Johnson #246092 v. Mackie

Filing 22

OPINION; signed by District Judge Paul L. Maloney (Judge Paul L. Maloney, cmc)

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

TREVIS C. JOHNSON, # 246092,

)
)
Petitioner,
)
)
v.
)
)
T. MACKIE,
)
)
Respondent.
)
____________________________________)

Case No. 1:15-cv-979
Honorable Paul L. Maloney
MEMORANDUM OPINION

This is a habeas corpus proceeding brought pro se by a state prisoner pursuant
to 28 U.S.C. § 2254. On May 15, 2012, petitioner pleaded no contest in Muskegon
County Circuit Court to first-degree home invasion, domestic violence (third offense),
assault and battery upon Vanessa Wallace, and assault and battery upon Lauretta
Steward. He pleaded guilty to being an habitual offender, fourth felony offense. As an
habitual offender, petitioner had faced a sentence of up to life imprisonment on his
first-degree home invasion conviction. Under a Cobbs 1agreement regarding his firstdegree home invasion conviction, however, petitioner was assured that his minimum
sentence on that conviction would be ten years’ imprisonment and his maximum
sentence would be 25 years’ imprisonment.

On June 26, 2012, petitioner was

sentenced in accordance with the Cobbs agreement on his first degree home invasion
conviction. Further, petitioner was sentenced to three to fifteen years’ imprisonment
on his domestic violence conviction. Petitioner received jail sentences of less than a
1

People v. Cobbs, 505 N.W.2d 208, 212-13 (Mich. 1993).

year, with credit for time served, on his misdemeanor assault and battery convictions.
After unsuccessful attempts to overturn his plea-based conviction and sentence
in state court, petitioner filed this habeas corpus petition. Petitioner seeks federal
habeas corpus relief on the following grounds:
I.

Petitioner was arrested without a warrant and was not read his
Miranda rights.

II.

The Muskegon County Circuit Court lacked jurisdiction because
petitioner did not have an arraignment hearing.

III.

Petitioner’s November 30, 2011, waiver of a preliminary
examination in district court was undermined by conflicts of
interest.

IV.

Failure to provide petitioner with a fair trial within 180 days and
denial of right to counsel of choice or self-representation.

(Amended Petition, ECF No. 8, PageID.89-92).
Respondent argues that the petition is barred by the statute of limitations and
has filed a motion seeking dismissal of the petition with prejudice on that basis. (ECF
No. 16). Petitioner has filed his response. (ECF No. 18). After review of the statecourt record, the Court finds that the petition is barred by the statute of limitations.
Respondent’s motion will be granted and judgment will be entered dismissing the
petition with prejudice.

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Standard of Review
The Court’s review of this petition is governed by the provisions of the
Antiterrorism and Effective Death Penalty Act, Pub. L. No. 104-132, 110 Stat. 1214
(AEDPA). See Penry v. Johnson, 532 U.S. 782, 792 (2001). AEDPA “dictates a highly
deferential standard for evaluating state-court rulings which demands the state court
decisions be given the benefit of the doubt.” Bell v. Cone, 543 U.S. 447, 455 (2005)
(citations omitted). “AEDPA requires heightened respect for state court factual and
legal determinations.” Lundgren v. Mitchell, 440 F.3d 754, 762 (6th Cir. 2006).
“State-court factual findings [] are presumed correct; the petitioner has the burden of
rebutting the presumption by clear and convincing evidence.” Davis v. Ayala, 135 S.
Ct. 2187, 2199-2200 (2015) (citations and internal quotations omitted).
If a state court adjudicated the claim, deferential AEDPA standards must be
applied.

28 U.S.C. § 2254(d); see Premo v. Moore, 562 U.S. 115, 121 (2011);

Waddington v. Sarausad, 555 U.S. 179, 190 (2009); Holder v. Palmer, 588 F.3d 328,
341 (6th Cir. 2009) ((“[A]ny claim that was adjudicated on the merits in State court
proceedings’ is subject to AEDPA deference.”) (quoting 28 U.S.C. § 2254(d)). AEDPA
prevents federal habeas “retrials” and ensures that state court convictions are given
effect to the extent possible under law. Bell v. Cone, 535 U.S. 685, 693-94 (2002). It
prohibits “using federal habeas corpus review as a vehicle to second-guess the
reasonable decisions of state courts.” Parker v. Matthews, 132 S. Ct. 2148, 2149 (2012)
(per curiam).

