Davis #179886 v. Hoffner

Filing 9

OPINION; Judgment and Order to issue; signed by Judge Janet T. Neff (Judge Janet T. Neff, clb)

UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ERNEST DAVIS,
Petitioner,

Case No. 1:13-cv-112

v.

Honorable Janet T. Neff

BONITA HOFFNER,
Respondent.
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OPINION
This is a habeas corpus action brought by a state prisoner pursuant to 28 U.S.C.
§ 2241.1 Petitioner presently is confined at the Lakeland Correctional Facility. Following a jury
trial, Petitioner was convicted in the Van Buren County Circuit Court of first-degree murder, MICH.
COMP. LAWS § 750.316, and possession of a firearm during the commission of a felony, MICH.
COMP. LAWS § 750.227b. On June 10, 1985, Petitioner was sentenced to life imprisonment on the
murder conviction and a successive two-year prison term on the felony-firearm conviction.
Petitioner challenges the state-court’s subject-matter and personal jurisdiction to hold him
accountable under state law.

1

Petitioner asserts that his petition is brought under 28 U.S.C. § 2241, rather than 28 U.S.C. § 2254, expressly
to avoid the procedural requirements of § 2254. A state prisoner seeking post-conviction relief from a federal court has
but one remedy: an application for a writ of habeas corpus. See Rittenberry v. Morgan, 468 F.3d 331, 336-37 (6th Cir.
2006). All such applications for writs of habeas corpus are governed by § 2241, which generally authorizes federal
courts to grant the writ – to both federal and state prisoners. Id. Most state prisoners’ applications for writs of habeas
corpus are subject also to the additional restrictions of § 2254. That is, if a state prisoner is “in custody pursuant to the
judgment of a State court,” his petition is subject to the procedural requirements of § 2254. Id.; see also Thomas v.
Crosby, 371 F.3d 782, 803 (11th Cir. 2004); Walker v. O’Brien, 216 F.3d 626, 633 (7th Cir. 2000). Petitioner brings
this action seeking relief from custody from a state court judgment. His action, therefore, is governed by § 2254.

Discussion
Petitioner filed a prior habeas petition that was denied on the merits. See Davis v.
Abramajtys, No. 1:91-cv-426 (W.D. Mich. August 14, 1992). If Petitioner’s earlier habeas action
had been filed after April 24, 1996, the effective date of the Antiterrorism and Effective Death
Penalty Act, PUB. L. 104-132, 110 STAT. 1214 (AEDPA), the instant petition would be subject to
the “second or successive” provision set forth in 28 U.S.C. § 2244(b). See Cress v. Palmer, 484
F.3d 844, 852 (6th Cir. 2007). Under that provision, before a second or successive application is
filed in the district court, the applicant must move in the court of appeals for an order authorizing
the district court to consider the application. 28 U.S.C. § 2244(b)(3)(A); see also Tyler v. Cain, 533
U.S. 656, 661 n.3 (2001) (circuit court may authorize the petition upon a prima facie showing that
the claim satisfies § 2244(b)(2); to survive dismissal in the district court, the application must
actually show the statutory standard).
However, where, as here, the first habeas action was filed before the 1996 enactment
of the AEDPA, the second-or-successive provision does not apply. See Cress, 484 F.3d at 852.2
Rather, this Court must consider whether the second or successive petition would have survived
under the pre-AEDPA “abuse of the writ” standard. Id. That standard does not require authorization
from the court of appeals. Id.

2

The Court observes that, before the law was entirely clear on the applicability of the second or successive
provision to cases in which the first petition was filed before April 24, 1996, Petitioner filed a second habeas petition
in this Court, which was transferred to the Sixth Circuit under the second-or-successive provision. See Davis v. Howes,
No. 1:97-cv-343 (W.D. Mich. Sept. 16, 1997) (docket #10). The Sixth Circuit ultimately denied Petitioner’s motion for
an order authorizing a second or successive petition. See id. (docket #12). Thereafter, Petitioner filed a third habeas
corpus petition, which raised essentially identical claims as those presented in the instant case. Petitioner’s third habeas
petition was dismissed by this Court as an abuse of the writ. See Davis v. Palmer, No. 1:11-cv-983 (W.D. Mich. Nov.
23, 2011) (docket ##5, 6).

