United States District Court, W.D. Michigan, Northern Division
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 concludes that the petition must be
dismissed because it fails to raise a meritorious federal
Jermial Ali Redding is incarcerated with the Michigan
Department of Corrections at the Chippewa Correctional
Facility (URF) in Chippewa County, Michigan. On October 17,
2013, following a six-day jury trial in the Wayne County
Circuit Court, Petitioner was convicted of armed robbery, in
violation of Mich. Comp. Laws § 750.529; carrying a
concealed weapon (CCW), in violation of Mich. Comp. Laws
§ 750.227; felon in possession of a firearm
(felon-in-possession), in violation of Mich. Comp. Laws
§ 750.227f; and use of a firearm during the commission
of a felony (felony-firearm), in violation of Mich. Comp.
Laws § 750.227b. On November 1, 2013, the court
sentenced Petitioner as a fourth habitual offender, Mich.
Comp. Laws § 769.12, to concurrent prison terms of 2 to
10 years on the felon-in-possession and CCW convictions and
15 to 30 years on the armed robbery conviction. Those
sentences were to be served consecutively to a 2-year
sentence on the felony-firearm conviction.
Michigan Court of Appeals described the facts underlying
Petitioner's conviction in a brief recounting of the
prosecutor's opening argument:
[T]he prosecutor stated:
Basically, on March 20th, 2013, at approximately 3:30 in the
afternoon, daylight time, Tiara Jones and Melonie McCormick,
school age young ladies were walking down the street, and at
that time they witnesses [sic] a green Neon, four door, with
four individuals in it, pass by them, turn around, and kind
followed [sic] them, to where it is that they made their
At that point in time, the individual that was in the one
front passenger side of that vehicle got out of the car, that
individual being this Defendant right here, and indicated to
them that this is a stick-up, and that he had his gun in his
waistband area. He showed them that gun, and he basically
said to them give me everything that you have.
One of the young ladies had a purse with various items inside
of it and she can testify to that, and that was taken from
her. The other young lady had an I-phone it was or a Smart
Phone, and that was taken from her, and that it was
At that point in time, that person then got back in the
vehicle. There was also another individual in the back seat
that basically gets out and makes some statements and closes
the door. And then at that time the vehicle takes off . . . .
People v. Redding, No. 319255, 2015 WL 1227570, at
*2-*3 (Mich. Ct. App. Mar. 17, 2015).
with the assistance of counsel, directly appealed his
convictions and sentences raising four issues, the same four
issues he raises in his petition. By unpublished opinion
issued March 17, 2015, the Michigan Court of Appeals denied
relief, affirming the trial court. Petitioner then filed a
pro per application for leave to appeal in the
Michigan Supreme Court raising the same four issues.
the Michigan Court of Appeals opinion and the Michigan
Supreme Court's consideration of Petitioner's
application, the Michigan Supreme Court decided People v.
Lockridge, 870 N.W.2d 502 (Mich. 2015). Because
Petitioner's sentence was based on judge-found facts, the
Michigan Supreme Court reversed that part of the court of
appeals judgment that was contrary to Lockridge and
remanded to the trial court to determine whether it would
have imposed the same sentence absent the unconstitutional
restraint imposed by statutory mandatory limits on the
minimum sentence range. People v. Redding, 872
N.W.2d 453 (Mich. 2015).
trial court denied Petitioner's request for resentencing.
Petitioner appealed, with the assistance of counsel, claiming
that his sentence was unreasonable and disproportionate. The
court of appeals declined to address the issue because it was
outside the scope of the remand. People v. Redding,
No. 336896, 2018 WL 1733344 (Mich. Ct. App. Apr. 10, 2018).
Petitioner filed a pro per application for leave to
appeal in the Michigan Supreme Court. That court denied
relief by order entered October 10, 2018. People v.
Redding, 917 N.W.2d 875 (Mich. 2018).
did not file a petition for certiorari in the United States
Supreme Court. (Pet., ECF No. 1, PageID.4-5.)
timely filed his habeas corpus petition raising four grounds
for relief, as follows:
I. Petitioner's CCW, felon-in-possession, and
felony-firearm convictions must be reversed where the
prosecution failed to present sufficient evidence to prove
those charges beyond a reasonable doubt.
II. The trial court reversibly erred, in violation of
Petitioner's constitutional rights to due process,
confrontation, and fair trial, by denying a mistrial where
the prosecutor removed a complaining witness from their
endorsed witness list without leave of the court but
discussed that witness' allegedly incriminating testimony
in opening statements.
III. Petitioner was denied a fair trial, the right to
confront witnesses, and the right to present a defense when
defendant James Ready, who pled guilty to unarmed robbery in
exchange for an agreement to testify, was allowed to claim a
Fifth Amendment privilege from testifying due to unspecified
reasons without a determination that privilege was valid and
related to the issues in the case.
IV. Resentencing is required where appellant's sentence
range was increased based upon facts that were not found by a
jury or proved beyond a reasonable doubt.
(Pet., ECF No. 1, PageID.7-11.)
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).