United States District Court, E.D. Michigan, Southern Division
JEREMIAH A. DEWEY, Petitioner,
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
G. Edmunds, United States District Court.
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
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.
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).
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,
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
II. Mr. Dewey was improperly assessed 10 points for OV 3.
III. Mr. Dewey was improperly assessed 25 points for OV 13 in
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.
the date of this Opinion, Petitioner's appeal remains