Johnson #236397 v. Woods
Filing
28
OPINION; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt)
Case 2:16-cv-00016-GJQ-TPG ECF No. 28 filed 11/29/18 PageID.1437 Page 1 of 16
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
______
MARK ANTHONY JOHNSON,
Petitioner,
Case No. 2:16-cv-16
v.
Honorable Gordon J. Quist
JEFFREY WOODS,
Respondent.
____________________________/
OPINION
This is a habeas corpus action brought by a state prisoner under 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.
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Discussion
I.
Factual allegations
Petitioner Mark Anthony Johnson is incarcerated with the Michigan Department of
Corrections at the Michigan Reformatory (RMI) in Ionia, Ionia County, Michigan. Following a
jury trial in the Oakland County Circuit Court in Docket No. 314166, Petitioner was convicted of
five counts of first-degree criminal sexual conduct (CSC I), one count of third-degree criminal
sexual conduct (CSC III), and one count of assault with intent to commit criminal sexual conduct
involving penetration. In Docket No. 314170, Petitioner was also convicted following a jury trial
of possession with intent to deliver marijuana.
On December 21, 2012, the court sentenced Petitioner, as a fourth-offense habitual
offender, to concurrent prison terms of 50 to 80 years for each CSC I conviction, 50 to 80 years
for his CSC III conviction, 20 to 50 years for his assault conviction, and 22 months to 15 years for
his possession with intent to deliver conviction. Petitioner appealed his convictions and the
Michigan Court Appeals consolidated the appeals. The Michigan Court of Appeals affirmed
Petitioner’s convictions in an opinion dated April 22, 2014, which rejected Petitioner’s
insufficiency of the evidence arguments. (ECF No. 15-13, PageID.1051-1056.) The Michigan
Supreme Court denied leave to appeal on October 28, 2014. (ECF No. 15-14, PageID.1218.)
Petitioner did not file a petition for writ of certiorari in the United States Supreme Court. Petitioner
did not file a collateral attack in the state courts.
Petitioner originally filed his habeas corpus petition on January 28, 2016, alleging
that:
I.
The evidence was insufficient to convict Petitioner of first degree or third
degree CSC because the testimony presented was based on a credibility
contest with no other supporting evidence.
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II.
The evidence of possession with intent to deliver marijuana was insufficient
because the prosecutor failed to prove the crime beyond a reasonable doubt.
III.
The judge was biased at trial and at sentencing violating Petitioner’s right
to due process, a fair trial, and fair sentencing.
IV.
Ineffective assistance of trial counsel.
(Pet., ECF No. 1, PageID.6-16.)
Respondent filed a motion to dismiss, asserting, in part, that Petitioner failed to
exhaust two of his four claims. On January 6, 2017, the Court denied Respondent’s motion to
dismiss and ordered Petitioner to show cause why he was entitled to a stay of the proceedings in
order to exhaust his unexhausted claims in state court. Petitioner complied and the Court granted
Petitioner a stay so that he could exhaust his state court remedies with regard to his unexhausted
claims.
On October 25, 2018, Petitioner filed his amended habeas corpus petition, raising
the same four claims for relief that were raised in his original petition and asserting that he has
exhausted his state court remedies as to all of the claims. (Am. Pet., ECF No. 26, PageID.13591363.) Petitioner also filed a brief in support, a copy of the trial court’s opinion and order denying
Petitioner’s motion for relief from judgment, and a copy of the Michigan Supreme Court’s order
denying Petitioner’s delayed application for leave to appeal. (ECF No. 26-1 and ECF No. 26-2.)
Petitioner’s application for leave to appeal the November 29, 2017, orders of the Michigan Court
of Appeals was denied by the Michigan Supreme Court on July 27, 2018. (ECF No. 26-2,
PageID.1412.)
II.
