Schalk #243322 v. Berghuis

Filing 4

OPINION; Order and Judgment 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

FRANK JOHN SCHALK,
Petitioner,
v.

Case No. 1:15-cv-684
Honorable Janet T. Neff

MARY BERGHUIS,
Respondent.
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OPINION
This is a habeas corpus action brought by a state prisoner pursuant to 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.

Factual Allegations
Petitioner Frank John Schalk presently is incarcerated with the Michigan Department
of Corrections at the Earnest C. Brooks Correctional Facility. Following his guilty plea in the Bay
County Circuit Court, Petitioner was convicted of breaking and entering a vehicle to steal $1,000
or more but less than $20,000, MICH. COMP. LAWS § 750.356a(2)(c)(i), and sentenced to a prison
term of two to five years. Although Petitioner pleaded guilty, he preserved his right to appeal the
trial court’s decision to deny his motion to suppress.
Petitioner appealed the trial court’s denial of his motion to suppress to the Michigan
Court of Appeals raising a single ground for relief:
WHETHER THE TRIAL COURT COMMITTED REVERS[I]BLE ERROR IN
CONCLUDING THAT AGENT LUCYNSKI HAD REASONABLE CAUSE
AND/OR CONSENT TO SEARCH MR. SCHALK’S PROPERTY BASED UPON
INFORMATION FROM AN ANONYMOUS INFORMANT IN VIOLATION OF
HIS FOURTH AMENDMENT RIGHT TO BE FREE FROM UNREASONABLE
SEARCH AND SEIZURE.
(Pet., docket #1, Page ID#2.) On December 12, 2103, the court of appeals issued an order denying
Petitioner’s appeal for lack of merit in the grounds presented. (Michigan Court of Appeals 12/12/13
Ord., docket #1-1, Page ID#62.) Thereafter, Petitioner filed an application for leave to appeal in the
Michigan Supreme Court raising the same ground for relief he had raised in the court of appeals.
On April 28, 2014, the supreme court denied Petitioner’s application because it was not persuaded
that the question presented should be reviewed. (Michigan Supreme Court 4/28/14 Ord., docket #11, Page ID#63.) Petitioner timely filed the instant action raising the following ground for relief:
THERE WAS NO REASONABLE CAUSE AND/OR CONSENT TO SEARCH
MR. SCHALK’S PROPERTY BASED UPON THE INFORMATION FROM AN
ANONYMOUS INFORMANT IN VIOLATION OF [MR. SCHALK’S] FOURTH
AMENDMENT [RIGHTS].
(Pet., docket #1, Page ID#6.)
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Discussion
The Antiterrorism and Effective Death Penalty Act, PUB. L. 104-132, 110 STAT. 1214
(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). The AEDPA
has “drastically changed” the nature of habeas review. Bailey v. Mitchell, 271 F.3d 652, 655 (6th
Cir. 2001). 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).
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 “clearly established” holdings, and
not the dicta, of the Supreme Court. Williams v. Taylor, 529 U.S. 362, 412 (2000); Bailey, 271 F.3d
at 655. In determining whether federal law is clearly established, the Court may not consider the
decisions of lower federal courts. Bailey, 271 F.3d at 655; Harris v. Stovall, 212 F.3d 940, 943 (6th
Cir. 2000). “Yet, while the principles of ‘clearly established law’ are to be determined solely by
resort to Supreme Court rulings, the decisions of lower federal courts may be instructive in assessing
the reasonableness of a state court’s resolution of an issue.” Stewart v. Erwin, 503 F.3d 488, 493
(6th Cir. 2007). 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

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state-court adjudication on the merits.” Greene v. Fisher, 132 S. Ct. 38, 44 (2011); Miller v. Stovall,
No. 12-2171, slip op. at 3 (6th Cir. Feb. 11, 2014) (citing Greene, 132 S. Ct. at 44).
A decision of the state court may only be overturned if (1) it applies a rule that
contradicts the governing law set forth by the Supreme Court, (2) it confronts a set of facts that are
materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at a
different result; (3) it identifies the correct governing legal rule from the Supreme Court precedent
but unreasonably applies it to the fact of the case; or (4) it either unreasonably extends a legal
principle from Supreme Court precedent to a new context where it should not apply or unreasonably
refuses to extend a principle to a context where it should apply. Bailey, 271 F.3d at 655 (citing
Williams, 529 U.S. at 413); see also Bell, 535 U.S. at 694; Lancaster v. Adams, 324 F.3d 423, 429
(6th Cir. 2003).
A federal habeas court may not find a state adjudication to be “unreasonable” “simply
because that court concludes in its independent judgment that the relevant state-court decision
applied clearly established federal law erroneously or incorrectly.” Williams, 529 U.S. at 411;
accord Bell, 535 U.S. at 699. Rather, the issue is whether the state court’s application of clearly
established federal law is “objectively unreasonable.” Id. at 410.
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); Lancaster, 324 F.3d at 429; 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.