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The AEDPA standard is difficult to meet “because it was meant to be.”
Harrington v. Richter, 562 U.S. 86, 102 (2011). “Section 2254(d) reflects the that
habeas corpus is a guard against extreme malfunctions in the state criminal justice
systems, not a substitute for ordinary error corrections through appeal.” Id. at 102-03
(citation and internal quotation omitted); see Woods v. Donald, 135 S. Ct. 1372, 1376
(2015). Section 2254(d) states that an application for a 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); see White v. Wheeler, 136 S. Ct. 456, 460
(2015); Davis v. Ayala, 135 S. Ct. at 2198; White v. Woodall, 134 S. Ct. 1697, 1702
(2014).
The only definitive source of clearly established federal law for purposes of
§ 2254(d)(1) is the holdings—not dicta—of Supreme Court decisions. White v. Woodall,
134 S. Ct. at 1702; see Woods v. Donald, 135 S. Ct. at 1377 (“Because none of our cases
confront ‘the specific question presented by this case,’ the state court’s decision could
not be ‘contrary to’ any holding from this Court.”). “[W]here the precise contours of a
right remain unclear, state courts enjoy broad discretion in their adjudication of a
prisoner’s claims.” Id. (quotations and internal citations omitted).
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An unreasonable application of the Supreme Court’s holding must be
“‘objectively unreasonable,’ not merely wrong; even ‘clear error’ will not suffice.” White
v. Woodall, 134 S. Ct. at 1702 (quoting Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003)).
Rather, “[a]s a condition for obtaining habeas corpus from a federal court, a state
prisoner must 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.”
White v. Woodall, 134 S. Ct. at 1702 (quoting Harrington v. Richter, 562 U.S. at 103).
“[C]ircuit precedent does not constitute ‘clearly established Federal law, as determined
by the Supreme Court,’ ” and “[i]t therefore cannot form the basis for habeas relief
under AEDPA.” Hill v. Curtin, 792 F.3d 670, 677 (6th Cir. 2015) (quoting Parker v.
Matthews, 132 S. Ct. at 2155); see Glebe v. Frost, 135 S. Ct. 429, 431 (2014) (per
curiam) (“As we have repeatedly emphasized, [] circuit precedent does not constitute
‘clearly established Federal law, as determined by the Supreme Court.’”).
“[A] state-court factual determination is not unreasonable merely because the
federal habeas court would have reached a different conclusion in the first instance.”
Wood v. Allen, 558 U.S. 290, 301 (2010). Section 2254 (d)(2) requires that this Court
accord the state trial court substantial deference. If reasonable minds reviewing the
record might disagree about the finding in question, on habeas review that does not
suffice to supersede the trial court’s determination. Brumfield v. Cain, 135 S. Ct. 2269,
2277 (2015); Burt v. Titlow, 134 S. Ct. 10, 15 (2013).

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Findings of Fact
A.

District Court Proceedings

On November 16, 2011, petitioner was arraigned in district court by Judge
Andrew Wierengo. (ECF No. 17-2). Judge Wierengo advised petitioner of the charges
he faced; he appointed counsel for petitioner; and he set bond. (Id.).
On November 30, 2011, petitioner appeared before Judge Harold Closz and
waived his preliminary examination. (ECF No. 17-3). Petitioner was represented by
Attorney Ronald Pannucci. Petitioner was once again advised that he faced the
charges of “home invasion and domestic violence third” and “two counts of assault and
battery, misdemeanors.” (Id. at PageID.180). Petitioner waived his preliminary
examination. (Id.; see also ECF No. 1-1, PageID.16).
B.