AEDPA standard
This action is governed by the Antiterrorism and Effective Death Penalty Act of
1996, Pub. L. 104-132, 110 Stat. 1214 (AEDPA). The AEDPA “prevents federal habeas ‘retrials’”
and ensures that state court convictions are given effect to the extent possible under the law. Bell
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v. Cone, 535 U.S. 685, 693-94 (2002). 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). This standard is “intentionally difficult to
meet.” Woods v. Donald, 575 U.S. __, 135 S. Ct. 1372, 1376 (2015) (internal quotation omitted).
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 holdings, and not the dicta, of the
Supreme Court. Williams v. Taylor, 529 U.S. 362, 412 (2000); Bailey v. Mitchell, 271 F.3d 652,
655 (6th Cir. 2001). In determining whether federal law is clearly established, the Court may not
consider the decisions of lower federal courts. Williams, 529 U.S. at 381-82; Miller v. Straub, 299
F.3d 570, 578-79 (6th Cir. 2002). Moreover, “clearly established Federal law” does not include
decisions of the Supreme Court announced after the last adjudication of the merits in state court.
Greene v. Fisher, 565 U.S. 34 (2011). 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 state-court adjudication on the merits. Miller v. Stovall, 742 F.3d 642,
644 (6th Cir. 2014) (citing Greene, 565 U.S. at 38).
A federal habeas court may issue the writ under the “contrary to” clause if the state
court applies a rule different from the governing law set forth in the Supreme Court’s cases, or if
it decides a case differently than the Supreme Court has done on a set of materially
indistinguishable facts. Bell, 535 U.S. at 694 (citing Williams, 529 U.S. at 405-06). “To satisfy
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this high bar, a habeas petitioner is required to ‘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.’” Woods,
135 S. Ct. at 1376 (quoting Harrington v. Richter, 562 U.S. 86, 103 (2011)). In other words,
“[w]here the precise contours of the right remain unclear, state courts enjoy broad discretion in
their adjudication of a prisoner’s claims.” White v. Woodall, 572 U.S. 415, 424 (2014) (internal
quotations omitted).
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 v. Adams, 324 F.3d 423, 429 (6th Cir.
2003); 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. 1989).
III.
Sufficiency of the evidence of CSC
In Petitioner’s first claim for habeas corpus relief, he asserts that his criminal sexual
conduct convictions are not supported by legally sufficient evidence. A § 2254 challenge to the
sufficiency of the evidence is governed by the standard set forth by the Supreme Court in Jackson
v. Virginia, 443 U.S. 307, 319 (1979), which is “whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.” Id. Issues of credibility may not be reviewed by the
habeas court under this standard. See Herrera v. Collins, 506 U.S. 390, 401-02 (1993). Rather,
the habeas court is required to examine the evidence supporting the conviction, in the light most
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favorable to the prosecution, with specific reference to the elements of the crime as established by
state law. Jackson, 443 U.S. at 324 n.16; Allen v. Redman, 858 F.2d 1194, 1196-97 (6th Cir. 1988).
The Jackson v. Virginia standard “gives full play to the responsibility of the trier of
fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts.” Jackson, 443 U.S. at 319. Moreover, because both
the Jackson standard and AEDPA apply to Petitioner’s claims, “the law commands deference at
two levels in this case:
First, deference should be given to the trier-of-fact’s verdict, as
contemplated by Jackson; second, deference should be given to the Michigan Court of Appeals’
consideration of the trier-of-fact’s verdict, as dictated by AEDPA.” Tucker v. Palmer, 541 F.3d
652, 656 (6th Cir. 2008). This standard erects “‘a nearly insurmountable hurdle’” for petitioners
who seek habeas relief on sufficiency-of-the-evidence grounds. Davis v. Lafler, 658 F.3d 525,
534 (6th Cir. 2008) (quoting United States v. Oros, 578 F.3d 703, 710 (7th Cir. 2009)).
