United States District Court, E.D. Michigan, Southern Division
Stephanie Dawkins Davis Mag. Judge.
OPINION AND ORDER SUMMARILY DISMISSING PETITION FOR
WRIT OF HABEAS CORPUS WITHOUT PREJUDICE, DENYING CERTIFICATE
OF APPEALABILITY, AND DENYING PERMISSION TO PROCEED ON APPEAL
IN FORMA PAUPERIS
E. LEVY UNITED STATES DISTRICT
Sabastiano Quagliato, has filed this petition for a writ of
habeas corpus under 28 U.S.C. § 2254. Petitioner pled no
contest in the Lapeer Circuit Court to one count of Owning
Dangerous Animals Causing Death. Mich. Comp. Laws 287.323(1).
Petitioner was subsequently sentenced to 57 months to 15
petition raises three claims: (1) the trial court erred in
allowing Petitioner to plead guilty when he is actually
innocent in violation of Petitioner's due process rights;
(2) the trial court erred in scoring the sentencing
guidelines to reflect serious psychological harm to the
victims where there was no evidence that the decedent's
family members required professional treatment; and (3)
Petitioner was denied the effective assistance of appellate
counsel where his appellate attorney failed to raise his
claims as federal claims during Petitioner's direct
Court will summarily dismiss the petition without prejudice
because Petitioner failed to exhaust his state court
remedies. The Court will also deny a certificate of
appealability and deny permission to appeal in forma
to the allegations in the petition, Petitioner was prosecuted
in Lapeer County when his two Cane Corso Mastiff dogs escaped
their kennel and attacked a jogger passing his home. The
jogger bled to death. Petitioner was initially charged with
second-degree murder, but the parties later agreed to a plea
bargain whereby Petitioner pled no contest to the lesser
charge of owning dangerous animals causing death. The parties
also agreed that Petitioner's minimum sentence would not
exceed more than six months of the recommended sentencing
asserts that on direct appeal his appellate counsel raised a
single sentencing guideline claim, but he failed to assert-as
he does in this case-that Petitioner's federal
constitutional rights were violated by the scoring of the
guidelines. The Michigan Court of Appeals denied relief by
order dated February 22, 2016. People v. Quagliato,
No. 331162 (Mich. Ct. App. Feb. 22, 2016).
then filed a pro se application for leave to appeal
in the Michigan Supreme Court and a supplemental brief,
asserting what now form his three habeas claims. The Michigan
Supreme Court denied the application by standard order.
People v. Quagliato, No. 153443 (Mich. Sup. Ct. July
the filing of a habeas corpus petition, Rule 4 of the Rules
Governing Section 2254 Cases provides that the Court must
promptly examine the petition to determine “[i]f it
plainly appears from the petition and any attached exhibits
that the petitioner is not entitled to relief.” If the
Court determines that Petitioner is not entitled to relief,
the Court shall summarily dismiss the petition. McFarland
v. Scott, 512 U.S. 849, 856 (1994) (“Federal
courts are authorized to dismiss summarily any habeas
petition that appears legally insufficient on its
federal court may not grant habeas relief to a state prisoner
unless the prisoner first exhausts state remedies for his
claims. 28 U.S.C. § 2254(b)(1); O'Sullivan v.
Boerckel, 526 U.S. 838, 842 (1999). The exhaustion
requirement is satisfied if a prisoner invokes one complete
round of the state's established appellate review
process. Boerckel, 526 U.S. at 847. To properly
exhaust state remedies, therefore, a habeas petitioner must
present each of his federal issues to the state court of
appeals and to the state supreme court before raising the
claims in a federal habeas corpus petition. Wagner v.
Smith, 581 F.3d 410, 414 (6th Cir. 2009).
also requires a petitioner to “fairly present”
his claims as federal claims so that state courts have a
“fair opportunity” to apply controlling legal
principles to the facts bearing upon a petitioner's
claims. See Duncan v. Henry, 513 U.S. 364, 365
(1995) (citing Picard v. Connor, 404 U.S. 270,
275-77 (1971)); Anderson v. Harless, 459 U.S. 4, 6
(1982). Accordingly, it is not enough for Petitioner to
merely present all the facts necessary to support a federal
claim without explicitly claiming that his federal
constitutional rights were implicated. See Anderson,
459 U.S. at 6; Harris v. Rees, 794 F.2d 1168, 1174
(6th Cir. 1986); see also Duncan, 513 U.S. at 366
(mere similarity of claims is insufficient to exhaust).
Petitioner admits that he did not present his second habeas
claim to the Michigan Court of Appeals as a federal claim.
Moreover, his first and third habeas claims were not
presented to the Michigan Court of Appeals in any fashion.
His subsequent presentation of all three of his federal
claims to the Michigan Supreme Court alone ...