Opinion

Jerry Anderson II v. Marquette Branch Prison Warden

Court
Michigan Court of Appeals
Filed
Nov 4, 2021
Status
Unpublished
Cited by
0 cases
Authority
More cited than 7.8%

stating that the Fourteenth “Amendment has not, however, been construed to include the Fifth Amendment right to ‘presentment or indictment of a Grand Jury’ ”

How later courts described this case

  • stating that the Fourteenth “Amendment has not, however, been construed to include the Fifth Amendment right to ‘presentment or indictment of a Grand Jury’ ”
  • “There is no state constitutional right to indictment by grand jury; rather, indictment by grand jury is an alternative charging procedure created by the Legislature.”
  • “For many decades, the question of the rights protected by the Fourteenth Amendment against state infringement has been analyzed under the Due Process Clause of that Amendment and not under the Privileges or Immunities Clause. We therefore decline to disturb the Slaughter-House holding.”

Written by the judges who cited it.

The opinion

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to

revision until final publication in the Michigan Appeals Reports.

STATE OF MICHIGAN

COURT OF APPEALS

JERRY ANDERSON II, UNPUBLISHED

November 4, 2021

Petitioner-Appellant,

v No. 356054

Marquette Circuit Court

MARQUETTE BRANCH PRISON WARDEN, LC No. 20-059661-AH

Respondent-Appellee.

Before: REDFORD, P.J., and K. F. KELLY and LETICA, JJ.

PER CURIAM.

Petitioner pleaded guilty to second-degree murder, MCL 750.317, and felony-firearm,

MCL 750.227b. The Genesee Circuit Court sentenced petitioner to serve consecutive sentences

of 15 to 30 years in prison for the second-degree murder conviction and two years in prison for the

felony-firearm conviction. Petitioner filed a complaint for a writ of habeas corpus, but the

Marquette Circuit Court denied the petition for lack of merit. We affirm.

I. BACKGROUND

In his petition for a writ of habeas corpus, petitioner argued that the grand jury indictment

requirement of the Fifth Amendment to the United States Constitution applies in all state criminal

cases and that, because he was bound over for trial without a grand jury indictment, the Genesee

Circuit Court which was the court that presided over his criminal proceedings lacked jurisdiction

over him, thereby rendering his convictions void. More specifically, petitioner argued that MCL

600.8311, MCL 766.13, and MCL 767.1 et seq., were unconstitutional because they conflicted

with the Fifth Amendment’s grand jury requirement.1 Petitioner argued that the Privileges and

1

MCL 600.8311 grants district courts jurisdiction over, among other things, arraignments,

probable cause conferences, and preliminary examinations. MCL 766.13 governs magistrate

conduction of preliminary examinations, bindovers, and the ordering of a defendant to appear for

arraignment. MCL 767.1 grants courts having jurisdiction over criminal causes the “power and

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Immunities Clause of the Fourteenth Amendment to the United States Constitution made

applicable to all states the grand jury requirement. Petitioner contended that his bindover had been

illegal and did not confer jurisdiction on the Genesee Circuit Court. The Marquette Circuit Court

denied his petition for lack of legal merit.

II. STANDARD OF REVIEW

We review de novo questions of constitutional law. People v Shenoskey, 320 Mich App

80, 82; 903 NW2d 212 (2017). We review for an abuse of discretion a circuit court’s denial of

habeas relief. Moses v Dept of Corrections, 274 Mich App 481, 486; 736 NW2d 269 (2007).

III. ANALYSIS

Petitioner contends that the Marquette Circuit Court erred by denying him habeas relief

because he claims that the Fifth Amendment’s grand jury indictment requirement applies to

Michigan through the Privileges and Immunities Clause of the Fourteenth Amendment, and the

failure to convene a grand jury to indict him renders his convictions void. We disagree.

In Moses, 274 Mich App at 485-486 (quotation marks, ellipsis, and citations omitted), this

Court explained:

The object of the writ of habeas corpus is to determine the legality of the

restraint under which a person is held. The writ of habeas corpus deals with radical

defects that render a judgment or proceeding absolutely void. In general, MCL

600.4310(3) prohibits habeas corpus relief to “[p]ersons convicted, or in execution,

upon legal process, civil or criminal.” But relief is open to a convicted person in

one narrow instance, where the convicting court was without jurisdiction to try the

defendant for the crime in question. Moreover, to qualify for habeas corpus relief,

the jurisdictional defect must be radical, rendering the conviction absolutely void.

A radical defect in jurisdiction contemplates an act or omission by state authorities

that clearly contravenes an express legal requirement in existence at the time of the

act or omission. Nevertheless, habeas relief may be denied in the exercise of a

court’s discretion where full relief may be obtained in other more appropriate

proceedings. Thus, while plaintiff may not use a habeas proceeding as a substitute

for an appeal or to review the merits of his criminal conviction, plaintiff may assert

a radical defect in the jurisdiction of the court in which his conviction was obtained.

