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Johnson v. Burt

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

February 22, 2017

DAVID HENRY JOHNSON, Petitioner,
v.
S. L. BURT, Respondent.

          OPINION

          HONORABLE 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 David Henry Johnson is incarcerated with the Michigan Department of Corrections at the Muskegon Correctional Facility in Muskegon, Michigan. Following a four-day jury trial in the Tuscola County Circuit Court, Petitioner was found guilty of operating a methamphetamine laboratory, Mich. Comp. Laws § 333.7401c(2)(f); manufacture of methamphetamine, Mich. Comp. Laws § 333.7401(2)(b)(i); and possession of methamphetamine, Mich. Comp. Laws § 333.7403(2)(b)(i). As to each offense, it was Petitioner's second; therefore, he was subject to twice the term of imprisonment otherwise authorized. Mich. Comp. Laws § 333.7413(2). On October 4, 2013, the trial court sentenced Petitioner to concurrent terms of imprisonment of 10 to 20 years for operating the laboratory, 10 to 20 years for manufacture, and 2 to 10 years for possession.[1]

         With the assistance of counsel, Petitioner directly appealed his convictions and sentences raising five issues:

I. DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO A SPEEDY TRIAL AND WAS DENIED THE RIGHT TO BE TRIED WITHIN 180 DAYS WHEN, THROUGH NO FAULT OF DEFENDANT, TRIAL DID NOT COMMENCE.
II. DEFENDANT WAS DENIED HIS CONSTITUTION RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WHEN TRIAL COUNSEL'S CUMULATIVE ERRORS DENIED DEFENDANT A FAIR TRIAL.
III. DEFENDANT'S CONVICTION WAS BASED ON THE TESTIMONIAL HEARSAY STATEMENTS OF UNAVAILABLE DECLARANTS AND SINCE THERE WAS NO OPPORTUNITY TO CROSS EXAMINE THE DECLARANTS, THE TRIAL COURT VIOLATED DEFENDANT'S SIXTH AMENDMENT RIGHT TO CONFRONT WITNESSES BY ADMITTING THE STATEMENTS.
IV. DEFENDANT WAS DENIED THE RIGHT TO DUE PROCESS AND FUNDAMENTAL FAIRNESS TO PRESENT A DEFENSE WHEN THE POLICE FAILED TO PRESERVE KEY EVIDENCE.
V. DEFENDANT IS ENTITLED TO RESENTENCING BECAUSE THE STATUTORY SENTENCING GUIDELINES WERE MISSCORED AS TO THE OFFENSE VARIABLES, WHICH AFFECTED THE STATUTORY SENTENCING GUIDELINE RANGE.

(Def.'s-Appellant's Br., ECF No. 1-3, PageID.52-53.) By unpublished opinion issued March 12, 2015, the Michigan Court of Appeals affirmed the convictions and sentences. Petitioner filed an application for leave to appeal in the Michigan Supreme Court. In lieu of granting leave to appeal with regard to the sentencing issue, the court reversed and remanded to the trial court “to determine whether the court would have imposed a materially different sentence under the sentencing procedure described in People v. Lockridge, 498 Mich. 358[, 870 N.W.2d 502] (2015).” People v. Johnson, 873 N.W.2d 565 (Mich. 2016). In all other respects, however, the court denied leave to appeal. Id.

         The trial court held a resentencing hearing on May 19, 2016. The court reaffirmed it original sentences. With the assistance of counsel, Petitioner appealed his new judgment of sentence, raising two issues:

VI. THE TRIAL COURT IMPOSED AN UNREASONABLE SENTENCE OF 120 TO 240 MONTHS IMPRISONMENT FOR OPERATING/MAINTAINING A LABORATORY INVOLVING METHAMPHETAMINE AND ...

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