Circuit Court Proceedings

On December 5, 2011, petitioner waived a circuit court arraignment. (ECF No.
17-1, PageID.165; see also ECF No. 1-1, PageID.15). On the morning of May 15, 2012,
petitioner appeared in Muskegon County Circuit Court before Judge James Graves.
(ECF No. 17-4). Petitioner was represented by Attorney Terry Nolan. Attorney Nolan
noted that the video evidence supporting the criminal charges against petitioner was
exceptionally strong. It showed petitioner committing the acts charged. Petitioner had
the opportunity to review the video evidence before he entered his pleas. (Id. at
PageID.184-85, 202-04).
The record shows that petitioner was receiving the benefit of a favorable ruling
from the Court, which significantly reduced his sentencing guidelines range under the
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Cobbs agreement. (Id. at PageID.187-88). As Attorney Nolan noted on the record,
petitioner’s belief that he could somehow secure a sentence of not more than a year in the
county jail was utterly unrealistic. (See id. at PageID.188, 209-12). The court explained
to petitioner that the fact one of his victims had not been charged with an assault was
not a defense to the charges that petitioner faced. (Id. at PageID.196-97). Petitioner’s
subjective belief that the crimes he faced were too steep would not constitute a legal
defense. (Id. at PageID.198-99). Petitioner’s failure to take antidepressant medications
was not a legal defense. (Id. at PageID.204-05). The court denied petitioner’s attorney’s
motion to withdraw. Changing attorneys would not change the law. Petitioner’s
positions were based “on what he would want the law to be,” not the law that existed.
(Id.).
Petitioner returned to Judge Graves’s courtroom at approximately 2:51 p.m. to
enter his plea. (ECF No. 17-5, PageID.218). Once again, petitioner was advised of the
criminal charges and the penalties that he faced, and that a supplemental information
had been filed alleging that he was an habitual offender, fourth felony offense. (Id. at
PageID. 218-24). Petitioner was placed under oath and pleaded no contest to first-degree
home invasion, domestic violence (third offense), assault and battery upon Vanessa
Wallace, and assault and battery upon Lauretta Steward. He pleaded guilty to being an
habitual offender, fourth felony offense. Judge Graves noted that petitioner had faced
a potential sentence of up to life imprisonment on his first-degree home invasion
conviction. Under the Cobbs agreement, petitioner was assured that on that conviction
his minimum sentence would be ten years’ imprisonment and that his maximum
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sentence would be 25 years’ imprisonment. Judge Graves accepted petitioner’s four pleas
of no contest and his habitual offender guilty plea because they were “understanding,
voluntary, and accurate.” (Id. at PageID.224-36).
On June 11, 2012, Judge Graves denied petitioner’s motion to withdraw his pleas.
(ECF No. 17-1, PageID.167). Petitioner had entered his pleas on his scheduled trial date.
Petitioner had knowingly and voluntarily waived his trial rights, pleaded no contest to
four criminal charges and guilty to being an habitual offender, fourth felony offense.
There was a more than adequate factual basis to support the pleas and find petitioner
guilty on all charges. Petitioner’s claims of ineffective assistance of counsel were
patently meritless. Among other things, petitioner’s attorney had convinced the judge
that a reduction in petitioner’s sentencing guideline score would be appropriate, reducing
petitioner’s minimum sentence from 23 or 24 years down to ten.

(ECF No. 1-1,

PageID.31-36).
Petitioner asked the court to appoint a new attorney for purposes of sentencing.
The court granted petitioner’s motion and allowed Attorney Nolan to withdraw. (ECF
No. 1-1, PageID.36-39).

The court appointed Attorney Paula Baker to represent

petitioner. (ECF No. 17-7, PageID.256, 270).
On June 26, 2012, Judge Graves sentenced petitioner in accordance with the
Cobbs agreement on the first-degree home invasion conviction. He sentenced petitioner
to three to fifteen years’ imprisonment on his domestic violence conviction. Petitioner
received jail sentences of less than a year, with credit for time served, on the

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misdemeanor assault and battery convictions. (ECF No. 17-7, PageID.277-80; Judgment
of Sentence Commitment to Corrections Department, ECF No. 17-20, PageID.474-75).
B.

Subsequent Proceedings

Petitioner filed an application for leave to appeal in the Michigan Court of
Appeals. He argued that the trial court had committed error in denying his motion to
withdraw his plea and in its scoring of offense variables under Michigan’s sentencing
guidelines. (ECF No. 17-20, PageID.460). On November 27, 2012, the Michigan Court
of Appeals denied petitioner’s application for leave to appeal “for lack of merit in the
grounds presented.” (Id. at PageID.451). On January 9, 2013, petitioner sought leave
to appeal to Michigan’s Supreme Court,2 which denied his application on April 29,
2013. (ECF No.17-21, PageID.502, 512).
On August 5, 2013, petitioner filed a motion for relief from judgment in
Muskegon County Circuit Court. (ECF No. 16-3, PageID.154). On September 24,
2013, the court denied petitioner’s motion. (ECF No. 16-3, PageID.154; ECF No. 17-17,
PageID.448).
Petitioner filed a delayed application for leave to appeal in the Michigan Court
of Appeals. (ECF No. 17-22, PageID.641-53). On January 15, 2014, the Michigan
Court of Appeals denied petitioner’s application because he “failed to meet the burden

2

On January 15, 2013, Judge William Marietti of the Muskegon County Circuit
Court denied a second motion that petitioner had filed seeking leave to withdraw his
plea. Judge Marietti noted that post-appeal relief was “only available under MCR
6.500 et seq” and found that petitioner had met the requirements for such relief. (ECF
No. 17-22, PageID.655; see also ECF No. 17-1, PageID.169).
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of establishing entitlement to relief under MCR 6.508(D).”

