United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING THE PETITION FOR A WRIT
OF HABEAS CORPUS, DENYING A CERTIFICATE OF
APPEALABILITY, AND DENYING LEAVE TO PROCEED ON APPEAL IN
H. CLELAND, UNITED STATES DISTRICT JUDGE
prisoner Aaron DaShawn Powell has filed a pro se
petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. Petitioner pleaded guilty to two counts of armed
robbery, Mich. Comp. Laws § 750.529, and two counts of
possession of a firearm during the commission of a felony,
Mich. Comp. Laws § 750.227b, in the Oakland County
Circuit Court and in 2015 was sentenced to concurrent terms
of 6 years 9 months to 30 years imprisonment on the armed
robbery convictions and to terms of two years imprisonment on
the felony firearm convictions, to be served concurrently
with each other but consecutively to the armed robbery
sentences. In his pleadings, Petitioner raises claims
concerning the scoring of the state sentencing guidelines and
the constitutionality of his sentence.
after the filing of a habeas petition, a federal 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, it plainly appears
that Petitioner's claims do not warrant habeas relief.
Accordingly, the court denies with prejudice 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.
convictions arise from his armed robbery of a Walmart store
in Troy, Michigan with two co-defendants in August, 2014.
Petitioner tendered his plea on February 23, 2015 and was
sentenced on March 16, 2015. People v. Powell, No.
2014-251631-FC (Oakland Co. Cir. Ct. Register of Actions).
Following sentencing, he filed a delayed application for
leave to appeal with the Michigan Court of Appeals asserting
that Offense Variables 9 and 10 of the Michigan sentencing
guidelines should have been scored at zero based upon the
facts proven in the plea. (Dkt. #1, Pg. ID 2.) The Michigan
Court of Appeals denied leave to appeal “for lack of
merit in the grounds presented.” People v.
Powell, No. 329295 (Mich. Ct. App. Nov. 3, 2015)
(unpublished). Petitioner then filed an application for leave
to appeal with the Michigan Supreme Court, which was denied
in a standard order. People v. Powell, 499 Mich.
916, 877 N.W.2d 730 (2016). On December 1, 2016, Petitioner
filed a motion for relief from judgment with the state trial
court raising an ineffective assistance of counsel claim,
(Dkt. #1, Pg. ID 3),  which was denied on January 5, 2017.
People v. Powell, No. 2014-251631-FC (Oakland Co.
Cir. Ct. Register of Actions).
submitted his federal habeas petition to prison official for
mailing on March 20, 2017. He raises the following claim:
Petitioner Powell was denied his Sixth Amendment right to
trial by an impartial jury where the trial court increased
his sentence by engaging in judicial fact finding when it
assessed Petitioner points for Offense Variables 9 and 10
which should have been scored at zero based on the facts
taken during the plea hearing where the fact finder did not
make a finding of guilt to the conduct and where Petitioner
did not admit to the conduct contained in the Offense
Variables that increased his sentence.
(Dkt. #1, Pg. ID 9.)
pleadings, Petitioner also asserts that he was denied due
process and equal protection because the Michigan Court of
Appeals denied him relief on his sentencing claim, but
remanded one of his co-defendant's cases to the trial
court for a Crosby remand, see United States v.
Crosby, 397 F.3d 103, 117-18 (2d Cir. 2005), pursuant to
People v. Lockridge, 498 Mich. 358, 870 N.W.2d 502
Standard of Review
provisions of the Antiterrorism and Effective Death Penalty
Act of 1996 (“AEDPA”), codified at 28 U.S.C.
§ 2241 et seq., govern this case because
Petitioner filed his habeas petition after the AEDPA's
effective date. Lindh v. Murphy, 521 U.S. 320, 336
(1997). The AEDPA provides:
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 ...