United States District Court, Eastern District of Michigan, Southern Division
OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF HABEAS CORPUS, DENYING A CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
Gerald E. Rosen Chief Judge, United States District Court
Michigan prisoner Jonathan Howell (“Petitioner”) has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his state criminal sentences. Petitioner pleaded guilty to six counts of first-degree criminal sexual conduct (victim under 13), in the Livingston County Circuit Court and was sentenced to concurrent terms of 15 to 75 years imprisonment in 2007. In his pleadings, Petitioner asserts that the state trial court mis-scored two offense variables of the state sentencing guidelines.
Promptly after the filing of a habeas petition, 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. McFarland v. Scott, 512 U.S. 849, 856 (1994); Carson v. Burke, 178 F.3d 434, 436 (6th Cir. 1999); Rule 4, Rules Governing § 2254 Cases. 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. 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, the Court finds that Petitioner is not entitled to federal habeas relief and denies the petition. The Court also denies a certificate of appealability and denies leave to proceed in forma pauperis on appeal.
II. Facts and Procedural History
Petitioner’s convictions arise from his sexual conduct with a young boy in Livingston County, Michigan on multiple occasions in 2006 and 2007. On August 17, 2007, Petitioner pleaded guilty to six counts of first-degree criminal sexual conduct in exchange for an agreement that he be sentenced with a mid-guideline range cap. On September 27, 2007, the trial court sentenced petitioner to concurrent terms of 15 to 75 years imprisonment on those convictions. According to Petitioner, trial counsel objected to the scoring of Offense Variables 11 and 13 at the sentencing hearing, but the trial court overruled those objections. Petitioner’s minimum sentences were at the midpoint of the sentencing guideline range in keeping with his plea agreement.
Petitioner did not appeal his convictions or sentences. In 2012, Petitioner filed a motion to correct his sentence in the trial court, which was denied without prejudice to allow Petitioner to seek relief from judgment. Petitioner subsequently filed motion for relief from judgment challenging the scoring of Offense Variables 11 and 13 and seeking re-sentencing. The trial court denied the motion, finding that the offense variables were correctly scored. People v. Howell, No. 07-16560-FC (Livingtson Co. Cir. Ct. Jan. 3, 2013) (attached to petition). Petitioner filed a delayed application for leave to appeal with the Michigan Court of Appeals, which was denied “for failure to meet the burden of establishing entitlement to relief under MCR 6.508(D).” People v. Howell, No. 314738 (Mich. Ct. App. Sept. 6, 2013) (unpublished). Petitioner filed an application for leave to appeal with the Michigan Supreme Court, which was similarly denied. People v. Howell, 495 Mich. 935, 843 N.W.2d 203 (2014). Petitioner also filed a petition for a writ of certiorari with the United States Supreme Court, which was denied. Howell v. Michigan, U.S., 135 S.Ct. 254 (2014).
Petitioner dated his federal habeas petition on December 19, 2014. In his pleadings, he challenges the scoring of Offense Variables 11 and 13 of the Michigan Sentencing Guidelines.
III. Standard of Review
The provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), codified at 28 U.S.C. § 2241 et seq., govern this case because Petitioner filed his petition after the AEDPA’s effective date. See Lindh v. Murphy, 521 U.S. 320, 336 (1997). The AEDPA provides:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim--
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. §2254(d) (1996). Additionally, a federal habeas court must presume the correctness of state court factual ...