United States District Court, E.D. Michigan, Southern Division
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
F. COX U.S. DISTRICT JUDGE
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.
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.
Facts and Procedural History
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.
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).
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.
Standard of Review
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
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;
(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. §2254(d) (1996). Additionally, a federal
habeas court must presume the correctness of state court