Petitioner raised this claim in his appeal of right. In addressing this issue, the
Michigan Court of Appeals reviewed the evidence presented at trial:
Five women testified that Johnson sexually assaulted them in separate incidents
between October 2010 and April 2012. The women each identified Johnson as
having a distinctive facial scar, and as driving a dark blue or grey Impala.
The prosecutor admitted R.W.’s preliminary examination testimony into evidence
because she died before trial. R.W. testified that she is a heroin addict. According
to R.W., in October 2010, she left a party store and asked Johnson for a light for
her cigarette. Johnson grabbed her around the neck, held a knife to her throat, and
took her behind an abandoned house. According to R.W., Johnson penetrated her
anally, stole money from her wallet, and told her not to call the police.
R.W. testified that she did not call the police because she had an outstanding
warrant, Johnson knew where she lived, and she did not think that anyone would
believe her because she was a heroin addict. R.W. testified that she contacted the
police after she learned that Johnson had been arrested.
M.V. testified that she is a prostitute and alcoholic. According to M.V., Johnson
approached her when she was leaving a liquor store at about 2:30 p.m. in December
2011. Johnson held a hunting knife to her side and forced her to walk to an
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abandoned house. At the abandoned house, Johnson anally penetrated M.V. twice,
threatened to kill her if she moved, and then left.
M.V. reported the assault to the police, who took her to a clinic where a rape kit
was performed. Jennifer Jones, a forensic biologist, testified that Johnson’s DNA
profile matched the DNA profile of a donor on swab taken from M.V.’s rape kit.
K.J. testified that she is a prostitute and crack cocaine addict. K.J. testified that, in
late 2011, Johnson picked her up with the understanding that he would pay her for
sexual services. According to K.J., she and Johnson entered an abandoned
apartment. K.J. told Johnson that she would not do anything until he paid her, and
Johnson refused to pay. When K.J. attempted to leave, Johnson grabbed her by the
throat, threatened to hurt her, penetrated her anally, and left. K.J. testified that she
was bleeding and in pain, but did not seek medical attention or report the incident
to the police because she did not believe that the police would take her seriously.
K.J. testified that, a few months later, she again got into Johnson’s car. When she
realized that Johnson was driving, she jumped out of the car while it was moving.
Again, she did not report the incident to the police. K.J. testified that police
approached her with a photographic lineup in April 2012, and she identified
Johnson and gave a statement.
J.W. testified that she is a prostitute and a heroin and crack cocaine addict. J.W.
testified that, in early 2012, Johnson picked her up and agreed to pay for sexual
services. J.W. testified that Johnson drove her to an abandoned apartment complex.
According to J.W., she told Johnson that he would have to pay her before she would
perform. Johnson told her that he had a gun and would not pay her, and said that if
she cooperated, she would not get hurt. J.W. testified that Johnson penetrated her
anally. She did not report the incident to the police because she did not think that
they would care.
J.W. testified that she got into Johnson’s car a second time a few weeks later.
According to J.W., Johnson was driving a different car. J.W. attempted to get out
of the car, but Johnson sped up. Johnson took her to the same apartment complex.
Johnson had a paper bag that J.W. believed contained a gun, and he choked her
when she tried to escape. Johnson again anally penetrated J.W., and she did not
report the incident because she was a prostitute. J.W. testified that she called the
police after the third time that Johnson tried to pick her up because she did not
believe that Johnson would leave her alone.
T.W. testified that at about 3:00 a.m. in March 2012, she argued with her boyfriend,
got out of his car, and began walking home. T.W. testified that she was not a
prostitute, and she had been drinking but was not drunk. According to T.W.,
Johnson approached her in a car and asked if she wanted a ride. Johnson drove
T.W. to an abandoned apartment and told T.W. to get out of his car while he sold
some heroin.
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According to T.W., she realized that she was in a bad situation and attempted to
walk away. Johnson grabbed her neck and tried to force her into the apartment.
