United States District Court, E.D. Michigan, Southern Division
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
Gershwin A. Drain United States District Court Judge.
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.
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.)
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 October 27, 2017) (unpublished).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).
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.)
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 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,
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).
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).
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.
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).
State sentencing ...