United States District Court, W.D. Michigan, Southern Division
J. JONKER CHIEF 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 concludes that the petition must be
dismissed because it fails to raise a meritorious federal
William Earl Sherman is incarcerated with the Michigan
Department of Corrections at the Ionia Correctional Facility
(ICF) in Ionia County, Michigan. Following a four-day jury
trial in the Macomb County Circuit Court, Petitioner was
convicted of second-degree murder in violation of Mich. Comp.
Laws § 750.317. On November 15, 2016, the court
sentenced Petitioner as a third habitual offender, Mich.
Comp. Laws § 769.11, to a prison term of 27 to 40 years.
facts underlying Petitioner's conviction were summarized
by the Michigan Court of Appeals as follows:
This case arises out of the early-morning stabbing death of
Andrew Logsdon at his home. The victim lived in the home with
defendant and three other people: Victor Marcus, Elizabeth
Tankiewicz, and Anthony Rappazini. On the night leading up to
the event, the victim, Tankiewicz, Marcus, and Rappazini were
using heroin. Tankiewicz, Marcus, and the victim retired for
bed, but were later awoken by defendant and Rappazini, who
claimed that the victim had stolen their money.
An argument ensued between the five roommates after the
victim discovered that defendant had ransacked the
victim's room and the victim's money and other
belongings were missing. The argument peaked when Marcus
discovered that defendant had in his possession the exact
amount of money that was reportedly missing. Marcus punched
defendant in the head, gave defendant a garbage bag, and
instructed him to start packing and leave the home. At some
point immediately before or after the punch, the victim
grabbed the money. According to Tankiewicz, defendant then
went upstairs and the victim followed him, neither having
anything in their hands. Approximately 30 seconds or a minute
later, the victim yelled, “[Marcus], get up here.
[Defendant] just stabbed me.”
According to Tankiewicz, Marcus ran upstairs and told her to
call 911. Marcus testified that, when he reached the
upstairs, he saw the victim “slouched in the corner . .
. and [defendant] pull the blade out of his chest and stick
it in again and then pull it out quick. “Marcus stated
that, at that point, he punched defendant, who was standing
over the victim while still holding the knife. Marcus further
stated that defendant fell after the punch, but remained
holding the knife. Marcus explained that he got on top of
defendant's back and head, and continued punching him,
while continually telling defendant to drop the knife.
Rappazini also came upstairs and helped disarm defendant by
kicking the knife away after defendant dropped it. The knife
belonged to the victim, who kept the knife on the dresser in
his bedroom. Tankiewicz called the police, and while she was
still on the phone, went upstairs and saw the victim bloodied
and unconscious, at which time she covered the victim's
wounds per the 911 operator's direction. The victim was
stabbed a total of 10 times, which included four stab wounds
on the victim's back. The victim eventually died from his
After defendant was disarmed, he told Marcus,
“Don't call the police, please.” Tankiewicz
and Marcus told defendant to leave, and defendant obliged. As
Officer Steven Reed was responding to the call, he observed
defendant walking away from the home and arrested him without
incident. When defendant was arrested, he acknowledged
stabbing the victim, although he alleged that he did so in
self-defense. Defendant had injuries following the
incident-blood in his mouth, facial injuries, and head and
neck pain-and was transported to the hospital to be treated
for those injuries. When answering the paramedic's
question as to what happened to him, defendant responded that
someone stole his money, but “that person would never
do that again. At the hospital, defendant was interviewed by
police. Defendant again asserted that he acted in
self-defense but gave inconsistent statements as to whether
he was being assaulted by a single person or multiple persons
and whether the victim had a knife or was unarmed.
Ct. App. Op., ECF No. 1-1, PageID.54.)
trial court instructed the jurors that they could find
Petitioner guilty or not guilty of first-degree murder, the
lesser-included offense of second-degree murder, or the
lesser-included offense of manslaughter. (Id.) The
jury found Petitioner guilty of second-degree murder.
with the assistance of counsel, directly appealed his
conviction and sentence. He raised three issues, the same
issues he raises in his habeas petition. By unpublished
opinion issued June 19, 2018, the Michigan Court of Appeals
affirmed the trial court. The appellate court remanded the
matter to the trial court, however, to correct a clerical
error in the judgment that identified Petitioner as a fourth
habitual offender when the charge and the sentencing
transcript made clear that Petitioner was a third habitual
offender. (Id., PageID.57.)
again with the assistance of counsel, filed an application
for leave to appeal in the Michigan Supreme Court, raising
the same issues he raised in the court of appeals. (Pet., ECF
No. 1, PageID.2.) The supreme court denied leave by form
order entered December 21, 2018.
October 10, 2019, Petitioner timely filed his habeas corpus
petition, raising three grounds for relief, as follows:
I. Petitioner is entitled to a resentencing when the trial
court violated the two-thirds rule of People [v.]
Tanner, 387 Mich. 683 (1972), erroneously scored
[Offense Variables] six and nine, and imposed an unreasonable
II. Petitioner was denied his state and federal
constitutional due process rights where his conviction for
second-degree murder is not supported by evidence sufficient
to establish his guilt beyond a reasonable doubt, the
prosecutor failed to disprove that the killing was justified
by self-defense or that the killing was mitigated to
manslaughter due to the heat of passion based upon adequate
III. The trial court reversibly erred and violated
Petitioner's constitutional due process rights in wrongly
admitting evidence of prior criminal conduct under Mich.
Comp. Laws § 768.27b.
ECF No. 1, PageID.3.)
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.
312, 316 (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. 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 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, 575 U.S.
at 316 (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).
contends that his sentence is invalid for three reasons:
first, it violates the rule announced in People v.
Tanner, 199 N.W.2d 202 (Mich. 1972)-that the minimum
sentence in an indeterminate sentence cannot exceed
two-thirds of the maximum sentence; second, the trial court
improperly scored two of the offense variables; and third, a
27-year minimum sentence was unreasonable. Violation of the
Tanner rule, the reasonableness of the minimum
sentence, and the mis-scoring of Offense Variable 9, as
described by Petitioner, are not cognizable on habeas review.
Although Petitioner frames the alleged mis-scoring of Offense
Variable 6 in a way that is cognizable on habeas review, any
error was harmless and, therefore, does not warrant habeas