The opinion of the court was delivered by: Robert H. Cleland United States District Judge
ORDER SUMMARILY DENYING THE PETITION FOR WRIT OF HABEAS CORPUS AND DENYING THE MOTION FOR ABEYANCE/STAY OF PROCEEDINGS
Ronald Mark Draughn (Petitioner), presently confined at the Alger Maximum Correctional Facility in Munising, Michigan, has filed a pro se application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his application, Petitioner challenges his sentence on his conviction for second-degree murder,*fn1 and possession of a firearm in the commission of a felony.*fn2 Petitioner has also filed a motion for abeyance or to stay the proceedings so that he can exhaust additional claims in the state courts. For the reasons stated below, the petition for writ of habeas corpus is summarily denied. The court will also deny the motion to hold the petition in abeyance.
Petitioner was convicted of second-degree murder and felony-firearm in the Detroit Recorder's Court.*fn3 On January 14, 1986, Petitioner was sentenced by the Honorable James E. Roberts to life imprisonment on the second-degree murder conviction and received a consecutive two year prison term on the felony-firearm conviction. Following the affirmance of his conviction on appeal and the denial of state post-conviction relief, Petitioner filed a petition for writ of habeas corpus, which was denied. Draughn v. Jabe,803 F. Supp. 70 (E.D. Mich. 1992) (Gadola, J.), aff'd 989 F.2d 499 (Table), No. 92-2216, 1993 WL 76226 (6th Cir. Mar. 17, 1993).
On November 2, 2000, Petitioner filed a second post-conviction motion for relief from judgment in the Wayne County Circuit Court before the Honorable Bruce Morrow, the successor to Judge Roberts. Among the claims that Petitioner raised in his motion is the claim that he currently raises in his current petition. The trial court originally denied Petitioner's post-conviction motion. People v. Vaughn, No. 85-005297 (Third Circuit Court, Criminal Division, Jan. 31, 2002).
Petitioner moved for reconsideration of the trial court's decision. In his motion for reconsideration, Petitioner attached an affidavit from Judge Roberts, the judge who sentenced him. In this affidavit, which Petitioner has attached to his current petition as Appendix M, Judge Roberts indicated that at the time he sentenced Petitioner to a parolable life sentence, it was his understanding that this sentence "would give him more control over being released in the earliest time possible authorized by the statute; which was 10-years [sic]." Judge Roberts claimed that his sentence was based upon Petitioner being given a favorable prognosis for rehabilitation from the clinical report, along with other positive indicators. Judge Roberts indicated that at the time of sentence, he believed that a parolable life sentence was more favorable to Petitioner than a "number of years." Judge Roberts specified that it was his intent to afford Petitioner an opportunity to be released on parole within the minimum amount of time that the law allowed Petitioner to be paroled from a life sentence, namely, ten years. Judge Roberts stated that had he known that Petitioner would have to serve more than 10 years in prison and still not be considered eligible for parole, he would not have sentenced him to life in prison. Judge Roberts indicated that it was his opinion that Petitioner should have been paroled by now. Judge Roberts indicated that Petitioner should be resentenced in accordance with his original intent (that Petitioner serve only ten years in prison).
Based on Judge Roberts' affidavit, along with remarks made by Judge Roberts at the sentencing, Judge Morrow ordered that Petitioner be resentenced. People v. Vaughn, No. 85-005297 (Third Circuit Court, Criminal Division, May 30, 2007).*fn4
The prosecutor appealed the resentencing decision to the Michigan Court of Appeals. The Michigan Court of Appeals reversed the trial court's decision to order a resentencing in this case, finding that the trial judge's misunderstanding as to when Petitioner would be granted parole did not render the life sentence invalid under Michigan law. People v. Draughn, No. 279041 (Mich. Ct. App. Aug. 1, 2007).*fn5 The Michigan Supreme Court denied leave to appeal. People v. Draughn,747 N.W.2d 266 (Mich. 2008). Petitioner moved for reconsideration, which was denied. People v. Draughn,755 N.W.2d 628 (Mich. 2008) (Kelly, J. would grant reconsideration and grant resentencing).
On November 17, 2008, Petitioner filed with the United States Court of Appeals for the Sixth Circuit a request for permission to file a second petition for writ of habeas corpus pursuant to 28 U.S.C. § 2244(b)(3)(A). In his second petition, Petitioner claimed that the sentencing judge sentenced him to life imprisonment on the second-degree murder conviction based on a misconception of the law and erroneous information. On January 25, 2010, the United States Court of Appeals for the Sixth Circuit ruled that it was unnecessary for Petitioner to obtain permission to file a successive petition and transferred the petition for writ of habeas corpus to this court for filing. See In re Draughn,No. 08-2500 (6th Cir. Jan. 25, 2010).
Petitioner now seeks habeas relief on the following ground: The sentencing court issued Petitioner a life sentence based on a misconception of law, erroneous information, and a misunderstanding of the effect of the sentence rendered to the Petitioner.
Promptly after the filing of a petition for habeas corpus, the court must undertake a preliminary review of the petition to determine whether "it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court." Rule 4, Rules Governing § 2254 Cases; see also 28 U.S.C. § 2243. If, after preliminary consideration, the court determines that the petitioner is not entitled to relief, the court must summarily dismiss the petition. Id.; see also Allen v. Perini, 424 F.2d 134, 141 (6th Cir. 1970) (district court has the duty to "screen out" petitions that lack merit on their face). A federal district court is authorized to summarily dismiss a habeas corpus petition if it plainly appears from the face of the petition and any attached exhibits that the petitioner is not entitled to federal habeas relief. See McFarland v. Scott, 512 U.S. 849, 856 (1994); Carson v. Burke, 178 F.3d 434, 436 (6th Cir.1999); see also Rules Governing § 2254 Cases, Rule 4, 28 U.S.C. foll. § 2254. No response to a habeas petition is necessary when the petition is frivolous, obviously lacks merit, or where the necessary facts can be determined from the petition itself without consideration of a response from the State. See Allen, 424 F.2d at 141; Robinson v. Jackson, 366 F. Supp. 2d 524, 525 (E.D. Mich. 2005).
After undertaking the review required by Rule 4, this court concludes, for reasons stated in greater detail below, that Petitioner's resentencing claim does not entitle him to habeas relief, such that the petition must be summarily denied. See ...