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
Page Hood Chief Judge, United States District Court.
prisoner Thomas Smith (“Petitioner”) has filed a
pro se petition for a writ of habeas corpus
asserting that he is being held in violation of his
constitutional rights. Petitioner pleaded guilty to felon in
possession of a firearm, Mich. Comp. Laws § 750.224f, in
the Wayne County Circuit Court and was sentenced, as a fourth
habitual offender, Mich. Comp. Laws § 769.12, to 2 years
6 months to 10 years imprisonment in 2013. In his pleadings,
he raises claims concerning an amendment to his judgment of
sentence, the state trial court's jurisdiction, and the
effectiveness of trial and appellate counsel. For the reasons
stated herein, the Court denies the petition for a writ of
habeas corpus. The Court also denies a certificate of
appealability and denies leave to proceed in forma
pauperis on appeal.
FACTS AND PROCEDURAL HISTORY
conviction arises from his status as a felon and his improper
possession of firearms on July 16, 2013 in Garden City,
Michigan. On November 8, 2013, Petitioner pleaded guilty to
felon in possession of a firearm and being a fourth habitual
offender in exchange for the dismissal of a felony firearm,
second offense, charge and a sentencing agreement of 2 years
6 months to 10 years imprisonment. On November 22, 2013, the
trial court sentenced him to 2 years 6 months to 10 years
imprisonment in accordance with the plea bargain and issued a
judgment of sentence reflecting that sentence. On January 8,
2014, the trial court issued an amended judgment of sentence
to reflect Petitioner's fourth habitual offender status
and to correct another typographical error.
2014, Petitioner filed a motion to correct an invalid
sentence with the state trial court asserting that the court
improperly amended his judgment of sentence in violation of
his due process rights. Following a hearing, the trial court
denied the motion finding that it acted within its discretion
in correcting the judgment of sentence without a hearing
because the correction was clerical, not substantive, in
nature. The court noted that the amendment accurately
reflected the imposed sentence and Petitioner's fourth
habitual offender status. People v. Smith, No.
13-007327-01-FH (Wayne Co. Cir. Ct. June 6, 2014). Petitioner
filed a delayed application for leave to appeal with the
Michigan Court of Appeals raising the same due process claim,
as well as a double jeopardy claim, contesting the amendment
to the judgment of sentence. The court denied the application
for lack of merit in the grounds presented. People v.
Smith, No. 322204 (Mich. Ct. App. July 24, 2014).
Petitioner then filed an application for leave to appeal with
the Michigan Supreme Court raising the same two sentencing
claims, as well as an ineffective assistance of counsel
claim. The court denied leave to appeal in a standard order.
People v. Smith, 497 Mich. 955, 858 N.W.2d 437
thereafter filed his federal habeas petition. He raises the
following claims as grounds for relief:
I. He is entitled to resentencing where the court amended the
judgment of sentence almost four months after the sentencing
date to reflect an habitual 4th status. This
deprived him of his Fifth and Fourteenth Amendment
constitutional rights of due process.
II. He is entitled to resentencing where the court amended
the judgment of sentence almost four months after the
sentencing date to reflect an habitual 4th status
thus depriving him of his Fourteenth Amendment constitutional
right to be free from double jeopardy.
III. The trial court did not have lawful jurisdiction to try
or sentence him.
IV. Trial counsel and appellate counsel were ineffective in
violation of his Sixth Amendment rights.
has filed an answer to the petition contending that it should
be denied because the last two claims are unexhausted and all
of the claims lack merit. Petitioner has filed a reply to
that answer reiterating that he is entitled to relief.
STANDARD OF REVIEW
law imposes the following standard of review for habeas
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 Supreme Court of the United States;
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented