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Houston v. Stewart

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

May 2, 2017

IRENE HOUSTON, Petitioner,
v.
ANTHONY STEWART, Respondent.

          OPINION AND ORDER CONDITIONALLY GRANTING THE PETITION FOR A WRIT OF HABEAS CORPUS

          HONORABLE ARTHUR J. TARNOW UNITED STATES DISTRICT JUDGE

         Irene Renee Houston, (“Petitioner”), incarcerated at the Women's Huron Valley Correctional Facility, in Ypsilanti, Michigan, filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging her conviction for embezzlement of $100, 000 or more, in violation of M.C.L.A. § 750.174(7), and forgery, in violation of M.C.L.A. § 750.248. Petitioner is currently serving a sentence of eight to twenty years' imprisonment for the embezzlement conviction and two to fourteen years' imprisonment for the forgery conviction.

         Petitioner raises a number of claims alleging the incorrect scoring of her sentencing guidelines, the ineffective assistance of trial counsel, and the ineffective assistance of appellate counsel. For the reasons stated below, petitioner's application for writ of habeas corpus is CONDITIONALLY GRANTED.

         I. Background

         Petitioner pleaded guilty to the above offenses on November 18, 2010, in the Wayne County Circuit Court. On February 17, 2011, petitioner was sentenced 8-20 years imprisonment for the embezzlement conviction and 2-14 years imprisonment for the forgery conviction.

         On March 3, 2011, petitioner filed a timely request for the appointment of appellate counsel. Phillip Comorski was appointed as appellate counsel on March 23, 2011. On August 14, 2011, appellate counsel visited petitioner in prison. Petitioner informed appellate counsel that she wanted to challenge her sentencing guidelines, but not the underlying plea. Appellate counsel informed petitioner that he would contact her at a later date by mail.

         In May of 2013, petitioner wrote to Mr. Comorski to ask for a copy of her Sentencing Information Report to check on the guidelines herself, since it had already been 1 ½ years since she had last heard from Mr. Comorski. Comorski responded by sending petitioner a letter dated May 30, 2013, informing petitioner that he had withdrawn from her case back in 2011 and another attorney had been appointed, telling her that “inquiry should be directed to whomever was appointed as substitute counsel.” Doc. # 1, Pg ID 39. This Court notes that Comorski failed to file a brief with his motion to withdraw that was in conformity with the dictates of Anders v. California, 386 U.S. 738 (1967).

         The trial court granted appellate counsel's motion to withdraw. However, the trial court never appointed substitute appellate counsel, contrary to the representations made by Comorski in his letter to petitioner, dated May 30, 2013.[1]The record reflects that on November 22, 2011, the circuit court entered an order granting Comorski's motion to withdraw as appellate counsel, but scratched out the portion of Comorski's presented order allowing for new appointed counsel. People v. Houston, No. 10-6776-01-FH (Wayne County Circuit Court, November 22, 2011), Doc. # 6-1, Pg ID 151.

         On August 14, 2013, petitioner filed a Halbert Motion[2] for the appointment of appellate counsel, which was denied in a form order. People v. Houston, No. 10-006776-01-FH (Wayne County Circuit Court, November 18, 2013).

         On September 5, 2013, petitioner filed her original habeas petition for a writ of habeas corpus. On October 16, 2013, this Court held the petition in abeyance so that petitioner could return to the state courts to exhaust her claims.

         On October 31, 2013, petitioner filed a motion for relief from judgment, which was denied. People v. Houston, No. 10-6776-01-FH (Wayne County Circuit Court, March 3, 2014), Doc. # 10-6, Pg ID 387. The Michigan appellate courts denied petitioner leave to appeal. People v. Houston, No. 150403 (Mich.Ct.App. Sept. 19, 2014); lv. den. 498 Mich. 852; 864 N.W.2d 564 (2015).

         On July 16, 2015, petitioner filed an amended petition for writ of habeas corpus, in which she sought relief on the same grounds that she raised in her original habeas petition:

I. Sentence is invalid due to an upward departure from the sentencing guidelines range due to improper and incorrect PRV and OV scoring.
II. Ineffective assistance of counsel.
III. Ineffective assistance of appellate attorney.

         The Court reopened the petition to the Court's docket on September 25, 2015.

         II. ...


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