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Bingham v. Ludwick

March 18, 2010

OLANDOUS R. BINGHAM, PETITIONER,
v.
NICK LUDWICK, RESPONDENT.



The opinion of the court was delivered by: Honorable Paul D. Borman United States District Court

OPINION AND ORDER (1) SUMMARILY DENYING THE PETITION FOR WRIT OF HABEAS CORPUS, AND DENYING (2) A CERTIFICATE OF APPEALABILITY, AND (3) LEAVE TO APPEAL IN FORMA PAUPERIS

Olandous R. Bingham, ("Petitioner"), presently confined at the St. Louis Correctional Facility in St. Louis, Michigan, has filed apetition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his application, filed pro se, petitioner challenges his sentence for first-degree criminal sexual conduct, M.C.L.A. 750.520b. For the reasons stated below, the petition for writ of habeas corpus is SUMMARILY DENIED.

I. BACKGROUND

Petitioner pleaded guilty to one count of first-degree criminal sexual conduct and was sentenced to twenty five to fifty years in prison. Petitioner's conviction and sentence were affirmed on appeal. People v. Bingham,No. 269607 (Mich.Ct.App. June 9, 2006); reconsideration den. July 25, 2006; lv. den. 477 Mich. 974; 725 N.W. 2d 22 (2006). Petitioner then filed a post-conviction motion for relief from judgment, which was denied by the trial court on June 16, 2008. The Michigan Court of Appeals subsequently denied petitioner's application for leave to appeal. People v. Bingham, No. 291079 (Mich.Ct.App. May 15, 2009). Petitioner's post-conviction application for leave to appeal to the Michigan Supreme Court was rejected as being untimely filed. See Letter from Inger Z. Meyer, Deputy Clerk of the Michigan Supreme Court, dated October 14, 2009.

Petitioner seeks a writ of habeas corpus on the following grounds:

I. The trial court unlawfully deprived the defendant of his due process, equal protection rights when it scored 10 points on OV-3, 10 points on OV-4, 15 points on OV-10, 50 points on OV-11, and 5 points on OV-12.

II. The trial court violated the United States and Michigan Constitutions in sentencing the defendant to a prior term of 300-600 months on the criminal sexual conduct conviction.

II. DISCUSSION

The Court will discuss petitioner's two claims together for judicial economy. In his first claim, petitioner contends that the trial court incorrectly scored several of his offense variables under the Michigan Sentencing Guidelines. Petitioner further alleges that trial counsel was ineffective for failing to object to the scoring of these guidelines variables. In his second claim, petitioner contends that the trial court improperly departed above the sentencing guidelines range of 108-180 months in imposing the sentence of twenty five to fifty years. Petitioner further claims that this sentence was disproportionate to the offense and to the offender.

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. 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 (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, 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. 3d 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, for reasons stated in greater detail below, that petitioner's sentencing claims do not entitle him to habeas relief, such that the petition must be summarily denied. See McIntosh v. Booker, 300 F. Supp. 2d 498, 499 (E.D. Mich. 2004). The Court likewise concludes that petitioner's related ineffective assistance of counsel claim is meritless, such that the petition must be summarily denied. See Mathews v. United States, 11 F. 3d 583, 585 (6th Cir. 1993)(affirming the summary dismissal of an ineffective assistance of counsel claim raised in a § 2255 motion to vacate sentence pursuant to Rule 4, where there was no merit to the claim).

Petitioner's sentence of twenty five to fifty years was within the statutory limits under Michigan law for the offense of first-degree criminal sexual conduct. A sentence imposed within the statutory limits is not generally subject to habeas review. Townsend v. Burke, 334 U.S. 736, 741 (1948). A sentence within the statutory maximum set by statute does not normally constitute cruel and unusual punishment either. Austin v. Jackson, 213 F. 3d 298, 302 (6th Cir. 2000); Johnson v. Smith, 219 F. Supp. 2d 871, 884 (E.D. Mich. 2002).

Petitioner's claim that his sentence violates the Michigan state sentencing guidelines is not cognizable in a habeas proceeding because it is a state law claim. See Howard v. White, 76 Fed. Appx. 52, 53 (6th Cir. 2003); Robinson v. Stegall, 157 F. Supp. 2d 802, 823 (E.D. Mich. 2001). Petitioner has no state-created interest in having the Michigan Sentencing Guidelines applied rigidly in determining his sentence. See Shanks v. Wolfenbarger, 387 F. Supp. 2d 740, 752 (E.D. Mich. 2005). "[I]n short, petitioner had no federal constitutional right to be sentenced within Michigan's guideline minimum sentence recommendations." Doyle v. Scutt, 347 F. Supp. 2d 474, 485 (E.D. Mich. 2004). Petitioner's claim that the sentencing guidelines were incorrectly scored fails to state a claim upon which habeas relief can be granted. Cook v. Stegall, 56 F. Supp. 2d 788, 797 (E.D. Mich. 1999). Likewise, petitioner's claim that the state trial court improperly departed above the sentencing guidelines range would not entitle him to habeas relief. See Drew v. Tessmer, 195 F. Supp. 2d 887, 889-90 (E.D. Mich. 2001); Welch v. Burke, 49 F. Supp. 2d 992, 1009 (E.D. Mich. 1999).

Petitioner, however, also contends that the trial court judge violated his Sixth Amendment right to a trial by jury by using factors to score his guidelines which had not been submitted to a jury and proven ...


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