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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 DENYING PETITIONER’S 

MOTION FOR RELIEF FROM JUDGMENT

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

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

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

challenged 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. On October 28, 2008, this Court summarily dismissed petitioner’s

application after concluding that the grounds raised were meritless. Presently before the

Court is Petitioner’s Motion Seeking Relief from a Final Judgment and Request to

Reopen Petitioner’s Case Pursuant to 60(b) of Fed. R. of Civil Proc., filed on February 2,

2009. For the reasons set forth below, Petitioner’s motion is denied. 

I. Background

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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

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 sought the issuance of a writ of habeas corpus on the following ground:

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At times, Petitioner appears to assert that Michigan’s review mechanism is

insufficient. (Pet.’s Mot. at 22.) Nonetheless, Petitioner summarizes his argument as

follows: “Michigan does provide a corrective mechanism, but the petitioner was unable to

use it because of an unconscionable breakdown in the underlying process.” (Id.) The

Court, therefore, proceeds under the assumption that Petitioner does not intend to

challenge the Michigan review process in the abstract. Furthermore, the Court notes that

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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.

The Court summarily dismissed Petitioner’s application on October 28, 2008, after

concluding that his claim was barred by Stone v. Powell, 428 U.S. 465, 96 S. Ct. 3037

(1976). In his present motion for relief from judgment, Petitioner argues that the state

court’s procedural mechanism for review of Fourth Amendment issues failed in his case

and further asserts that this Court should review the merits of his claim because he is

actually innocent.

II. Failure of State Court Review Procedures

Pursuant to Stone v. Powell, 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 Amendment claim . . . .” 428 U.S. at 494, 96 S. Ct. at 3052 (1976).

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). Petitioner concedes that Michigan provides, in the abstract, a mechanism by

which he could raise his illegal search and seizure claim.1

 In an attempt to revive his

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Michigan’s review mechanism has previously been found sufficient under the Stone v.

Powell analysis. See, e.g., Ahmed v. Wolfenbarger, No. 2:06-14106, 2008 WL 5188268,

at *8 (E.D. Mich. Dec. 9, 2008).

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habeas petition, however, Petitioner argues that a failure of that mechanism prevented

him from obtaining a careful review of his claim.

 Petitioner specifically complains that the Michigan review process broke down at

the trial court level where the hearing for his motion to suppress lasted less than three

minutes and where neither party called witnesses to testify. Petitioner contends that, had

he “received a suppression hearing complete with witnesses then [he] would have took

[sic] advantage of [the Michigan review procedures] and there would have been no

breakdown which was ‘unconscionable’.” (Pet.’s Mot. at 22.) This argument is

insufficient to establish a “failure” of Michigan’s review mechanism.

While Michigan law allows for the calling of witnesses at suppression hearings,

see People v. Reid, 420 Mich. 326, 336, 362 N.W.2d 655, 660 (1984), there is no

requirement that witnesses be called. At the suppression hearing in this case, petitioner’s

counsel indicated that he was “prepared to stand on [his] brief.” (Id. at 8 (quoting

Suppression Hearing Transcript).) Counsel’s decision not to call witnesses does not

indicate that Michigan’s review mechanism failed. The trial court received briefs from

the parties and ruled on the suppression motion after providing both parties an

opportunity to argue their positions. Furthermore, Petitioner received a full and careful

review of his Fourth Amendment claim on appeal. Although the Michigan Court of

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Appeals initially denied Petitioner leave to appeal, the Michigan Supreme Court

remanded the case for consideration as on leave granted. The Michigan Court of Appeals

then provided a full review of Petitioner’s claim and affirmed the trial court’s ruling. The

Michigan Supreme Court denied leave to appeal. Under these circumstances, the Court

concludes that Petitioner “received all the process he was due.” See Machacek v.

Hofbauer, 213 F.3d 947, 952 (6th Cir. 2000). Therefore, Petitioner has failed to establish

that he is entitled to relief from judgment pursuant to Rule 60(b)(1) of the Federal Rules

of Civil Procedure.

III. Actual Innocence

Petitioner next argues that evidence of his actual innocence warrants review of the

merits of his Fourth Amendment claim despite the rule against such consideration on

habeas review. Petitioner maintains that his actual innocence justifies relief from

judgment pursuant to Rule 60(b)(6) of the Federal Rules of Civil Procedure. In making

this argument, Petitioner relies on the Supreme Court’s holding in Schlup v. Delo, 513

U.S. 298, 115 S. Ct. 851 (1995), and the Sixth Circuit’s holding in Souter v. Jones, 395

F.3d 577 (6th Cir. 2005). Together, these cases provide that “a credible showing of actual

innocence [is] sufficient to enable a court to reach the merits of an otherwise

procedurally-barred habeas petition.” Souter, 395 F.3d at 588.

Petitioner’s argument fails on at least two grounds. First, the “actual innocence”

exception described in Schlup and Souter applies only to “procedurally-barred” habeas

claims. A habeas petitioner may be “procedurally” barred from raising claims if he fails

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In his brief, Petitioner distinguishes between “freestanding” actual innocence

claims, by which prisoners attempt to secure a writ of habeas corpus by establishing their

innocence, and “gateway” actual innocence claims, by which prisoners seek meritorious

review of otherwise procedurally barred constitutional claims on grounds that they are

actually innocent. (Pet.’s Mot. at 30.) The evidentiary burden on a petitioner is lower in

the context of “gateway” claims. Schlup, 513 U.S. at 316, 115 S.Ct. at 861-62. Petitioner

asserts only a “gateway” claim of actual innocence. (Pet.’s Mot. at 30-33.)

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to file his petition within the time allotted by the statute of limitations or if he files

successive petitions. The Stone v. Powell bar to consideration of Fourth Amendment

claims, however, is not procedural. Stone v. Powell bars consideration of Fourth

Amendment claims on habeas review because of the substantive constitutional

jurisprudence of the United States Supreme Court, not because the petitioner failed to

conform with the filing or timing requirements related to habeas petitions. Consequently,

the “actual innocence” exception to procedurally barred claims is inapplicable to this

case.2

Second, even if Stone v. Powell presents a procedural bar, Petitioner fails to

present a “credible showing of actual innocence.” To be credible, Petitioner’s claim of

actual innocence must be supported “with new reliable evidence-whether it be

exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical

evidence-that was not presented at trial.” Souter, 395 F.3d at 590 (quoting Schlup, 513

U.S. at 324, 115 S. Ct. at 865). Petitioner presents no new evidence to support his claim

of actual innocence; he merely asserts that there was insufficient evidence of his actual or

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Interestingly, Petitioner has never attempted to withdraw his guilty plea nor does

he argue that there was insufficient evidence to support his marijuana or firearms

convictions.

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constructive possession of cocaine to support his guilty plea.3

 As such, Petitioner has

failed to meet his burden and is not entitled to relief from judgment.

Accordingly,

IT IS ORDERED that Peitioner’s motion for relief from judgment is DENIED.

s/PATRICK J. DUGGAN

UNITED STATES DISTRICT COURT

DATED: February 12, 2009

Copy to:

Brian White, #597725

2500 S. Sheridan Dr.

Muskegon Heights, MI 49444

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