(ECF No. 17-22,

PageID.640).
On February 28, 2014, petitioner filed an application for leave to appeal in the
Michigan Supreme Court.3 (ECF No. 17-23, PageID.671). On September 29, 2014,
Michigan’s highest court denied petitioner’s application for leave to appeal because
petitioner “failed to meet the burden of establishing entitlement to relief under MCR
6.508(D).” (ECF No. 17-23, PageID.670; see also ECF No. 16-4, PageID.159).
On September 24, 2015, petitioner filed his habeas corpus petition.4 (ECF No.
1). On November 9, 2015, the Court ordered petitioner to file an amended petition on
the required form. (ECF No. 7). On November 16, 2015, petitioner placed his amended
petition in the prison’s mailing system and his amended petition is deemed filed on
that date under the mailbox rule.5 (ECF No. 8, PageID.97).

3

On March 3, 2014, while his application for leave to appeal was pending in the
Michigan Supreme Court, petitioner filed a premature federal habeas corpus action.
(See Johnson v Muskegon County 14th Circuit Court, 1:14-cv-352 (W.D. Mich.). On
July 11, 2014, the habeas corpus petition was dismissed without prejudice for lack of
prosecution. (ECF No. 18-1). On February 4, 2015, the Court determined that the
judgment had not been mailed to petitioner and it entered an amended judgment once
again dismissing the petition without prejudice for lack of prosecution. (ECF No. 18-1,
PageID.689-91).
4

This filing date gives petitioner the earliest possible filing date. It gives him
the benefit of the “mailbox rule” based on the date petitioner signed his habeas corpus
petition. (ECF No. 1, PageID.7).
5

See Houston v. Lack, 487 U.S. 266, 270-72 (1988).
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Discussion
On April 29, 2013, the Michigan Supreme Court denied petitioner’s application
for leave to appeal. (ECF No.17-21, PageID.502). Although petitioner did not file a
petition for writ of certiorari, the one year limitations period did not begin to run until
the period in which petitioner could have sought review in the Supreme Court of the
United States had expired.

See Gonzalez v. Thaler, 565 U.S. 134, 149 (2012).

Petitioner’s ninety-day period would have expired on July 28, 2013. That date fell on
a Sunday, however, so the last date on which petitioner could have sought review in
the Supreme Court was Monday, July 29, 2013. See Browder v. Stegall, 20 F. App’x
256, 257 (6th Cir. 2001); see also King v. Warden, No. 15-14291, __ F. App’x __, 2016
WL 6647745, at *1 (11th Cir. Nov. 10, 2016); Harris v. Dinwiddie, 642 F.3d 902, 906
n.6 (10th Cir. 2011). On July 29, 2013, petitioner’s period for seeking direct review
expired, see 28 U.S.C. § 2244(d)(1)(A), and the one-year statute of limitations period
began to run the next day.
On August 5, 2013 – six days into the limitations period – petitioner filed his
motion for relief from judgment.

(ECF No. 16-3, PageID.154).

The statute of

limitations was tolled through September 29, 2014 (see ECF No. 16-4, PageID.159;
ECF No. 17-23, PageID.670), while petitioner’s application for post-conviction relief
was pending in Michigan’s courts. See 28 U.S.C. § 2244(d)(2).
Petitioner’s reliance on his earlier federal habeas corpus petition (see ECF No.
18, PageID.681; ECF No. 18-1, PageID.689-91) is misplaced. Petitioner’s filing of a
federal habeas corpus action in 2014 had no impact on the running of the statute of
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limitations. See Duncan v. Walker, 533 U.S. 167, 181 (2001) (“We hold that an
application for federal habeas corpus review is not an ‘application for State postconviction or other collateral review’ within the meaning of 28 U.S.C. § 2244(d)(2).”).
Petitioner has not addressed nor carried his burden of establishing entitlement to
equitable tolling.

See Holland v. Florida, 560 U.S. 631, 649 (2010); Pace v.

