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Combs v. Gidley

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

January 9, 2018

KEITH WAYNE COMBS, Petitioner,
v.
LORI GIDLEY, Respondent.

          ORDER (1) DENYING PETITION FOR A WRIT OF HABEAS CORPUS (ECF #1), (2) DENYING MOTION FOR APPOINTMENT OF COUNSEL (ECF #3), (3) DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY, AND (4) DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

          MATTHEW F. LEITMAN UNITED STATES DISTRICT JUDGE

         State prisoner Keith Wayne Combs is confined at the Central Michigan Correctional Facility in St. Louis, Michigan. On December 7, 2017, Combs filed a pro se petition for a writ of habeas corpus in this Court pursuant to 28 U.S.C. § 2254. (See ECF #1.) In the Petition, Combs challenges his state criminal sentence. Combs has also moved for the appointment of counsel. (See ECF #3.)

         In 2015, Combs pleaded guilty to the delivery/manufacture of methamphetamine, Mich. Comp. Laws § 333.7401(2)(b)(1), in the Branch County Circuit Court. That court sentenced him to 7 years 11 months to 20 years imprisonment. In the Petition, Combs asserts that the state trial court improperly scored an offense variable of the state sentencing guidelines and that as a result of that error, he is entitled to federal habeas relief because his sentence was based upon inaccurate information.

         Promptly after the filing of a habeas petition, a district 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, it plainly appears from the face of the petition and any attached exhibits that the petitioner is not entitled to federal habeas relief, the court must summarily dismiss the petition. See Id. See also Allen v. Perini, 424 F.2d 134, 141 (6th Cir. 1970) (noting that district courts have a duty to “screen out” habeas petitions that lack merit on their face); McFarland v. Scott, 512 U.S. 849, 856 (1994); Carson v. Burke, 178 F.3d 434, 436 (6th Cir. 1999).

         After undertaking the review required by Rule 4, the Court concludes that Combs is not entitled to federal habeas relief. It therefore DENIES the Petition and Combs' motion for the appointment of counsel. The Court further declines to issue a certificate of appealability and denies Combs leave to proceed in forma pauperis on appeal.

         I

         Combs' conviction arises from his possession and manufacture of methamphetamine at his girlfriend's apartment in Coldwater, Michigan in June, 2015. Following a search of that residence, Combs was charged with multiple offenses. On August 6, 2015, Combs pleaded guilty to one count of delivery/manufacture of methamphetamine in exchange for (1) the dismissal of charges of possession of methamphetamine, operating/maintaining a laboratory involving hazardous waste, and operating/maintaining a laboratory involving methamphetamine and (2) a promise not to be charged for additional, uncharged acts. On September 28, 2015, the state trial court conducted a sentencing hearing and sentenced Combs to 7 years 11 months to 20 years imprisonment. Combs was assessed 10 points for Offense Variable 12 (contemporaneous felonious activity). See Mich. Comp. Laws § 777.42 (providing for a score of 10 points when there are two or more contemporaneous felonious criminal acts against a person or three or more contemporaneous felonious criminal acts involving other crimes).

         Following his sentencing, Combs filed a motion to correct an invalid sentence in the state trial court. In that motion, Combs asserted that the trial court improperly scored Offense Variable 12 at 10 points because there were no other felonious acts within 24 hours of the sentencing offense. On April 29, 2016, the trial court conducted a hearing and denied Combs' motion.

         Combs thereafter raised his sentencing claim in a delayed application for leave to appeal with the Michigan Court of Appeals. That court denied the application for lack of merit. See People v. Combs, No. 333060 (Mich. Ct. App. July 29, 2016) (unpublished). Combs then filed an application for leave to appeal with the Michigan Supreme Court. That court denied Combs' application in a standard order. See People v. Combs, 894 N.W.2d 590 (Mich. 2017).

         Combs filed the instant federal habeas petition on December 7, 2017. (See ECF #1.)

         II

         The provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), codified at 28 U.S.C. § 2241 et seq., govern this case because Combs filed the Petition after the AEDPA's effective date. See Lindh v. Murphy, 521 U.S. 320, 336 (1997). AEDPA provides that:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim -
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the ...

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