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
JOHN CORBETT O’MEARA UNITED STATES DISTRICT JUDGE
Michigan prisoner Donald Hayden (“Petitioner”) has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner was convicted of third-degree criminal sexual conduct, Mich. Comp. Laws § 750.520d(1)(a), and fourth-degree criminal sexual conduct, Mich. Comp. Laws § 750.520e(1)(a), following a jury trial in the St. Clair County Circuit Court. He was sentenced as a third habitual offender, Mich. Comp. Laws § 769.11, to 20 to 30 years imprisonment on the third-degree conviction and to time served on the fourth-degree conviction in 2013. In his pleadings, Petitioner raises claims concerning the effectiveness of trial counsel and the scoring 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 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. 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). A dismissal under Rule 4 includes 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 review, the Court concludes that the habeas petition lacks merit and must be denied.
II. Facts and Procedural History
Petitioner’s convictions arise from his sexual assault of a teenage girl at his residence. The Michigan Court of Appeals described the underlying 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 arose from a sexual assault on a 15-year-old female acquaintance. According to the testimony at trial, defendant, who was age 34, took the 15-year-old girl and her 17-year-old boyfriend to defendant’s house to smoke marijuana. Defendant’s cousin was in the house at the time. Defendant later asked to two minors to come to his detached garage to see a car that he owned. While in the garage, defendant sent the boyfriend to a store. Defendant told the girl to stay with him in the garage, ostensibly because she recently had foot surgery and was using crutches. After the boyfriend left, defendant sexually assaulted the girl in the garage.
People v. Hayden, No. 316758, *1 (Mich. Ct. App. Sept. 23, 2014) (unpublished).
Following his convictions and sentencing, Petitioner filed an appeal of right with the Michigan Court of Appeals raising the same claims presented on habeas review. The Michigan Court of Appeals denied relief and affirmed his convictions and sentences. Id. at *1-3. Petitioner then filed an application for leave to appeal with the Michigan Supreme Court, which was denied in a standard order. People v. Hayden, Mich., 862 N.W.2d 219 (2015).
Petitioner thereafter filed his federal habeas petition raising the following claims:
I. [He] was denied his Sixth Amendment right to the effective assistance of counsel where counsel opened the door to highly prejudicial testimony.
II. The trial court’s scoring of fifteen points for Offense Variable 8 was an abuse of discretion which placed [him] in a higher grid than supported by the record; resentencing is required.
Pet., pp. 8, 10.
III. Standard of Review