United States District Court, E.D. Michigan, Northern Division
OPINION AND ORDER SUMMARILY DENYING THE PETITION FOR
WRIT OF HABEAS CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF
APPEALABILITY OR LEAVE TO APPEAL IN FORMA PAUPERIS
L. LUDINGTON, UNITED STATES DISTRICT JUDGE
Marcus Hanserd, presently confined at the Brooks Correctional
Facility in Muskegon Heights, Michigan, filed a pro
se application for a writ of habeas corpus pursuant to
28 U.S.C. § 2254 on December 21, 2016. ECF No. 1.
Petitioner was convicted in the Saginaw County Circuit Court
of armed robbery, Mich. Comp Laws § 750.529, and
sentenced to fifteen to forty-five years in prison.
Petitioner contends that the trial court improperly scored
points under the offense variables of the Michigan Sentencing
Guidelines by considering factors which had not been
submitted to a jury and proven beyond a reasonable doubt or
admitted to by Petitioner. Petitioner further contends that
the trial court erred in assessing twenty five points under
prior record variable 1 of the Michigan Sentencing
Guidelines. Petitioner further argues that trial counsel was
ineffective for failing to object to the scoring of the
sentencing guidelines. For the reasons that follow, the
petition for writ of habeas corpus will be summarily denied.
was convicted following a jury trial in the Saginaw County
Circuit Court. Petitioner's conviction and sentence were
affirmed on direct appeal. People v. Hanserd, No.
259868, 2006 WL 1009040 (Mich. Ct. App. Apr. 18, 2006);
lv. den. 476 Mich. 868, 720 N.W.2d 315 (2006).
subsequently filed a post-conviction motion for relief from
judgment, which was denied. People v. Hanserd, No.
04-024484-FC (Saginaw Cty. Cir. Ct., June 10, 2014). The
Michigan appellate courts denied Petitioner leave to appeal.
People v. Hanserd, No. 323099 (Mich.Ct.App. Nov. 7,
2014); lv. den. 499 Mich. 897, 876 N.W.2d 822
seeks a writ of habeas corpus on the following grounds:
I. Defendant must be resentenced because the trial
court's factual findings supporting its scoring of the
sentence guidelines offense variables were not determined by
II. Defendant is entitled to resentencing where there was no
basis for assessing 25 points for Prior Record Variable 1. A
correct scoring of PRV 1 changes the sentencing guidelines.
III. The Petitioner's sentence is invalid because counsel
failed to challenge the inaccurate information that was used
to enhance his sentence unconstitutionally.
Pet., ECF No. 1.
after the filing of a petition for habeas corpus, the 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 the 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. See McFarland v. Scott,
512 U.S. 849, 856 (1994); Carson v. Burke, 178 F.3d
434, 436 (6th Cir.1999); Rules Governing § 2254 Cases,
Rule 4, 28 U.S.C. foll. § 2254. 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. See Allen, 424 F.2d at
141; Robinson v. Jackson, 366 F.Supp.2d 524, 525
(E.D. Mich. 2005).
undertaking the review required by Rule 4, this Court
concludes that the petitioner's sentencing claims do not
entitle him to habeas relief. See McIntosh v.
Booker,300 F.Supp.2d 498, 499 (E.D. Mich. 2004). The
Court likewise concludes that Petitioner's related
ineffective assistance of counsel claim is meritless. See
Mathews v. United States,11 F.3d 583, 585 (6th Cir.
1993) (affirming the summary dismissal of an ineffective
assistance of counsel claim raised in a ...