T.W. testified that she managed to get away and fled to a well-lighted porch, where
she called the police. T.W. identified Johnson in a photographic lineup.
The jury found Johnson guilty of two counts of CSC I against M.V., one count of
CSC I and one count of CSC III against J.W., one count of CSC I against K.J., one
count of CSC I against R.W., and one count of assault with intent to commit sexual
penetration against T.W.
(ECF No. 15-12, PageID.1052-1053.)
In addressing whether the evidence was sufficient to support Petitioner’s
convictions, the Michigan Court of Appeals noted:
A complainant’s testimony need not be corroborated in prosecutions involving
criminal sexual conduct. The complainant’s testimony alone may be sufficient to
sustain a defendant’s conviction. Here, the prosecution was not required to present
physical evidence corroborating the complainants’ testimonies. Johnson’s
argument that the prosecutor was required to provide physical evidence linking him
to the crimes is without merit.
Further, in his brief on appeal, Johnson recognizes that this case constituted a
credibility contest. However, Johnson asserts that the complainants’ testimonies
were inconsistent and incredible. When reviewing the sufficiency of the evidence,
this Court will not interfere with the trier of fact’s role to determine the weight of
the evidence or the credibility of the witnesses. Here, if the jury believed the
complainants, their testimonies were sufficient to sustain Johnson’s convictions. In
order to convict Johnson, the jury must have chosen to believe the complainants.
We defer to the jury’s credibility judgment.
We conclude that the evidence was sufficient to sustain Johnson’s convictions
because a rational trier of fact could conclude that Johnson committed the crimes
beyond a reasonable doubt.
(ECF No. 15-12, PageID.1054-1055 (footnote omitted).)
Petitioner claims that the Court should evaluate the quality of the evidence against
him. Petitioner states that the complainants in his criminal case made allegations without any
substantiating evidence. Petitioner further contends that complainants were not reliable witnesses
because they were drug addicts and prostitutes. However, as noted above, it is for the trier of fact
“to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences
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from basic facts to ultimate facts.” Jackson, 443 U.S. at 319. Petitioner improperly asks this Court
to usurp the role of the jury as the trier of fact. Giving proper deference to the trier-of-fact’s verdict
and to the Michigan Court of Appeals’ consideration of the trier-of-fact’s verdict, as dictated by
AEDPA, the Court finds that Petitioner has failed to support his claim that his criminal sexual
conduct convictions are not supported by legally sufficient evidence. Therefore, Petitioner’s first
claim for relief is properly denied for lack of merit.
IV.
Sufficiency of the evidence of possession with intent to deliver
In Petitioner’s second claim for relief, he asserts that his conviction for possession
with intent to distribute marijuana conviction is not supported by sufficient evidence.
In
addressing this claim on appeal, the Michigan Court of Appeals applied the Jackson standard,
stating:
We must resolve any conflicting evidence in the prosecution’s favor.
Circumstantial evidence and reasonable inferences arising from that evidence can
constitute satisfactory proof of the elements of a crime, including the defendant’s
intent. The jury may infer a defendant’s intent to deliver a controlled substance
“from the quantity of narcotics in a defendant’s possession, from the way in which
those narcotics are packaged, and from other circumstances surrounding the arrest.”
Here, Deputy Teelander testified that, while conducting surveillance on Johnson’s
house, he saw three people make very short visits to the home. Deputy Teelander
testified that this type of activity was consistent with the sale of drugs. Deputy
Wood testified that, when he searched Johnson, he discovered marijuana of varying
quantities in individual packaging inside a larger bag. Deputy Wood and Detective
Marougi both testified that this type of packaging was consistent with the sale of
drugs. Finally, Detective Marougi testified that Johnson told him that he intended
to sell the drugs and make a profit. Johnson testified that he was lying to Detective
Marougi.
