UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

SHANNON LOCKRIDGE,

Petitioner,

CASE NO. 2:09-CV-10145

v. JUDGE ARTHUR J. TARNOW

MAGISTRATE JUDGE PAUL J. KOMIVES

CINDI S. CURTIN,

Respondent.

 /

REPORT AND RECOMMENDATION

Table of Contents

I. RECOMMENDATION ................................................................ 1

II. REPORT ........................................................................... 2

A. Procedural History ............................................................ 2

B. The Plea and Appeal Proceedings ................................................. 3

C. Standard of Review ............................................................ 4

D. Complaint Related Claims (Claims I-V and IX-XII) ................................... 7

E. Prosecutorial Misconduct (Claim VI) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

1. Clearly Established Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

2. Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

F. Parole Revocation (Claims VII & VIII) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

1. Standards Governing Parole Revocation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

2. Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

G. Appellate Counsel (Claim XIII) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

1. Clearly Established Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

2. Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

H. Recommendation Regarding Certificate of Appealability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

1. Legal Standard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

2. Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

I. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

III. NOTICE TO PARTIES REGARDING OBJECTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

* * * * *

I. RECOMMENDATION: The Court should deny petitioner’s application for the writ of

habeas corpus and should deny petitioner a certificate of appealability.

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II. REPORT:

A. Procedural History

1. Petitioner Shannon Lockridge is a state prisoner, currently confined at the Oaks

Correctional Facility in Manistee, Michigan.

2. On March 15, 2007, petitioner was convicted of conducting a continuing criminal

enterprise, MICH. COMP. LAWS § 750.159i, pursuant to his guilty plea in the Muskegon County

Circuit Court. On July 16, 2007, he was sentenced as an habitual offender to a term of 15-30 years’

imprisonment.1

3. Following his conviction, petitioner was appointed appellate counsel. He

subsequently filed a voluntary request to drop his appeal. The trial court entered a stipulated order

ending the appeal and permitting counsel to withdraw on December 27, 2007.

4. On January 13, 2009, petitioner filed an application for the writ of habeas corpus

raising nine grounds for relief. Respondent filed a motion to dismiss for lack of exhaustion, and

petitioner responded with a motion to stay the proceedings. Upon my recommendation, the Court

entered an Order denying respondent’s motion to dismiss and granting petitioner’s motion to stay

on December 28, 2009.

5. Petitioner returned to the state trial court, filing a motion for relief from judgment

pursuant to MICH.CT.R. 6.500-.508, raising the 13 claims for relief that petitioner now raises in this

court. The trial court denied the motion on May 14, 2010. See People v. Lockridge, No. 07-54378-

FH (Muskegon County, Mich., Cir. Ct. May 14, 2010) [hereinafter “Trial Ct. op.”]. The Michigan

1

Petitioner was on parole for an unrelated offense at the time of his conviction. His parole was

revoked as a result of his continuing criminal enterprise conviction.

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Court of Appeals and Michigan Supreme Court subsequently denied petitioner’s applications for

leave to appeal in standard orders. See People v. Lockridge, 489 Mich. 990, 800 N.W.2d 83 (2011);

People v. Lockridge, No. 300088 (Mich. Ct. App. Oct. 28, 2010).

6. On September 22, 2011, petitioner filed a second application for the writ of habeas

corpus in this Court, raising 13 claims for relief.2 The bulk of petitioner’s claims relate to his

contention that the criminal complaint had no complaining witness and was not signed by a judge. 

Based on this contention, petitioner asserts that he was improperly charged (Claim I); he was

improperly arrested in violation of the 4th Amendment (Claim II); he was improperly arraigned

(Claim III); the felon information was invalid (Claim IV); his conviction was invalid (Claims V &

IX); his sentencing as a fourth habitual offender was invalid (Claim X); the judgment of sentence

was invalid (Claim XI); and the trial court was without jurisdiction (Claim XII). Petitioner also

claims that because the complaint was invalid, the prosecutor committed misconduct by arguing for

a 15-30 year sentence (Claim VI). Finally, petitioner contends that his parole was improperly

revoked (Claims VII & VIII) and that his appellate counsel improperly moved to end his direct

appeal (Claim XIII).

7. Respondent filed her answer on April 24, 2012. She contends that petitioner’s Claims

IX-XI are barred by petitioner’s procedural default in the state courts, and that all of petitioner’s

claims are without merit.

8. Petitioner filed a reply to respondent’s answer on June 5, 2012.

B. The Plea and Appeal Proceedings

2

Petitioner’s second application was docketed in a separate case, No. 11-14151. On February

13, 2013, I entered an Order consolidating the cases, and directing that Case No. 11-14151 be closed.

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Petitioner was convicted of conducting a continuing criminal enterprise pursuant to his guilty

plea. Petitioner pleaded guilty pursuant to a plea agreement in which he agreed to fully and

completely cooperate with the prosecution in its case against his codefendants, in exchange for the

prosecution agreeing to inform the court at the time of sentencing of the extent of petitioner’s

cooperation. See Plea Tr., at 3-4. The trial court informed petitioner of the charges against him and

the rights he was waiving by pleading guilty, and petitioner affirmed that he was pleading guilty

freely and voluntarily. See id. at 6-12. Petitioner admitted that he cashed three fraudulent checks

that he had been given by his codefendants using stolen identification, knowing that the checks were

fraudulent. See id. at 13. Following his conviction, the trial court appointed appellate counsel for

petitioner. On December 22, 2007, petitioner signed a statement in support of his request to end the

appeal proceedings. In the statement, petitioner indicated that appellate counsel advised him that,

based on her review of the file, petitioner had no viable appellate issues. He further indicated that

he entered his plea freely and voluntarily, and that he did not cooperate with the prosecution. He

therefore decided “voluntarily . . . and without any pressure whatsoever from my appellate counsel,

to request that appointed counsel not pursue any appeal, ask the trial court to permit appellate

counsel to end the appeal process and serve the balance of my sentence.” The trial court

subsequently entered a stipulated order ending the appeal process and permitting counsel to

withdraw.

