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 UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

BRIAN KELLY WHITE, 

Petitioner, Civil No. 2:08-CV-14238

HONORABLE PATRICK J. DUGGAN

v. UNITED STATES DISTRICT JUDGE

MARY BERGHUIS,

Respondent,

 / 

OPINION AND ORDER SUMMARILY DISMISSING

THE PETITION FOR WRIT OF HABEAS CORPUS

Brian Kelly White (“petitioner”) presently confined at the West Shoreline

Correctional Facility in Muskegon Heights, Michigan, seeks the issuance of a writ of

habeas corpus pursuant to 28 U.S.C. § 2254. In his pro se application, petitioner

challenges his conviction for possession with intent to deliver 50 or more but less than

450 grams of cocaine, Mich. Comp. Laws § 333.7401(2)(a)(iii); possession of marijuana,

Mich. Comp. Laws § 333.7403(2)(d); felon in possession of a firearm, Mich. Comp. Laws

§ 750.224f; two counts of possession of a firearm during the commission of a felony,

Mich. Comp. Laws § 750.227b; and being a second felony habitual offender, Mich.

Comp. Laws § 769.10. For the reasons stated below, the petition for writ of habeas

corpus is SUMMARILY DISMISSED.

I. Background

The evidence in this case was seized by police during the execution of a search

warrant at petitioner’s home in Southfield, Michigan. After being bound over for trial,

petitioner filed a motion to quash the search warrant on the ground that the search warrant
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affidavit failed to establish probable cause for a search of the home and the seizure of the

contraband. The trial court denied the motion on August 31, 2005. 

Petitioner then entered a conditional plea of guilty to the above offenses to

preserve his right to appeal the denial of the motion to quash the search warrant. 

Following his sentence, petitioner filed an application for leave to appeal to the Michigan

Court of Appeals, in which he again claimed that the search warrant was improperly

granted because it was based on unreliable hearsay information. The Michigan Court of

Appeals initially denied petitioner leave to appeal. People v. White, No. 272042 (Mich.

Ct. App. Oct. 18, 2006). In lieu of granting leave to appeal, however, the Michigan

Supreme Court remanded the case to the Michigan Court of Appeals to consider the case

as on leave granted. People v. White, 477 Mich. 1054; 728 N.W.2d 423 (2007). On

remand, the Michigan Court of Appeals concluded that there was sufficient information

to justify the issuance of a search warrant and held that the trial court did not err in

refusing to suppress the evidence obtained during the search. People v. White, No.

276990, 2008 WL 902120 (Mich. Ct. App. Apr. 3, 2008). The Michigan Supreme Court

subsequently denied leave to appeal. People v. White, 755 N.W.2d 625 (2008) (Kelly, J.

would grant leave to appeal).

Petitioner now seeks the issuance of a writ of habeas corpus on the following

ground:

The warrant at issue was improperly granted due to the inherent lack of

reliability in the week old, triple hearsay information used to support the

warrant.
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II. Petitioner’s Fourth Amendment Claim

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 also 28 U.S.C. § 2243. If,

after preliminary consideration, the Court determines that the petitioner is not entitled to

relief, the Court must summarily dismiss the petition. See Rule 4, Rules Governing §

2254 Cases; Allen v. Perini, 424 F.2d 134, 141 (6th Cir. 1970) (“[T]he District Court has

a duty to screen out a habeas corpus petition which should be dismissed for lack of merit

on its face.”). A petition may be dismissed under Rule 4 if it raises legally frivolous

claims or if it contains factual allegations that are palpably incredible or false. See

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 ground raised by petitioner in his petition

is meritless such that the petition must be denied.

Petitioner contends that the search warrant was facially invalid because the police

used unreliable and stale third-hand information to obtain the warrant. Consequently,

Petitioner argues that evidence obtained during the execution of the search warrant should

have been suppressed to protect his Fourth Amendment right to be free from unreasonable

search and seizure. 

Federal habeas review of a petitioner’s arrest or search by state police is barred

“where the State has provided an opportunity for full and fair litigation of a Fourth
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Amendment claim . . . .” Stone v. Powell, 428 U.S. 465, 494, 96 S. Ct. 3037, 3052

(1976); Machacek v. Hofbauer, 213 F.3d 947, 952 (6th Cir. 2000). Such an opportunity

existed if the state provided, in the abstract, a mechanism by which a petitioner could

raise the claim, and so long as presentation of the claim was not frustrated by a failure of

that mechanism. Riley v. Gray, 674 F.2d 522, 526 (6th Cir. 1982). In undertaking this

analysis, “the relevant inquiry is whether a habeas petitioner had an opportunity to litigate

his claims, not whether he in fact did so or even whether the Fourth Amendment claim

was correctly decided.” Wynne v. Renico, 279 F. Supp. 2d 866, 892 (E.D. Mich. 2003).

 On federal habeas review, then, a federal court cannot re-examine a petitioner’s

Fourth Amendment claim that evidence should have been suppressed as “poisonous fruit”

of his or her illegal arrest or search where the state provided an opportunity for full and

fair litigation of the habeas petitioner’s Fourth Amendment claim prior to trial. See

Walendzinski v. Renico, 354 F. Supp. 2d 752, 759 (E.D. Mich. 2005). 

Petitioner is unable to raise a Fourth Amendment claim that the evidence in this

case was the product of an illegal arrest or search when he raised the factual basis for this

claim in the state trial and appellate courts and the state courts thoroughly analyzed the

facts and applied the proper constitutional law in rejecting his claim. Machacek, 213 F.

3d at 952; Monroe, 197 F. Supp. 2d 753, 766 (E.D. Mich. 2001). Accordingly, petitioner

is not entitled to habeas relief on his claim. 

III. Certificate of Appealability

28 U.S.C. § 2253 governs appeals in § 2254 proceedings. Section 2253(c)(2)
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states, in pertinent part: “A certificate of appealability may issue . . . only if the applicant

has made a substantial showing of the denial of a constitutional right.” Furthermore, Fed.

R. App. P. 22(b) states: “If [a habeas] applicant files a notice of appeal, the district judge

who rendered the judgment must either issue a certificate of appealability or state why a

certificate should not issue.” In granting a certificate of appealability, the Court must

indicate the specific issue or issues for which the applicant made a substantial showing of

the denial of a constitutional right. 28 U.S.C. § 2253(c)(3). The Sixth Circuit has

indicated that a federal district court may grant or deny a certificate of appealability when

the court issues a ruling on the habeas petition. Castro v. United States, 310 F.3d 900,

901-02 (6th Cir. 2002). 

For the reasons stated above, the Court finds that petitioner has failed to make a

substantial showing of the denial of a constitutional right. Therefore, a certificate of

appealability shall not issue in this case.

IV. Conclusion

 For the reasons stated above, Petitioner’s application for a writ of habeas corpus shall

be denied and a certificate of appealability shall not issue in this case.

A judgment consistent with this Opinion shall issue forthwith.

s/PATRICK J. DUGGAN

UNITED STATES DISTRICT COURT

DATED: October 28, 2008

Copy to:

Brian White, #597725

2500 S. Sheridan Dr.

Muskegon Heights, MI 49444