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Hammock v. Harry

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

February 6, 2018

Robin Hammock, Petitioner,
Shirlee Harry, Respondent.



         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.


         I. Factual allegations

         Petitioner Robin Hammock is incarcerated with the Michigan Department of Corrections at the Earnest C. Brooks Correctional Facility, (LRF) in Muskegon Heights, Michigan. On April 2, 2007, a Wayne County Circuit Court judge, found Petitioner guilty of second-degree murder, Mich. Comp. Laws § 750.317, assault with intent to commit murder, Mich. Comp. Laws § 750.83, felony firearm, Mich. Comp. Laws § 750.227b, and felon in possession of a firearm, Mich. Comp. Laws § 750.224f. On April 19, 2007, the court sentenced Petitioner as a habitual offender-second offense, Mich. Comp. Laws § 769.10, to concurrent sentences of 35 to 70 years for the murder conviction, 20 to 60 years for the assault conviction, and time served for the felon-in-possession conviction, all consecutive to a 2-year sentence for the felony-firearm conviction.

         Petitioner appealed his convictions and sentences, raising several issues. By opinion issued September 23, 2008, the Michigan Court of Appeals affirmed the trial court. According to the docket, Petitioner did not pursue his appeal beyond the state court of appeals.

         According to the Wayne County Circuit Court docket, (last visited January 29, 2018), Petitioner filed motions for relief from judgment in the circuit court during 2012. The motions were denied. Petitioner sought leave to appeal the denial in the Michigan Court of Appeals. The appeal was dismissed on August 28, 2013, because Petitioner failed to pay the filing fee.

         Petitioner filed a new motion for relief from judgment in the trial court on October 14, 2015. The motion was based on new exculpatory testimony from a previously unknown witness. The trial court denied relief on January 4, 2016. Petitioner sought leave to appeal in the Michigan Court of Appeals. By order entered July 15, 2016, the court of appeals, in lieu of granting the application for leave to appeal, vacated the trial court's order denying the motion for relief from judgment and directed the trial court to consider the motion because the new evidence sufficed to remove the bar against successive motions. (Mich. Ct. App. Ord., ECF No. 1-1, PageID.4.)

         On March 21, 2017, the circuit court entered an order permitting the successive motion for relief from judgment. (Wayne Cnty. Cir. Ct. Ord., ECF No. 1-1, PageID.5-9.) The court appointed counsel for Petitioner and directed the prosecutor to respond to the motion. (Id.)

         Petitioner characterizes the trial court's March 21, 2017 order as an order that reversed Petitioner's convictions. Petitioner contends that because his conviction was reversed, he is entitled to a new trial. Moreover, because months have now passed without any action, Petitioner contends he is entitled to release under the Sixth Amendment's speedy trial guarantee.

         Petitioner's characterization of the March 21, 2017 order is simply wrong, as is his claim that nothing has happened since. There were several additional filings by Petitioner and the prosecutor. On September 15, 2017, the circuit court held a hearing on the motion. The court denied the motion in an order signed the same day as the hearing. Petitioner has not filed an application for leave to appeal the trial court's denial of the successive motion for relief from judgment. Petitioner still has several weeks, until March 15, 2018, to file a late application for leave to appeal. Mich. Ct. R. 7.205(G)(3).

         On January 5, 2018, Petitioner filed his habeas corpus petition. Under Sixth Circuit precedent, the application is deemed filed when handed to prison authorities for mailing to the federal court. Cook v. Stegall, 295 F.3d 517, 521 (6th Cir. 2002). Petitioner has not supplied that date. Nor does Petitioner date a signature on the document. The petition, however, includes the following statement: “It is now Jan. 2, 2018 . . . .” (Pet., ECF No. 1, PageID.2.) I will consider January 2, 2018, to be the date Petitioner signed the petition. See Brand v. Motley, 526 F.3d 921, 925 (6th Cir. 2008) (holding that the date the prisoner signs the document is deemed under Sixth Circuit law to be the date of handing to officials) (citing Goins v. Saunders, 206 F. App'x 497, 498 n.1 (6th Cir. 2006)).

         The petition raises one ground for relief: Petitioner is illegally detained because his Sixth Amendment right to a speedy trial has been violated. (Pet., ECF No.1, PageID.1-2.)

         II. Exhaustion of ...

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