Mills v. MacLaren

Filing 5

OPINION AND ORDER Summarily Denying 1 Petition for Writ of Habeas Corpus filed by Morris Mills and Declining to issue a Certificate of Appealability Signed by District Judge Robert H. Cleland. (LWag)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MORRIS MILLS,
Petitioner,
v.

Case No. 2:15-CV-10505

DUNCAN MACLAREN,
Respondent,
/
OPINION AND ORDER SUMMARILY DENYING
THE PETITION FOR WRIT OF HABEAS CORPUS
AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY
Petitioner Morris Mills incarcerated at the Kinross Correctional Facility in
Kincheloe, Michigan, seeks the issuance of a writ of habeas corpus pursuant to 28
U.S.C. § 2254.1 In his pro se application, Petitioner challenges his conviction for one
count of first-degree murder, Mich. Comp. Laws § 750.316(1)(a), one count of
second-degree murder, Mich. Comp. Laws § 750.317, two counts of assault with intent

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The court is aware that Petitioner filed his petition under the All-Writs Act, 28
U.S.C. § 1651. However, 28 U.S.C. § 2254 is “the exclusive vehicle” for prisoners who
are in custody pursuant to a state court judgment who wish to challenge anything
affecting the legality of that custody. See Greene v. Tennessee Dep't of Corr., 265 F.3d
369, 371 (6th Cir. 2001)(quoting Walker v. O'Brien, 216 F. 3d 626, 633 (7th Cir. 2000)).
By contrast, the All-Writs Act is not an independent source of federal jurisdiction to issue
writs, but only authorizes a federal court to issue a writ in aid of its jurisdiction. See
Baze v. Parker, 632 F.3d 338, 345 (6th Cir. 2011). The All Writs Act may not be used to
evade the strictures of section 2254. See Brennan v. Wall, 100 F. App’x. 4 (1st Cir.
2004); see also Haliburton v. United States, 59 F. App’x. 55, 57 (6th Cir. 2003) (federal
prisoner could not use the All Writs Act to circumvent the AEDPA’s prohibition against
the filing of a second or successive motion to vacate sentence brought under 28 U.S.C.
§ 2255). Because Petitioner is requesting immediate release from his conviction, the
court construes this action as a petition for writ of habeas corpus brought pursuant to 28
U.S.C. § 2254. See e.g. Simpson v. Caruso, 355 Fed. Appx. 927, 930 (6th Cir. 2009).

to commit murder, Mich. Comp. Laws § 750.83, one count of felon in possession of a
firearm, Mich. Comp. Laws § 750.224(f), and felony firearm, Mich. Comp. Laws §
750.227(b). For the reasons that follow, the petition for writ of habeas corpus will be
summary denied.
I. BACKGROUND
Petitioner was convicted of the above offenses following a jury trial in the Wayne
County Circuit Court. Petitioner’s conviction was affirmed on appeal. People v. Mills,
No. 277819 (Mich. Ct. App June 12, 2008); leave to appeal denied at 757 N.W.2d 83
(Mich. 2008).2
Petitioner filed a post-conviction motion for relief from judgment, which was
denied. People v. Mills, No. 06-014512-01-FC (Third Judicial Circuit, May 17, 2011). It
is unclear whether Petitioner appealed the denial of this motion to the Michigan
appellate courts.
Petitioner seeks habeas relief on the following ground:
Petitioner is being unlawfully deprived of liberty where jurisdiction was lost at
the initial arraignment when magistrate judge failed to complete the court by
providing the “assistance” of counsel for his defense as the Sixth Amendment
requires in violation of due process.

