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Torres v. Rewerts

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

July 12, 2018

STEVEN TORRES, #688446, Petitioner,
v.
RANDEE REWERTS, Respondent.

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

          SEAN F. COX U.S. DISTRICT JUDGE

         I. Introduction

         Michigan prisoner Steven Torres (“Petitioner”) has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his state criminal sentence. Petitioner pleaded no contest to attempted first-degree child abuse, Mich. Comp. Laws §§ 750.136b(2); 750.92(2), in the Saginaw County Circuit Court and was sentenced as a fourth habitual offender, Mich. Comp. Laws § 769.12, to 7 ½ to 15 years imprisonment in 2015. In his pleadings, Petitioner asserts that he should be re-sentenced because the state trial court erred in departing above the recommended minimum range of the state sentencing guidelines and his sentence exceeds the statutory maximum.

         Promptly after the filing of a habeas petition, a federal district 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 also 28 U.S.C. § 2243. If, after preliminary consideration, the court determines that the petitioner is not entitled to relief, the court must summarily dismiss the petition. Id., see also 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 federal district court is authorized to summarily dismiss a habeas corpus petition if it plainly appears from the face of the petition and any attached exhibits that the petitioner is not entitled to federal habeas relief. McFarland v. Scott, 512 U.S. 849, 856 (1994); Carson v. Burke, 178 F.3d 434, 436 (6th Cir. 1999); Rule 4, Rules Governing § 2254 Cases. No. response to a habeas petition is necessary when the petition is frivolous, obviously lacks merit, or where the necessary facts can be determined from the petition itself without consideration of a response from the State. Allen, 424 F.2d at 141; Robinson v. Jackson, 366 F.Supp.2d 524, 525 (E.D. Mich. 2005). After undertaking the review required by Rule 4, the Court finds that Petitioner is not entitled to federal habeas relief.

         II. Facts and Procedural History

         Petitioner pleaded no contest to attempted first-degree child abuse in exchange for the dismissal of a first-degree child abuse charge in the Saginaw County Circuit Court and was sentenced as a fourth habitual offender to 7 ½ to 15 years imprisonment in 2015.

         Following his plea and sentencing, Petitioner filed a delayed application for leave to appeal with the Michigan Court of Appeals asserting that he should be re-sentenced because the trial court erred in departing above the recommended minimum guideline range and failed to indicate whether it would impose the same sentence without the invalid reasons. The Michigan Court of Appeals denied leave to appeal for lack of merit in the grounds presented. People v. Torres, No. 333684 (Mich. Ct. App. Aug. 24, 2016) (unpublished). Petitioner filed an application for leave to appeal with the Michigan Supreme Court, which was denied. People v. Torres, 501 Mich. 907, 902 N.W.2d 610 (2017).

         Petitioner dated his federal habeas petition on May 3, 2018. He raises the same sentencing claim presented to the state courts on direct appeal of his conviction and sentence.

         III. Standard of Review

         The provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), codified at 28 U.S.C. § 2241 et seq., govern this case because Petitioner filed her petition after the AEDPA's effective date. Lindh v. Murphy, 521 U.S. 320, 336 (1997). The AEDPA provides:

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 in the State court proceeding.

28 U.S.C. ยง2254(d) (1996). Additionally, a federal habeas court must presume the correctness of state court factual ...


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