UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

JAMES WALKER,

Petitioner, 

v.

JOHN PRELESNIK,

Respondent. 

/

Case Number: 2:09-CV-11439

HON. LAWRENCE P. ZATKOFF

OPINION AND ORDER OF SUMMARY DISMISSAL

Petitioner James Walker is a state inmate currently incarcerated at the R. A. Handlon

Correctional Facility in Ionia, Michigan. He has filed a pro se petition for a writ of habeas corpus

pursuant to 28 U.S.C. § 2254, claiming that he is incarcerated in violation of his constitutional

rights. For the reasons which follow, the petition will be dismissed.

I.

Petitioner pleaded guilty in Macomb County Circuit Court to armed robbery. On July 19,

2001, he was sentenced to 15 to 30 years’ imprisonment. 

Petitioner did not file a direct appeal of his conviction. See Petition at 2. Following the

Supreme Court’s decision in Halbert v. Michigan, 545 U.S. 605 (2005), he filed a request in the trial

court for appointment of appellate counsel. The trial court denied the request. People v. Walker,

No. 00-3285-FC (Macomb County Circuit Court Dec. 26, 2006). 

Petitioner appealed the trial court’s denial of his request for counsel to the Michigan Court

of Appeals and Michigan Supreme Court. Both appellate courts denied leave to appeal. People v.

Walker, No. 276027 (Mich. Ct. App. Feb. 22, 2007); People v. Walker, No. 133564 (Mich. June 23,

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2008).

Petitioner then filed the pending petition for a writ of habeas corpus, presenting the following

claims:

I. Where the Michigan Constitution grants all defendants who have pled guilty or nolo

contendere the right to appeal by leave, it violates the equal protection and due

process guarantees of the state and federal constitutions to deny indigent defendants

appointed counsel.

II. Mr. Walker is entitled to reinstatement of his direct appeal and appointment of

appellate counsel under Halbert v. Michigan, 125 S. Ct. 2582 (2005), where Halbert

applies retroactively to all cases on collateral review and this conviction never

became final for the purpose of direct appeal.

II.

A.

Upon the filing of a habeas corpus petition, the Court must promptly examine the petition

to determine “if it plainly appears from the face of the petition and any exhibits annexed to it that

the petitioner is not entitled to relief.” Rule 4, Rules Governing Section 2254 cases. If the Court

determines that the petitioner is not entitled to relief, the Court shall summarily dismiss the petition.

McFarland v. Scott, 512 U.S. 849, 856 (1994) (“Federal courts are authorized to dismiss summarily

any habeas petition that appears legally insufficient on its face”). Petitioner’s habeas petition does

not present grounds which may establish the violation of a federal constitutional right; therefore, the

petition will be dismissed.

B.

28 U.S.C. § 2254(d) imposes the following standard of review on federal courts reviewing

applications for a writ of habeas corpus:

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

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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 proceedings. 

28 U.S.C. § 2254(d). Therefore, federal courts are bound by a state court's adjudication of a

petitioner's claims unless the state court's decision was contrary to or involved an unreasonable

application of clearly established federal law. Franklin v. Francis, 144 F.3d 429 (6th Cir. 1998).

Additionally, this Court must presume the correctness of state court factual determinations. 28

U.S.C. § 2254(e)(1); see also Cremeans v. Chapleau, 62 F.3d 167, 169 (6th Cir. 1995) ("We give

complete deference to state court findings unless they are clearly erroneous"). 

The United States Supreme Court has explained the proper application of the "contrary to"

clause as follows:

A state-court decision will certainly be contrary to [the Supreme Court's] clearly

established precedent if the state court applies a rule that contradicts the governing

law set forth in our cases. . . .

A state-court decision will also be contrary to this Court's clearly established

precedent if the state court confronts a set of facts that are materially

indistinguishable from a decision of this Court and nevertheless arrives at a result

different from [the Court's] precedent. 

Williams v. Taylor, 529 U.S. 362, 405-06 (2000). 

With respect to the "unreasonable application" clause of § 2254(d)(1), the United States

Supreme Court held that a federal court should analyze a claim for habeas corpus relief under the

"unreasonable application" clause when "a state-court decision unreasonably applies the law of this

Court to the facts of a prisoner's case." Id. at 409. The Court defined "unreasonable application"

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as follows:

[A] federal habeas court making the "unreasonable application" inquiry should ask

whether the state court's application of clearly established federal law was

objectively unreasonable. . .

