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Smith v. Klee

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

November 30, 2016

THOMAS SMITH, #229692, Petitioner,
v.
PAUL KLEE, Respondent.

          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

          Denise Page Hood Chief Judge, United States District Court.

         I. INTRODUCTION

         Michigan 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.

         II. FACTS AND PROCEDURAL HISTORY

         Petitioner's 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.

         In May, 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 (2015).

         Petitioner 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.

         Respondent 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.

         III. STANDARD OF REVIEW

         Federal law imposes the following standard of review for habeas cases:

         An 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; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented ...

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