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Scott v. Skipper

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

May 25, 2018

GREG SKIPPER, 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 concludes that the petition must be dismissed because it fails to raise a meritorious federal claim.


         I. Factual allegations

         Petitioner Donald Allen Scott is incarcerated with the Michigan Department of Corrections at the Michigan Reformatory (RMI) in Ionia, Michigan. On April 1, 2016, in the Genessee County Circuit Court, Petitioner entered guilty pleas to one count of third-degree criminal sexual conduct (CSC-III), Mich. Comp. Laws § 750.520d(1)(b), and one count of assault by strangulation, Mich. Comp. Laws § 750.84(1)(b). (Plea Hr'g Tr., ECF No. 2-1.) Petitioner also admitted that he was a habitual offender and that this criminal incident was his third offense, Mich. Comp. Laws § 769.11. (Id., PageID.130-31.)

         In exchange for his guilty pleas, the prosecutor dismissed certain charges, reduced the charges for which Petitioner entered his plea, and agreed to recommend a minimum sentence of nine years. On May 2, 2016, the court accepted the recommendation and imposed sentences of 9 to 30 years for CSC-III and 9 to 20 years for assault by strangulation, consistent with People v. Killebrew, 330 N.W.2d 834 (Mich 1982).

         Petitioner filed a delayed application for leave to appeal in the Michigan Court of Appeals raising one issue: “The trial court reversibly erred by failing to respond to [Petitioner's] objection to information contained in the presentence report; this error requires resentencing as a matter of due process.” (Appellate Br., ECF No. 2-1, PageID.38.) On December 13, 2016, the Michigan Court of Appeals denied leave to appeal “for lack of merit in the grounds presented.” (Mich. Ct. App. Op., ECF No. 2-1, PageID.34.) Petitioner then sought leave to appeal in the Michigan Supreme Court raising the same single issue. The Michigan Supreme Court denied leave on June 27, 2017.

         At sentencing, the principal issue was whether the court would accept or reject the sentence recommended by the prosecutor and agreed to by the Petitioner. The court specifically asked Petitioner whether he had read the PSIR. Petitioner said he had read it and that he had no corrections or additions to the report. (Sentencing Tr., ECF No. 2-1, PageID.147-148.) Petitioner's counsel likewise indicated he had no corrections or additions to the report. (Id.) The factual premise of Petitioner's argument-that the trial court failed to rule on Petitioner's objections to alleged inaccuracies in the PSIR-is wholly unsupported by the record.

         Even though counsel and Petitioner accepted the PSIR as drafted, the parties had different versions of exactly what occurred. Both versions violated the criminal statute with which defendant was charged. In arguing for the court to accept the agreed-upon sentence, Petitioner noted that the PSIR reflected the offenses as they appear in the police report and perhaps the preliminary examination. (Id., PageID.149-150.) Counsel also noted that Petitioner's version of the incident was quite different and involved only digital, not penile penetration, either of which was sufficient for the same criminal liability. Counsel only raised the discrepancy between Petitioner's version of the events and the victim's version of events to convince the court to accept the Killebrew recommendation not to challenge the content of the PSIR or undermine the validity of the conviction.

         Ultimately, Petitioner is not seeking a new sentencing, or any other relief beyond a change to the content of the PSIR. Petitioner explains the issue as follows:

Petitioner is and was injured by this lack of conformity to the prescribed procedure wherein such information is construed literally by personnel of the Michigan Department of Corrections, who are responsible for processing petitioner through a sexual offender program and registration requirements. Petitioner is diagnosed with erectile dysfunction and unable to perform sexually, which is considered a cosmetic treatment issue which he is denied treatment for while incarcerated. Note to this effect is rebuffed by Corrections personnel who allege that it is inconsistent with the record and thus they designate this petitioner as unwilling to accept responsibility for his actions, such as causes dismissal from a program required to acquire release on parole, and other program and release benefits.

(Pet., ECF No. 1, PageID.4.) Thus, according to Petitioner the failure of the trial court to correct the purportedly inaccurate PSIR operates to his detriment while in MDOC.

         On April 25, 2018, Petitioner filed his habeas corpus petition raising the same issue he raised in the Michigan appellate courts. (Pet., ECF No. 1, PageID.3.)

         II. ...

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