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A habeas petition may be seen as an abuse of the writ of habeas corpus if the
petitioner raises a claim in a subsequent petition that he could have raised in an earlier petition.
McCleskey v. Zant, 499 U.S. 467, 489 (1991). The “abuse of the writ” standard “allows a second
motion containing a new claim where the inmate can ‘show cause for failing to raise [the issue in
the first motion] and prejudice therefrom.’” In re Hanserd, 123 F.3d 922, 929 (6th Cir. 1997)
(quoting McCleskey, 499 U.S. at 494); see also Cress, 484 F.3d at 852. In making the cause
determination, the habeas court must decide “whether petitioner possessed, or by reasonable means
could have obtained, a sufficient basis to allege a claim in the first petition and pursue the matter
through the habeas process.” McCleskey, 499 U.S. at 498. To show cause, a petitioner must
demonstrate that, at the time he filed his first habeas petition, he conducted “a reasonable and
diligent investigation aimed at including all relevant claims and grounds for relief . . . .” Id. In order
to show prejudice, a petitioner must demonstrate that the alleged constitutional error had a
“‘substantial and injurious effect or influence in determining the jury’s verdict.’” Tolliver v. Sheets,
594 F.3d 900, 924 (6th Cir. 2010) (citing Fry v. Pliler, 551 U.S.112, 116 (2007)).
Here, as in his 2011 habeas application, Petitioner makes no attempt to show either
cause for failing to raise the instant grounds in his first petition or prejudice resulting from the
alleged constitutional violation. Petitioner claims that the State of Michigan lacked jurisdiction to
charge and try him for his offenses and lacks jurisdiction to continue to execute his sentences
because Petitioner is “one of the Private People in the Michigan Republic” and has never “been
knowingly a party/subject to the statutes and laws of THE STATE OF MICHIGAN, nor a Member
thereof.” (Verified Aff. in Supp. of Pet., docket #1, Page ID#7.) Any question about the trial court’s
jurisdiction over Petitioner’s criminal case should have been apparent to Petitioner at the time of his

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convictions.

As a consequence, at the time he filed his first habeas petition, Petitioner

unquestionably should have possessed a sufficient basis for including the claim for relief. Moreover,
Petitioner cannot demonstrate the necessary prejudice because his claims are patently frivolous. The
instant petition therefore constitutes an abuse of the writ.3
Conclusion
In light of the foregoing, the Court will summarily dismiss Petitioner’s application
pursuant to Rule 4 as an abuse of the writ.
Certificate of Appealability
Under 28 U.S.C. § 2253(c)(2), the Court must determine whether a certificate of
appealability should be granted. A certificate should issue if Petitioner has demonstrated a
“substantial showing of a denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This Court’s
dismissal of Petitioner’s action under Rule 4 of the Rules Governing § 2254 Cases is a determination
that the habeas action, on its face, lacks sufficient merit to warrant service. It would be highly
unlikely for this Court to grant a certificate, thus indicating to the Sixth Circuit Court of Appeals that
an issue merits review, when the Court has already determined that the action is so lacking in merit
that service is not warranted. See Love v. Butler, 952 F.2d 10, 15 (1st Cir. 1991) (it is “somewhat
anomalous” for the court to summarily dismiss under Rule 4 and grant a certificate); Hendricks v.
Vasquez, 908 F.2d 490, 492 (9th Cir. 1990) (requiring reversal where court summarily dismissed
under Rule 4 but granted certificate); Dory v. Comm’r of Corr. of New York, 865 F.2d 44, 46 (2d Cir.
1989) (it was “intrinsically contradictory” to grant a certificate when habeas action does not warrant

3
Although the Court need not and does not decide the issue, the instant petition also undoubtedly is barred by
the one-year period of limitations set forth in 28 U.S.C. § 2244(d).

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service under Rule 4); Williams v. Kullman, 722 F.2d 1048, 1050 n.1 (2d Cir. 1983) (issuing
certificate would be inconsistent with a summary dismissal).
The Sixth Circuit Court of Appeals has disapproved issuance of blanket denials of
a certificate of appealability. Murphy v. Ohio, 263 F.3d 466 (6th Cir. 2001). Rather, the district
court must “engage in a reasoned assessment of each claim” to determine whether a certificate is
warranted. Id. at 467. Each issue must be considered under the standards set forth by the Supreme
Court in Slack v. McDaniel, 529 U.S. 473 (2000). Murphy, 263 F.3d at 467. Consequently, this
Court has examined each of Petitioner’s claims under the Slack standard. Under Slack, 529 U.S. at
484, to warrant a grant of the certificate, “[t]he petitioner must demonstrate that reasonable jurists
would find the district court’s assessment of the constitutional claims debatable or wrong.” Id. “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. 322,
327 (2003). In applying this standard, the Court may not conduct a full merits review, but must limit
its examination to a threshold inquiry into the underlying merit of Petitioner’s claims. Id.
The Court finds that reasonable jurists could not conclude that this Court’s dismissal
of Petitioner’s claims was debatable or wrong. Therefore, the Court will deny Petitioner a certificate
of appealability.
A Judgment and Order consistent with this Opinion will be entered.

Dated: February 12, 2013

/s/ Janet T. Neff
Janet T. Neff
United States District Judge

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