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Tighe v. Gidley

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

April 27, 2017

RICHARD LEROY TIGHE, JR., Petitioner,
v.
LORI GIDLEY, 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 for failure to raise a meritorious federal claim.

         Discussion

         I. Factual allegations

         Petitioner Richard Leroy Tighe presently is incarcerated at the Central Michigan Correctional Facility. Pursuant to a plea agreement, Petitioner pleaded guilty in the Cass County Circuit Court to one count of assault with intent to commit sexual penetration, Mich. Comp. Laws § 750.520g(1). On January 24, 2014, the circuit court sentenced Petitioner to a prison term of four to ten years, together with a fine of $500.00 and court costs of $500.00.

         Although Petitioner entered a plea to the single count of assault with intent to commit sexual penetration, he was initially charged with four crimes: first-degree criminal sexual conduct, Mich. Comp. Laws § 750.520b, for the digital/vaginal penetration of his girlfriend's thirteen-year-old daughter; third-degree criminal sexual conduct, Mich. Comp. Laws § 750.520d, for the same incident; failure to register as a sex-offender, Mich. Comp. Laws § 28.729; and violation of a school safety zone, Mich. Comp. Laws § 28.735. Petitioner was charged as a habitual offender, second offense, Mich. Comp. Laws § 769.10.

         Along with the petition, Petitioner submitted excerpts of his medical record, the police report investigating Petitioner's crimes, the pre-sentence investigation report, and the sentencing transcript. Petitioner also submitted the entire transcript of his plea and correspondence from his trial and appellate counsel regarding their representation of Plaintiff. Based on these materials and Petitioner's arguments, it appears he does not deny the victim's accusations. Petitioner acknowledges he was at his girlfriend's house. His girlfriend went to bed. Petitioner and the victim stayed up watching wrestling on television. Petitioner and the victim began to wrestle. He acknowledges that in wrestling around he may have spread the victim's legs, but Petitioner remembers nothing else. He does not remember penetrating the victim's vagina with his finger. He attributes his memory failure to his consumption of beer and the prescription medication Klonopin that evening.

         Following his conviction and sentence, Petitioner filed an application for leave to appeal to the Michigan Court of Appeals, arguing that Mich. Comp. Laws § 750.520g(1) does not allow the imposition of fines or costs. On October 20, 2014, the court of appeals denied leave to appeal for lack of merit in the grounds presented.[1]

         Petitioner sought leave to appeal to the Michigan Supreme Court on October 14, 2015, arguing that the failure to disclose the fine and court costs rendered his guilty plea involuntary. On May 13, 2015, while his application for leave to appeal was pending, Petitioner filed a motion for relief from judgment in the trial court, raising the following issues: (1) his plea was involuntary because of his mental illness, memory issues, and the effects of his psychoactive medications; (2) his attorney rendered ineffective assistance of counsel by failing to inquire into the effects of the two psychiatric medications and failing to seek a competency hearing; and (3) the court violated due process by not conducting a competency evaluation, which would have shown Petitioner to be incompetent to enter the plea. The motion for relief from judgment was denied on May 15, 2015. Nearly simultaneously, on May 14, 2015, Petitioner filed a motion in the supreme court to amend his application for leave to appeal, apparently attempting to raise the same issues presented in the motion for relief from judgment. The supreme court issued an order on July 26, 2016, denying Petitioner's application for leave to appeal, as well as his motion to amend to add the new issues, but remanding the case to the trial court to reconsider Petitioner's issue regarding the assessment of court costs.

         On August 9, 2016, Petitioner filed a second motion for relief from judgment in the Cass County Circuit Court, apparently raising the same issues. On August 25, 2016, the trial court held that the second motion for relief from judgment was both procedurally improper and meritless. In the same order, in response to the supreme court's order to remand, the court reconsidered and upheld the imposition of court costs.

         Petitioner then filed his first petition in this Court on or about September 12, 2016. In his petition, Petitioner raised four grounds for relief:

I. Petitioner's right to due process was violated when he was not given an opportunity to withdraw the plea, because the trial court did not advise Petitioner of the possibility that a fine and costs could be imposed, rendering his plea involuntary.
II. Petitioner's plea was void because the trial court failed to hold a competency hearing.
III. Trial counsel was ineffective in failing to investigate Petitioner's mental health and the effects of Petitioner's psychoactive medications and in failing to seek a competency evaluation.
IV. Ineffective assistance of appellate counsel in failing to raise the other claims and failing to advise Plaintiff of his right to file a Standard 4 brief on appeal.

Tighe v. Gidley, No. 1:16-cv-1125 (W.D. Mich.) (Pet., ECF No. 1.)

         The Court dismissed the petition because Plaintiff had failed to exhaust his state court remedies. Tighe v. Gidley, No. 1:16-cv-1125 (W.D. Mich.) (Op., ECF No. 5.) He never fairly presented his federal habeas issues to each level of the state courts.

         Petitioner returned to the state courts. He filed an application for leave to appeal in the Michigan Court of Appeals. That court denied leave initially by order entered March 3, 2017 (Mich. Ct. App. Ord., ECF No. 1-2, PageID.157), and upon reconsideration by order entered March 21, 2017 (Id., PageID.158).

         Petitioner, instead of filing an application for leave to appeal in the Michigan Supreme Court, returned to this Court. He filed the instant petition on or about April 12, 2017. In this petition, Petitioner has abandoned his previous issue I, regarding court costs and fines, but raises issues II, III, and IV from his first petition. The issues remain unexhausted. Petitioner has never fairly presented them to the Michigan Supreme Court. The habeas statute bars this Court from granting Petitioner relief where he has failed to exhaust his claims in the state court. 28 U.S.C. § 2254(b)(1)(A). The Court is permitted to deny unexhausted claims though. 28 U.S.C. § 2254(b)(2). Rather than send Petitioner back to the state courts so that he might exhaust his state remedies and then return to this Court for a third time, the Court will consider and deny Petitioner's habeas claims because they are without merit.

         II. Petitioner&# ...


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