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Stapleton v. Stewart

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

June 9, 2017

KELLI RAY STAPLETON, Petitioner,
v.
ANTHONY STEWART, Respondent,

          OPINION AND ORDER SUMMARILY DENYING THE PETITION FOR WRIT OF HABEAS CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY OR LEAVE TO APPEAL IN FORMA PAUPERIS

          HONORABLE SEAN F. COX UNITED STATES DISTRICT JUDGE.

         Kelli Ray Stapleton, (petitioner), confined at the Huron Valley Women's Correctional Facility in Ypsilanti, Michigan, filed a pro se application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges her sentence for first-degree child abuse, Mich. Comp Laws § 750.136(b)(2). For the reasons that follow, the petition for writ of habeas corpus is SUMMARILY DENIED.

         I. Background

         Petitioner was originally charged with attempted murder, but pleaded guilty to the lesser offense of first-degree child abuse.

         Petitioner was sentenced to ten to 22 years in prison.

         Petitioner's conviction and sentence was affirmed. People v. Stapleton, No. 326600 (Mich. Ct. App. May 24, 2016); lv. den. 499 Mich. 926 (2016).

         Petitioner seeks a writ of habeas corpus on the following grounds:

I. Scoring error in OV [Offense Variable] 1: Aggravated use of a weapon. (20 points). The trial court misconstrued the statute to include a grill as a harmful chemical device. OV 1 should have been zero [points].
II. Error in scoring OV 2: using a lethal weapon. A grill is not a harmful biological device or harmful radioactive device. OV 2 should have been scored a zero.
III. Error in scoring: OV 4 for 10 points for serious psychological injury. It should be scored at zero.
IV. Error in scoring in OV 9: 10 points, for counting self as a victim. How can a defendant be a victim? Court scored 2-9 victims?

         II. Discussion

         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 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, this Court concludes that petitioner's sentencing claims do not entitle her to habeas relief, such that the petition must be summarily denied. See ...


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