The jury was in the best position to resolve the conflict between the witnesses’
testimonies at trial. Further, circumstantial evidence—including the activity at
Johnson’s house, and the packaging of the marijuana—supported the inference that
Johnson intended to deliver the marijuana. Viewing this evidence in the light most
favorable to the prosecutor, we conclude that the evidence was sufficient to support
Johnson’s conviction of possession with the intent to deliver because a rational trier
of fact could conclude that Johnson committed the crimes beyond a reasonable
doubt.
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(ECF No. 15-12, PageID.1055-56.)
Petitioner asserts that the guilty verdict on his possession with intent charge was
irrational and unsupported. Although Petitioner states that the prosecution failed to present
evidence showing that Petitioner had the intent to deliver because there were no witnesses to drug
sales or deals, and no scales, weapons, or money were discovered, the Michigan Court of Appeals
specifically found that, based on the evidence at trial, a rational trier of fact could conclude that
Petitioner was guilty of possession of marijuana with intent to deliver. As noted above by the
Michigan Court of Appeals, circumstantial evidence, such as the activity at Petitioner’s house, and
the packaging of the marijuana, supported the inference that Petitioner intended to sell the
marijuana. In addition, the Michigan Court of Appeals properly noted that the jury was in the best
position to resolve the conflict between the witnesses’ testimonies at trial.
Because issues of credibility may not be reviewed by the habeas court under the
standard set forth in Jackson, this Court is bound by the jury’s conclusion that Petitioner intended
to deliver the marijuana. Herrera, 506 U.S. at 401-02. The decision of the Michigan Court of
Appeals in this case is not contrary to, nor does it involve an unreasonable application of, clearly
established federal law as determined by the Supreme Court of the United States. Nor is the
decision based upon an unreasonable determination of the facts in light of the evidence presented
in the state court proceeding. Therefore, Petitioner’s second claim for habeas corpus relief is
properly denied.
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V.
Judicial bias
In Petitioner’s third claim for relief, he claims that the trial judge was biased against
him at trial and during sentencing. “Due process requires a fair trial before a judge without actual
bias against the defendant or an interest in the outcome of his particular case.” United States v.
Armstrong, 517 U.S. 456, 468 (1996); see also In re Murchison, 349 U.S. 133, 136 (1955) (“A fair
trial in a fair tribunal is a basic requirement of due process. Fairness requires an absence of actual
bias in the trial of cases.”) (emphasis added)). However, because of the difficulty in determining
“whether a judge harbors an actual, subjective bias,” the courts look to “whether, as an objective
matter, the average judge in [that judge=s] position is likely to be neutral, or whether there is an
unconstitutional potential for bias.” Williams v. Pennsylvania, 136 S. Ct. 1899, 1905 (2016)
(internal quotations omitted); see also Caperton v. A.T. Massey Coal Co., Inc., 556 U.S. 868, 883
(2009). The Supreme Court has recognized constitutionally impermissible, objective indicia of
bias in the following types of cases: (1) those cases in which the judge “has a direct, personal,
substantial pecuniary interest in reaching a [particular] conclusion,” Tumey v. Ohio, 273 U.S. 510,
523 (1997) (subsequently expanded to include even indirect pecuniary interest, see Railey v. Webb,
540 F.3d 393, 399-400 (6th Cir. 2008)); (2) certain contempt cases, such as those in which the
“judge becomes personally embroiled with the contemnor,” Murchison, 349 U.S. at 141
(subsequently clarified to involve cases in which the judge suffers a severe personal insult or attack
from the contemnor); and (3) cases in which a judge had prior involvement in the case as a
prosecutor, Williams, 136 S. Ct. at 1905 (citing Withrow v. Larkin, 421 U.S. 35, 53 (1975)). The
courts indulge “a presumption of honesty and integrity in those serving as adjudicators.” Withrow
v. Larkin, 421 U.S. 35, 47 (1975); Coley v. Bagley, 706 F.3d 741, 751 (6th Cir. 2013) (citing, inter
alia, Withrow, 421 U.S. at 47). “The presumption of impartiality stems not merely from the
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judicial-bias caselaw, [] but from the more generally applicable presumption that judges know the
law and apply it in making their decisions, see Lambrix v. Singletary, 520 U.S. 518, 532 n.4 (1997),
and the even more generally applicable presumption of regularity, see Parke v. Raley, 506 U.S.