C. Standard of Review

Because petitioner’s application was filed after April 24, 1996, his petition is governed by

the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No.

104-132, 110 Stat. 1214 (Apr. 24, 1996). See Lindh v. Murphy, 521 U.S. 320, 326-27 (1997). 

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Amongst other amendments, the AEDPA amended the substantive standards for granting habeas

relief by providing:

(d) An application for a writ of habeas corpus on behalf of a person in

custody pursuant to the judgment of a State court shall not be granted with respect

to any claim that was adjudicated on the merits in State court proceedings unless the

adjudication of the claim--

(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 on an unreasonable determination

of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d).

“[T]he ‘contrary to’ and ‘unreasonable application’ clauses [have] independent meaning.” 

Williams v. Taylor, 529 U.S. 362, 405 (2000); see also, Bell v. Cone, 535 U.S. 685, 694 (2002). “A

state court’s decision is ‘contrary to’ . . . clearly established law if it ‘applies a rule that contradicts

the governing law set forth in [Supreme Court cases]’ or if it ‘confronts a set of facts that are

materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a

result different from [this] precedent.’” Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003) (per curiam)

(quoting Williams, 529 U.S. at 405-06); see also, Early v. Packer, 537 U.S. 3, 8 (2002); Bell, 535

U.S. at 694. “[T]he ‘unreasonable application’ prong of § 2254(d)(1) permits a federal habeas court

to ‘grant the writ if the state court identifies the correct governing legal principle from [the Supreme]

Court but unreasonably applies that principle to the facts’ of petitioner’s case.” Wiggins v. Smith,

539 U.S. 510, 520 (2003) (quoting Williams, 529 U.S. at 413); see also, Bell, 535 U.S. at 694. 

However, “[i]n order for a federal court to find a state court’s application of [Supreme Court]

precedent ‘unreasonable,’ the state court’s decision must have been more than incorrect or

erroneous. The state court’s application must have been ‘objectively unreasonable.’” Wiggins, 539

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U.S. at 520-21 (citations omitted); see also, Williams, 529 U.S. at 409. As the Supreme Court has

explained, the standard for relief under § 2254(d) “is difficult to meet, [and] that is because it was

meant to be.” Harrington v. Richter, 131 S. Ct. 770, 786 (2011). As the Court explained, “[s]ection

2254(d) reflects the view that habeas corpus is a ‘guard against extreme malfunctions in the state

criminal justice system,’ not a substitute for ordinary error correction through appeal.” Id. (quoting

Jackson v. Virginia, 443 U.S. 307, 332 n.5 (1979) (Stevens, J., concurring in the judgment)). Thus,

“[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.” Id. at 786-87.

By its terms, § 2254(d)(1) limits a federal habeas court’s review to a determination of

whether the state court’s decision comports with “clearly established federal law as determined by

the Supreme Court.” Thus, “§ 2254(d)(1) restricts the source of clearly established law to [the

Supreme] Court’s jurisprudence.” Williams, 529 U.S. at 412. Further, the “phrase ‘refers to the

holdings, as opposed to the dicta, of [the] Court’s decisions as of the time of the relevant state-court

decision.’ In other words, ‘clearly established Federal law’ under § 2254(d)(1) is the governing

legal principle or principles set forth by the Supreme Court at the time the state court renders its

decision.” Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003) (citations omitted) (quoting Williams, 529

U.S. at 412). The relevant “clearly established law” is the law that existed at the time of the last

state court decision to issue a reasoned decision on the claim, see Greene v. Fisher, 132 S. Ct. 38,

44-45 (2011), and in evaluating the reasonableness of that decision a federal habeas court is limited

to the record that was before the state court at the time of its decision, see Cullen v. Pinholster, 131

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S. Ct. 1388, 1398-99 (2011).

Although “clearly established Federal law as determined by the Supreme Court” is the

benchmark for habeas review of a state court decision, the standard set forth in § 2254(d) “does not

require citation of [Supreme Court] cases–indeed, it does not even require awareness of [Supreme

Court] cases, so long as neither the reasoning nor the result of the state-court decision contradicts

them.” Early, 537 U.S. at 8; see also, Mitchell, 540 U.S. at 16. Further, although the requirements

of “clearly established law” are to be determined solely by the holdings of the Supreme Court, the

decisions of lower federal courts are useful in assessing the reasonableness of the state court’s

resolution of an issue. See Williams v. Bowersox, 340 F.3d 667, 671 (8th Cir. 2003); Phoenix v.

Matesanz, 233 F.3d 77, 83 n.3 (1st Cir. 2000); Dickens v. Jones, 203 F. Supp. 2d 354, 359 (E.D.

