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Small v. Harry

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

October 30, 2017

FLETCHER DARNELL SMALL, Petitioner,
v.
SHIRLEE HARRY, Respondent,

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

          HONORABLE DENISE PAGE HOOD CHIEF UNITED STATES DISTRICT JUDGE

         Fletcher Darnell Small, (“Petitioner”), confined at the Brooks Correctional Facility in Muskegon Heights, Michigan, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his application, filed pro se, petitioner challenges his conviction for first-degree felony murder, M.C.L.A. § 750.316, first-degree criminal sexual conduct, M.C.L.A.§ 750.520b(1)(d), unarmed robbery, M.C.L.A. § 750.530, and breaking and entering an occupied dwelling with intent to commit a felony, M.C.L.A. § 750.110. For the reasons that follow, the petition for writ of habeas corpus is SUMMARILY DENIED.

         I. Background

         Petitioner was convicted in 1980 in the Genesee County Circuit Court. Petitioner's conviction was affirmed on appeal. People v. Small, 120 Mich.App. 442, 327 N.W.2d 504, 505 (1982).

         On February 3, 2015, petitioner filed a motion to re-issue judgment, pursuant to M.C.R. 6.428. The trial judge re-characterized the motion as a post-conviction motion for relief from judgment brought pursuant to M.C.R. 6.500, et. Seq., and denied relief. People v. Small, No. 80-29659-FC (Genesee Cty. Cir.Ct., Apr. 13, 2015); reconsideration den. No. 80-29659-FC (Genesee Cty. Cir.Ct., Jul. 27, 2015).

         The Michigan Court of Appeals denied petitioner's application for leave to appeal pursuant to M.C.R. 6.508(D), the rule which governs the various reasons for denying a criminal defendant's 6.500 motion for relief from judgment. The Michigan Court of Appeals further concluded that the trial judge did not err in re-characterizing petitioner's 6.428 motion as a motion for relief from judgment because M.C.R. 6.428 is inapplicable where a defendant files a timely appeal of right, as petitioner did in this case. People v. Small, No. 329301 (Mich.Ct.App. Nov. 12, 2015).

         Petitioner filed an application for leave to appeal. The Michigan Supreme Court denied petitioner's application with the following language:

On order of the Court, the application for leave to appeal the November 12, 2015 order of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. For purposes of MCR 6.502(G)(1), the Court notes that, although the defendant's motion has been styled as a motion for relief from judgment by the courts below, the defendant actually requested reissuance of his judgment under MCR 6.428. The motion was properly denied due to the lack of merit in the grounds presented, though not under MCR 6.508(D).

People v. Small, 500 Mich. 853, 884 N.W.2d 280 (2016), reconsideration den., 500 Mich. 901, 887 N.W.2d 203 (2016).

         Petitioner seeks habeas relief on the following ground:

[The] trial court's recharacterization of motion pleading and subsequent dismissal without providing petitioner notification was an abuse of discretion in violation of his rights to equal protection and due process of law pursuant to the U.S. Const., Am. 14, and Mich. Const., Art. 1, Sections 2 and 17.

         II. Standard of Review

         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. After undertaking the review required by Rule 4, the Court concludes that the petition must be summarily denied.

         III. ...


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