20, 30B31.” Coley, 706 F.3d at 751.
Petitioner’s claim of judicial bias is based solely on the judge’s rulings during his
trial and sentencing. In his motion for relief from judgment, Petitioner supported his judicial bias
claim by pointing to a letter from the trial judge’s judicial assistant rejecting his motion to have
counsel withdraw on the basis that he was represented by an attorney, so the motion to withdraw
had to be filed by his attorney. Petitioner also pointed to another letter from the trial judge’s
judicial assistant rejecting a subsequent motion to withdraw as improper and because Petitioner
was no longer being represented by the same attorney. Finally, Petitioner referenced the transcript
of the sentencing hearing, at which the court held him in contempt for disrupting the proceedings.
(ECF No. 26-2, PageID.1415-16.) The trial court was unpersuaded by Petitioner’s argument and
the denial of Petitioner’s judicial bias claim was affirmed by the Michigan Court of Appeals and
the Michigan Supreme Court.
In Liteky v. United States, 510 U.S. 540 (1994), 1 the Supreme Court described the
showing Petitioner would have to make to succeed on his bias claim in this Court:
First, judicial rulings alone almost never constitute a valid basis for a bias
or partiality motion. See United States v. Grinnell Corp., 384 U.S., at 583, 86 S.Ct.,
at 1710. In and of themselves (i.e., apart from surrounding comments or
accompanying opinion), they cannot possibly show reliance upon an extrajudicial
source; and can only in the rarest circumstances evidence the degree of favoritism
or antagonism required (as discussed below) when no extrajudicial source is
involved. Almost invariably, they are proper grounds for appeal, not for recusal.
Second, opinions formed by the judge on the basis of facts introduced or events
1
Liteky is a case that addresses the statutory recusal standard for federal judges. The Sixth Circuit has, nonetheless,
relied on Liteky to provide the standard for assessing judicial bias claims under the Due Process Clause. See Alley v.
Bell, 307 F.3d 380, 386 (6th Cir. 2002); Lyell v. Renico, 470 F.3d 1177, 1187 (6th Cir. 2006).
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occurring in the course of the current proceedings, or of prior proceedings, do not
constitute a basis for a bias or partiality motion unless they display a deep-seated
favoritism or antagonism that would make fair judgment impossible. Thus, judicial
remarks during the course of a trial that are critical or disapproving of, or even
hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or
partiality challenge. They may do so if they reveal an opinion that derives from an
extrajudicial source; and they will do so if they reveal such a high degree of
favoritism or antagonism as to make fair judgment impossible. An example of the
latter (and perhaps of the former as well) is the statement that was alleged to have
been made by the District Judge in Berger v. United States, 255 U.S. 22, 41 S.Ct.
230, 65 L.Ed. 481 (1921), a World War I espionage case against GermanBAmerican
defendants: “One must have a very judicial mind, indeed, not [to be] prejudiced
against the German Americans” because their “hearts are reeking with disloyalty.”
Id., at 28 (internal quotation marks omitted). Not establishing bias or partiality,
however, are expressions of impatience, dissatisfaction, annoyance, and even
anger, that are within the bounds of what imperfect men and women, even after
having been confirmed as federal judges, sometimes display. A judge’s ordinary
efforts at courtroom administration--even a stern and short-tempered judge’s
ordinary efforts at courtroom administration-remain immune.
Liteky, 510 U.S. at 555-56. Petitioner fails to allege facts showing that the trial judge was biased
against him in any constitutionally significant manner. Therefore, Petitioner’s third claim for relief
is properly denied.
VI.
