Abraham v. Bergh

Filing 4

OPINION and ORDER summarily denying 1 Petition for Writ of Habeas Corpus and declining to issue a certificate of appealability or leave to appeal in forma pauperis. Signed by District Judge George Caram Steeh. (MBea)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ANDRE ABRAHAM,
Petitioner,
v.

Case No. 2:16-CV-10268
HONORABLE GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE

DAVID BERGH,
Respondent.
_______________________/
OPINION AND ORDER SUMMARILY DENYING THE PETITION FOR
WRIT OF HABEAS CORPUS AND DECLINING TO ISSUE A CERTIFICATE
OF APPEALABILITY OR LEAVE TO APPEAL IN FORMA PAUPERIS
Andre Abraham, (“Petitioner”), confined at the Thumb Correctional Facility in
Lapeer, Michigan, filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2254, in which he challenges his conviction for first-degree felony murder, M.C.L.A.
750.316(b); assault with intent to commit murder, M.C.L.A. 750.83; felony-firearm,
M.C.L.A. 750.227b; and unlawfully driving away an automobile, M.C.L.A. 750.413. For
the reasons that follow, the petition for writ of habeas corpus is SUMMARILY DENIED
WITH PREJUDICE.
I. Background
Petitioner was convicted following a jury trial in the Saginaw County Circuit Court.
Petitioner’s conviction was affirmed on appeal. People v. Abraham, No. 215819, 2000
WL 33420643 (Mich. Ct. App. May 12, 2000); lv. den. 463 Mich. 922; 619 N.W. 2d 544
(2000).

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Petitioner filed a petition for writ of habeas corpus, which was dismissed without
prejudice on petitioner’s motion so that petitioner could return to the state courts to
exhaust additional claims. Abraham v. Renico, 2:01-CV-73916 (E.D. Mich. July 31,
2002).
Petitioner filed a state petition for writ of habeas corpus, which was denied.
Abraham v. Bergh, No. 14-047341-AH (Lapeer County Circuit Court, April 10, 2014).
Petitioner then filed a complaint for writ of habeas corpus with the Michigan Court of
Appeals, which was denied. Abraham v. Thumb Correctional Facility Warden, No.
322095 (Mich.Ct.App. Sep. 15, 2014). The Michigan Supreme Court denied petitioner
leave to appeal. Abraham v. Thumb Corr. Facility Warden, 497 Mich. 983; 861 N.W.2d
37 (2015).
Petitioner seeks a writ of habeas corpus on the following ground:
The [state] district court judge allowed defendant to be bound over on [an]
invalid information on the charges given by the prosecutor, that created a
jurisdictional defect and a subject matter defect, violating his constitutional
right [s,] resulting in a miscarriage of justice.
II. Discussion
The Court summarily dismisses the petition because petitioner failed to state a
claim upon which habeas relief can be granted.
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 also authorized to
dismiss any habeas petition that appears legally insufficient on its face. See McFarland
v. Scott, 512 U.S. 849, 856 (1994). A federal district court is authorized to summarily

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dismiss a habeas corpus petition if it plainly appears from the face of the petition or the
exhibits that are attached to it that the petitioner is not entitled to federal habeas relief.
See Carson v. Burke, 178 F. 3d 434, 436 (6th Cir. 1999); Rules Governing § 2254
Cases, Rule 4, 28 U.S.C. foll. § 2254. The Sixth Circuit, in fact, long ago indicated that
they “disapprove the practice of issuing a show cause order [to the respondent] until
after the District Court first has made a careful examination of the petition.” Allen v.
Perini, 424 F. 3d 134, 140 (6th Cir. 1970). A district court therefore has the duty to
screen out any habeas corpus petition which lacks merit on its face. Id. at 141. No
return 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. Id.
After undertaking the review required by Rule 4, this Court concludes, for
reasons stated in greater detail below, that petitioner’s claims do not entitle him to
habeas relief, such that the petition must be summarily denied. See McIntosh v. Booker,
300 F. Supp. 2d 498, 499 (E.D. Mich. 2004).
Petitioner claims that he was improperly bound over by the state district court
judge to the circuit court on the first-degree felony murder charge, which petitioner
claims deprived the circuit court of jurisdiction to try his case.
The determination of whether a state court is vested with jurisdiction under state
law over a criminal case is a function of the state courts, not the federal courts. Wills v.
Egeler, 532 F. 2d 1058, 1059 (6th Cir. 1976); See also Daniel v. McQuiggin, 678
F.Supp. 2d 547, 553 (E.D. Mich. 2009). The Sixth Circuit has noted that “[a] state
court's interpretation of state jurisdictional issues conclusively establishes jurisdiction for

