Gomez 714409 v. Rewerts

• Court: District Court, W.D. Michigan
• Decided: September 17, 2024
• Docket: 1:24-cv-00778
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION ______

JOSHUA GOMEZ,

Petitioner, Case No. 1:24-CV-778

v. Honorable Sally J. Berens

RANDEE REWERTS,

Respondent. ____________________________/

OPINION This is a habeas corpus action brought by a state prisoner under 28 U.S.C. § 2254. Pursuant to 28 U.S.C. § 636(c) and Rule 73 of the Federal Rules of Civil Procedure, Petitioner consented to proceed in all matters in this action under the jurisdiction of a United States magistrate judge. (ECF No. 1, PageID.13.) Section 636(c) provides that “[u]pon the consent of the parties, a full-time United States magistrate judge . . . may conduct any or all proceedings in a jury or nonjury civil matter and order the entry of judgment in the case . . . .” 28 U.S.C. § 636(c). This case is presently before the Court for preliminary review pursuant to 28 U.S.C. § 2253 and Rule 4 of the Rules Governing § 2254 Cases. The Court is required to conduct this initial review prior to the service of the petition. Rule 4, Rules Governing § 2254 Cases. Service of the petition on the respondent is of particular significance in defining a putative respondent’s relationship to the proceedings. “An individual or entity named as a defendant is not obliged to engage in litigation unless notified of the action, and brought under a court’s authority, by formal process.” Murphy Bros. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 347 (1999). “Service of process, under longstanding tradition in our system of justice, is fundamental to any procedural imposition on a named defendant.” Id. at 350. “[O]ne becomes a party officially, and is required to take action in that capacity, only upon service of a summons or other authority- asserting measure stating the time within which the party served must appear and defend.” Id. (citations omitted). That is, “[u]nless a named defendant agrees to waive service, the summons continues to function as the sine qua non directing an individual or entity to participate in a civil

action or forgo procedural or substantive rights.” Id. at 351. Rule 4, by requiring courts to review and even resolve the petition before service, creates a circumstance where there may only be one party to the proceeding—the petitioner. Because Respondent has not yet been served, the undersigned concludes that Respondent is not presently a party whose consent is required to permit the undersigned to conduct a preliminary review of the petition. See Neals v. Norwood, 59 F.3d 530, 532 (5th Cir. 1995) (“The record does not contain a consent from the defendants[; h]owever, because they had not been served, they were not parties to th[e] action at the time the magistrate entered judgment.”).1 Petitioner’s consent is sufficient to permit the undersigned to conduct the Rule 4 review.

The Court conducts a preliminary review of the petition under Rule 4 to determine whether “it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court.” Rule 4, Rules Governing § 2254 Cases; see 28 U.S.C. § 2243. If so, the petition must be summarily dismissed. Rule 4; see Allen v. Perini, 424 F.2d 134,

1 But see Coleman v. Lab. & Indus. Rev. Comm’n of Wis., 860 F.3d 461, 471 (7th Cir. 2017) (concluding that, when determining which parties are required to consent to proceed before a United States magistrate judge under 28 U.S.C. § 636(c), “context matters” and the context the United States Supreme Court considered in Murphy Bros. was nothing like the context of a screening dismissal pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b), and 42 U.S.C. § 1997e(c)); Williams v. King, 875 F.3d 500, 503–04 (9th Cir. 2017) (relying on Black’s Law Dictionary for the definition of “parties” and not addressing Murphy Bros.); Burton v. Schamp, 25 F.4th 198, 207 n.26 (3d Cir. 2022) (premising its discussion of “the term ‘parties’ solely in relation to its meaning in Section 636(c)(1), and . . . not tak[ing] an opinion on the meaning of ‘parties’ in other contexts”). 141 (6th Cir. 1970) (discussing that a district court has the duty to “screen out” petitions that lack merit on their face). A dismissal under Rule 4 includes those petitions which raise legally frivolous claims, as well as those containing factual allegations that are palpably incredible or false. Carson v. Burke, 178 F.3d 434, 436–37 (6th Cir. 1999). After undertaking the review required by Rule 4, the Court will dismiss the petition for failure to raise a meritorious federal claim.

