Koshmider v. Lesatz

          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 concludes that the petition must be dismissed because Petitioner has failed to raise a meritorious federal claim.

         Discussion

         I. Factual allegations

         Petitioner Donald Joseph Koshmider, II, was previously incarcerated with the Michigan Department of Corrections (MDOC). Before Petitioner filed this action, he was paroled. Even though Petitioner was paroled before he filed his petition, he was still “in custody.” Jones v. Cunningham, 371 U.S. 236, 242 (1963) (holding that petitioner who was on parole was still “in custody” for habeas purposes). Just a few days after he filed his petition, he was discharged by the MDOC. Petitioner's discharge does not moot his petition “because of the continuing collateral consequences to a wrongful criminal conviction.” Abela v. Martin, 380 F.3d 915, 921 (6th Cir. 2004) abrogated on other grounds Guilmette v. Howes, 624 F.3d 286 (6th Cir. 2010).

         Before his parole and discharge, Petitioner was serving six concurrent sentences of 13 to 180 months imposed by the Wexford County Circuit Court on August 28, 2017. Those sentences were imposed after a Wexford County jury, following a four-day trial that ended on July 14, 2017, found Petitioner guilty on six counts relating to delivery of marijuana and maintaining a drug house. Petitioner was found guilty of one count of delivery of marijuana to Andrea Deleon on June 27, 2016, and one count of possession with intent to deliver marijuana on July 11, 2016, both counts in violation of Mich. Comp. Laws § 333.7401(2)(d)(iii); two counts of aiding and abetting the delivery of marijuana, one count for delivery to Tayler Curtis on April 21, 2016, and one count for delivery to Aaron Sible on June 9, 2016, both counts in violation of Mich. Comp. Laws § 333.7401(2)(d)(iii); two counts of maintaining a drug house, one count for his home and one count for the shop where the marijuana was sold, both counts in violation of Mich. Comp. Laws § 333.8405(1)(d); and one count of possession of marijuana, in violation of Mich. Comp. Laws § 333.7403(2)(d). (Appl. for Leave to Appeal, ECF No. 1-1, PageID.77.) Petitioner was sentenced to time served on the possession count; therefore, because he was not “in custody” for that conviction at the time he filed his petition, it is not at issue here.

         The Michigan Court of Appeals described the underlying facts as follows:

Defendant owned and operated Best Cadillac Provisions, a medical marijuana dispensary located in Wexford County. The Traverse Narcotics Team (TNT) began investigating defendant in 2014 for failing to comply with state drug laws. In 2016, TNT initiated several controlled buys of marijuana from Best Cadillac Provisions using confidential informants for whom defendant was not a registered primary caregiver under the Michigan Medical Marijuana Act (MMMA), MCL 333.26421 et seq., marked money, and surveillance teams. After three successful controlled buys (one in April 2016 and two in June 2016), police executed search warrants at Best Cadillac Provisions and at defendant's home. From Best Cadillac Provisions, police seized several items, including a digital scale, two cell phones, and a briefcase containing suspected marijuana and marijuana oil. Police seized ammunition, police scanners, a backpack containing marijuana edibles, marijuana, and 27 marijuana plants found in two rooms located in defendant's basement, among other things, from defendant's home.

(Mich. Ct. App. Op., ECF No. 1-1, PageID.26.)

         The Michigan Medical Marijuana Act (MMMA) creates certain immunities from criminal prosecution for “qualifying patients” and “primary caregivers.” The MMMA also provides affirmative defenses to patients and primary caregivers. To gain the protection of immunity, patients and caregivers must be registered. The affirmative defenses are available to patients and caregivers whether or not they are registered. Prior to trial, the court conducted an evidentiary hearing regarding whether Petitioner could avail himself of the immunities and affirmative defenses available under the MMMA. The court determined Petitioner could not.

         Petitioner was the only witness at the hearing. (Mich. Ct. App. Op., ECF No. 1-1, PageID.30.) The court of appeals described his testimony as follows:

Defendant testified that he has a valid medical marijuana card that was also valid in July 2016. Defendant testified that when the police executed the search warrant at Best Cadillac Provisions on July 11, 2016, he was present and had a locked briefcase with him containing approximately 1 ½ ounces of medical marijuana, as well as several (3-4) grams of marijuana concentrate. Defendant admitted that he owned Best Cadillac Provisions for the express purpose of providing medical marijuana to medical marijuana patients, and that he allowed employees to distribute the medical marijuana that he provided to Best Cadillac Provisions for him from that location as well. Defendant testified that he kept the marijuana for Best Cadillac Provisions in a locked briefcase, and admitted that the only marijuana at Best Cadillac Provisions on July 11, 2016, was that contained in the locked briefcase, and that it was intended for his personal use and for sale that day at Best Cadillac Provisions. Defendant testified that he is his own medical marijuana caregiver.

