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Ditrapani v. Trierweiler

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

June 22, 2018

MICHAEL ANGELO DITRAPANI, Petitioner,
v.
TONY TRIERWEILER, Respondent.

          OPINION

          Janet T. Neff 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 will dismiss the petition without prejudice for failure to exhaust available state-court remedies.

         Discussion

         I. Factual allegations

         Petitioner Michael Angelo Ditrapani is incarcerated with the Michigan Department of Corrections at the Bellamy Creek Correctional Facility (IBC) in Ionia, Ionia County, Michigan. Following a jury trial in the Macomb County Circuit Court, Petitioner was convicted of two counts of first-degree criminal sexual conduct (CSC-I), Mich. Comp. L. § 750.520b, and two counts of second-degree criminal sexual conduct (CSC-II), Mich. Comp. L. § 750.520c. On August 12, 2015, the court sentenced Petitioner as a habitual offender-fourth offense, Mich. Comp. L. § 769.12, to concurrent sentences of 25 to 50 years on each CSC-I count and 6 to 15 years on each CSC-II count.

         Petitioner, with the assistance of counsel, appealed his convictions to the Michigan Court of Appeals. Petitioner describes the issues he raised in that court; however, he acknowledges that he has lost most of his legal documents. His listing of issues is suspect in that it does not track the issues considered and resolved by the court of appeals. Based on the February 14, 2017, Michigan Court of Appeals opinion affirming Petitioner's convictions, it appears that Petitioner raised the following issues on appeal:

I. Trial counsel rendered ineffective assistance when he failed to file a motion to adjourn trial to pursue forensic investigation of electronic devices and social networking sites used by the two minor victims and their mother.
II. Trial counsel rendered ineffective assistance when he failed to adequately cross-examine the two minor victims and another minor witness.
III. Trial counsel rendered ineffective assistance when he failed to challenge prosecutorial misconduct during the prosecutor's questioning of the mother of the two victims and during the prosecutor's closing and rebuttal arguments.
IV. Petitioner's trial was rendered fundamentally unfair by prosecutorial misconduct, including the prosecutor's vouching for the credibility of the two victims and the prosecutor's appeal to the jurors' sympathy during closing and rebuttal arguments.

People v. Ditrapani, No. 329676, 2017 WL 603581 (Mich. Ct. App. Feb. 14, 2017).

         Petitioner filed a pro per application for leave to appeal the court of appeals' decision in the Michigan Supreme Court. Petitioner does not identify the grounds he raised in the Michigan Supreme Court; instead, he simply references the grounds he raised in the Michigan Court of Appeals. The Michigan Supreme Court denied leave by order entered September 12, 2017. People v. Ditrapani, 900 N.W.2d 882 (Mich. 2017). Petitioner did not file a petition for certiorari in the United States Supreme Court. (Am. Pet., ECF No. 9, PageID.36.)

         On March 29, 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. Petitioner signed his application on March 26, 2018. (Pet., ECF No. 1, PageID.8.) The petition was received by the Court on March 29, 2018. I have given Petitioner the benefit of the earliest possible filing date. 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 Fed.Appx. 497, 498 n.1 (6th Cir. 2006)).

         Petitioner's description of his habeas issues is scattered throughout his amended petition. It appears he is trying to raise the four issues addressed by ...


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