Discussion I. Factual Allegations Petitioner Joshua Gomez is incarcerated with the Michigan Department of Corrections at the Carson City Correctional Facility (DRF) in Carson City, Montcalm County, Michigan. He comes to this Court after pleading guilty in the Kalamazoo County Circuit Court to one count of criminal sexual conduct in the second degree (CSC-II), in violation of Mich. Comp. Laws § 750.520c. (Pet., ECF No. 1, PageID.1.) The Kalamazoo County Circuit Court sentenced Petitioner to a prison term of 5 to 15 years. (Id.) Petitioner filed an application for leave to appeal to the Michigan Court of Appeals, which was denied on April 17, 2023, “for lack of merit in the grounds presented.” People v. Gomez, Case No. 365272 (Mich. Ct. App. Apr. 17, 2023). Petitioner’s application for leave to appeal to the

Michigan Supreme Court was similarly denied on September 5, 2023. People v. Gomez, 512 Mich. 916, 994 N.W.2d 263 (2023). On April 29, 2024, Petitioner filed his habeas corpus petition. The petition raises two grounds for relief, as follows: 1. Miscarriage of Justice – Major Error[.] 1) Judge based her decision on weak incomplete evidence from one witness who admitted she witnessed nothing! 2. Miscarriage of Justice – The Judge discounted and ignored (refused to listen to) the statement of the only real witness the alleged victim. (Pet., ECF No. 1, PageID.5 & 7.) II. AEDPA Standard The AEDPA “prevent[s] federal habeas ‘retrials’” and ensures that state court convictions are given effect to the extent possible under the law. Bell v. Cone, 535 U.S. 685, 693–94 (2002). An application for writ of habeas corpus on behalf of a person who is incarcerated pursuant to a state conviction cannot be granted with respect to any claim that was adjudicated on the merits in

state court unless the adjudication: (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). “Under these rules, [a] state court’s determination that a claim lacks merit precludes federal habeas relief so long as fairminded jurists could disagree on the correctness of the state court’s decision.” Stermer v. Warren, 959 F.3d 704, 721 (6th Cir. 2020) (quoting Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)) (internal quotation marks omitted)). This standard is “intentionally difficult to meet.” Woods v. Donald, 575 U.S. 312, 316 (2015) (internal quotation marks omitted). The AEDPA limits the source of law to cases decided by the United States Supreme Court. 28 U.S.C. § 2254(d). In determining whether federal law is clearly established, the Court may not consider the decisions of lower federal courts. Williams v. Taylor, 529 U.S. 362, 381–82 (2000); Miller v. Straub, 299 F.3d 570, 578–79 (6th Cir. 2002). Moreover, “clearly established Federal law” does not include decisions of the Supreme Court announced after the last adjudication of the merits in state court. Greene v. Fisher, 565 U.S. 34, 37–38 (2011). Thus, the inquiry is limited to an examination of the legal landscape as it would have appeared to the Michigan state courts in light of Supreme Court precedent at the time of the state-court adjudication on the merits. Miller v. Stovall, 742 F.3d 642, 644 (6th Cir. 2014) (citing Greene, 565 U.S. at 38). A federal habeas court may issue the writ under the “contrary to” clause if the state court applies a rule different from the governing law set forth in the Supreme Court’s cases, or if it decides a case differently than the Supreme Court has done on a set of materially indistinguishable facts. Bell, 535 U.S. at 694 (citing Williams, 529 U.S. at 405–06). “To satisfy this high bar, a habeas petitioner is required to ‘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.’” Woods, 575 U.S. at 316 (quoting Harrington, 562 U.S. at 103). Determining whether a rule application was unreasonable depends on the rule’s specificity. Stermer, 959 F.3d at 721. “The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations.” Yarborough, 541 U.S. at 664. “[W]here the precise contours of the right remain unclear, state courts enjoy broad discretion in their adjudication of a prisoner’s claims.” White v. Woodall, 572 U.S. 415, 424 (2014) (internal quotations omitted). The AEDPA requires heightened respect for state factual findings. Herbert v. Billy, 160

