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
VICTORIA A. ROBERTS, UNITED STATES DISTRICT JUDGE.
Michigan prisoner Ashley Kreiser (“Petitioner”) filed a pro se Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 challenging her state criminal sentences. Petitioner pleaded no contest to two counts of manslaughter with a motor vehicle, Mich. Comp. Laws § 750.321, in the Chippewa County Circuit Court and was sentenced to concurrent terms of 8 to 15 years imprisonment in 2011. In her pleadings, Petitioner asserts that she should be re-sentenced because the state trial court erred in departing above the recommended minimum range of the state sentencing guidelines.
Promptly after the filing of a habeas petition, a federal district 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.
II. Facts and Procedural History
Petitioner’s convictions arise from a car accident in Chippewa County, Michigan on May 30, 2010 which resulted in the death of two people. The Michigan Court of Appeals described the relevant facts, which are presumed correct on habeas review, see 28 U.S.C. § 2254(e)(1); Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009), as follows:
Defendant’s convictions arise out of a fatal accident in which, while driving in an automobile with her boyfriend, defendant crossed the centerline and struck and killed David Strickland and Lisa Aikens, a father and daughter who were riding together on a motorcycle. Defendant had not slept for approximately 36 hours before the accident and had also consumed marijuana and benzodiazepine.FN1 While driving on Lakeshore Drive in Bay Mills Township, she became distracted when trying to see what her boyfriend was writing and to whom when sending text messages on his cellular telephone. After crossing the centerline, defendant struck Strickland and Aikens's motorcycle. Strickland and Aikens suffered severe injuries and died shortly after the crash.
FN1. When interviewed by a sergeant from the Chippewa County Sheriff's Department a day after the accident, defendant admitted that she had been drinking earlier in the day and took some [V]alium a couple of days earlier. She denied that she had smoked marijuana in the past two or three days, but [THC] (marijuana) was detected in a blood sample drawn from her after the accident and a marijuana grinder with marijuana was found in her purse.
Following defendant’s guilty plea to two counts of manslaughter, the sentencing court departed upward . . . [by 10 months].
People v. Kreiser, No. 311560, 2014 WL 2218696, *1 (Mich. Ct. App. May 27, 2014) (unpublished).
Following her plea and sentencing, Petitioner filed an application for leave to appeal with the Michigan Court of Appeals asserting that she should be re-sentenced because the trial court erred in departing above the recommended minimum guideline range by sentencing her to concurrent terms of 8 to 15 years imprisonment. The Michigan Court of Appeals initially denied leave to appeal. People v. Kreiser, No. 311560 (Mich. Ct. App. Jan. 15, 2013) (unpublished). Petitioner filed an application for leave to appeal with the Michigan Supreme Court. In lieu of granting leave to appeal, the Michigan Supreme Court remanded the case to the Michigan Court of Appeals for consideration as on leave granted. People v. Kreiser, 494 Mich. 854, 830 N.W.2d 762 (2013). On remand, the Michigan Court of Appeals affirmed Petitioner’s sentences finding that the trial court did not err in departing above the recommended minimum guideline range by 10 months. People v. Kreiser, No. 311560, 2014 WL 2218696, *1-3 (Mich. Ct. App. May 27, 2014) (unpublished). Petitioner filed an application for leave to appeal with the Michigan Supreme Court, which was denied in a standard order. People v. Kreiser, 497 Mich. 890, 854 N.W.2d 889 (2014).
Petitioner submitted her federal habeas petition to prison officials for mailing on February 2, 2015. In her pleadings, she raises the same upward departure sentencing claim presented to the state courts on direct appeal.
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 her petition after the AEDPA’s effective date. ...