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Wilcox v. Barrett

United States District Court, E.D. Michigan, Southern Division

May 21, 2015

RAYSHAWN WILCOX, #651417, Petitioner,
v.
JOE BARRETT, Respondent.

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

PAUL D. BORMAN, District Judge.

I. Introduction

Michigan prisoner Rayshawn Wilcox ("Petitioner") has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his state court convictions and sentences. Petitioner was convicted of felon in possession of firearm ("felon in possession"), MICH. COMP. LAWS § 750.224f, carrying a concealed weapon ("CCW"), MICH. COMP. LAWS § 750.227(2), and possession of a firearm during the commission of a felony ("felony firearm"), MICH. COMP. LAWS § 750.227b, following a jury trial in the Wayne County Circuit Court. He was sentenced to concurrent terms of two to 10 years imprisonment on the CCW and felon in possession convictions and a consecutive term of two years imprisonment on the felony firearm conviction 2012. In his pleadings, he raises a double jeopardy claim, a jury instruction claim, and a sentencing claim.

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). The 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 habeas relief is not warranted 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 an attempted traffic stop in Detroit, Michigan on May 31, 2012 in which he crashed his car, left a gun behind in the car, and fled the scene. The Michigan Court of Appeals summarized the incident as follows:

On May 31, 2012, at approximately 12:40 a.m., Detroit Police officers attempted a traffic stop of a vehicle that was traveling 60 miles an hour in a 30 mph zone. The vehicle accelerated, ran a red light, and crashed into a Dodge Ram pickup truck. A police officer observed defendant jump from the driver's seat of the vehicle and toss a handgun onto the driver's side floorboard before fleeing on foot. Officers later arrested defendant in a vacant house near the accident scene. Defendant was charged with felon in possession of a firearm, CCW, and felony-firearm. The jury convicted defendant of all three offenses.

People v. Wilcox, No. 313547, 2014 WL 1004234, *1 (Mich. Ct. App. March 13, 2014) (unpublished). For purposes of this opinion, the Court also accepts the statement of facts summarizing the trial testimony set forth in Petitioner's brief. See Pet., pp. 2-4.

Following his convictions and sentencing, Petitioner filed an appeal of right with the Michigan Court of Appeals raising the same three claims presented on habeas review. The court affirmed Petitioner's convictions but remanded for the limited purpose of correcting the judgment of sentence to reflect that his felony firearm sentence is concurrent to his felon in possession sentence. Id. Petitioner filed an application for leave to appeal with the Michigan Supreme Court, which was denied in a standard order. People v. Wilcox, 496 Mich. 866, 850 N.W.2d 480 (2014).

Petitioner then filed his federal habeas petition. He raises the following claims:

I. Both of the state courts demonstrated an unreasonable application of federal precedent law where Petitioner's cumulative punishments for both CCW and felony firearm and felon in possession constitute multiple punishments for the same offense which are in clear violation of state and federal double jeopardy protections embodied in the Fifth Constitutional Amendment of the United States Constitution.
II. Petitioner was deprived of his Fifth and Fourteenth Amendment constitutional rights when the trial court erred by ordering Petitioner's sentence for CCW to run consecutively to his sentence for felony firearm where CCW was not the underlying offense for the felony firearm charge - it was felon in possession of a firearm.
III. Petitioner was deprived of his Fifth and Fourteenth Amendment constitutional rights when the court failed to properly charge the mens rea element of the underlying felon in possession charge.

III. Standard of Review

Federal law imposes the following standard of review for habeas cases:

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 ...

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