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Schomaker v. Wriggelsworth

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

July 8, 2019




         This is a habeas corpus action brought by a county jail inmate 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 which 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). After undertaking the review required by Rule 4, the Court will dismiss the petition without prejudice for failure to exhaust available state-court remedies.


         I. Factual allegations

         Petitioner Richard Schomaker is incarcerated at the Ingham County Jail. Following a jury trial in the 54B District Court, Petitioner was convicted of the misdemeanor of nuisance, in violation of East Lansing Ordinance 26-3(8), because he maintained an unsafe structure, specifically, a noncompliant fence/wall. Plaintiff's barrier consisted of a

combination of paving stones, cinder blocks, and chain link fence. At the time it was originally constructed, barbed wire was installed. No. footings were placed to support the paving stones and cinder blocks. . . . The paving stones and cinder blocks are not stabilized with rebar or pea stone and are not constructed on footings. The blocks are not interlocked in any way. No. mortar has been placed between the paving stones or the cinder blocks. There is no adhesion between the blocks and/or the paving stones. Defendant has placed loose angle iron top to bottom within the cinder blocks, apparently for the purpose of preventing them from collapsing into a pile of loose blocks.

(54B District Ct. Order for Re-Sentencing After Remand, ECF No. 1-1, PageID.81.)

         On August 29, 2016, Petitioner was placed on short-term probation and ordered to “complete, within ninety (90) days, a fence that is in compliance with the city's requirements . . . .” (54B District Ct. Order, ECF No. 1-1, PageID.80-81.)

         On November 29, 2016, a probation violation was docketed, indicating that Petitioner had failed to bring his fence into compliance with the city ordinance. (54B Register of Action, ECF No. 1-1, PageID.106.) A notice to appear for arraignment on the probation violation issued on December 2, 2016. (Id.) The probation-violation arraignment was twice postponed, because Petitioner had appealed his sentence to the Ingham County Circuit Court.

         On February 1, 2017, the circuit court vacated the sentence and “remanded for an evidentiary hearing and for further proceedings regarding the “Retaining Wall” and “Fence Height[.]” (Id., PageID.81.) The court retained jurisdiction. On remand, the district court held an evidentiary hearing and, in an order issued on August 23, 2017, detailed its findings about the deficiencies of the wall/fence that supported the sentence. (Id.) The court set a new sentencing date of September 13, 2017, but the parties stipulated to an order to adjourn the sentencing on September 12, 2017. (Id., PageID.109.)

         On October 18, 2017, the district court judge held a re-sentencing hearing. (Id., PageID.110.) The court continued the bonds. (Id.) In an order issued on November 15, 2017, the circuit court dismissed the appeal. (Id., PageID.111; Cir. Ct. Ord., ECF No. 1-1, PageID.85-86, 221-222.) Following a sentencing hearing, Petitioner was again sentenced on February 21, 2018, to a three-month period of probation, together with approximately $1, 600.00 in fines and costs. (54B Register of Action, ECF No. 101, PageID.112.) Petitioner was given three months to bring the fence into compliance and to pay the fines. (Id.) On March 8, 2018, the court amended the probation order, extending it by one month. (Id., PageID.113.)

         Petitioner filed a claim of appeal to the circuit court on March 30, 2018. (Id., PageID.112-113.) On May 21, 2018, Petitioner sought a stay of the proceedings, pending the outcome of the appeal. That same date, a probation violation notice was filed, and arraignment on the probation violation was scheduled for May 23, 2018. (Id., PageID.113-114.) At a hearing held on June 19, 2018, the district court granted Petitioner's motion to stay and to continue the bond on appeal. (Id., PageID.114; Hr'g on Mot. to Stay Pending Appeal, ECF No. 1-1, PageID.115-120.)

         The circuit court granted Petitioner leave to appeal on June 14, 2018, but directed Petitioner to comply fully with Mich. Ct. R. 7.104(D)(1), (4), and (6) within seven days. (6/14/18 Cir. Ct. Order, ECF No. 1-1, PageID.36-37.) On June 25, 2018, the court dismissed the appeal, because Petitioner failed to comply with the order by filing a copy of the decision being appealed. (6/25/2018 Cir. Ct. Order, ECF No. 1-3, PageID.228.) Petitioner sought reconsideration. In an opinion and order issued on September 12, 2018, the circuit court denied the motion. (9/12/2018 Cir. Ct. Order, ECF No. 1-3, PageID.42-43.)

         Petitioner was scheduled for a probation-violation arraignment on November 9, 2018, and it ultimately was held on December 1, 2018. (Id., PageID.153.) A probation-violation hearing was held on January 30, 2019, and February 4, 2019. At a hearing held on February 19, 2019, the court found Petitioner to be in civil contempt and guilty of the probation violation, as the fence had not been repaired. The court continued probation until June 22, 2019, and ...

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