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Love v. Burt

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

June 25, 2015

EUGENE T. LOVE, Petitioner,
v.
SHERRI BURT, Respondent,

OPINION AND ORDER SUMMARILY DENYING THE PETITION FOR WRIT OF HABEAS CORPUS, DENYING THE MOTION TO HOLD THE PETITION FOR WRIT OF HABEAS CORPUS IN ABEYANCE, AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY OR LEAVE TO APPEAL IN FORMA PAUPERIS

NANCY G. EDMUNDS, District Judge.

Eugene T. Love, ("Petitioner"), presently confined at the Muskegon Correctional Facility in Muskegon, Michigan, has filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, in which he challenges his conviction for assault with intent to murder, M.C.L.A. 750.83, and felony-firearm, M.C.L.A. 750.227b. For the reasons that follow, the petition for writ of habeas corpus is SUMMARILY DENIED. The Court also denies petitioner's motion to hold the petition in abeyance while he pursues additional state post-conviction remedies.

I. Background

Petitioner was convicted by a jury in the Wayne County Circuit Court. Petitioner was initially sentenced to 75 to 150 years in prison on the assault with intent to commit murder conviction and received a consecutive 2 year sentence on the felony-firearm conviction.

Petitioner's conviction was affirmed on appeal but the case was remanded for resentencing on the assault with intent to murder conviction. Petitioner was re-sentenced to 55 to 90 years in prison on this conviction.

The Michigan Supreme Court denied petitioner leave to appeal. People v. Love, 452 Mich. 868, 552 N.W.2d 169 (1996).

Petitioner subsequently filed at least four post-conviction motions for relief from judgment pursuant to M.C.R. 6.500, et. Seq. All of the motions have been denied by the trial court. The last of these post-conviction motions was denied on February 14, 2014. Petitioner appealed the denial of this last motion to the Michigan appellate courts. The Michigan Appellate courts denied petitioner relief, finding that petitioner's 2014 postconviction motion was prohibited by M.C.R. 6.502(G) because it was an improper successive post-conviction motion. People v. Love, No. 320925 (Mich.Ct.App. April 3, 2014); lv. den. 497 Mich. 951, 858 N.W.2d 39 (2015).

Petitioner filed a petition for writ of habeas corpus, along with several attachments. Petitioner's claims are difficult to discern but it appears that petitioner is raising the following claims, which the Court paraphrases: (1) the Michigan appellate courts erred in denying petitioner post-conviction relief pursuant to M.C.R. 6.502(G) without addressing the merits of his post-conviction claims, (2) the judge had no basis to depart above the sentencing guidelines range, (3) the judge failed to individualize petitioner's sentence in that he failed to consider petitioner's potential for rehabilitation, and (4) the judge acted with personal bias in departing above the sentencing guidelines range.

II. Discussion

The petition for writ of habeas corpus must be dismissed because petitioner has failed to state a claim upon which habeas relief can be granted.

A petition for a writ of habeas corpus must set forth facts that give rise to a cause of action under federal law or it may summarily be dismissed. See Perez v. Hemingway, 157 F.Supp.2d 790, 796 (E.D. Mich. 2001). Federal courts are also authorized to dismiss any habeas petition that appears legally insufficient on its face. See McFarland v. Scott, 512 U.S. 849, 856 (1994). A federal district court is authorized to summarily dismiss a habeas corpus petition if it plainly appears from the face of the petition or the exhibits that are attached to it that the petitioner is not entitled to federal habeas relief. See Crump v. Lafler, 657 F.3d 393, 396, n. 2 (6th Cir. 2011); Carson v. Burke, 178 F.3d 434, 436 (6th Cir. 1999); Rules Governing § 2254 Cases, Rule 4, 28 U.S.C. foll. § 2254. No return to a habeas petition is necessary when the petition is frivolous, or obviously lacks merit, or where the necessary facts can be determined from the petition itself without consideration of a return by the state. See Allen v. Perini, 424 F.2d 134, 141 (6th Cir. 1970). After undertaking the review required by Rule 4, the Court concludes that petitioner's habeas claims are meritless, such that the petition must be summarily denied. See Robinson v. Jackson, 366 F.Supp.2d 524, 525 (E.D. Mich. 2005).

A. The denial of post-conviction relief claim.

Petitioner first claims that the Michigan appellate courts wrongly denied him postconviction relief by invoking M.C.R. 6.502(G), which prohibits a criminal defendant in Michigan from filing more than one motion for relief from judgment with respect to a criminal conviction unless there has been a retroactive change in law or there is a claim of new evidence.

Petitioner's claim that the Michigan courts wrongfully denied him post-conviction relief is non-cognizable. This Court notes that "[t]he Sixth Circuit consistently held that errors in post-conviction proceedings are outside the scope of federal habeas corpus review." Cress v. Palmer, 484 F.3d 844, 853 (6th Cir. 2007). Thus, a federal habeas corpus petition cannot be used to mount a challenge to a state's scheme of post-conviction relief. See Greer v. Mitchell, 264 F.3d 663, 681 (6th Cir. 2001). The reason for this is that the states have no constitutional obligation to provide post-conviction remedies. Id. (citing to Pennsylvania v. Finley, 481 U.S. 551, 557 (1987)). Challenges to state collateral post-conviction proceedings "cannot be brought under the federal habeas corpus provision, 28 U.S.C. § 2254, " because "the essence of habeas corpus is an attack by a person in custody upon the legality of that custody, and... the traditional function of the writ is to secure release from illegal custody.'" Kirby v. Dutton, 794 F.2d 245, 246 (6th Cir. 1986)(quoting Preiser v. Rodriguez, 411 U.S. 475, 484 (1973)). "A due process claim related to collateral post-conviction proceedings, even if resolved in a petitioner's favor, would not result [in]... release or a reduction in... time to be served or in any other way affect his detention because we would not be reviewing any matter directly pertaining to his detention.'" Cress, 484 F.3d at 853 (quoting Kirby, 794 F.2d at 247). Thus, the "scope of the writ'" does not ...


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