United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER SUMMARILY DISMISSING THE PETITION FOR WRIT OF HABEAS CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY OR LEAVE TO APPEAL IN FORMA PAUPERIS
JOHN CORBETT O'MEARA, District Judge.
Kenny Allen Meador, ("petitioner"), incarcerated at the Chippewa Correctional Facility in Kincheloe, Michigan, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his pro se application, petitioner challenges his convictions for conducting a criminal enterprise, M.C.L.A. 750.159i(1), two counts of first-degree home invasion, M.C.L.A. 750.110a(2), three counts of receiving and concealing stolen property with a value of $1, 000 but less than $20, 000, M.C.L.A. 750.535(3)(a), two counts of possession of a firearm during the commission of a felony, M.C.L.A. 750.227b, and being a third habitual offender, M.C.L.A. 769.11. Respondent has filed a motion to dismiss, arguing that the petition was not timely filed in accordance with the statute of limitations contained in 28 U.S.C. § 2244 (d)(1). Petitioner has filed a reply to the motion. For the reasons stated below, the petition for a writ of habeas corpus is summarily dismissed.
Petitioner was convicted following a jury trial in the Saginaw County Circuit Court in 2009. Direct review of petitioner's convictions ended in the state courts on May 24, 2011, when the Michigan Supreme Court denied petitioner leave to appeal following the affirmance of his conviction on his appeal of right by the Michigan Court of Appeals. People v. Meador, 489 Mich. 935, 797 N.W.2d 630 (May 24, 2011).
On January 27, 2012, petitioner signed and dated a petition for writ of habeas corpus, which was filed with this Court on February 2, 2012. See Meador v. Rapelje, 5;12-CV-10460 (E.D. Mich.)(O'Meara, J.). Petitioner sought relief on the following grounds, which he had exhausted on his direct appeal with the Michigan courts:
I. Whether the prosecutor deprived Mr. Meador of a fair trial by arguing that he was of bad character and therefore guilty, alternatively, he was deprived of the effective assistance of counsel based on his lawyer's failure to object to this misconduct.
II. Whether Offense Variable 19 was improperly scored resulting in an inappropriately inflated sentencing guidelines range. Mr. Meador's state and federal constitutional due process rights to be sentenced based on accurate information were thus denied. Further, trial counsel rendered ineffective assistance in failing to object to the scoring of OV 19 on the grounds raised herein. Mr. Meador is entitled to resentencing where the minimum term of sentence imposed on him exceeds the correct guideline range.
Respondent filed an answer to the petition on August 6, 2012 asserting that it should be denied for lack of merit.
On September 18, 2012, petitioner signed and dated a motion to hold the petition in abeyance so that he could return to the state courts to exhaust additional claims that were not contained in the instant petition. The motion was filed by the Court on September 19, 2012. (5:12-CV-10460, Dkt. # 7). In his motion, petitioner indicated that he wished to raise the following claims in the state courts:
I. Petitioner was arrested and detained in violation of Michigan law and U.S. Const. Amend 4, 5, and 14, where he was arrested, detained, then transported to police headquarters for interrogation with no warrant, no complaint, and no felony committed before or after his arrest, he was then detained for 6 days without being arraigned.
II. Petitioner, during the course of his pending criminal matters giving rise to this action, was deprived of the effective assistance of trial and appellate counsel at critical stages, as required by U.S. Const. 6, & 14, Michigan Constitution 1963, art. 1, § 20 for the following reasons:
A. Counsel failed to protect Petitioner in all-pretrial matters which denied petitioner's right to a fair trial and compulsory process.
B. Counsel's failure to object to prosecutorial misconduct and failed to object to prosecution abusing their charging discretion.
C. Counsel failed to investigate all possibilities of Petitioner's potential defenses and challenges.
III. The prosecution violated Michigan Court Rule 6.201(A)(1), by amending its witness list of 18 new witnesses five (5) days before trial. MCR 6.201(A)(1) states that all amended lists must be filed 28 days before trial. Denies petitioner's counsel a chance to timely review said list and make any challenges, denying petitioner a fair trial and due process constituting prosecutorial misconduct in violation of U.S.C.A. 5 & 14. The prosecution abused its charging discretion which renders all proceedings including trial, fatally defective and containing both prosecutorial as well as structural error.
IV. Offense Variables 2, 9, 13, 14, and 16 were incorrectly scored resulting in an inappropriately inflated sentencing guideline range. The petitioner's state and federal constitutional rights to be sentenced based on accurate information were denied. Further, trial counsel rendered ineffective assistance in failing to object to the scoring of OV 2, 9, 13, 14, and 16 on the grounds raised herein. Petitioner is ...