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Davis v. Macauley

United States District Court, W.D. Michigan

October 25, 2019

JOHNNY WAYNE DAVIS, Petitioner,
v.
MATT MACAULEY, Respondent.

          OPINION

          Paul L. Maloney, 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 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.

         Discussion

         I. Factual allegations

         Petitioner 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 for murder.

         On 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)).

         The 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 reversible error.
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 Constitution.
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 enhancement procedure.
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 ...

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