Redding v. Horton

          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 it fails to raise a meritorious federal claim.

         Discussion

         I. Factual allegations

         Petitioner 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.

         The 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 turn.

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 approximately 3:30.

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).

         Petitioner, 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.

         Between 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).

         The 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).

         Petitioner did not file a petition for certiorari in the United States Supreme Court. (Pet., ECF No. 1, PageID.4-5.)

         Petitioner 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.)

         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. 312, 316 (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 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).

         A 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).

         The 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).

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