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Dewey v. Horton

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

July 12, 2019

JEREMIAH A. DEWEY, Petitioner,
v.
CONNIE HORTON, Respondent.

          OPINION AND ORDER (1) GRANTING RESPONDENT'S MOTION TO DISMISS AND DISMISSING PETITION FOR WRIT OF HABEAS CORPUS WITHOUT PREJUDICE, (2) DENYING CERTIFICATE OF APPEALABILITY, AND (3) DENYING PERMISSION TO PROCEED ON APPEAL IN FORMA PAUPERIS

          Nancy G. Edmunds, United States District Court.

         Jeremiah A. Dewey, an inmate at the Chippewa Correctional Facility, filed this petition for writ of habeas corpus under 28 U.S.C. § 2254. Petitioner challenges his 2014 Presque Isle Circuit Court jury trial convictions of five counts of first-degree criminal sexual conduct. Mich. Comp. Laws § 750.520b. Petitioner was resentenced to a controlling term of 22 to 40 years' imprisonment on October 3, 2016. Petitioner appealed from his resentencing, and that appeal remains pending in the Michigan Court of Appeals. Before the Court is Respondent's motion to dismiss the petition because Petitioner has not exhausted his state court remedies. For the reasons stated below, the Court will grant Respondent's motion, and it will dismiss the petition without prejudice.

         I. Background

         Following his conviction and initial sentence, Petitioner filed a claim of appeal in the Michigan Court of Appeals. His appellate counsel filed a brief on appeal raising the following claims:

I. Defendant-Appellant is entitled to resentencing where the present minimum sentences violated the principles of proportionality and the trial court's reasons for sentencing defendant-appellant above the recommended sentence guideline ranges were insufficient to justify the departure.
II. Defendant-Appellant is entitled to resentencing where the trial court abused its discretion in the scoring of offense variable 13, resulting in a disproportionate sentence.

         The Michigan Court of Appeals granted Petitioner partial relief, and the case was remanded to the trial court to determine whether a new sentence was warranted based on advisory rather than mandatory sentencing guidelines. People v. Dewey, No. 324275 (Mich. Ct. App. Feb. 16, 2016).

         At a proceeding held in the trial court on October 3, 2016, the trial court indicated that had the guidelines been merely advisory it would have imposed the same sentence. The court entered a new judgment of sentence. Dkts. 7-1, at 11; 7-21, at 7.

         Petitioner filed a claim of appeal from the new judgment of sentence. His brief on appeal, which was filed on February 20, 2019, raised the following claims:

I. The recent Michigan Supreme Court decision in People v. Steanhouse, 902 N.W.2d 327 (Mich. 2017), establishes that the trial court imposed an unreasonable sentence where it failed to explain how and why the extent of the upward departure sentence was reasonable and proportionate and where the trial court wholly disregarded the advisory guideline range.
II. Mr. Dewey was improperly assessed 10 points for OV 3.
III. Mr. Dewey was improperly assessed 25 points for OV 13 in Case #092851.
IV. The trial court erred by allowing irrelevant information to remain in Mr. Dewey's PSI in Case #092851, over the objection of defense counsel.

         As of the date of this Opinion, Petitioner's appeal remains pending ...


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