United States District Court, W.D. Michigan, Southern Division
T. Neff, United States District 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 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 concludes that the petition must be
dismissed because it fails to raise a meritorious federal
Korbin Tyler Lavern Thomas is incarcerated with the Michigan
Department of Corrections at the Oaks Correctional Facility
(ECF) in Manistee, Michigan. On September 9, 2015, Petitioner
pleaded guilty in the Kalamazoo County Circuit Court to
second-degree murder, in violation of Mich. Comp. Laws §
750.317. On October 5, 2015, the court sentenced Petitioner
to a prison term of 15 to 50 years.
Petitioner's plea hearing, he testified that, on January
11, 2015, in Kalamazoo County, he came into contact with
Jazmyne Gibson; shortly thereafter, he caused her death; and,
he caused her death by shooting her. (Plea Hr'g Tr., ECF
No. 5, PageID.112.) Petitioner acknowledged that when he shot
Ms. Gibson he knowingly created a very high risk of death or
great bodily harm by pointing a gun at her that “turned
out to be loaded” and pulling the trigger. (Plea
Hr'g Tr., ECF No. 1-2, PageID.35.) At Petitioner's
sentencing hearing, his counsel posited that Petitioner was
teasing and toying when he pointed the rifle at his
girlfriend and pulled the trigger negligently, or perhaps
recklessly, unaware that there was a bullet in the chamber.
(Sentencing Hr'g, ECF No. 1-3, PageID.62.)
taking Petitioner's plea, the trial court reviewed the
terms of the plea bargain:
[THE PROSECUTOR] MR. WILLIAMS: Your Honor, it's my
understanding we have a resolution to this matter.
THE COURT: All right. What would it be?
MR. WILLIAMS: I've advised [defendant's counsel] Mr.
Sappanos that if Mr. Thomas pleads guilty to the included
offense in count one of second degree murder the People would
dismiss count two, felony firearm and we have come to a
sentencing agreement that the Court will have discretion to
sentence the Defendant between 8 and 15 years.
THE COURT: At the minimum of the-at the minimum?
MR. WILLIAMS: The Court-the Court can choose a sentence
anywhere between 8 and 15 years Your Honor. That's-we
calculate that to be between the guidelines of manslaughter
and second degree murder so we would have a sentencing
agreement of a sentence of no less than 8 years, no more than
15 years, we'll leave it to Your Honor's discretion
to fashion appropriate sentence between those numbers.
THE COURT: And there is no agreement on what the maximum
MR. WILLIAMS: That's correct, Your Honor.
THE COURT: All right. And this is a Killebrew
agreement and if I decided to go outside of that, Mr.
Sappanos and his client would have absolute right to
withdraw, is that your understanding?
MR . WILLIAMS: That is correct; it is a Killebrew
THE COURT: Mr. Sappanos, is this your agreement?
MR. SAPPANOS: It is, Your Honor.
THE COURT: Most importantly, Mr. Thomas, is this your
MR. THOMAS: Yes, Your Honor.
THE COURT: Has anyone promised you anything else or
threatened you to ...