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Smith v. Klee

April 14, 2010

ERVIN SMITH, PETITIONER,
v.
PAUL KLEE, RESPONDENT.



The opinion of the court was delivered by: Honorable Marianne O. Battani United States District Judge

HONORABLE MARIANNE O. BATTANI UNITED STATES DISTRICT JUDGE

OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

Ervin Smith, ("Petitioner"), presently confined at the Cooper Street Correctional Facility in Jackson, Michigan, seeks the issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his pro se application, petitioner challenges his conviction for third-degree criminal sexual conduct, M.C.L.A. 750.520d; and assault with intent to commit murder, M.C.L.A. 750.83.*fn1 For the reasons stated below, the petition for writ of habeas corpus is summarily dismissed.

I. Background

Petitioner pleaded guilty to the above charges in the Wayne County Circuit Court. Petitioner's conviction was affirmed on appeal. People v. Smith, No. 231095(Mich.Ct.App. January 8, 2001); lv. den. 464 Mich. 872; 631 N.W. 2d 342 (2001).*fn2

Petitioner now seeks a writ of habeas corpus, claiming that the prosecutor, the Michigan courts, and the Michigan Department of Corrections lack or lacked personal or subject matter jurisdiction over the petitioner, because the Michigan Senate violated Article IV, §§ 18, 24, 25, and 26 of the Michigan Constitution when they passed and enacted the Michigan House substitute bill into law one day after they received it on July 11, 1974 and then passed it on July 12, 1974. Petitioner further claims that the state courts lacked jurisdiction over his criminal case because of defects in the criminal complaint. Petitioner further appears to argue that trial and appellate counsel were ineffective for failing to challenge the constitutionality of the criminal sexual conduct statute at trial or on appeal.

II. Discussion

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); See also Hamby-Bey v. Bergh, No. 2008 WL 3286227, * 1 (E.D. Mich. August 7, 2008); 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 that petitioner's habeas claims are meritless, such that the petition must be summarily denied. See Robinson v. Jackson, 366 F. Supp. 2d 524, 525 (E.D. Mich. 2005); See also 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).

The Court first notes that at least some of petitioner's claims appear to be unexhausted, in light of petitioner's claim that appellate counsel was ineffective for failing to challenge the constitutionality of Michigan's criminal sexual conduct statute on direct appeal. As a general rule, a state prisoner seeking federal habeas relief must first exhaust his available state court remedies before raising a claim in federal court. 28 U.S.C. § 2254(b) and(c); Picard v. Connor, 404 U. S. 270, 275-278 (1971); Hannah v. Conley, 49 F. 3d 1193, 1195 (6th Cir. 1995). A habeas petitioner has the burden of proving that he has exhausted his state court remedies. Sitto v. Bock, 207 F. Supp. 2d 668, 675 (E.D. Mich. 2002). As a general rule, a federal district court should dismiss a habeas petition that contains unexhausted claims. See Foster v. Withrow, 159 F. Supp. 2d 629, 638 (E.D. Mich. 2001).

Assuming that petitioner's claims have not been properly exhausted with the state courts, an unexhausted claim may nonetheless be rejected if it lacks merit. See Burton v. Bock, 239 F. Supp. 2d 686, 691 (E.D. Mich. 2002)(citing to 28 U.S.C. § 2254(b)(2); Cain v. Redman, 947 F. 2d 817, 820 (6th Cir. 1991)). This Court finds that in the interest of judicial economy, and to avoid any further burden on the state courts if the petitioner were to return there to attempt to exhaust these claims in a post-conviction motion, this Court will address petitioner's claims on the merits.

Petitioner initially claims that the state courts and the Michigan Department of Corrections lack personal and subject matter jurisdiction over him, at least with respect to his criminal sexual conduct conviction, because the criminal sexual conduct statute was passed by the Michigan Senate in violation of Article IV, §§ 8, 24, 25, and 26 of the Michigan Constitution.

Petitioner's primary contention is that Michigan's criminal sexual conduct statute was not enacted by the Michigan legislature in 1974 in compliance with Article IV, Section 26 of the 1963 Michigan Constitution which provides in part: "No bill shall be passed or become law at any regular session of the legislature until it has been printed or reproduced and in the possession of each house for at least five days. Every bill shall be read three times in each house before the final passage thereof."

It is well-established that "federal habeas corpus relief does not lie for errors of state law." Estelle v. McGuire, 502 U.S. 62, 67 (1991)(quoting Lewis v. Jeffers, 497 U.S. 764, 780 (1990)). The determination of whether a state court is vested with jurisdiction under state law over a criminal case is a function of the state courts, not the federal courts. Wills v. Egeler, 532 F. 2d 1058, 1059 (6th Cir. 1976); Accord Rhode v. Olk-Long, 84 F. 3d 284, 287 (8th Cir. 1996). Petitioner's claim that the Michigan courts lacked jurisdiction over his criminal case raises an issue of state law, because it questions the interpretation of Michigan law, and is therefore not cognizable in federal habeas review. See United States ex. rel. Holliday v. Sheriff of Du Page County, Ill., 152 F. Supp. 1004, 1013 (N.D. Ill. 2001); Cf. Toler v. McGinnis, 23 Fed. Appx. 259, 266 (6th Cir. 2001)(district court lacked authority on habeas review ...


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