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Zemke v. Brewer

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

April 12, 2019

ALICIA ZEMKE, Petitioner,
v.
SHAWN BREWER, Respondent.

          OPINION AND ORDER SUMMARILY DENYING THE PETITION FOR WRIT OF HABEAS CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY OR LEAVE TO APPEAL IN FORMA PAUPERIS

          Hon. Gershwin A. Drain United States District Court Judge.

         Petitioner Alicia Zemke, presently confined at the Women's Huron Valley Correctional Facility in Ypsilanti, Michigan, seeks issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In her pro se application, Petitioner challenges as “unreasonable” the twenty- to eighty-year prison sentence she received for a conviction of Child Abuse, First Degree, Mich. Comp. Laws § 750.136b. For the reasons stated below, the application for writ of habeas corpus is summarily denied.

         I. BACKGROUND

         Petitioner Zemke was convicted by a no contest plea to first-degree child abuse on January 20, 2017. Under Michigan's sentencing guidelines, her minimum sentence range was calculated to be 9 to 15 years. (Pet. at 17, ECF No. 1, PageID 17.) She was sentenced on March 13, 2017 to 20 to 80 years incarceration. (Id. at 15.)

         Following her conviction and sentence, Zemke filed a Delayed Application for Leave to Appeal with the Michigan Court of Appeals. In the sole basis for her appeal, Zemke sought resentencing “because her sentence was an unreasonable and disproportionate upward departure for her recommended Guideline Range.” (Pet. at 2, ECF No. 1, PageID 2.) The Court of Appeals denied the Delayed Application in a standard form order, “for lack of merit in the grounds presented.” People v. Zemke, No. 339906 (Mich. Ct. App. October 27, 2017) (unpublished). On July 27, 2018, the Michigan Supreme Court denied her Application for Leave to Appeal the lower court's decision. People v. Zemke, 502 Mich. 937, 915 N.W.2d 469 (2018) (Mem).

         Zemke did not file a Petition for a Writ of Certiorari with the United States Supreme Court. She filed this petition, seeking relief on the grounds that she is “entitled to resentencing because her sentence was . . . unreasonable and [based on] inaccurate OV [Offense Variable] scoring.” (Pet. at 5, ECF No. 1, PageID 5.)

         Zemke filed a motion for resentencing with the Berrien County Circuit Court, raising the issue that her “OV [Offense Variable] scores are wrong.” (Id. at 6, PageID 6.) Zemke included with her petition an unsigned, undated copy of this motion, captioned “Motion for Relief from Judgment under Lockridge[1] 2015 MICH LEXIS 1774.” (Id. at 19, PageID 19.) That motion argues that four offense variables were incorrectly scored and asks the trial court “to resentence this Defendant because the sentence is based on unreliable and inaccurate OV scoring.” (Id. at 20, PageID 20.) Zemke provided neither the date the motion was filed nor its status, except to say she “do[es]n't know yet” the result of her motion. (Id. at 3, PageID 3.)

         II. DISCUSSION

         A. Summary dismissal

         Upon receipt of a habeas corpus petition, a federal court must “promptly examine [the] petition to determine ‘if it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief.'” Crump v. Lafler, 657 F.3d 393, 396 n. 2 (6th Cir. 2011) (quoting Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts). “Federal courts are authorized to dismiss summarily any habeas petition that appears legally insufficient on its face[.]” McFarland v. Scott, 512 U.S. 849, 856 (1994); see also Martin v. Overton, 391 F.3d 710, 714 (6th Cir. 2004). A habeas petition may also be summarily dismissed if it does not set forth facts that give rise to a cause of action under federal law. See Perez v. Hemingway, 157 F.Supp.2d 790, 796 (E.D. Mich. 2001).

         Rule 4 screening extends to unexhausted claims as well as exhausted ones. Unexhausted claims may be addressed if pursuit of a state court remedy would be futile, see Witzke v. Withrow, 702 F.Supp. 1338, 1348 (W.D.Mich.1988), or if the unexhausted claim is meritless such that addressing it in the screening process would be efficient and not offend federal-state comity. See Prather v. Rees, 822 F.2d 1418, 1422 (6th Cir.1987); see also 28 U.S.C. § 2254(b)(2) (habeas petition may be denied on the merits despite the failure to exhaust state court remedies).

         The Sixth Circuit disapproves of ordering a response to a habeas petition “until after the District Court first has made a careful examination of the petition.” Allen v. Perini, 424 F.2d 134, 140 (6th Cir.1970). A district court therefore has the duty to screen out any habeas corpus petition which lacks merit on its face. Id. at 141. No response to a habeas petition “is necessary when the petition is frivolous, or obviously lacks merit, or where the necessary facts can be determined from the petition itself without need for consideration of a response.” Id.; see also 28 U.S.C.A. § 2243.

         After undertaking the review required by Rule 4, this Court concludes, for reasons stated in greater detail below, that Petitioner's claims do not entitle her to habeas relief and the petition must be summarily denied. See McIntosh v. Booker, 300 F.Supp.2d 498, 499 (E.D. Mich. 2004).

         B. State sentencing ...


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