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Powell v. Romanowski

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

April 5, 2017

AARON DASHAWN POWELL, Petitioner,
v.
KENNETH ROMANOWSKI, Respondent.

          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 FORMA PAUPERIS

          ROBERT H. CLELAND, UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         Michigan 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.

         Promptly 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).

         After 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.

         II. BACKGROUND

         Petitioner's 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), [1] which was denied on January 5, 2017. People v. Powell, No. 2014-251631-FC (Oakland Co. Cir. Ct. Register of Actions).

         Petitioner 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.)

         In his 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 (2015).

         III. Standard of Review

         The 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 ...

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