Mich. 2002) (Tarnow, J.).

D. Complaint Related Claims (Claims I-V and IX-XII)

The bulk of petitioner’s claims relate to his allegation that the criminal complaint was

defective because it was not signed by a complaining witness or a judge. From this premise,

petitioner argues that the trial court lacked jurisdiction and that he was improperly charged, arrested,

arraigned, convicted, and sentenced as an habitual offender. Petitioner’s complaint related claims

fail for a number of reasons.

First, petitioner’s premise is simply incorrect. Although petitioner attached a copy of an

unsigned complaint to his state court motion for relief from judgment, in rejecting that motion the

trial court noted that “[t]he copy in the court’s file, however, is signed by the prosecuting attorney

and the magistrate.” Trial Ct. op., at 2 n.3. Petitioner has provided no basis on which to question

this factual finding of the trial court. Moreover, the only requirement for a complaint under

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Michigan law is that it “shall recite the substance of the accusation against the accused,” MICH.

COMP. LAWS § 764.1d; MICH.CT.R. 6.101(A), and that it “be signed and sworn to before a judicial

officer or court clerk.” MICH.CT.R. 6.101(B). There is no requirement that the complaint be signed

and sworn to by an eyewitness or person with personal knowledge; factual allegations made upon

“information and belief” are sufficient. See People v. Cornell, No. 306825, 2013 WL 195908, at

*6 (Mich. Ct. App. Jan. 17, 2013) (per curiam) (discussing MICH.COMP.LAWS § 764.1a(3)); People

v. Range, No. 270831, 2007 WL 2380277, at *5 (Mich. Ct. App. Aug. 21, 2007) (per curiam)

(“[N]either MCL 764.1 d nor MCR 6.101(B) requires a victim to personally file a complaint against

the accused.”).

Second, even if the complaint was defective, this defect would provide no basis for habeas

relief. It is well-established that habeas review does not extend to questions of state law. See Estelle

v. McGuire, 502 U.S. 62, 67-68 (1991) (“Today, we reemphasize that it is not the province of a

federal habeas court to reexamine state-court determinations on state-law questions.”); Jackson v.

Ylst, 921 F.2d 882, 885 (9th Cir. 1990) (a federal court on habeas review “ha[s] no authority to

review a state’s application of its own laws.”). “A determination of whether a state court is vested

with jurisdiction under state law is a function of the state courts, not the federal judiciary.” Wills

v. Egeler, 532 F.2d 1058, 1059 (6th Cir. 1976) (per curiam); accord Rhode v. Olk-Long, 84 F.3d

284, 287 (8th Cir. 1996); Wesselman v. Seabold, 834 F.2d 99, 102 (6th Cir. 1988); United States ex

rel. Holliday v. Sheriff of Du Page County, Ill., 152 F. Supp. 2d 1004, 1013 (N.D. Ill. 2001). As the

Supreme Court has long explained, “there is nothing in the clauses of the 14th Amendment

guarantying [sic] due process and equal protection which converts an issue respecting the

jurisdiction of a state court under the Constitution and statutes of the state into anything other than

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a question of state law[.]” Gasquet v. Lapeyre, 242 U.S. 367, 369 (1917). Whether an indictment,

information, or complaint is sufficient to confer jurisdiction on a trial court is likewise an issue of

state law which is not cognizable on habeas review. See McKay v. Collins, 12 F.3d 66, 69 (5th Cir.

1994); Rose v. Johnson, 141 F. Supp. 2d 661, 694 (S.D. Tex. 2001). Challenges to the sufficiency

of a state court charging document will be cognizable on federal habeas review only where the

amendment deprives a petitioner of his due process right to fair notice of the charges against him. 

See Boothe v. Wyrick, 452 F. Supp. 1304, 1310 (W.D. Mo. 1978). Petitioner does not contend that

he lacked notice of the charges against him, and thus any defect in the complaint raises an issue of

state law not cognizable on habeas review. See Hill v. Ludwick, No. 2:09-cv-11748, 2011 WL

5244824, at *5 (E.D. Mich. Nov. 3, 2011) (Roberts, J.).3

Third, any defect in the preliminary proceedings leading to petitioner’s conviction are not

3

Further, even if the complaint was defective, petitioner cannot show that the circuit court

lacked jurisdiction. Although petitioner phrases his claim as going to the circuit court’s subject matter

jurisdiction, this type of jurisdiction is not implicated. As the Michigan Supreme Court has explained,

subject matter jurisdiction is “the right of the court to exercise jurisdiction over a class of cases.” People

v. Goecke, 457 Mich. 442, 458, 579 N.W.2d 868, 876 (1998). Subject matter jurisdiction refers to the

court’s power to rule in the particular class of case in the abstract, not the court’s power in the particular

case before the court. See id. at 458 n.16, 579 N.W.2d at 876 n.16. The circuit court, as a court of

general jurisdiction, see MICH. CONST. art. 6, § 13; MICH. COMP. LAWS §§ 600.151, .601, undoubtedly

has the power to rule in criminal cases. See Goecke, 457 Mich. at 458, 579 N.W.2d at 876. Thus, the only

question is whether the circuit court had personal jurisdiction over petitioner. Under Michigan law,

“[t]he circuit court acquires [personal] jurisdiction upon the filing of a proper return by the magistrate

before whom the defendant has either been examined or waived examination.” People v. Gaines, 53 Mich.

