Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Smith v. Bauman

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

August 5, 2019

DERAY JEROME SMITH, Petitioner,
v.
CATHERINE BAUMAN, Respondent.

          HONORABLE PAUL L. MALONEY JUDGE.

          REPORT AND RECOMMENDATION

          MAARTEN VERMAAT U.S. MAGISTRATE JUDGE

         This is a habeas corpus action brought by a state prisoner under 28 U.S.C. § 2254, which is currently before the Court pursuant to a April 25, 2019, order by the Sixth Circuit authorizing this Court to consider a second or successive petition. (ECF No. 10.) 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). 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 limitations.

         Discussion

         I. History of the Case

         Petitioner DeRay Jerome Smith is incarcerated with the Michigan Department of Corrections at the Earnest C. Brooks Correctional Facility, (LRF) in Muskegon Heights, Muskegon County, Michigan. Following a jury trial in the Wayne County Circuit Court, Petitioner was convicted of felony murder and armed robbery. On February 17, 2004, the court sentenced Petitioner to respective prison terms of life without parole and 40 to 70 years' imprisonment.

         Petitioner appealed the judgment of conviction to the Michigan Court of Appeals and the Michigan Supreme Court. The Michigan Supreme Court denied his application on October 31, 2006. See People v. Smith, 477 Mich. 910 (2006). On November 19, 2007, Petitioner filed a motion for relief from judgment in the trial court, which was denied on April 16, 2008. See People v. Smith, No. 03-003196-02 (3d. Cir. Apr. 16, 2008). Petitioner's subsequent appeal was denied by the Michigan Court of Appeals. See People v. Smith, No. 290577 (Mich. Ct. App. July 28, 2009), and Petitioner's application for leave to appeal to the Michigan Supreme Court was rejected as untimely on September 23, 2009. Id.

         Petitioner filed a second motion for relief from judgment, which was denied by the trial court as second and/or successive on February 25, 2009, and the Michigan Court of Appeals rejected the application for leave to appeal on October 6, 2010, on the grounds that it was barred under MCR 6.502(G). See People v. Smith, No. 299374 (Mich. Ct. App. Oct. 6, 2010). The Michigan Supreme Court denied Petitioner's application for leave to appeal on the same grounds on June 28, 2011. See People v. Smith, 489 Mich. 971 (2011).

         While Petitioner's second motion for relief from judgment was pending in the state court, Petitioner filed a habeas corpus petition in the Eastern District of Michigan on December 11, 2009. See Smith v. Rapelje, 2:09-cv-14876 (E.D. Mich.). On May 11, 2012, Petitioner's application for habeas corpus relief was dismissed as being barred by the one-year statute of limitations. Id.

         Petitioner did not take any further action to challenge his conviction or sentence until 2017, when Petitioner filed the instant habeas corpus petition in this Court. Following review by the Court, Petitioner's application for habeas corpus relief was transferred to the Sixth Circuit as second or successive and the case in this Court was terminated. On April 25, 2019, the Sixth Circuit granted Petitioner's request for an order authorizing this Court to consider Petitioner's second or successive petition for writ of habeas corpus under 28 U.S.C. § 2254. (ECF No. 10.) In the order authorizing this Court's consideration of the petition, it noted:

In support of his motion, Smith relies on Miller v. Alabama, 567 U.S. 460 (2012), which prohibited mandatory life sentences without parole for juvenile offenders. Smith, who was eighteen years old when he committed his crimes, asserts that his sentence should be vacated based on the scientific research on brain development suggesting that penal consequences for young people should be approached differently.
We may authorize the district court to consider a second or successive habeas petition if the applicant makes a prima facie showing that his proposed claim “relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.” 28 U.S.C. § 2244(b)(2)(A). “A prima facie showing, in this context, simply requires that the applicant make a showing of possible merit sufficient to ‘warrant a fuller exploration by the district court.'” In re Watkins, 810 F.3d 375, 379 (6th Cir. 2015) (quoting In re Lott, 366 F.3d 431, 432-33 (6th Cir. 2004)). This prima facie showing “is not a difficult standard to meet.” In re Lott, 366 F.3d at 432.
In Miller, the Supreme Court held that “mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment's prohibition on ‘cruel and unusual punishments.'” 567 U.S. at 465. Miller requires a sentencing court “to take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.” Id. at 480. The Supreme Court has held that Miller announced a new substantive rule of constitutional law retroactively applicable on collateral review. Montgomery v. Louisiana, 136 S.Ct. 718, 736 (2016).
Smith seeks to extend the rule announced in Miller to offenders who were eighteen years old at the time of their crimes. See Cruz v. United States, No. 11-CV-787, 2018 WL 1541898, at *25 (D. Conn. Mar. 29, 2018) (holding that Miller applies to eighteen-year-olds). Other circuits have held that whether a new rule “extends” to an applicant “goes to the merits of the motion and is for the district court, not the court of appeals.” In re Williams, 759 F.3d 66, 72 (D.C. Cir. 2014); see also In re Hoffner, 870 F.3d 301, 309 (3d Cir. 2017) (“It is for the district court to evaluate the merits of the second or successive habeas petition in the first instance. This includes ‘whether the invoked new rule should ultimately be extended in the way the movant proposes' or whether his ‘reliance is misplaced.'”) (quoting In re Arnick, 826 F.3d 787, 791 (5th Cir. 2016) (Elrod, J., dissenting)); In re Hubbard, 825 F.3d 225, 231 (4th Cir. 2016) (“[I]t is for the district court to determine whether the new rule extends to the ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.