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Bridges v. Harry

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

July 21, 2017

SHIRLEE HARRY, Respondent.


          Paul L. Maloney 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 without prejudice for failure to exhaust available state-court remedies.

         Factual Allegations

         Petitioner is presently incarcerated with the Michigan Department of Corrections at the West Shoreline Correctional Facility in Muskegon Heights, Michigan. On December 1, 2015, Petitioner pleaded guilty to three counts of false pretenses - $1, 000.00 or more but less than $20, 000, Mich. Comp. Laws § 750.218(4)(a), and admitted to being an habitual offender - third offense, Mich. Comp. Laws § 769.11. Bridges v. Barrett, No. 1:16-cv-1269 (W.D. Mich.) (Plea Tr., ECF No. 21-2, PageID.123-128.)[1] At the sentencing hearing held on December 16, 2015, the trial court sentenced Petitioner to concurrent sentences of 2 ½ to 10 years with 138 days of credit. Bridges I (Sentencing Tr., ECF No. 21-3, PageID.150-151.)

         In exchange for Petitioner's plea, the prosecutor dismissed two counts charging Petitioner with using a computer to commit a crime, Mich. Comp. Laws § 752.797(3)(d). The parties also agreed that Petitioner's minimum sentence would not exceed thirty months. Petitioner summarized the factual basis for his plea in his brief to the Michigan Court of Appeals:

Defendant pretended that he was the landlord of 5009 Devonshire Avenue. He made up 3 false leases, and leased that property to 4 different tenants. The property was in foreclosure and vacant. He took money orders from these individuals and cashed them. In the case of each fraudulent lease, the amount received by the defendant as the 1st month's rent and security deposit was greater than $1000.

(1:16-cv-1269, PageID.165-166) (internal citations omitted.)

         On May 12, 2016, Plaintiff filed a pro per motion to withdraw his plea and correct sentence. The trial court stated it was unable to review the motion or grant the requested relief because Petitioner had obtained appellate counsel and his delayed application for leave to appeal was then currently pending. (1:16-cv-1269, PageID.263-264.)

         Direct appeal

         Petitioner filed a delayed application for leave to appeal in the Michigan Court of Appeals. His brief, which was filed by counsel on April 18, 2016, raised the following claim:


(1:16-cv-1269, PageID.164.) On June 8, 2016, the Michigan Court of Appeals denied Petitioner's application for lack of merit in the grounds presented. (1:16-cv-1269, PageID.157.) Thereafter, Petitioner filed a motion for reconsideration and a Standard 4 brief, in which he raised the following additional claim:

The Defendant is entitled to withdraw his plea because the Court Cobb's evaluation and plea agreement is based upon inaccurate information that is a violation of Federal and State Due Process clauses.

(1:16-cv-1269, PageID.227.)

         Before the Michigan Court of Appeals ruled on Petitioner's motion for reconsideration, Petitioner filed an application for leave to appeal to the Michigan Supreme Court.

         Petitioner raised the same claim raised by his counsel to the court of appeals as well as the issue raised in his motion for reconsideration and Standard 4 brief. (1:16-cv-1269.251-258.) Next, while both his motion for reconsideration before the court of appeals and application to the state supreme court were pending, Petitioner filed a motion to remand in the Michigan Court of Appeals. The Court of Appeals returned the motion to remand as untimely, noting that if his motion for reconsideration was granted he could resubmit the motion to remand. (1:16-cv-1269, PageID.237.)

         On August 5, 2016, the court of appeals denied Petitioner's motion for reconsideration. (1:16-cv-1269, PageID.248.) Thereafter, by order entered October 26, 2016, the Michigan Supreme Court denied Petitioner's application for leave to appeal because it was not persuaded that the questions presented should be reviewed. (1:16-cv-1269, PageID.250.) Petitioner did not seek certiorari in the United States Supreme Court.

         Bridg ...

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