App. 443, 447, 220 N.W.2d 76, 78 (1974) (citing People v. Curtis, 389 Mich. 698, 707, 209 N.W.2d 243,

247-48 (1973)); see also, Goecke, 457 Mich. at 458, 579 N.W.2d at 876. Once that happened in petitioner’s

case, the circuit court did not lose jurisdiction even if the complaint or information filed by the

prosecutor was defective in some way. See Goecke, 457 Mich. at 458, 579 N.W.2d at 876 (“Having once

vested in the circuit court, personal jurisdiction is not lost even when a void or improper information

is filed.”); People v. Miklovich, 375 Mich. 536, 539, 134 N.W.2d 720, 722 (1965) (“Jurisdiction, having once

vested in the circuit court, was not lost by virtue of the granting of the motion to quash the

information.”). Thus, even if the initial complaint filed by the prosecutor was defective, the circuit court

nevertheless had jurisdiction over petitioner upon the filing of a proper return by the magistrate.

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cognizable for an additional reason. It is an “established rule that illegal arrest or detention does not

void a subsequent conviction.” Gerstein v. Pugh, 420 U.S. 103, 119 (1975) (citing Frisbie v.

Collins, 342 U.S. 519 (1952); Ker v. Illinois, 119 U.S. 436 (1886)). Thus, “although a suspect who

is presently detained may challenge the probable cause for that confinement, a conviction will not

be vacated on the ground that the defendant was detained pending trial without a determination of

probable cause.” Gerstein, 420 U.S. at 119. Because petitioner is now incarcerated pursuant to a

valid conviction, he cannot challenge his conviction on the basis that he was arrested without

probable cause or on the basis of an alleged defect in the state court’s preliminary procedures. See,

e.g., Montoya v. Scott, 65 F.3d 405, 421 (5th Cir. 1995); Biby v. Satran, 619 F. Supp. 1563, 1567-68

(D.N.D. 1985).

Finally, apart from petitioner’s jurisdictional claim which, as explained above, raises only

an issue of state law, the remainder of petitioner’s claims based on the allegedly defective complaint

were waived by his guilty plea. “It is well-settled that an unconditional guilty plea constitutes a

waiver of the right to appeal all nonjurisdictional antecedent rulings and cures all antecedent

constitutional defects.” United States v. Lopez-Armenta, 400 F.3d 1173, 1175 (9th Cir. 2005). As

the Supreme Court has explained:

A guilty plea represents a break in the chain of events which had preceded it in the

criminal process. When a criminal defendant has solemnly admitted in open court

that he is in fact guilty of the offense with which he is charged, he may not thereafter

raise independent claims relating to the deprivation of constitutional rights that

occurred prior to the entry of the guilty plea.

Tollett v. Henderson, 411 U.S. 258, 267 (1973). Thus, petitioner’s guilty plea waived any defects

in the complaint. See Hawkins v. Grams, No. 3:08-cv-226, 2008 WL 2564778, at *1 (W.D. Wis.

June 25, 2008).

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For these four reasons, the Court should conclude that petitioner is not entitled to habeas

relief on any of his claims relating to the allegedly defective criminal complaint.

E. Prosecutorial Misconduct (Claim VI)

Petitioner also asserts that the prosecutor committed misconduct by arguing for a sentence

of 15-30 years’ imprisonment in light of the allegedly defective complaint. The Court should

conclude that petitioner is not entitled to habeas relief on this claim.

1. Clearly Established Law

For habeas relief to be warranted on the basis of prosecutorial misconduct, it is not enough

that the prosecutor’s conduct was “undesirable or even universally condemned.” Darden v.

Wainwright, 477 U.S. 168, 181 (1986). Rather, the misconduct must have “so infected the trial with

unfairness as to make the resulting conviction a denial of due process.” Id. (internal quotation

omitted). Darden constitutes “[t]he ‘clearly established Federal law’ relevant” to a prosecutorial

misconduct claim. Parker v. Matthews, 132 S. Ct. 2148, 2153 (2012) (per curiam). “[T]he

touchstone of due process analysis . . . is the fairness of the trial, not the culpability of the

prosecutor.” Smith v. Phillips, 455 U.S. 209, 219 (1982). “[T]he Darden standard is a very general

one, leaving courts ‘more leeway . . . in reaching outcomes in case-by-case-determinations.’” 

Parker, 132 S. Ct. at 2155 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). In

reviewing whether a prosecutor has deprived a defendant of a fair trial, a court may not consider the

prosecutor’s conduct in isolation, but must the conduct in the context of the entire proceedings. See

Brown v. Payton, 544 U.S. 133, 144 (2005); United States v. Young, 470 U.S. 1, 11 (1985); Donnelly

v. DeChristoforo, 416 U.S. 636, 645 (1974). Even on direct review, where AEDPA deference does

not apply, “a criminal conviction is not to be lightly overturned on the basis of a prosecutor’s

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comments standing alone.” Young, 470 U.S. at 11.

2. Analysis

Here, even without AEDPA deference petitioner cannot show that the prosecutor committed

misconduct. As explained above, there was no defect in the criminal complaint, and even if there

was that defect was waived by petitioner’s guilty plea. That being the case, the prosecutor did not

commit misconduct by arguing for a sentence within the law based on the prosecutor’s good faith

belief that petitioner’s conviction was valid and the sentence appropriate. Cf. Cristini v. McKee, 526

F.3d 888, 900 (6th Cir. 2008) (“A prosecutor may rely in good faith on evidentiary rulings made by

the state trial judge and make arguments in reliance on those rulings.”). Accordingly, the Court

should conclude that petitioner is not entitled to habeas relief on this claim.

