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Katt v. Harry

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

January 30, 2017

JERRY LEE KATT, JR., Petitioner,
v.
SHIRLEE HARRY, Respondent.

          OPINION

          Janet T. Neff United States District Judge

         This is a habeas corpus action brought by a state prisoner under 28 U.S.C. § 2254. 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 28 U.S.C. § 2243. If so, the petition must be summarily dismissed. Rule 4; see 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 dismissal under Rule 4 includes those petitions which raise legally frivolous claims, as well as those containing factual allegations that are palpably incredible or false. Carson v. Burke, 178 F.3d 434, 436-37 (6th Cir. 1999). After undertaking the review required by Rule 4, the Court will dismiss the petition without prejudice for failure to exhaust available state-court remedies.

         Discussion

         I. Factual allegations

         Petitioner is presently incarcerated with the Michigan Department of Corrections at the Earnest C. Brooks Correctional Facility in Muskegon Heights, Michigan. Petitioner is serving seven sentences imposed by the Berrien County Circuit Court following his February 20, 2014 jury convictions on four counts of first-degree criminal sexual conduct (CSC), Mich. Comp. Laws § 750.520b(1)(a), and three counts of second-degree CSC, Mich. Comp. Laws § 750.520c(1)(a). On March 31, 2014, the court sentenced Petitioner as a habitual offender-fourth offense, Mich. Comp. Laws § 769.12, to 60 to 90 years on each first-degree CSC count and 19 to 60 years on each second-degree CSC count. Petitioner is serving all of the sentences concurrently.

         Petitioner, with the assistance of counsel, directly appealed his convictions. The Michigan Court of Appeals described Petitioner's single issue on appeal as follows:

Trial evidence established that defendant had oral and anal sex with the victims, who were both under age 13, multiple times over the course of four years. During the trial, the prosecution asked a nurse examiner witness when one of the victims said the sexual abuse began, and the witness responded, “[a]fter [defendant] got out of prison, which is about 2009[.]” The trial court denied defendant's motion for a mistrial and instructed the jury to disregard the statement. Defendant asserts that the trial court erred in denying his motion for a mistrial.

People v. Katt, No. 321698, 2015 WL 4506811 at *1 (Mich. Ct. App. Jul. 23, 2015). The court of appeals affirmed the trial court. Id. at *2.

         Petitioner filed an application for leave to appeal in the Michigan Supreme Court raising the same single issue he had raised in the court of appeals. The supreme court denied leave by order entered March 8, 2016. People v. Katt, 875 N.W.2d 225 (Mich. 2016). Petitioner did not file a petition for certiorari in the United States Supreme Court. (Pet., ECF No. 1, PageID.3.)

         Petitioner filed his petition in this Court on December 9, 2016.[1] In his petition he identifies four issues:

I. Gross Misconducts by all Courts['] officers denying full, fair, complete hearing in meaningful manner at meaningful time.[2]
II. Gross ineffective assistance of all appointed attorney's[s'] failure to retain expert testimony in defense.
III. Gross misconduct by all court officers prejudicing jury and appellate review-requiring federal court evidentiary scrutinization.[3]
IV. MDOC writ writer program is inadequate to assist Petitioner with investigation and litigation of past ...

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