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Arnett v. Mackie

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

March 21, 2018

JAMIE CHRISTOPHER ARNETT, Petitioner,
v.
THOMAS MACKIE, Respondent.

          OPINION

          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 concludes Petitioner has failed to exhaust his available state-court remedies as to all of the claims raised in the petition. Because Petitioner has fewer than 60 days remaining in the limitations period, the Court will not dismiss the action at this time, pending Petitioner's compliance with the further directions of this Court set forth in this opinion and attached order.

         Discussion

         I. Factual allegations

         Petitioner Jamie Christopher Arnett is incarcerated with the Michigan Department of Corrections at the Oaks Correctional Facility (ECF) in Manistee, Michigan. On November 15, 2013, a Tuscola County Circuit Court jury, found Petitioner guilty of 20 counts of first-degree criminal sexual conduct (CSC-I), Mich. Comp. Laws § 750.520b(1)(a). On January 2, 2014, the court sentenced Petitioner to 20 concurrent sentences of 25 years to 37 years, six months' imprisonment.

         On February 14, 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 placed his petition in the prison mailing system on February 14, 2018. (Pet., ECF No. 1, PageID.14.)

         The petition purports to raise four grounds for relief, paraphrased as follows:

I. Petitioner was denied effective assistance of counsel and a fair trial where his attorney failed to object to the forensic interviewer and other vouching for the credibility of the child complainant.
II. The trial court erred in allowing into evidence the recorded interview of the child complainant with the forensic interviewer and Petitioner was deprived of effective assistance of counsel because his attorney did not object.
III. Petitioner received ineffective assistance of counsel because his attorney did not completely advise him of his chances of an acquittal.
IV. Petitioner was deprived of his constitutional right to counsel because he received ineffective assistance of counsel in the failure to his trial attorney to consult with or call an expert pediatrics witness.

(Pet., ECF No.1-1, PageID.17-19.) Petitioner raised each of these issue on his direct appeal.

         Petitioner has also indicated his intention to raise three additional issues, paraphrased as follows:

V. Petitioner was deprived of his federal and state constitutional right to the effective assistance of appellate counsel on his appeal as of right in the Michigan Court of Appeals where, on remand from the court of appeals, court-appointed appellate counsel failed to file a timely motion in the trial court for an evidentiary hearing to establish a record of Petitioner's ineffective assistance of trial ...

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