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purposes of federal habeas review.” Strunk v. Martin, 27 Fed. Appx. 473, 475 (6th Cir.
2001). Petitioner’s claim that the trial court lacked jurisdiction to try his case raises an
issue of state law, because it questions the interpretation of Michigan law, and is
therefore not cognizable in federal habeas review. See United States ex. rel. Holliday v.
Sheriff of Du Page County, Ill., 152 F. Supp. 1004, 1013 (N.D. Ill. 2001); Cf. Toler v.
McGinnis, 23 Fed. Appx. 259, 266 (6th Cir. 2001)(district court lacked authority on
habeas review to review petitioner’s claim that the state court erred in refusing to
instruct jury on the requirements for extraterritorial jurisdiction, because the claim was
contingent upon an interpretation of an alleged violation of state law).
Moreover, a prior judicial hearing is not a prerequisite to prosecution by
information. Gerstein v. Pugh, 420 U.S. 103, 119 (1975). There is no federal
constitutional right to a preliminary examination. United States v. Mulligan, 520 F. 2d
1327, 1329 (6th Cir. 1975); Dillard v. Bomar, 342 F. 2d 789, 790 (6th Cir. 1965). Even if
the trial court lacked jurisdiction to try petitioner on these charges because the bindover
may have been defective, such a violation of petitioner’s state statutory rights does not
warrant federal habeas relief. See Tegeler v. Renico, 253 Fed. Appx. 521, 525-26 (6th
Cir. 2007). Petitioner’s claim that there was insufficient evidence presented at his
preliminary examination to bind him over for trial thus raises only a matter of state law
and procedure that cannot form a basis for federal habeas relief. Id.
Petitioner also appears to argue that the amended information filed by the
prosecutor after the preliminary examination was defective because it charged armed
robbery or larceny as the underlying felony for the felony murder charge rather than
carjacking, which petitioner argues was the more appropriate charge.

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A state criminal defendant has a due process right to be informed of the nature of
the accusations against him or her. Lucas v. O’Dea, 179 F. 3d 412, 417 (6th Cir. 1999).
Notice and opportunity to defend against criminal charges as guaranteed by the Sixth
Amendment to the United States Constitution are an integral part of the due process
protected by the Fourteenth Amendment and therefore apply to state prosecutions. Cole
v. Arkansas, 333 U.S. 196, 201 (1948); In Re Oliver, 333 U.S. 257, 273 (1948). “The
due process clause of the Fourteenth Amendment mandates that whatever charging
method the state employs must give the criminal defendant fair notice of the charges
against him to permit adequate preparation of his defense.” Olsen v. McFaul, 843 F. 2d
918, 930 (6th Cir. 1988).
A complaint or indictment need not be perfect under state law so long as it
adequately informs the petitioner of the crime in sufficient detail so as to enable him or
her to prepare a defense. Therefore, an indictment “which fairly but imperfectly informs
the accused of the offense for which he is to be tried does not give rise to a
constitutional issue cognizable in habeas proceedings.” Mira v. Marshall, 806 F. 2d 636,
639 (6th Cir. 1986); See also Dell v. Straub, 194 F. Supp. 2d 629, 653-54 (E.D. Mich.
2002). An alleged defect in a state court information or indictment is therefore not
constitutional error unless a habeas petitioner can establish that: (1) he did not receive
adequate notice of the charges; and (2) he was therefore denied the opportunity to
defend himself against the charges. See Roe v. Baker, 316 F.3d 557, 570 (6th Cir.
2002).
Petitioner is unable to show that he was surprised by the amendment of the
information or that he was prejudiced in his ability to defend himself at trial. Petitioner

