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Pathic v. MacLaren

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

May 23, 2018

Richard Pathic, Jr., Petitioner,
v.
Duncan MacLaren, Respondent.

          Mona K. Majzoub, United States Magistrate Judge.

          OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS, DENYING CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL [1]

          GERSHWIN A. DRAIN, United States District Judge.

         I. Introduction

         This is a habeas case under 28 U.S.C. § 2254. Michigan prisoner Richard Pathic Jr. pleaded guilty to three counts of delivery of less than fifty grams of a controlled substance in the Isabella County Circuit Court. Mich. Comp. Laws §333.7401(2)(a)(iv). In 2014 he was sentenced to concurrent terms of thirteen to twenty years imprisonment. In his petition, he attacks the validity of his sentence and the effectiveness of his defense counsel. For the reasons detailed below, the Court will deny his habeas petition, his request for a certificate of appealability, and his application for leave to proceed in forma pauperis (or without prepayment of fees or costs) on appeal.

         II. Facts and Procedural History

         Petitioner was initially charged with nine drug-related counts, including one where the delivery of drugs resulted in the death of one woman. On April 4, 2014, pursuant to a plea bargain, Pathic pleaded guilty to three counts of delivery of less than fifty grams of a controlled substance (morphine pills) in exchange for the following: (1) a dismissal of all the other charges; (2) a minimum sentencing range between 5 to 13.3 years imprisonment, and the agreement permitted him to advocate for a lower sentence at sentencing; and (3) a promise of concurrent sentences.

         His sentencing hearing was held on April 25, 2014. The Michigan Department of Corrections scored Pathic's minimum sentencing guideline range at thirty-four to sixty-seven months. Defense counsel successfully challenged the scoring of Offense Variable Three, which was scored at 100 points. It was scored at 100 points pursuant a situation where a crime results in a death, but the defendant is not charged with homicide; that scenario occurred here through the death of a woman caused by Pathic's delivery of drugs. This circumstance, however, was part of the dismissed charges. Therefore, the trial court accepted counsel's argument and reduced Offense Variable Three to zero points. Because of the deduction, Petitioner's minimum sentencing guideline range was zero to seventeen months. Defense counsel then advocated for a sentence of no incarceration with a referral to Veterans' Court and treatment. Instead, the trial court adhered to the minimum guideline sentencing range as provided for in the plea agreement and thereby sentenced Petitioner to concurrent terms of thirteen to twenty years imprisonment.

         Pathic filed a delayed application for leave to appeal in the Michigan Court of Appeals. There, he reasserted the claims presented on habeas review, and the court denied him relief “for lack of merit in the grounds presented.” People v. Pathic, No. 323817 (Mich. Ct. App. Nov. 13, 2014). Pathic submitted an application for leave to appeal with the Michigan Supreme Court raising those same claims and a new factual basis claim; the court denied his application in a standard order. People v. Pathic, 497 Mich. 1015, 862 N.W.2d 210 (2015).

         Pathic thereafter submitted his federal habeas petition. See Dkt. No. 1. He raises the following claims as grounds for relief:

I. The state court committed constitutional error by making sentencing findings unsupported by any evidence (improper scoring of Offense Variable 15 - trafficking), and counsel committed ineffective assistance of counsel for not properly and timely objecting.
II. The state court acted illegally and unconstitutionally by imposing prison terms of 13 to 20 years on the three counts of delivery of a controlled substance under 50 grams (cruel and unusual punishment), and counsel committed ineffective assistance of counsel for not properly and timely objecting.

Id. at p. 14 (Pg. ID 14). MacLaren responded to the petition on January 11, 2017. Dkt. No. 5. Petitioner replied in support of his petition on May 16, 2017. Dkt. No. 9

         III. Standard of Review

         The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), codified at 28 U.S.C. § 2241 et seq., establishes the standard for federal courts' review of habeas petitions that challenge state court convictions. In relevant part, 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 Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented ...

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