F. Parole Revocation (Claims VII & VIII)

Petitioner next raises two claims challenging the revocation of his parole. The Court should

conclude that petitioner is not entitled to habeas relief on these claims.4

1. Standards Governing Parole Revocation

4

Respondent argues that petitioner’s parole revocation claims are not properly before the Court

because they relate to a separate, earlier conviction. Rule 2(e) of the Rules Governing Section 2254

Cases in the United States District Courts provides that “[a] petitioner who seeks relief from judgments

of more than one state court must file a separate petition covering the judgment or judgments of each

courts.” Rule 2(e), 28 U.S.C. foll. § 2254. This provision “permits, but does not require, an attack in

a single petition on judgments based upon separate indictments or on separate counts event though

sentences were imposed on separate days by the same court. A claim against a judgment of a court of

a different political subdivision must be raised by means of a separate petition.” Id., advisory committee

note, 1976 adoption. It is not clear, however, that this rule applies to a challenge to parole revocation. 

For example, in Story v. Collins, 920 F.2d 1247 (5th Cir. 1991), the court held that a petitioner could bring

a single petition challenging both his conviction and the prison’s failure to consider him for good time

credit, reasoning that the state department of corrections was “not a state court, and the application of

good conduct time is not a judgment.” Id. at 1251; see also, King v. Cox, No. 4:08-CV-13671, 2008 WL

4449652, at *1 (E.D. Mich. Oct. 1, 2008) (Murphy, J.) (relying on Story to conclude that challenge to

denial of parole can be brought in same petition that challenges underlying conviction). Accordingly,

I address the claims on the merits.

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In Morrissey v. Brewer, 408 U.S. 471 (1972), the Court held that “the revocation of parole

is not part of a criminal prosecution and thus the full panoply of rights due a defendant in such a

proceeding does not apply to parole revocations.” Id. at 480. Nevertheless, noting that “the liberty

of a parolee, although indeterminate, includes many of the core values of unqualified liberty,” the

Court found that the parole revocation process is “within the protection of the Fourteenth

Amendment.” Id. at 482. Turning to “the nature of the process that is due,” the Court set forth the

minimal due process standards required for revocation as applied to each of the “two important

stages in the typical process of parole revocation.” Id. at 484-85.

“The first stage occurs when the parolee is arrested and detained, usually at the direction of

his parole officers.” Id. at 485. At this stage, the Court held, due process requires a preliminary

hearing before someone not directly involved in the case to determine whether “reasonable ground

exists for revocation of parole[.]” Id. In connection with this hearing, the state must provide the

parolee: (1) notice of the hearing, its purpose, and the alleged violations; and (2) an opportunity to

be heard, to present evidence, and to have the witnesses against him produced for questioning in his

presence. See id. at 486-87. The hearing officer must make a summary of the hearing and determine

whether there is probable cause to hold the parolee. See id. at 487.

If the hearing officer so concludes, the process moves to the second stage–the actual

revocation of parole. At this stage, there “must . . . be an opportunity for a hearing, if it is desired

by the parolee, prior to the final decision on revocation by the parole authority.” Id. at 487-88. At

this stage of the parole revocation proceedings, the minimum requirements of due process require:

(a) written notice of the claimed violations of parole; (b) disclosure to the parolee of

evidence against him; (c) opportunity to be heard in person and to present witnesses

and documentary evidence; (d) the right to confront and cross-examine adverse

witnesses (unless the hearing officer specifically finds good cause for not allowing

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confrontation); (e) a ‘neutral and detached’ hearing body such as a traditional parole

board, members of which need not be judicial officers or lawyers; and (f) a written

statement by the factfinders as to the evidence relied on and reasons for revoking

parole.

Id. at 489.

2. Analysis

Petitioner contends that he was denied due process in connection with the revocation of his

parole because he was not afforded a revocation hearing and because the parole was improperly

revoked on the basis of his invalid conviction. As to the latter argument, as explained above

petitioner cannot show that his conviction was invalid, and thus he cannot show that the revocation

of his parole based on that conviction was improper. As to the former argument, petitioner cannot

show that the denial of a hearing deprived him of due process of law. Under Michigan law, a

parolee is not entitled to a revocation hearing where the revocation is based upon a conviction for

a new felony offense. See People v. Bess, 11 Mich. App. 109, 111, 157 N.W.2d 455, 456 (1968);

MICH. COMP. LAWS § 791.240a(3). By administrative rule, the Michigan Parole Board, which is

given almost unfettered discretion with respect to parole violations and revocations, see Ex parte

Casella, 313 Mich. 393, 401, 21 N.W.2d 175, 178 (1946); MICH. COMP. LAWS § 791.240a, has

determined that any parolee convicted of a felony offense shall be deemed to have violated his

parole and be subject to reincarceration. See MICH. DEP’T OF CORRECTIONS POLICY DIRECTIVE