Invalid warrant
Finally, Petitioner claims that errors in the arrest warrant deprived the state court of
jurisdiction. Petitioner asserts that the fact that the warrant was not signed by the assistant
prosecutor or the complaining witness and did not contain the district court judge’s bar number
violated his rights under the Fourth Amendment. 2 In Stone v. Powell, 428 U.S. 465 (1976), the
Supreme Court held that “where the State has provided an opportunity for full and fair litigation
of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on
the ground that evidence obtained in an unconstitutional search or seizure was introduced at his
2
Petitioner has not fully explained how this claim, which appears to involve violations of state procedural rules,
implicates the Fourth Amendment. A federal court may not issue a writ of habeas corpus on the basis of a perceived
error of state law. Pulley v. Harris, 465 U.S. 37, 41 (1984); Engle v. Isaac, 456 U.S. 107, 119 (1982); Smith v.
Sowders, 848 F.2d 735, 738 (6th Cir. 1988).
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trial.” Id. at 494-95 (footnotes omitted); Cardwell v. Taylor, 461 U.S. 571, 572-573 (1983).
Therefore, the state prisoner must show that he was denied an opportunity for a full and fair
litigation of that claim at trial and on direct review. See Stone, 428 U.S. at 493; Jennings v. Rees,
800 F.2d 72, 77 (6th Cir. 1986).
The Sixth Circuit has held that a federal habeas court must make two distinct
inquiries before determining whether to address a Fourth Amendment claim. Riley v. Gray, 674
F.2d 522, 526 (6th Cir. 1982). First, the habeas court must determine whether the state procedural
mechanism presents the opportunity to raise a Fourth Amendment claim. Id. Second, the habeas
court must determine whether presentation of the claim was in fact frustrated because of a failure
of that mechanism. Id.; see also Abdul-Mateen v. Hofbauer, 2000 WL 687653, at *3 (6th Cir.
May 19, 2000) (unpublished table disposition) (noting that “this inquiry is not meant to be a case
by case review of state court determinations”).
Michigan provides criminal defendants with a procedure to fully and fairly present
Fourth Amendment claims by means of an evidentiary hearing pursuant to People v. Walker (On
Reh’g), 132 N.W.2d 87 (Mich. 1965). See People v. Snider, 608 N.W.2d 502, 508 (Mich. Ct. App.
2000); People v. Wiejecha, 165 N.W.2d 642, 488 (Mich. Ct. App. 1968) (noting that Walker
involved the admissibility into evidence of an allegedly involuntary confession). Petitioner fails
to provide any reason why he would have been prevented from raising his Fourth Amendment
claim in the context of a Walker hearing. Therefore, the Court need not address Petitioner’s Fourth
Amendment claim.
In addition, the Court notes that Petitioner’s Fourth Amendment claim is entirely
lacking in merit. As noted by the Circuit Court in Petitioner’s motion for relief from judgment:
[Petitioner] has not submitted any evidence to support his claim [of a deficient
arrest warrant], nor has he shown, or even argued, that he was prejudiced by the
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alleged defects. Furthermore, a review of the record shows that the arrest warrant
filed with the court in this case contained all of the information required by MCR
6.102(C). Even if the arrest warrant had been defective, an invalid arrest warrant
does not deprive the court of jurisdiction. People v. Burrill, 391 Mich 124, 133;
214 NW2d 823 (1974). Accordingly, [Petitioner] has not met the “good cause” or
“actual prejudice” standards with respect to this issue. MCR 6.508(D)(3).
(ECF No. 26-2, PageID.1431-32.) Because Petitioner’s claim regarding his arrest warrant is not
properly before this Court, and because it lacks any merit, this claim will be denied.
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 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).
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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.
The Court will enter a judgment and order consistent with this opinion.
Dated: November 29, 2018
/s/ Gordon J. Quist
GORDON J. QUIST
UNITED STATES DISTRICT JUDGE
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