court sentenced Petitioner
as a third habitual offender to a sentence of 20 to 40 years
for home invasion to be served consecutively to concurrent
sentences of 20 to 40 years for torture and 27 to 40 years
August 26, 2019, Petitioner filed his habeas corpus petition.
Under Sixth Circuit precedent, the application is deemed
filed when handed to prison authorities for mailing to the
federal court. Cook v. Stegall, 295 F.3d 517, 521
(6th Cir. 2002). Petitioner has not supplied that date.
Petitioner signed his application on August 26, 2019. (Pet.,
ECF No. 1, PageID.25.) The petition was received by the Court
on October 29, 2019. I have given Petitioner the benefit of
the earliest possible filing date. See Brand v.
Motley, 526 F.3d 921, 925 (6th Cir. 2008) (holding that
the date the prisoner signs the document is deemed under
Sixth Circuit law to be the date of handing to officials)
(citing Goins v. Saunders, 206 Fed.Appx. 497, 498
n.1 (6th Cir. 2006)).
petition raises ten grounds for relief, as follows:
I. Admission of inflammatory photographic evidence over
defense counsel's objection violated Petitioner's
right to due process and a fair trial and constituted
II. Insufficient evidence was presented during the
petitioner's trial to support the jury's verdicts of
guilty beyond a reasonable doubt of one count each of
second[-]degree murder, torture and first degree home
invasion (FDHI), and constitutes a denial of the due process
of law guaranteed by the Fifth and Fourteenth Amendments of
the United States Constitution.
III. Petitioner's sentence of twenty-[seven] years to
forty years in prison, and the consecutive sentence of from
twenty years to forty years in prison, constitute abusive
sentences and a violation of the guarantee against cruel and
unusual punishment provided by the United States
IV. Petitioner was denied his Sixth Amendment right to the
effective assistance of counsel on appeal.
V. Petitioner must be resentenced due to the failure of the
prosecution to comply with MCL 769.13's sentence
VI. Petitioner is entitled to resentencing based upon the
improper scoring of his offense variables.
VII. Petitioner was denied his Sixth Amendment right to the
effective assistance of counsel where: (A) counsel failed to
secure funds for an expert witness; (B) counsel failed to
object to inadmissible evidence; (C) counsel failed to
request the lesser included offense [instruction] of
accessory after the fact; [and] (D) counsel failed ...