United States District Court, E.D. 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
NANCY G. EDMUNDS, District Judge.
Michigan prisoner Phillip Stowe ("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 no contest to four counts of second-degree criminal sexual conduct, MICH. COMP. LAWS § 750.520c(2)(b), in the Macomb County Circuit Court and was sentenced to concurrent terms of 10 to 15 years imprisonment in 2012. In his pleadings, Petitioner asserts that 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 his improper sexual conduct with young family members. 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 is a grandfather who sexually molested a number of children in his family. He digitally penetrated his 13-year-old granddaughter several times over three years, rubbed his 10-year-old great niece's breasts on three occasions, and attempted to molest his 8-year-old granddaughter. In November 2012, the Macomb County prosecutor's office charged him with four counts of violation of MCL 750.520(C)(1)(a), to which he pled no contest.FN1 The trial court sentenced him to 10 to 15 years on each count, which was an upward departure from the sentencing guideline's recommendation of a sentence range from 43 to 86 months. It explained that the upward departure was warranted because of the severity of defendant's crimes, particularly his exploitation of his familial relationships with the young victims.
FN1. Defendant was also convicted in Oakland County for two counts of CSC II involving a child under the age of 13, and sentenced to 15 to 100 years in prison.
People v. Stowe, No. 315215, 2014 WL 4055838, *1 (Mich. Ct. App. Aug. 14, 2014) (unpublished).
Following his plea and sentencing, Petitioner filed an appeal with the Michigan Court of Appeals asserting that he should be resentenced because the trial court did not provide substantial and compelling reasons to explain how the upward departure was proportionate to his conduct and criminal history and his sentence was disproportionate to his crimes. The Michigan Court of Appeals denied relief on those issues and affirmed his sentences. Id. at *1-2. Petitioner then filed an application for leave to appeal with the Michigan Supreme Court, which was denied in a standard order. People v. Stowe, _ Mich. _, 861 N.W.2d 904 (2015).
Petitioner thereafter filed his federal habeas petition raising the following claim:
[He] is entitled to resentencing where the trial court exceeded the sentencing guidelines in violation of his state and federal right to due process where there were no substantial and compelling reasons for an upward departure and when the court did not articulate nor establish whey the upward departure sentences imposed were proportionate to these offenses and this offender.
Pet., p. 4.
III. Standard of ...