United States District Court, E.D. Michigan, Northern 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
THOMAS L. LUDINGTON, District Judge.
Petitioner Christopher Taylor, a Michigan prisoner, has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his state criminal sentence. Specifically, he asserts that the state trial court erred in departing upward from the recommended sentencing guideline range and that the trial court erred in the scoring of an offense variable 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; 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., 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 dismissal under Rule 4 includes those petitions which raise legally frivolous claims, as well as those containing factual allegations that are palpably incredible or false. Carson v. Burke, 178 F.3d 434, 436-37 (6th Cir. 1999). After undertaking such a review, the habeas petition will be dismissed. A certificate of appealability and leave to proceed in forma pauperis on appeal will also be denied.
Petitioner states that he was initially charged with larceny in a building, two counts of uttering and publishing, attempted uttering and publishing, forgery, and being a fourth habitual offender. The victims in the case were his parents. In 2012, he pled guilty to two counts of forgery in exchange for dismissal of the other charges and a sentence below the guideline range in the Alcona County Circuit Court. The state trial court sentenced him to 365 days in jail to be suspended after 150 days for release to a long-term residential substance abuse treatment facility.
Petitioner subsequently left the treatment center without permission. He then pled guilty to a probation violation. The trial court conducted a sentencing hearing and sentenced him to concurrent terms of 20 to 50 years imprisonment on his forgery convictions as a fourth habitual offender. Petitioner asserts that his sentence exceeds the minimum sentence guideline range of 14 to 58 months imprisonment. According to Petitioner, the trial court adopted the prosecution's position that the upward departure was justified by new criminal activity-a home invasion of his parents' residence. Petitioner also asserts that the trial court erred in scoring Offense Variable 10 (domestic relationship) at 10 points, but provides no specific factual details for the claim.
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). 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, the correctness of state court factual determinations is presumed. 28 U.S.C. § 2254(e)(1).