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Maynard v. Wolfenbarger

April 21, 2010

MICHAEL MAYNARD, # 431280, PETITIONER,
v.
HUGH WOLFENBARGER, RESPONDENT.



The opinion of the court was delivered by: George Caram Steeh United States District Judge

Honorable George Caram Steeh

OPINION AND ORDER (1) GRANTING RESPONDENT'S MOTION TO DISMISS AND DISMISSING WITHOUT PREJUDICE THE PETITION FOR WRIT OF HABEAS CORPUS, AND (2) DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY AND AN APPLICATION FOR LEAVE TO PROCEED ON APPEAL IN FORMA PAUPERIS

This is a habeas case brought pursuant to 28 U.S.C. § 2254. Petitioner Michael Maynard, a state prisoner confined at the Macomb Correctional Facility in New Haven, Michigan, filed his "Petition for Writ of Habeas Corpus" [dkt. # 1], on September 30, 2009, asserting that he is being held in violation of his constitutional rights. On December 6, 2007, Maynard pleaded guilty to first-degree home invasion in the Macomb County circuit court. In exchange, the prosecutor agreed to dismiss the habitual offender notice and agreed to a sentence at the low end of the sentencing guidelines. On January 16, 2008, Maynard was sentenced, consistent with the plea agreement, to six to twenty years in prison for his plea-based conviction. This matter is before the Court on Respondent Hugh Wolfenbarger's "Motion to Dismiss" [dkt. # 5] the petition for failure to fully exhaust state-court remedies; Maynard's claim regarding ineffective assistance of trial counsel, for failing to object to his sentence, has not been properly exhausted in the state courts. For the reasons stated, the Court will dismiss the petition without prejudice so that Maynard may return to state court to exhaust. The Court also declines to issue a certificate of appealability and leave to proceed on appeal in forma pauperis.

I. BACKGROUND

Following his plea, Maynard filed a motion, with the trial court, to correct the guidelines and re-sentence him. The motion was denied on June 30, 2008.

Subsequently, Maynard filed a delayed application for leave to appeal that decision with the Michigan Court of Appeals, raising the following claims: (1) that his sentence was improperly scored, and (2) the trial court's order that he pay the cost for his court-appointed attorney was improper where he was indigent.

On February 3, 2009, the Michigan Court of Appeals issued an order, stating:

In lieu of granting the delayed application for leave to appeal, pursuant to MCR 7.205(D)(2), the Court VACATES that portion of the sentence that ordered defendant to pay attorney fees, and REMANDS this case to the trial court. The trial court erred in ordering defendant to pay attorney fees without first assessing defendant's ability to pay. On remand, the trial court shall address defendant's current and future financial circumstances and foreseeable ability to reimburse the county for attorney fees before determining whether defendant should pay those fees. At the trial court's discretion, the decision may be based on the record without the need for a formal evidentiary hearing.

We do not retain jurisdiction.

People v. Maynard, No. 289399 (Mich.Ct.App. Feb. 3, 2009) (citations omitted).

In his pleadings, Maynard contends that appellate counsel informed him, on July 16, 2009, that his application for leave to appeal was denied by the Court of Appeals. He then filed his application for leave to appeal the Court of Appeals's decision with the Michigan Supreme Court. On August 28, 2009, the Michigan Supreme Court rejected Maynard's late application for leave to appeal as untimely. It does not appear that Maynard filed a writ of certiorari with the United States Supreme Court or a post-conviction motion with the state court.

Rather, Maynard filed this habeas petition, raising an ineffective assistance of counsel claim regarding his sentence.

II. DISCUSSION

The instant petition must be dismissed because it contains a claim that Maynard failed to ...


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