F.3d 1131, 1134 (6th Cir. 1998). A determination of a factual issue made by a state court is presumed to be correct, and the petitioner has the burden of rebutting the presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Davis v. Lafler, 658 F.3d 525, 531 (6th Cir. 2011) (en banc); Lancaster v. Adams, 324 F.3d 423, 429 (6th Cir. 2003); Bailey v. Mitchell, 271 F.3d 652, 656 (6th Cir. 2001). This presumption of correctness is accorded to findings of state appellate courts, as well as the trial court. See Sumner v. Mata, 449 U.S. 539, 546–547 (1981); Smith v. Jago, 888 F.2d 399, 407 n.4 (6th Cir. 1989). Section 2254(d) limits the facts a court may consider on habeas review. The federal court is not free to consider any possible factual source. The reviewing court “is limited to the record that was before the state court that adjudicated the claim on the merits.” Cullen v. Pinholster, 563 U.S. 170, 180 (2011). “[I]f a review of the state court record shows that additional fact-finding was required under clearly established federal law or that the state court’s factual determination was unreasonable, the requirements of § 2254(d) are satisfied and the federal court can review the underlying claim on its merits.” Stermer, 959 F.3d at 721 (citing, inter alia, Brumfield v. Cain, 576

U.S. 305 (2015), and Panetti v. Quarterman, 551 U.S. 930, 954 (2007)). If the petitioner “satisfies the heightened requirements of § 2254(d), or if the petitioner’s claim was never ‘adjudicated on the merits’ by a state court, 28 U.S.C. § 2254(d),”—for example, if he procedurally defaulted the claim—“AEDPA deference no longer applies.” Stermer, 959 F.3d at 721. Then, the petitioner’s claim is reviewed de novo. Id. (citing Maples v. Stegall, 340 F.3d 433, 436 (6th Cir. 2003)). III. Discussion In each of his two grounds for relief, Petitioner contends that there was insufficient evidence to support the trial judge’s “decision” on Petitioner’s charge or conviction of CSC-II. Because Petitioner ultimately pleaded guilty, the Court can only presume that Petitioner intends to

challenge the sufficiency of the evidence to support the trial judge’s “decision” at one or both of the following events: (1) the preliminary examination, in which the trial judge would have determined the existence of probable cause, and/or (2) the trial judge’s acceptance of Petitioner’s guilty plea, including the factual basis for that plea. For the sake of completeness and in liberally construing the petition, the Court will address Petitioner’s arguments as they would apply to each stage. A. Insufficient Evidence to Support Finding of Probable Cause To the extent that Petitioner intends to argue that there was insufficient evidence to allow the trial court to find that probable cause existed to support the charge of CSC-II, his claim is not cognizable on habeas review. It is well-established that “a federal court may issue the writ to a state prisoner only on the

ground that he [or she] is in custody in violation of the Constitution or laws or treaties of the United States.’” Wilson v. Corcoran, 562 U.S. 1, 5 (2010) (quoting 28 U.S.C. § 2254(a)). A habeas petition must “state facts that point to a ‘real possibility of constitutional error.’” Blackledge v. Allison, 431 U.S. 63, 75 n.7 (1977) (quoting Advisory Committee Note to Rule 4, Rules Governing Habeas Corpus Cases). “[F]ederal habeas corpus relief does not lie for errors of state law.” Wilson, 562 U.S. at 5) (internal quotation marks omitted) (quoting Estelle v. McGuire, 502 U.S. 62, 67 (1991)). Challenges to the propriety of initial proceedings in the state courts are not cognizable in federal habeas corpus proceedings because they do not undermine the validity of a conviction. See Gerstein v. Pugh, 420 U.S. 103, 119 (1975). Therefore, it is well-settled that a convicted defendant cannot upset a conviction on the argument that no probable cause was shown prior to conviction.

See United States v. Saussy, 802 F.2d 849, 852 (6th Cir. 1986). Even the complete denial of a preliminary examination in the state system would not provide a basis for federal habeas corpus relief. Dillard v. Bomar, 342 F.2d 789, 790 (6th Cir. 1965); Scott v. Bock, 241 F. Supp. 2d 780, 793 (E.D. Mich. 2003). Therefore, Petitioner is not entitled to habeas relief related to findings at a preliminary examination. B. Insufficient Evidence to Support Factual Basis for Guilty Plea Petitioner is also not entitled to relief to the extent that he claims that there was insufficient evidence to support the trial judge’s decision to accept his guilty plea. A state defendant has no constitutionally guaranteed right to withdraw a guilty plea. See Carwile v. Smith, 874 F.2d 382 (6th Cir. 1989). The only constitutional challenge that a habeas court may entertain with regard to a plea of guilty is if the plea was not entered in a knowing and voluntary fashion under the standards set forth in Boykin v. Alabama, 395 U.S. 238 (1969). A habeas court is restricted to these federal principles and may not grant habeas relief on the basis of state law governing the taking or withdrawal of guilty pleas. Riggins v. McMackin, 935 F.2d 790, 794–95 (6th Cir. 1991).

