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Rider v. Conerly

March 29, 2010

CARLTON E. J. RIDER, #123706, PETITIONER,
v.
PERCY CONERLY, RESPONDENT.



The opinion of the court was delivered by: Honorable Marianne Battani United States District Court

Honorable Marianne O. Battani

Magistrate Judge Charles E. Binder

OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS, DENYING CERTIFICATE OF APPEALABILITY AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

Petitioner, Carlton E.J. Rider, is on parole and reporting to the Jackson County Parole Office. Petitioner was convicted after his guilty plea in two separate cases in Jackson County Circuit Court of the same offense, operating a vehicle while intoxicated, third offense, Mich. Comp. Laws §257.6256(D). He was sentenced as a fourth habitual offender pursuant to Mich. Comp. Laws §769.12 to concurrent terms of three and a half to fifteen years' imprisonment. On June 17, 2008, Petitioner was released on parole, with a supervision discharge date of July 12, 2010.*fn1

Petitioner has filed a pro se petition for writ of habeas corpus under 28 U.S.C. §2254. For the reasons that follow, the Court will deny the petition.

I. BACKGROUND

On March 27, 2004, Petitioner drove while intoxicated and was stopped by the police in Jackson County. Petitioner's blood alcohol level was .31. Petitioner was arrested and charged for operating a vehicle while driving impaired. Approximately one week later on April 3, 2004, Petitioner was stopped again for drunk driving with a blood alcohol level of .29. Petitioner was arrested and charged. On June 11, 2004, Petitioner pled guilty to both drunk driving offenses. Petitioner was sentenced on July 7, 2004.

Petitioner filed an application for leave to appeal with the Michigan Court of Appeals raising the following claim:

"Two prior uncounseled misdemeanor charges used for enhancement proceedings, ineffective assistance of counsel, jurisdictional defects, improper charging from a misdemeanor to a felony charge."

The Michigan Court of Appeals denied relief. People v. Rider, No: 260336 (Mich. Ct. App. May 13, 2005). Petitioner then filed an application for leave to appeal with the Michigan Supreme Court raising the same claim. On October 31, 2005, the Court denied Petitioner's application for leave to appeal, but remanded the matter back to the trial court in light of Halbert v. Michigan, 545 U.S. 605 (2005)*fn2 . The Court ruled as follows:

On order of the Court, the application for leave to appeal the May 13, 2005 order of the Court of Appeals is considered and pursuant to MCR 7.302(G)(1), in lieu of granting leave to appeal, we REMAND this case to the Jackson Circuit Court, which has already appointed appellate counsel by order of August 11, 2005, for further proceedings. Appointed counsel may file an application for leave to appeal with the Court of Appeals, and/or any appropriate post-conviction motions in the trial court, within twelve months of the date of the Jackson Circuit Court's order appointing counsel. Counsel may include among the issues raised, but is not required to include, those issues raised by defendant in his application for leave to appeal to this Court. In all other respects, leave to appeal is DENIED, because we are not persuaded that the questions presented should now be reviewed by this Court.

People v. Rider, 474 Mich. 894; 705 NW2d 110 (2005).

On remand, Petitioner was appointed counsel. However, in April 2006, defense counsel requested to withdraw from the case, and the trial court granted the motion on April 11, 2006. Petitioner then filed a pro se motion with the trial court to vacate his sentence. The motion was denied on June 29, 2006. Petitioner next appealed the trial court's decision to the Michigan Court of Appeals through a pro se delayed application and raised the following claims:

"I. Direct Appeal from the lower court due [to] their failure to answer or consider my motion to vacate my sentence after my court appointed attorney withdrew from the case.

II. Two prior uncounseled misdemeanor charges used for enhancement proceedings, ineffective assistance of counsel, jurisdictional defects, improper charging from a misdemeanor to a felony charge. This was denied for failure to be in conformity with the rules."

The Michigan Court of Appeals dismissed Petitioner's delayed application for leave to appeal without prejudice because it was defective and not in compliance with the Michigan Court Rules, specifically, MCR 7.201(B)(3) and MCR 7.216(A)(10). People v. Rider, No: 272137 (Mich. Ct. App. Oct. 18, 2006). Petitioner then filed an application for leave to appeal with the Michigan ...


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