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Jett v. Jackson

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

May 12, 2017

DONALD PIERRE JETT, Petitioner,
v.
SHANE JACKSON, Respondent.

          OPINION

          Paul L. Maloney United States District Judge.

         This is a habeas corpus action brought by a state prisoner pursuant to 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 concludes that the petition must be dismissed because it fails to raise a meritorious federal claim.

         Factual Allegations

         Petitioner is presently incarcerated with the Michigan Department of Corrections (MDOC) at the Carson City Correctional Facility in Carson City, Michigan. On April 23, 2015, in the Gogebic County Circuit Court, Petitioner pleaded guilty to delivery of a controlled substance (heroin), Mich. Comp. Laws § 333.7401(2)(a)(iv), delivery/possession of a controlled substance in proximity to a park, Mich. Comp. Laws § 333.7410a, and maintaining a drug house, Mich. Comp. Laws § 333.7405(1)(d). On June 11, 2015, the trial court sentenced Petitioner as a habitual offender, second offense, to concurrent terms of imprisonment: 42 months to 30 years for the heroin delivery; 18 months to 3 years for the proximity to the park, and 2 years to 3 years for maintaining a drug house.

         Petitioner, assisted by counsel, filed an application for leave to appeal his convictions and sentences in the Michigan Court of Appeals. Petitioner raised two issues:

I. SINCE MR. JETT ESTABLISHED BY A PREPONDERANCE OF THE EVIDENCE THAT HE WAS ENTRAPPED BY THE POLICE WHEN THEY INDUCED HIM TO DELIVER HEROIN TO AN INFORMANT WHO WAS THE MOTHER OF HIS CHILD WHO ARRANGED THE CONTROLLED BUYS, WHO HAD A LONG TERM PRIOR RELATIONSHIP WITH HIM, USED HEROIN THAT SHE OBTAINED FROM HIM DURING THE TIME THAT SHE CONDUCTED THE CONTROLLED BUYS, WITHHELD PARENTING TIME WITH HIS CHILD IF HE DID NOT OBTAIN HEROIN FOR HER, AND USED SYMPATHY SO SHE WOULD OBTAIN HEROIN FROM HIM. MR. JETT ALSO ESTABLISHED THAT THIS WAS REPREHENSIBLE POLICE CONDUCT THAT SHOULD NOT BE TOLERATED AND AS A RESULT, DID THE TRIAL JUDGE CLEARLY ERR BY NOT DISMISSING THE CHARGES WHICH REQUIRES THIS COURT TO SET ASIDE MR. JETT'S CONVICTION PURSUANT TO THE FEDERAL AND MICHIGAN CONSTITUTIONS, U.S. CONST AMEND V, VI, VIX; MICH CONST. ART 1, SEC. 17, 20?
II. SINCE THE TRIAL JUDGE ENGAGED IN IMPERMISSIBLE JUDICIAL FACT-FINDING WHEN HE ERRONEOUSLY RULED THAT MR. JETT WAS A LEADER IN A MULTIPLE PERSON OFFENSE TO SCORE OV 14 AT 10 POINTS, THIS COURT MUST REVERSE THE TRIAL JUDGE'S RULING AND REMAND FOR A RESENTENCING PURSUANT TO THE FEDERAL AND MICHIGAN CONSTITUTIONS, U.S. CONST. AMEND VI, V, VI; MICH CONST 1963 ART 1, SEC 17, 20?

(Pet.'s Mich. Ct. App. Appl. for Leave to Appeal, ECF No. 1-1, PageID.29.) The court of appeals denied leave by order entered January 1, 2016. (Mich. Ct. App. Ord., ECF No. 1-1, PageID.68.)

         Petitioner then filed a pro per application for leave to appeal in the Michigan Supreme Court raising the same issues he had raised in the court of appeals. The Michigan Supreme Court denied leave by order entered September 6, 2016. (Mich. Ord., ECF No. 1-1, PageID.67.) Petitioner filed his habeas petition in this Court on April 26, 2017, raising the same issues he raised in the state appellate courts.

         Petitioner concisely described the factual background for his prosecution in his application for leave to appeal filed in the Michigan Court of Appeals:

Mr. Jett admitted that on October 21, 2014, he delivered heroin to his girlfriend, Missy Sharrow (who was acting as a police informant) at 251 Oak Street, which was within 1, 000 feet of a park. Mr. Jett further acknowledged that others stayed in the house where drugs were being used. (PT, 4-11).

(Pet.'s Mich. Ct. App. Appl. for Leave to Appeal, ECF No. 1-1, PageID.30.)

         Prior to entering his plea, Petitioner had raised several pretrial challenges to the charges. Among the arguments he raised was the claim that he was entrapped by police. The trial court took testimony from Sergeant Adam Clemens of the Ironwood Police Department, Missy Sharrow, and Mr. Jett. (Id., PageID.31.) The trial court denied the entrapment challenge.

         After his plea and sentencing, Petitioner asked to be resentenced because he believed there was insufficient evidence to support the scoring of ten points on Offense Variable 14. That variable calls for an evaluation, in each multi-offender situation, as to whether the person being sentenced was a leader. Mich. Comp. Laws § 777.44. Leaders are scored ten points; followers are scored zero points. Id. ...


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