06.06.100, ¶ S (Mar. 1, 2013) (“A parolee convicted of a felony while on parole who receives a new

sentence to be served with the Department shall be found to have violated parole based on that the

new conviction and sentence. A parole revocation hearing is not required.”).5

5

This provision is identical to the provision that governed at the time of petitioner’s conviction

and parole revocation. See MDOC POLICY DIRECTIVE 06.06.100, ¶ T (Feb. 26, 2007), quoted in People

v. Idziak, 484 Mich. 549, 594 n.8, 773 N.W.2d 616, 641 n.8 (2009) (Kelly, J., concurring in part and

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Morrissey requires a revocation hearing only where the factfinder retains discretion either

to not find a violation or to not revoke parole based on consideration of mitigating factors. Where

there is no such discretion, Morrissey does not require a hearing. See Kellogg v. Shoemaker, 46 F.3d

503, 507-08 (6th Cir. 1995); Sneed v. Donahue, 993 F.2d 1239, 1243-44 (6th Cir. 1993); Pickens

v. Butler, 814 F.2d 237, 239 (5th Cir. 1987) (all discussing Black v. Romano, 471 U.S. 606, 612

(1985)). As has been explained by another district court:

The typical parole revocation proceeding involves two distinct components:

(1) the “retrospective question” whether the parolee violated a condition of his

parole, and (2) the discretionary question whether the violation warrants revocation.

See Black v. Romano, 471 U.S. 606, 611, 105 S.Ct. 2254, 85 L.Ed.2d 636 (1985).

When parole revocation is based upon the commission of a new criminal offense, no

hearing is necessary on the first question, as the parole violation is proven by the

criminal judgment itself. Nevertheless, where the parole board retains discretion

concerning the consequence of the conviction, a hearing on the second question

(sometimes called “mitigation”) is constitutionally required. Black, 471 U.S. at 612.

. . . .

Plaintiff’s right to a mitigation hearing, as enunciated by the Supreme Court

and Sixth Circuit and declared by this court's previous judgment, does not exist in

the abstract. A parolee only has the right to a hearing when he is deprived of his

liberty by the exercise of parole board discretion. See Black, 471 U.S. at 612;

Kellogg v. Shoemaker, 46 F.3d 503, 508-09 (6th Cir.1995); Sneed v. Donahue, 993

F.2d 1239, 1243-44 (6th Cir.1993). Morrissey and its progeny do not require that a

parole board be given discretion regarding when to revoke a parolee’s status; rather,

those cases simply require “that where such discretion is given, a revocation hearing

is required.” Sneed, 993 F.2d at 1244. In the present case, it is clear that plaintiff’s

present loss of liberty is a consequence of the criminal judgment handed down by the

Wayne County Circuit Court, not any act of discretion by the Parole Board. That is

why the Board “rescinded” parole. Plaintiff was in prison on a new conviction, and

further release on parole was impossible until the minimum term on that sentence

was served.

Witzke v. Sampson, No. 1:87-CV-944, 2008 WL 5156766, at *2-*3 (W.D. Mich. Dec. 9, 2008); see

also, Kellogg, 46 F.3d at 508 (no right to a revocation hearing “once a subsequent parole violation

dissenting in part).

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conviction had been established and the law gave the parole agency no authority to consider further

mitigating factors.”).

The fact that the Board itself removed factfinder discretion by administrative rule, rather than

having such discretion removed by virtue of a state statute, does not alter this conclusion. The Sixth

Circuit considered and rejected such a claim in Kellogg, explaining:

The agency has chosen to address these cases by administrative rule, which is logical

as those parolees who have been convicted of another felony while on parole have

already had a trial or hearing to determine whether they actually committed the

offense charged. The agency has also concluded, by administrative rule, that no

mitigating circumstances would overcome a subsequent conviction of another felony

committed while on parole; thus, an individual hearing would be unnecessary. The

agency’s conclusion is a permissible one[.]

Kellogg, 46 F.3d at 507 (footnote omitted); cf. Lopez v. Davis, 531 U.S. 230 (2001) (federal agency

granted discretion to administer statute may do so through adoption of categorical rules). Because

the factfinder at a revocation hearing would not have had discretion to either find no violation or to

continue parole, the denial of a hearing did not deprive petitioner of his right to due process of law. 

Accordingly, the Court should conclude that petitioner is not entitled to habeas relief on these

claims.

G. Appellate Counsel (Claim XIII)

Finally, petitioner contends that his appellate counsel improperly moved to withdraw and

end his appeal proceedings. The Court should conclude that petitioner is not entitled to habeas relief

on this claim.

1. Clearly Established Law

The Sixth Amendment right to counsel and the right to effective assistance of counsel protect

the fundamental right to a fair trial. See Strickland v. Washington, 466 U.S. 668, 687 (1984). To

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establish the ineffective assistance of counsel, petitioner must show that: (1) counsel’s errors were

so serious that “counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth

Amendment;” and (2) counsel’s deficient performance prejudiced the defense. Id. at 687. These

two components are mixed questions of law and fact. Id. at 698. Further, “[t]here is no reason for

a court deciding an ineffective assistance claim . . . to address both components of the inquiry if the

defendant makes an insufficient showing on one.” Id. at 697. If “it is easier to dispose of an

ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should be

followed.” Id.

Where a defendant claims that counsel failed to file an appeal, the performance inquiry

depends both on what defendant told counsel and on the circumstances of the case. In Roe v. FloresOrtega, 528 U.S. 470 (2000), the Court explained that “a lawyer who disregards specific instructions

from the defendant to file a notice of appeal acts in a manner that is professionally unreasonable.” 