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1989). Applying the foregoing standards under the AEDPA, I find that Petitioner is not entitled to
relief.
In his sole ground for habeas relief, Petitioner contends that stolen property evidence
discovered in Petitioner’s garage by Officer Newbold and Parole Agent Lucynski should have been
suppressed because it was obtained in violation of the Constitution. Petitioner’s claim is barred by
the doctrine of Stone v. Powell, 428 U.S. 465 (1976). See Queen v. Scroggy, 99 F.3d 1302, 1332
(6th Cir. 1996) (noting that it is well-settled that Stone v. Powell bars Fourth Amendment claims);
see also Newman v. Wengler, No. 13-36185, 2015 WL 3700161, at *2 (9th Cir. June 16, 2015)
(holding, consistent with the Tenth and Seventh Circuits, that Stone survives the passage of
AEDPA). In Stone v. Powell, the Supreme Court held that federal habeas review is not available
to a state prisoner alleging that his conviction rests on evidence obtained through an unconstitutional
search or seizure, as long as the state has given the petitioner a full and fair opportunity to litigate
the Fourth Amendment claim. Id.; see also Rashad v. Lafler, 675 F.3d 564, 570 (6th Cir. 2012).
In order for the doctrine of Stone v. Powell to apply, the state must have provided,
in the abstract, a mechanism by which to raise the Fourth Amendment claim, and the presentation
of the claim in the case before the court must not have been frustrated by failure of that mechanism.
See Gilbert v. Parke, 763 F.2d 821, 823 (6th Cir. 1985). If these two inquiries are satisfied, federal
habeas review of the Fourth Amendment claim is precluded, even if the federal court deems the
state-court determination of the claim to have been in error. Id. at 824; accord Jennings v. Rees, 800
F.2d 72 (6th Cir. 1986); Markham v. Smith, 10 F. App’x 323, 326 (6th Cir. 2001).
In the present case, both prongs of the Stone v. Powell doctrine are satisfied. First,
it is beyond dispute that Michigan has a state procedural mechanism that presents a defendant a full
opportunity to raise a Fourth Amendment claim before trial. Even before the United States Supreme
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Court decided that the federal exclusionary rule applied to state criminal proceedings, the Michigan
courts applied the exclusionary rule to the fruits of unconstitutional searches and seizures. See
People v. Margelis, 186 N.W. 488 (Mich. 1922). After Mapp v. Ohio, 367 U.S. 643 (1961), the
Michigan courts consistently have acknowledged their duty, under both the federal and state
constitutions, to suppress evidence seized in violation of the Fourth Amendment. See, e.g., People
v. David, 326 N.W.2d 485, 488 (Mich. Ct. App. 1982). Consequently, Michigan affords criminal
defendants a vehicle by which to raise Fourth Amendment challenges.
Second, to satisfy the remaining prong of the Stone v. Powell doctrine, Petitioner
must allege facts showing that the state corrective mechanism has somehow broken down. See, e.g.,
Agee v. White, 809 F.2d 1487, 1490 (11th Cir. 1987) (habeas review not barred when state appellate
court completely ignored Fourth Amendment claim). The Sixth Circuit pointedly has held that the
doctrine of Stone v. Powell applies, even if the federal court deems the state-court determination of
the Fourth Amendment claim to have been in “egregious error.” Gilbert, 763 F.2d at 824 (citing
Riley v. Gray, 674 F.2d 522, 526 (6th Cir. 1982)).
Petitioner has not alleged any facts showing that the state’s mechanism has broken
down. Rather, it is clear that the Michigan courts gave Petitioner’s Fourth Amendment claim full
and proper consideration. The petition makes clear that on March 4, 2013, the trial court held a
hearing on Petitioner’s motion and that evidence was presented during the hearing. (Pet., docket #1,
Page ID#5.)

Petitioner does not suggest that the motion hearing was flawed in anyway.

Additionally, Petitioner attaches to his petition the motion he presented pro se to the trial court and
the motion presented by his counsel. These motions demonstrate that Petitioner, by himself and
through his counsel, had an unfettered opportunity to present his arguments regarding the allegedly
illegal search to the trial court. Petitioner makes no claim that he was obstructed in anyway from
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fully presenting his arguments on this issue or that the trial court failed to consider the issue.
Finally, the brief filed by counsel in the court of appeals is also attached to the Petition. Nowhere
in this brief does Petitioner suggest to the appellate court that the trial court failed to give proper
consideration to his arguments regarding suppression. Instead, Petitioner simply attempts to sway
the appellate court to rule differently on the issue based on the same arguments that were before the
trial court. The Michigan Court of Appeals reviewed Petitioner’s appeal and determined that it
lacked merit. Petitioner applied for leave to appeal to the Michigan Supreme Court, which denied
his application. Therefore, even if this Court were to disagree with the determination of the
Michigan courts, that disagreement would be insufficient to prevent the application of the Stone v.
Powell doctrine to preclude federal habeas review of Petitioner’s Fourth Amendment claim. Gilbert,
763 F.2d at 824.
Because both prongs of the Stone v. Powell doctrine are satisfied, Petitioner’s claim
of illegal search and seizure is barred on habeas review.
Conclusion
In light of the foregoing, the Court will summarily dismiss Petitioner’s application
pursuant to Rule 4 because it fails to raise a meritorious federal claim.
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
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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 (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 (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
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.
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An Order and Judgment consistent with this Opinion will be entered.

Dated: July 15, 2015

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

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