DiGuglielmo, 544 U.S. 408, 418 (2005). Petitioner pleaded no contest because the
evidence of his guilt was overwhelming. He does not approach satisfying the rigorous
standard for a showing of actual innocence under Schlup v. Delo, 513 U.S. 298 (1995).
See McQuiggin v. Perkins, 133 S. Ct. 1924, 1931-32 (2013).
Petitioner had 359 days left on the clock when the statute of limitations period
resumed on September 30, 2014, one day after Michigan’s highest court denied
petitioner’s application for leave to appeal. (ECF No. 17-23, PageID.670). The oneyear limitations period expired on September 23, 2014. Petitioner filed his habeas
petition on September 24, 2014, one day after the statute of limitations had expired.
Accordingly, the Court finds that the habeas corpus petition is barred by the statute
of limitations. 28 U.S.C. § 2244(d)(1)(A).
Alternatively, if this petition had not been dismissed because it is barred by the
statute of limitations, it would have been denied because none of the grounds raised
by petitioner provide a basis for federal habeas corpus relief.
Petitioner waived all the defects now claimed in Grounds I through IV when he
entered his plea. See Tolett v. Henderson, 411 U.S. 258, 267 (1973); see also United
States v. Broce, 488 U.S. 563, 570-74 (1989); Post v. Bradshaw, 621 F.3d 406, 426-27
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(6th Cir. 2010); Koresja v. Harry, No. 14-11716, 2016 WL 4363009, at *6-7 (E.D. Mich.
Aug. 16, 2016); Render v. Warden, Southern Correctional Facility, 889 F. Supp. 2d
1014, 1021 (S.D. Ohio 2014); Brigham v. Smith, No. 1:11-cv-1257, 2012 WL 895926,
at *2 (W.D. Mich. Mar. 15, 2012). The proceedings against petitioner did not fall
within any exception to the general rule. See Broce, 488 U.S. at 574-75.
Petitioner’s claim that the absence of an arraignment somehow deprived the
Muskegon County Circuit Court of “jurisdiction to convict” (see ECF No. 8, PageID.90)
is not a basis for federal habeas corpus relief. Michigan’s courts would not have upheld
petitioner’s conviction if they believed that a circuit court, Michigan’s court of general
jurisdiction,6 lacked jurisdiction. 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); Nelson v.
Jackson, No. 2:16-cv-12260, 2016 WL 6441287, at *4 (E.D. Mi ch. Oct. 31, 2016).
It is well-settled that a purported violation of state law does not provide a basis
for federal habeas relief. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). “In
conducting habeas review, a federal court is limited to deciding whether a conviction
violated the Constitution, laws, or treaties of the United States.” Id. at 68. “[A] state
court’s interpretation of state jurisdictional issues conclusively establishes jurisdiction
for purposes of federal habeas review.” Strunk v. Martin, 27 F. App’x 473, 475 (6th
Cir. 2001); see Stav v. Palmer, No. 1:13-cv-1185, 2017 WL 512697, at *5 (W.D. Mich.

6

See Hieshetter v. Sayer, No. 1:14-cv-176, 2014 WL 1875119, at *4 (W.D. Mich.
May 8, 2014) (citing MICH. CONST. 1963, art. 6 § 13).
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Feb. 8, 2017); Milner v. Hoffner, No. 16-10127, 2017 WL 24793, at *10 (E.D. Mich. Jan.
3, 2017).

Petitioner’s claim that the Muskegon County Circuit Court lacked

jurisdiction raises a state law issue that does not provide a basis for federal habeas
corpus relief.
III.

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). 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.
This Court determined that petitioner’s application is barred by the statute of
limitations. Under Slack, 529 U.S. at 484, when a habeas petition is denied on
procedural grounds, a certificate of appealability may issue only “when the prisoner
shows, at least, [1] that jurists of reason would find it debatable whether the petition
states a valid claim of the denial of a constitutional right and [2] that jurists of reason
would find it debatable whether the district court was correct in its procedural ruling.”
Both showings must be made to warrant the grant of a certificate. Id.

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The Court finds that reasonable jurists could not debate that this Court correctly
dismissed the petition as barred by the statute of limitations. Accordingly, the Court
will deny Petitioner a certificate of appealability. A Judgment and Order consistent
with this Memorandum Opinion will be entered.
Conclusion
For the foregoing reasons, respondent’s motion (ECF No. 16) will be granted and
the habeas corpus petition will be dismissed with prejudice because it is barred by the
statute of limitations.

Dated: June 12, 2017

/s/ Paul L. Maloney
Paul L. Maloney
United States District Judge

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