Id. at 477. Conversely, “a defendant who explicitly tells his attorney not to file an appeal plainly

cannot later complain that, by following his instructions, his counsel performed deficiently.” Id. 

In the middle ground–that is, in cases in which “the defendant has not clearly conveyed his wishes

one way or the other,” id.–the Court explained that

the question whether counsel has performed deficiently by not filing a notice of

appeal is best answered by first asking a separate, but antecedent, question: whether

counsel in fact consulted with the defendant about an appeal. We employ the term

“consult” to convey a specific meaning-advising the defendant about the advantages

and disadvantages of taking an appeal, and making a reasonable effort to discover

the defendant's wishes. If counsel has consulted with the defendant, the question of

deficient performance is easily answered: Counsel performs in a professionally

unreasonable manner only by failing to follow the defendant’s express instructions

with respect to an appeal. If counsel has not consulted with the defendant, the court

must in turn ask a second, and subsidiary, question: whether counsel’s failure to

consult with the defendant itself constitutes deficient performance.

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Id. at 478. The Court further explained that although counsel should ordinarily directly consult a

defendant about an appeal, “we cannot say, as a constitutional matter, that in every case counsel’s

failure to consult with the defendant about an appeal is necessarily unreasonable, and therefore

deficient.” Id. at 479. Rather, the Court held “that counsel has a constitutionally imposed duty to

consult with the defendant about an appeal when there is reason to think either (1) that a rational

defendant would want to appeal (for example, because there are nonfrivolous grounds for appeal),

or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in

appealing.” Id. at 480. 

With respect to prejudice, the defendant need not show prejudice in the sense of having a

potentially meritorious appellate claim, see id. at 486. However, he must still show prejudice in the

sense that “counsel’s deficient performance . . . actually cause[d] the forfeiture of the defendant’s

appeal.” Id. at 484. “If the defendant cannot demonstrate that, but for counsel’s deficient

performance, he would [not have lost his appeal], counsel’s deficient performance has not deprived

him of anything, and he is not entitled to relief.” As the Court observed, under this standard “the

prejudice inquiry . . . is not wholly dissimilar from the inquiry used to determine whether counsel

performed deficiently in the first place.” Id. at 486.

2. Analysis

Here, petitioner cannot show that he was denied an appeal by the acts or omissions of

counsel under Flores-Ortega. On December 22, 2007, petitioner signed a statement in support of

his request to end the appeal proceedings. In this statement, petitioner indicated that his appellate

counsel visited him to discuss potential appellate issues. See Statement, ¶ 6 (docket #16-8). She

advised petitioner that he had no viable appellate issues because, under Michigan law, the only

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potential appellate issues with respect to a plea are that the plea was not knowing and voluntary or

that there was no factual basis for the plea. Petitioner stated that he “cannot make such a claim since

I entered into the plea agreement knowingly and voluntarily” and “[t]he factual basis was supplied

by my testimony at the entry of the plea.” Id., ¶ 7. Petitioner also stated that counsel advised him

that because he “was sentenced according to the correctly scored guidelines, [he] had no basis upon

which to challenge [his] sentence.” Id., ¶ 8. Based on these factors, petitioner stated:

9. After discussing this matter with my appellate counsel, I have

voluntarily decided and without any pressure whatsoever from my appellate counsel,

to request that appointed counsel not pursue any appeal, ask the trial court to permit

appellate counsel to end the appeal process and serve the balance of my sentence.

10. I am satisfied with my appellate counsel and I honestly believe that

she has rendered competent and professional advice regarding my right to continue

with this appeal.

11. I make this statement of my own free will, without duress or coercion

from anyone and I request my appellate counsel to file the necessary papers with the

trial court to terminate the appeal process.

Id., ¶¶ 9-11.

Petitioner does not allege that he did not freely and voluntarily sign this statement. In light

of this statement, petitioner cannot show that counsel’s deficient performance deprived him of his

right to appeal. See Miller v. United States, No. 1:02-CR-266, 2005 WL 2990193, at *9 (W.D.

Mich. Nov. 8, 2005). As the Court explained in Flores-Ortega, “a defendant who explicitly tells

his attorney not to file an appeal plainly cannot later complain that, by following his instructions,

his counsel performed deficiently.” Flores-Ortega, 528 U.S. at 477. At most, petitioner could claim

that counsel’s advice leading him to this decision was ineffective. However, petitioner cannot show

that counsel’s advice was constitutionally deficient. Counsel accurately described to petitioner the

scope of issues available to a defendant who has pleaded guilty. Petitioner does not claim that his

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plea was unknowing or involuntary, or that there was no factual basis for the plea. Nor does

petitioner contend that there was any error in the scoring and application of the sentencing

guidelines. To the extent petitioner faults counsel for not recognizing and advising him of the claims

he raises here, as explained above each of those claims is without merit. Accordingly, petitioner

cannot show that counsel’s advice leading to his decision to abandon an appeal was deficient, and

the Court should conclude that petitioner is not entitled to habeas relief on this claim.

H. Recommendation Regarding Certificate of Appealability

1. Legal Standard

As amended by the Antiterrorism and Effective Death Penalty Act, section 2253 provides

that a petitioner may not appeal a denial of an application for a writ of habeas corpus unless a judge

issues a certificate of appealability. See 28 U.S.C. § 2253(c)(1). The statute further provides that

“[a] certificate of appealability may issue . . . only if the applicant has made a substantial showing

of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). As the Sixth Circuit has noted, this

language represents a codification of the Supreme Court’s decision in Barefoot v. Estelle, 463 U.S.