MCL 600.4310(3).

Thus, to warrant the issuance of a writ of habeas corpus, petitioner had to establish a radical

defect in the jurisdiction of the court in which his convictions were obtained. Petitioner claims

that, under the Fourteenth Amendment, the Fifth Amendment’s grand jury requirement applies to

Michigan. The United States Supreme Court, however, on multiple occasions reiterated that the

jurisdiction to hear, try and determine prosecutions upon informations for crimes, misdemeanors

and offenses, to issue writs and process and do all other acts therein as they possess and may

exercise in cases of like prosecutions upon indictments.”

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Fourteenth Amendment does not require states to apply the Fifth Amendment’s grand jury

requirement. Hurtado v California, 110 US 516, 520-521, 537-538; 4 S Ct 111; 28 L Ed 232

(1884); Alexander v Louisiana, 405 US 625, 633; 92 S Ct 1221; 31 L Ed 2d 536 (1972); Rose v

Mitchell, 443 US 545, 557 n 7; 99 S Ct 2993; 61 L Ed 2d 739 (1979); Apprendi v New Jersey, 530

US 466, 477 n 3; 120 S Ct 2348; 147 L Ed 2d 435 (2000) (stating that the Fourteenth “Amendment

has not, however, been construed to include the Fifth Amendment right to ‘presentment or

indictment of a Grand Jury’ ”).

In Beck v Washington, 369 US 541, 545; 82 S Ct 955; 8 L Ed 2d 98 (1962), the United

States Supreme Court explained:

Ever since Hurtado v California, 110 US 516; 4 S Ct 292; 28 L Ed 232

(1884), this Court has consistently held that there is no federal constitutional

impediment to dispensing entirely with the grand jury in state prosecutions. The

State of Washington abandoned its mandatory grand jury practice some 50 years

ago. Since that time prosecutions have been instituted on informations filed by the

prosecutor, on many occasions without even a prior judicial determination of

‘probable cause’—a procedure which has likewise had approval here in such cases

as Ocampo v United States, 234 US 91; 34 S Ct 712; 58 L Ed 1231 (1914), and Lem

Woon v Oregon, 229 US 586; 33 S Ct 783; 57 L Ed 1340 (1913).

The Michigan Constitution provides no requirement for a grand jury indictment. See, e.g., People

v Glass, 464 Mich 266, 278-279; 627 NW2d 261 (2001) (“There is no state constitutional right to

indictment by grand jury; rather, indictment by grand jury is an alternative charging procedure

created by the Legislature.”). The Genesee Circuit Court, therefore, had no obligation to convene

a grand jury and did not violate the United States or Michigan Constitutions by not doing so.

Petitioner contends that the prior holdings involved due-process arguments and not his

argument concerning the Privileges and Immunities Clause of the Fourteenth Amendment.

Longstanding precedent, however, indicates that this argument lacks merit. See, e.g., Slaughter-

House Cases, 83 US 36, 74-75; 21 L Ed 394 (1872) (holding that the Privileges and Immunities

Clause of the Fourteenth Amendment concerned only citizens of the United States and not citizens

of the individual states); In re Sacred Heart Hosp of Norristown, 133 F3d 237, 244 (CA 3, 1998)

(citation omitted) (“[T]he Privileges and Immunities Clause of the Fourteenth Amendment ‘has

remained essentially moribund’ since the Supreme Court’s decision in The Slaughter-House

Cases . . . , and the Supreme Court has subsequently relied almost exclusively on the Due Process

Clause as the source of unenumerated rights.”). Slaughter-House Cases remains good law today,

and the Due Process Clause of the Fourteenth Amendment, not the Privileges and Immunities

Clause, has been the basis against which protection from state action is sought. See, e.g.,

McDonald v Chicago, 561 US 742, 758; 130 S Ct 3020; 177 L Ed 2d 894 (2010) (“For many

decades, the question of the rights protected by the Fourteenth Amendment against state

infringement has been analyzed under the Due Process Clause of that Amendment and not under

the Privileges or Immunities Clause. We therefore decline to disturb the Slaughter-House

holding.”). Moreover, privileges and immunities are limited and include only narrow rights such

as the right “to come to the seat of government to assert any claim [a citizen] may have upon that

government, to transact any business he may have with it, to seek its protection, to share its offices,

to engage in administering its functions . . . [and to] become a citizen of any State of the Union by

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a bonafide residence therein, with the same rights as other citizens of that State.” Id. at 755

(alterations in McDonald). Petitioner’s argument, therefore, lacks merit.

Petitioner has failed to establish any constitutional violation or demonstrate any defect in

the bindover procedure that would warrant habeas relief. The Marquette Circuit Court, therefore,

correctly denied his petition.

Affirmed.

/s/ James Robert Redford

/s/ Kirsten Frank Kelly

/s/ Anica Letica

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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