United States District Court, W.D. Michigan, Northern Division
REPORT AND RECOMMENDATION
Honorable Paul L. Maloney, Judge
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 that 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). The Court may sua sponte dismiss a
habeas action as time-barred under 28 U.S.C. § 2244(d).
Day v. McDonough, 547 U.S. 198, 209 (2006). After
undertaking the review required by Rule 4, I conclude that
the petition is barred by the one-year statute of
Thomas Clemons is incarcerated with the Michigan Department
of Corrections at Lakeland Correctional Facility in
Coldwater, Branch County, Michigan. Petitioner pleaded guilty
in the Berrien County Circuit Court to multiple counts of
armed robbery, Mich. Comp. Laws § 750.729, and being a
felon in possession of a firearm, Mich. Comp. Laws §
750.224f. On August 14, 2015, the court sentenced Petitioner
to concurrent prison terms of fifteen to sixty years on each
of the armed-robbery convictions and thirty-eight to sixty
months on each of the felon-in-possession convictions.
did not file an application for leave to appeal from his
judgment of conviction to either the Michigan Court of
Appeals or the Michigan Supreme Court.
March 19, 2018, Petitioner filed a motion for relief from
judgment in the Berrien County Circuit Court. In an opinion
and order issued on April 17, 2018, the court denied his
motion. Petitioner filed applications for leave to appeal the
denial to both the Michigan Court of Appeals and the Michigan
Supreme Court. Those courts denied leave to appeal on August
9, 2018, and April 30, 2019, respectively. (Mich. Ct. App.
Order, ECF No. 1-1, PageID.20; Mich. Order, ECF No. 1-1,
5, 2019, 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 signed his application on June 5, 2019.
(Pet., ECF No. 1, PageID.11). The petition was received by
the Court on June 10, 2019. For purposes of this Report and
Recommendation, 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)).
habeas application, Petitioner raises a single ground for
relief, which is the same issue presented in his motion for
relief from judgment and his applications for leave to appeal
from the denial of that motion.
I. PETITIONER IS ENTITLED TO RESENTENCING BECAUSE THE TRIAL
COURT DEPARTED FROM THE APPLICABLE GUIDELINES RANGE, THE
SENTENCE IS UNREASONABLE, AND THE SENTENCING TRANSCRIPTS DO
NOT REFLECT ANY REASON FOR SENTENCING GUIDELINE DEPARTURE
REQUIRING REMAND TO THE TRIAL COURT. PETITIONER CHALLENGES
THE SCORING OF OFFENSE VARIABLES 1 AND 4 BECAUSE THE SCORES
ASSESSED DO NOT SUPPORT THE FACTS, APPLICABLE LAW, WHICH
VIOLATES PETITIONER'S DUE PROCESS RIGHT GUARANTEE.
(Pet., ECF No. 1, PageID.2)
Statute of Limitations
application is barred by the one-year statute of limitations
provided in 28 U.S.C. § 2244(d)(1), which became
effective on April 24, 1996, as part of the Antiterrorism and
Effective Death Penalty Act, Pub. L. No. 104-132, 110 Stat.
1214 (AEDPA). Section 2244(d)(1) provides:
(1) A 1-year period of limitation shall apply to an
application for a writ of habeas corpus by a person in
custody pursuant to the judgment of a State court. The