880 (1983), and “[t]he AEDPA thus makes no change to the general showing required to obtain a

certificate[.]” Lyons v. Ohio Adult Parole Auth., 105 F.3d 1063, 1073 (6th Cir. 1997); accord Slack

v. McDaniel, 529 U.S. 473, 483 (2000). Although the statute does not define what constitutes a

“substantial showing” of a denial of a constitutional right, the burden on the petitioner is obviously

less than the burden for establishing entitlement to the writ; otherwise, a certificate could never

issue. Rather, the courts that have considered the issue have concluded that “‘[a] substantial

showing requires the applicant to “demonstrate that the issues are debatable among jurists of reason;

that a court could resolve the issues (in a different manner); or that the questions are adequate to

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deserve encouragement to proceed further.”’” Hicks v. Johnson, 186 F.3d 634, 636 (5th Cir. 1999)

(quoting Drinkard v. Johnson, 97 F.3d 751, 755 (5th Cir. 1996) (quoting Barefoot, 463 U.S. at 893

n.4)); accord Slack, 529 U.S. at 483-84. Although the substantive standard is the same, “[t]he new

Act does, however, require that certificates of appealability, unlike the former certificates of

probable cause, specify which issues are appealable.” Lyons, 105 F.3d at 1073. (citing 28 U.S.C.

§ 2253(c)(3)).

Effective December 1, 2009, the newly created Rule 11 of the Rules Governing Section 2254

Cases in the United States District Courts, 28 U.S.C. foll. § 2254, provides that “[t]he district court

must issue or deny a certificate of appealability when it enters a final order adverse to the applicant.” 

Rule 11(a), 28 U.S.C. foll. § 2254. The rule tracks § 2253(c)(3)’s requirement that any grant of a

certificate of appealability “state the specific issue or issues that satisfy the showing required by §

2253(c)(2),” Rule 11(a), but omits the requirement contained in the pre-amendment version of

Federal Rule of Appellate Procedure 22(b)(1) that the court explain “why a certificate should not

issue.” FED. R. APP. P. 22(b)(1) (version effective prior to 2009 amendment); see id., advisory

committee note, 2009 amendments. In light of the new Rule 11 requirement that the Court either

grant or deny the certificate of appealability at the time of its final adverse order, I include a

recommendation regarding the certificate of appealability issue here.

2. Analysis

If the Court accepts my recommendation regarding the merits of petitioner’s claims, the

Court should also conclude that petitioner is not entitled to a certificate of appealability. As

explained above, it is well established that petitioner’s claims relating to the complaint are not

cognizable on habeas review for several reasons, and thus the resolution of these claims is not

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reasonably debatable. It follows that the resolution of petitioner’s prosecutorial misconduct claim

is likewise not reasonably debatable. With respect to petitioner’s parole revocation claims, binding

Sixth Circuit law clearly establishes that, because there was no discretion in revoking petitioner’s

parole, a revocation hearing was not required by the Due Process Clause. Thus, the resolution of

this claim is not reasonably debatable. Finally, because it is clear that counsel honored petitioner’s

wishes in abandoning an appeal, and because counsel’s advice regarding an appeal was not deficient,

the resolution of petitioner’s ineffective assistance claim is not reasonably debatable. Accordingly,

the Court should deny petitioner a certificate of appealability.

I. Conclusion

In view of the foregoing, the Court should conclude that petitioner’s habeas claims are

without merit. Accordingly, the Court should deny petitioner’s application for the writ of habeas

corpus. If the Court accepts this recommendation, the Court should also deny petitioner a certificate

of appealability.

III. NOTICE TO PARTIES REGARDING OBJECTIONS:

The parties to this action may object to and seek review of this Report and Recommendation,

but are required to act within fourteen (14) days of service of a copy hereof as provided for in FED.

R. CIV. P. 72(b)(2). Failure to file specific objections constitutes a waiver of any further right of

appeal. See Thomas v. Arn, 474 U.S. 140 (1985); Howard v. Secretary of Health & Human Servs.,

932 F.2d 505 (6th Cir. 1991); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). Filing of

objections which raise some issues but fail to raise others with specificity, will not preserve all the

objections a party might have to this Report and Recommendation. See Willis v. Secretary of Health

& Human Servs., 931 F.2d 390, 401 (6th Cir. 1991). Smith v. Detroit Federation of Teachers Local

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231, 829 F.2d 1370, 1373 (6th Cir. 1987). Pursuant to E.D. Mich. LR 72.1(d)(2), a copy of any

objections is to be served upon this Magistrate Judge.

Within fourteen (14) days of service of any objecting party’s timely filed objections, the

opposing party may file a response. The response shall be not more than five (5) pages in length

unless by motion and order such page limit is extended by the Court. The response shall address

specifically, and in the same order raised, each issue contained within the objections.

Dated: April 8, 2013 S/Paul J. Komives 

Paul J. Komives

United States District Judge

I hereby certify that a copy of the foregoing document was served upon counsel of record on April

8, 2013, by electronic and/or ordinary mail.

S/Shawntel R. Jackson 

Case Manager

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