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Following his direct appeal, Petitioner filed a petition for writ of habeas corpus,
which was held in abeyance so that Petitioner could return to the state courts to exhaust
additional claims. Mills v. Ludwick, No. 10-10342, 2010 WL 4822608, at *1 (E.D. Mich.
Nov. 22, 2010). Petitioner has not done so, and does not here ask that this case be
reopened or even refer to his previous action in his current petition.
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II. DISCUSSION
The petition for writ of habeas corpus must be dismissed because Petitioner has
failed to allege any facts showing that he is being detained in violation of the United
States Constitution.
A petition for a writ of habeas corpus must set forth facts that give rise to a cause
of action under federal law or it may summarily be dismissed. See Perez v.
Hemingway, 157 F. Supp. 2d 790, 796 (E.D. Mich. 2001). Federal courts are
authorized to dismiss any habeas petition that appears legally insufficient on its face.
See McFarland v. Scott, 512 U.S. 849, 856 (1994); Crump v. Lafler, 657 F.3d 393, 396,
n. 2 (6th Cir. 2011); Carson v. Burke, 178 F.3d 434, 436 (6th Cir. 1999); Rules
Governing § 2254 Cases, Rule 4, 28 U.S.C. foll. § 2254. No response to a habeas
petition is necessary when the petition is frivolous, or obviously lacks merit, or where the
necessary facts can be determined from the petition itself without consideration of a
return by the state. See Allen v. Perini, 424 F.2d 134, 141 (6th Cir. 1970). After
undertaking the review required by Rule 4, the court concludes that Petitioner’s habeas
claim is meritless, such that the petition must be summarily denied. See Robinson v.
Jackson, 366 F. Supp. 2d 524, 525 (E.D. Mich. 2005).
Petitioner claims that he was denied his Sixth Amendment right to counsel
because he was not represented by an attorney at his initial arraignment on the warrant
in 36th District Court in Detroit, Michigan.
“It is beyond dispute that ‘[t]he Sixth Amendment safeguards to an accused who
faces incarceration the right to counsel at all critical stages of the criminal process.’”
Marshall v. Rodgers, 133 S. Ct. 1446, 1449 (2013) (per curiam) (quoting Iowa v. Tovar,
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541 U.S. 77, 80–81 (2004)). The right to counsel applies to “pretrial critical stages that
are part of the whole course of a criminal proceeding.” Lafler v. Cooper, 132 S. Ct. 376,
1385 (2012). The right to counsel also includes “the first appearance before a judicial
officer at which a defendant is told of the formal accusation against him and restrictions
are imposed on his liberty.” Rothgery v. Gillespie Cnty., Tex., 554 U.S. 191, 194 (2008).
Assuming without deciding that Petitioner may have been denied the assistance
of counsel at his arraignment on the warrant, he is not entitled to habeas relief because
he has not stated how he was prejudiced by the absence of counsel at this proceeding.
The Supreme Court held that the denial of counsel at an arraignment requires automatic
reversal, without any harmless-error analysis, in only two situations: (1) when defenses
not pled at arraignment were irretrievably lost, Hamilton v. Alabama, 368 U.S. 52, 53–54
(1961); and (2) when a full admission of guilt entered at an arraignment without counsel
was later used against the defendant at trial, despite subsequent withdrawal. White v.
Maryland, 373 U.S. 59, 60(1963) (per curiam). Petitioner has not alleged that he was
prejudiced by the absence of counsel at his initial arraignment, and thus fails to state a
claim for habeas relief. Coleman v. Alabama, 399 U.S. 1, 11 (1970); see also Whitsell
v. Perini, 419 F.2d 95 (6th Cir. 1969) (petitioner not entitled to habeas relief based on
fact that he was not represented by counsel at his arraignment where petitioner pleaded
not guilty at arraignment and no incriminating statements were brought out and later
used at trial); Doyle v. Scutt, 347 F. Supp. 2d 474, 481 (E.D. Mich. 2004) (denial of
counsel to petitioner at arraignments on the warrant did not entitle habeas petitioner of
relief, given that petitioner did not make any incriminating statement at his arraignments
or lose any available defenses by not pleading them at his arraignments). Petitioner
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has not alleged that he made any incriminating statement at his arraignment on the
warrant or that he lost any available defenses by not pleading them at his arraignment
on the warrant. Thus, he is not entitled to habeas relief on this claim. Doyle, 347 F.
Supp. 2d at 481.
III. CERTIFICATE OF APPEALABILITY
Before Petitioner may appeal this decision, a certificate of appealability must
issue. See 28 U.S.C. § 2253(c)(1)(a); Fed. R. App. P. 22(b). A certificate of
appealability may issue “only if the applicant has made a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). When a court denies a habeas
claim on the merits, the substantial showing threshold is met if the petitioner
demonstrates that reasonable jurists would find the court’s assessment of the claim
debatable or wrong. See Slack v. McDaniel, 529 U.S. 473, 484–85 (2000). “A petitioner
satisfies this standard by demonstrating that ... jurists could conclude the issues
presented are adequate to deserve encouragement to proceed further.” Miller–El v.
Cockrell, 537 U.S. at 327. In applying this standard, a court may not conduct a full
merits review, but must limit its examination to a threshold inquiry into the underlying
merits of the claim. Id. at 336–37.
Having considered the matter, the court concludes that Petitioner has not made a
substantial showing of the denial of a constitutional right as to his habeas claim.
Accordingly, the court will deny Petitioner a certificate of appealability.
IV. CONCLUSION
IT IS ORDERED that Petitioner Morris Mills’s petition for writ of habeas corpus is
SUMMARILY DENIED and the court DECLINES to issue a certificate of appealability.
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s/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE
Dated: April 30, 2015

I hereby certify that a copy of the foregoing document was mailed to counsel of record
on this date, April 30, 2015, by electronic and/or ordinary mail.
s/Lisa Wagner
Case Manager and Deputy Clerk
[phone]

S:\Cleland\JUDGE'S DESK\C3 ORDERS\15-10505.MILLS.SummaryDismissal.db.wpd

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