[A]n unreasonable application of federal law is different from an incorrect

application of federal law. . . . Under § 2254(d)(1)'s "unreasonable application"

clause, then, a federal habeas court may not issue the writ simply because that court

concludes in its independent judgment that the relevant state-court decision applied

clearly established federal law erroneously or incorrectly. Rather, that application

must also be unreasonable. 

Id. at 410-11. 

III.

Petitioner’s claims rest upon an argument that he was unconstitutionally denied a right to

counsel on direct appeal. Petitioner’s conviction is the result of a guilty plea. Under Michigan law

in effect at the time, defendants who plead nolo contendere or guilty generally were not appointed

appellate counsel for review of the conviction or sentence. Mich. Comp. Laws § 770.3(a)(2).

Petitioner, therefore, was not provided counsel for an appeal to the Michigan Court of Appeals. 

In Halbert v. Michigan, 545 U.S. 605 (2005), the Supreme Court held that the “Due Process

and Equal Protection Clauses require the appointment of counsel for defendants, convicted on their

pleas, who seek access to first-tier review in the Michigan Court of Appeals.” Id. at 610. However,

Halbert is not retroactive to cases on collateral review. Simmons v. Kapture, 516 F.3d 450, 451 (6th

Cir. 2008). 

Petitioner’s judgment of sentence was entered on July 19, 2001. Petitioner did not file a

direct appeal of his conviction. His conviction became final on July 19, 2002, when the one-year

limitations period for filing a delayed application for leave to appeal in the Michigan Court of

Appeals expired. See Michigan Court Rule 7.205(F). His conviction, therefore, was final several

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years before Halbert was decided. 

Because Petitioner’s claims rely upon the retroactive application of Halbert and Halbert is

not retroactive to cases on collateral review, Petitioner fails to state a claim upon which relief may

be granted.

IV.

The Court next addresses whether Petitioner’s claims warrant the issuance of a certificate

of appealability. Before Petitioner may appeal the Court’s dispositive decision denying his petition,

a certificate of appealability must issue. 28 U.S.C. § 2253(c)(1)(B); Fed. R. App. P. 22(b). The

Court must either issue a certificate of appealability indicating which issues satisfy the required

showing or provide reasons why such a certificate should not issue. 28 U.S.C. § 2253(c)(3); Fed.

R. App. P. 22(b); In re Certificates of Appealability, 106 F.3d 1306, 1307 (6th Cir. 1997). 

“When a habeas applicant seeks permission to initiate appellate review of the dismissal of

his petition,” a federal court should “limit its examination to a threshold inquiry into the underlying

merit of his claims.” Miller-El v. Cockrell, 537 U.S. 322, 336-37 (2003). A certificate of

appealability may be issued “only if the applicant has made a substantial showing of the denial of

a constitutional right.” 28 U.S.C. § 2253(c)(2). The substantial showing threshold is satisfied when

a petitioner demonstrates “that reasonable jurists would find the district court’s assessment of the

constitutional claims debatable or wrong.” Slack v. McDonnell, 529 U.S. 473, 484 (2000). 

For the reasons stated in this opinion, the Court will deny Petitioner a certificate of

appealability because he has failed to make a substantial showing of the denial of a federal

constitutional right. It would be a "rare case" in which a district judge issues a certificate of

appealability after summarily dismissing a petition because it plainly appeared from the face of the

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petition and any exhibits annexed to it that the petitioner was not entitled to habeas relief. See

Alexander v. Harris, 595 F. 2d 87, 91 (2nd Cir. 1979). 

V.

It plainly appears from the face of the petition that Petitioner is not entitled to habeas relief

from this Court, and the petition, therefore, is subject to summary dismissal. See Rule 4, Rules

Governing Section 2254 Cases. Accordingly,

IT IS ORDERED that the petition for a writ of habeas corpus is DISMISSED.

IT IS FURTHER ORDERED that a certificate of appealability is DENIED. 

S/Lawrence P. Zatkoff 

LAWRENCE P. ZATKOFF

UNITED STATES DISTRICT JUDGE

Dated: May 5, 2009

CERTIFICATE OF SERVICE

The undersigned certifies that a copy of this Order was served upon the attorneys of

record by electronic or U.S. mail on May 5, 2009.

S/Marie E. Verlinde 

Case Manager

(810) 984-3290

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