It has long been the case that a valid guilty plea bars habeas review of most non- jurisdictional claims alleging antecedent violations of constitutional rights. See Tollett v. Henderson, 411 U.S. 258, 267 (1973). Among claims not barred are those that challenge “the very power of the State to bring the defendant into court to answer the charge brought against him,” Blackledge v. Perry, 417 U.S. 21, 30 (1974), and those that challenge the validity of the guilty plea itself. See Hill v. Lockhart, 474 U.S. 52, 58 (1985); Haring v. Prosise, 462 U.S. 306, 320 (1983); Tollett, 411 U.S. at 267. The United States Supreme Court has explained: [A] guilty plea represents a break in the chain of events which has 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. He may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within [constitutional standards]. Tollett, 411 U.S. at 267. Liberally construed, Petitioner’s only argument is that there was insufficient evidence to establish the factual basis for Petitioner’s guilty plea. However, the requirement that the trial court establish a factual basis for a guilty plea is a creature of rule, not the federal Constitution. While states are free to adopt procedural rules requiring a factual basis as Michigan has done, Mich. Ct. R. 6.610(E)(1)(a), the United States Constitution does not mandate them to do so. See North Carolina v. Alford, 400 U.S. 25, 37–38 (1970); Roddy v. Black, 516 F.2d 1380, 1385 (6th Cir. 1975); accord Meyers v. Gillis, 93 F.3d 1147, 1152 (3d Cir. 1996); United States v. McGlocklin, 8 F.3d 1037, 1047 (6th Cir. 1993) (en banc) (implicitly overruled on other grounds by Custis v. United States, 511 U.S. 485 (1994)). Petitioner does not challenge the power of the state to bring him into court or the voluntary and intelligent nature of the guilty plea itself. Accordingly, Petitioner is also not entitled to relief to the extent that he challenges the trial judge’s decision to accept Petitioner’s plea of guilty to

CSC-II. IV. Certificate of Appealability Under 28 U.S.C. § 2253(c)(2), the Court must determine whether a certificate of appealability should be granted. A certificate should issue if Petitioner has demonstrated a “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The Sixth Circuit Court of Appeals has disapproved issuance of blanket denials of a certificate of appealability. Murphy v. Ohio, 263 F.3d 466, 467 (6th Cir. 2001) (per curiam). Rather, the district court must “engage in a reasoned assessment of each claim” to determine whether a certificate is warranted. Id. Each issue must be considered under the standards set forth by the Supreme Court in Slack v. McDaniel, 529 U.S. 473 (2000). Murphy, 263 F.3d at 467. Consequently, the Court has

examined each of Petitioner’s claims under the Slack standard. Under Slack, 529 U.S. at 484, to warrant a grant of the certificate, “[t]he petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Id. “A petitioner satisfies this standard by demonstrating that jurists of reason could . . . conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). In applying this standard, the Court may not conduct a full merits review, but must limit its examination to a threshold inquiry into the underlying merit of Petitioner’s claims. Id. The Court finds that reasonable jurists could not conclude that this Court’s dismissal of Petitioner’s claims would be debatable or wrong. Therefore, the Court will deny Petitioner a certificate of appealability. Moreover, although the Court concludes that Petitioner has failed to make a substantial showing of a denial of a constitutional right, the Court does not conclude that any issue Petitioner might raise on appeal would be frivolous. Coppedge v. United States, 369 U.S.

438, 445 (1962). Thus, the Court does not certify that an appeal would not be taken in good faith. CONCLUSION The Court will enter an order and judgment denying the petition because Petitioner has failed to raise a meritorious federal claim and denying a certificate of appealability.

Dated: September 17, 2024 /s/ Sally J. Berens SALLY J. BERENS United States Magistrate Judge