Defendant further testified that the marijuana plants found at his home during the execution of a search warrant on July 11, 2016, were not his plants. He testified that the plants belonged to Kris and Rose Swaffer, who were caregivers that paid him in cash each month for the use of his basement. Defendant testified that he did not have access to the basement rooms where the marijuana plants were found, but that he did have access to the open areas of the basement. Defendant additionally testified that he had “medibles” (marijuana edibles), inside a backpack in the office of his home that the police seized on July 11, 2016, that were for his personal use, and that marijuana butter from his refrigerator was also seized. He testified that he did not carry the medibles or concentrate to Best Cadillac Provisions because, according to defendant, most people only wanted marijuana flowers.

(Id., PageID.30-31.) The court described additional testimony from the trial:

Testimony and evidence at trial established that three confidential informants made controlled buys of marijuana at Best Cadillac Provisions on three different days in 2016. All three informants testified that they had no primary medical marijuana caregiver at Best Cadillac Provisions. Testimony and evidence also established at trial that defendant leased two rooms in his basement to the Swaffers for them to grow marijuana to provide to medical marijuana patients, and that both rooms were padlocked. However, there was no key to one of the padlocks, so a single screw held the hardware to the padlock in place and a screwdriver used to remove the screw and gain access to the room was placed on a table near the door in the basement.

(Id., PageID.31.) Petitioner does not challenge the facts described by the court of appeals.

         Following his conviction, Petitioner appealed his convictions to the Michigan Court of Appeals. Petitioner filed a brief in the Michigan Court of Appeals prepared with the assistance of counsel. Petitioner also filed a pro per brief raising several additional issues. The court of appeals affirmed the trial court by unpublished opinion issued February 7, 2019. (Mich. Ct. App. Op., ECF No. 1-1, PageID.26-41.) Petitioner, again with the assistance of counsel, then filed an application for leave to appeal in the Michigan Supreme Court. The supreme court denied leave by order entered July 29, 2019. (Mich. Order, ECF No. 1-1, PageID.25.)

         On September 18, 2019, Petitioner timely filed his habeas corpus petition raising multiple grounds for relief, including the following seven issues from his counsel-assisted appellate brief:

I. The Court of Appeals erred when its opinion failed to analyze Mr. Kos[h]mider's Issue's accord[ing] to the Legislative directive that Public Act 283 is retroactive.

II. The Court of Appeals erred when it opined “Thus”, the marijuana in the room that was accessible to defendant could be attributable to him and he would not be entitled to § 4 immunity for the possession of it because the storage of the marijuana . . . did not comply with the MMMA.

III. The Court of Appeals erred when it opined that “he [defendant] was not entitled to immunity under [§] 4 . . . because any assistance to registered qualified patient must be limited to the use or administration of the marijuana, which our Supreme Court has determined is conduct involving only actual ingestion of marijuana. . . . While the sale of medical marijuana is included with the definition of “medical use” marijuana . . . “the transfer, delivery and acquisition of marijuana are three activities that are part of the “medical use” of that the drafters of the MMMA chose not to include as protected activities within § 4(i).”

IV. The Court of Appeals erred when it opined that “Defendant also claims that the trial Court abused its discretion in ordering a blanket prohibition against the admission of MMMA evidence. Defendant contends that these errors rise to the level of constitutional deprivations.

V. The Court of Appeals erred when it opined that the Defendant's contention that “whether the employees (who would be testifying) and defendant had their medical marijuana cards was relevant to whether Defendant aided and abetted them, given that one could not aid or abet something that is legal. “The trial court agreed with the prosecution and we find no abuse in discretion on the issue.”

VI. The Court of Appeals erred when it opined tha[t] the trial court did not abuse its discretion when it failed to allow the jury to determine whether maintaining a drug house was the substantial purpose of the use of the property at the two locations in counts 4 and 5 as [the Supreme Court] required in People v. Thompson . . . and trial counsel was ineffective for failure to know the law and request additional clarifying jury instructions.

VII. The evidence was insufficient in Counts 3 and 7 that Mr. Koshmider aided and abetted Jayson Hunt & Mike Holloway to illegal distribution of marijuana.

(Pet., ECF No. 1, PageID.5-16.) Petitioner also raises collectively, as petitioner habeas ground VIII, the six issues set forth in his pro per brief on appeal, which he attached to his petition:

VIII. The trial court erred in its discretion and denied Defendant-Appellant his due process rights to a fair trial when it declined to grant a mistrial based on the prosecution's misstatement of law.

IX. Defendant-Appellant has been charged, tried, convicted, and sentenced to a term of incarceration in violation of his constitutional rights of due process for the “misinterpretation” of the language detailed in the Michigan Medical Marijuana Act.

X. The trial court erred and abused its discretion and denied Defendant-Appellant his due process right to a fair trial when it allowed the prosecution to commit misconduct.

XI. The prosecution failed to produce legally sufficient evidence.

XII. Mazur is controlling case law as it further defines the statutory definition of medical use.

XIII. Defendant-Appellant has been denied access to the courts by being incarcerated in an MDOC facility that has no law library computer to research case law to effectively write his Standard 4 Brief.

(Std. 4 Br., ECF No. 1-1, PageID.45-46.)

         II. AEDPA standard

         This 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).

         The 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 landscape ...