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 UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

JESSIE D. GLOVER,

Petitioner, Civil No. 2:09-CV-11216

HONORABLE DENISE PAGE HOOD

v. UNITED STATES DISTRICT JUDGE

CINDI S. CURTIN,

Respondent,

_________________________________/

 

OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

Jessie D. Glover, (“Petitioner”), confined at the Oaks Correctional Facility in

Manistee, 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 out

of the Wayne County Circuit Court for possession of a firearm during the

commission of a felony, second offense, M.C.L. A. § 750.227b(2). For the

reasons stated below, the petition for writ of habeas corpus is summarily

dismissed.

I. BACKGROUND

Petitioner was originally charged with carrying a concealed weapon, felon

in possession of a firearm, possession of a firearm during the commission of a

felony, second offense, and being a second felony habitual offender, arising out

of an incident which occurred in Detroit, Michigan on April 10, 2007.

Petitioner filed a motion to suppress the evidence on the ground that it was

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seized in violation of his Fourth Amendment rights. An evidentiary hearing was

conducted on his claim in the trial court on June 15, 2007 and July 9, 2007, after

which the trial court denied Petitioner’s motion to suppress the evidence. 

Petitioner then entered a conditional plea to possession of a firearm during the

commission of a felony, second offense, in exchange for the dismissal of the

remaining charges. Petitioner was subsequently sentenced to five years in

prison.

Petitioner appealed the denial of the motion to suppress to the Michigan

appellate courts. The Michigan appellate courts affirmed Petitioner’s conviction.

People v. Glover, No. 286507 (Mich. Ct. App. August 19, 2008); lv. den. 759 N.W.

2d 19 (2009). 

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

following ground:

The trial court abused its discretion by denying petitioner’s motion to

suppress the introduction of evidence obtained in violation of

petitioner’s constitutional Fourth Amendment right against

unreasonable searches and seizures. 

II. DISCUSSION

The petition for writ of habeas corpus must be dismissed because

petitioner fails to state a claim upon which habeas relief can be granted. 

A petition for a writ of habeas corpus must set forth facts that give rise to a

cause of action under federal law or it may summarily be dismissed. See Perez v.

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Hemingway, 157 F. Supp. 2d 790, 796 (E.D. Mich. 2001). Federal courts are

also authorized to dismiss any habeas petition that appears legally insufficient on

its face. McFarland v. Scott, 512 U.S. 849, 856, 114 S. Ct. 2568, 129 L. Ed. 2d

666 (1994). A federal district court is authorized to summarily dismiss a habeas

corpus petition if it plainly appears from the face of the petition or the exhibits that

are attached to it that the petitioner is not entitled to federal habeas relief. See

Carson v. Burke, 178 F. 3d 434, 436 (6th Cir. 1999); Rules Governing § 2254

Cases in the United States District Courts, Rule 4, 28 U.S.C. foll. § 2254. The

Sixth Circuit, in fact, long ago indicated that they “disapprove the practice of

issuing a show cause order [to the respondent] until after the District Court first

has made a careful examination of the petition.” Allen v. Perini, 424 F.2d 134, 140

(6th Cir. 1970). A district court therefore has the duty to screen out any habeas

corpus petition which lacks merit on its face. Id. at 141. No return to a habeas

petition is necessary when the petition is frivolous, or obviously lacks merit, or

where the necessary facts can be determined from the petition itself without

consideration of a return by the state. Id.

After undertaking the review required by Rule 4, this Court concludes that

Petitioner’s Fourth Amendment claim is non-cognizable on federal habeas

review, such that the petition must be summarily denied. See Robinson v.

Jackson, 366 F. Supp. 2d 524, 525-28 (E.D. Mich. 2005). 

Petitioner contends that the evidence in this case should have been

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 By entering a conditional plea of guilty, petitioner did not waive appellate review of his Fourth

Amendment claim. See People v. O'Neal, 167 Mich. App. 274, 276-77; 421 N.W. 2d 662 (1988). 

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suppressed because the police lacked probable cause to seize or to arrest

Petitioner. 

Prior to pleading guilty, Petitioner moved to suppress the evidence on the

ground that it had been obtained in violation of his Fourth Amendment rights.

Following an evidentiary hearing, the trial court denied the motion to suppress. 

The Michigan Court of Appeals and the Michigan Supreme Court upheld the trial

court’s decision on appeal. 1

Petitioner’s Fourth Amendment challenge to the admission of the evidence

in this case is non-cognizable on federal habeas review. A federal habeas review

of a petitioner’s arrest or search by state police is barred where the state has

provided a full and fair opportunity to litigate an illegal arrest or a search and

seizure claim. Stone v. Powell, 428 U.S. 465, 494-95, 96 S. Ct. 3037, 49 L. Ed.

2d 1067 (1976); Machacek v. Hofbauer, 213 F.3d 947, 952 (6th Cir. 2000). For

such an opportunity to have existed, the state must have provided, in the

abstract, a mechanism by which the petitioner could raise the claim, and

presentation of the claim must not have been frustrated by a failure of that

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

Therefore, on federal habeas review, a federal court cannot re-examine a

petitioner’s Fourth Amendment claim that evidence should have been suppressed

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as “poisonous fruit” of his illegal arrest, where the state provided an opportunity

for full and fair litigation of the habeas petitioner’s Fourth Amendment claim prior

to trial. See Wilson v. Straub, 185 F. Supp. 2d 766, 770-71 (E.D. Mich. 2002);

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

Monroe v. Smith, 197 F. Supp. 2d 753, 766 (E.D. Mich. 2001). 

Petitioner is therefore unable to raise a Fourth Amendment claim that the

evidence in this case was the product of an illegal arrest or seizure, where

Petitioner’s Fourth Amendment claim was the subject of an evidentiary hearing in

the trial court where the facts of his claim were fully developed and following the

denial of his motion by the trial court, Petitioner then had an opportunity to

present his Fourth Amendment claim to the Michigan Court of Appeals and the

Michigan Supreme Court. Wilson, 185 F. Supp. 2d at 771. Because Petitioner's

Fourth Amendment claim was fully and fairly litigated in the Michigan trial and

appellate courts, his claim is not cognizable on habeas review. Id. 

III. ORDER

Based upon the foregoing, IT IS ORDERED that the petition for a writ of

habeas corpus is DISMISSED WITH PREJUDICE.

S/Denise Page Hood 

Denise Page Hood

United States District Judge

Dated: May 27, 2009

I hereby certify that a copy of the foregoing document was served upon

Jessie Glover, Reg. No. 366193, Oaks Correctional Facility, 1500 Caberfae

Highway, Manistee, MI 49660 and counsel of record on May 27, 2009, by

electronic and/or ordinary mail.

S/William F. Lewis 

Case Manager

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