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does not argue that the alleged defect in the amended information prevented him from
being able to defend himself against the charges. Conclusory allegations by a habeas
petitioner, without any evidentiary support, do not provide a basis for habeas relief. See,
e.g., Washington v. Renico, 455 F. 3d 722, 733 (6th Cir. 2006)(bald assertions and
conclusory allegations do not provide sufficient ground to warrant requiring an
evidentiary hearing in a habeas proceeding); Workman v. Bell, 160 F.3d 276, 287 (6th
Cir. 1998)(conclusory allegations of ineffective assistance of appellate counsel do not
warrant habeas relief).
In any event, an accused’s constitutional right to notice of the criminal charge or
charges brought against him or her can be satisfied by other means, such as a
preliminary examination. See Stevenson v. Scutt, 531 Fed. Appx. 576, 580 (6th Cir.
2013)(noting that victim’s testimony from the preliminary examination provided petitioner
with notice of the time frame of the assaults). The testimony from the preliminary
examination clearly put petitioner on notice as to the nature of the charges.
Moreover, petitioner was convicted by a jury after a trial. The Ninth Circuit has
observed that neither Cole v. Arkansas, supra, nor In re Oliver, supra, “foreclose the
premise that constitutionally adequate notice may come from evidence presented at
trial.” See Troches v. Terhune, 74 Fed. Appx. 736, 737 (9th Cir. 2003). The evidence at
trial was sufficient to afford petitioner adequate notice of the charges against him. See
Bruce v. Welsh, 572 Fed. Appx. 325, 331 (6th Cir. 2014). Petitioner is not entitled to
relief on his claims.

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III. Conclusion
The Court summarily denies the petition for writ of habeas corpus. The Court will
also deny a certificate of appealability to petitioner. In order to obtain a certificate of
appealability, a prisoner must make a substantial showing of the denial of a
constitutional right. 28 U.S.C. § 2253(c)(2). To demonstrate this denial, the applicant is
required to show that reasonable jurists could debate whether, or agree that, the petition
should have been resolved in a different manner, or that the issues presented were
adequate to deserve encouragement to proceed further. Slack v. McDaniel, 529 U.S.
473, 483-84 (2000). When a district court rejects a habeas petitioner’s constitutional
claims on the merits, the petitioner must demonstrate that reasonable jurists would find
the district court’s assessment of the constitutional claims to be debatable or wrong. Id.
at 484. “The district court must issue or deny a certificate of appealability when it enters
a final order adverse to the applicant.” Rules Governing § 2254 Cases, Rule 11(a), 28
U.S.C. foll. § 2254.
For the reasons stated in this opinion, the Court will deny petitioner a certificate
of appealability because he has failed to make a substantial showing of the denial of a
federal constitutional right. Myers v. Straub, 159 F. Supp. 2d 621, 629 (E.D. Mich.
2001). The Court will also deny petitioner leave to appeal in forma pauperis, because
the appeal would be frivolous. Id.
IV. ORDER
Based upon the foregoing, IT IS ORDERED that the Petition for a Writ of Habeas
Corpus is SUMMARILY DENIED WITH PREJUDICE.

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IT IS FURTHER ORDERED That a Certificate of Appealability is DENIED.
IT IS FURTHER ORDERED that Petitioner will be DENIED leave to appeal in forma
pauperis.
Dated: February 11, 2016
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
February 11, 2016, by electronic and/or ordinary mail and also
on Andre Abraham #273655, Thumb Correctional Facility,
3225 John Conley Drive, Lapeer, MI 48446.
s/Barbara Radke
Deputy Clerk

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