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Hanserd v. Harry

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

January 17, 2017

MARCUS HANSERD, Petitioner,
v.
SHIRLEE HARRY, Respondent,

          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

          THOMAS L. LUDINGTON, UNITED STATES DISTRICT JUDGE

         Petitioner, 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.

         I.

         Petitioner 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).

         Petitioner 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 (2016).

         Petitioner 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 a jury.
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.

         II.

         Promptly 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).

         After 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 ...


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