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Fisher v. Rewerts

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

September 25, 2019




         This is 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.[1] 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 claim.


         I. Factual allegations

         Petitioner Dale Raymond Fisher is incarcerated with the Michigan Department of Corrections at the Carson City Correctional Facility (DRF) in Carson City, Michigan. On January 13, 2017, Petitioner pleaded guilty in the Grand Traverse County Circuit Court to one count of third-degree criminal sexual conduct (CSC-III) and to his status as a fourth habitual offender. In exchange for Petitioner’s plea, the prosecutor agreed to dismiss two other counts of CSC-III perpetrated upon the same victim and agreed not to pursue human trafficking charges against Petitioner relating to another victim.

         Petitioner’s criminal history included two 1987 convictions for second-degree criminal sexual conduct (CSC-II) in Mecosta County. He had also been convicted in Grand Traverse County of attempted first-degree retail fraud, in 1994, and first-degree retail fraud in 1996. The prosecutor listed these offenses on the information to support the habitual offender notice.

         At the time Petitioner committed the retail fraud offenses, first-degree retail fraud was a felony with a two-year maximum penalty.[2] Under the statute that criminalized attempts, Mich. Comp. Laws § 750.92, the maximum penalty for attempted first-degree retail fraud at that time was one year because the statute limited the maximum to one-half of the maximum for the completed crime.[3]

         Based on the number of Petitioner’s prior convictions, the prosecutor sought the habitual offender enhancement. Based on the presence of the CSC-II convictions in Petitioner’s criminal history, when considered with the number of his prior convictions, Petitioner’s plea to even one count of CSC-III subjected him to a minimum sentence of 25 years.

         When Petitioner’s counsel explained the deal to the trial court, the court noted that the significant mandatory minimum meant the prosecutor was not giving up much under the terms of the plea agreement. To ensure that Petitioner understood the consequences of his plea, the court explained that the 25-year mandatory minimum would mean he would spend at least 25 years in prison. (Grand Traverse Cty. Cir. Ct. Jan. 13, 2017, Plea Tr. 4-8.) Petitioner’s counsel noted that he intended to pursue a lesser sentence anyway, but that Petitioner was not relying on that prospect. Id. At a minimum, despite the judge’s skepticism about the benefits, the plea bargain offered Petitioner the opportunity to avoid potentially consecutive sentences on the other counts with respect to that victim or following conviction of other offenses with respect to the other victim.

         Petitioner expressly acknowledged the terms of the agreement and his understanding of them. Id., at 7-14. He indicated that he had discussed with counsel and understood the rights he was giving up. He agreed that there were no other promises or inducements that prompted his plea and that his plea was voluntary. The prosecutor and Petitioner’s counsel likewise agreed that there were no other promises. Id., at 14. Petitioner then admitted penetrating the 14 or 15-year-old victim’s vagina with his penis in Grand Traverse County. Id., at 14-16. He also admitted the validity of each of the four convictions that the prosecutor included on the habitual offender notice. Id., at 16-18.

         On February 10, 2017, during the sentencing hearing, Petitioner challenged whether all four predicate convictions for the habitual offender enhancement should be counted. (Grand Traverse Cty. Cir. Ct. Feb. 10, 2017, Sentencing Hr’g Tr. 3-7.) He raised two distinct arguments. First, he argued that only one of the two CSC-II convictions from Mecosta County should be included because they arose from the same criminal transaction. The prosecutor and the trial court agreed. Second, he argued that his attempted first-degree retail fraud was a misdemeanor and, therefore, should not be counted. The prosecutor and the court disagreed with the second proposition.

         The court recognized that attempted first-degree retail fraud was a misdemeanor, [4]but the court concluded that an attempt to commit a felony was properly counted under the habitual offender statute. Id. at 7-10. Based on Petitioner’s prior conviction for CSC-II, prior conviction for first-degree retail fraud, prior conviction for attempted first-degree retail fraud, and present conviction for CSC-III, the court determined that Petitioner was subject to a 25-year minimum sentence under Mich. Comp. Laws § 769.12. Accordingly, the court sentenced Petitioner to 25 to 50 years imprisonment. The 25-year mandatory statutory minimum sentence coincidentally fell within Petitioner’s calculated minimum guidelines range. (Grand Traverse Cty. Cir. Ct. Feb. 10, 2017, Sentencing Hr’g Tr., 22.)

         Petitioner, with the assistance of appointed counsel, filed an application for leave to appeal his sentence. Petitioner argued that: (1) the court erred in counting the attempted first-degree retail fraud as a predicate offense under Mich. Comp. Laws § 769.12; (2) the court erred in scoring the offense variables; and (3) Petitioner’s counsel rendered ineffective assistance in two respects-(a) counsel advised Petitioner to plead guilty because counsel could avoid the mandatory 25-year minimum; and (b) counsel did not move to strike the habitual offender predicate convictions until after plea taking. (Pet’r’s Appl. for Leave to Appeal, ECF No. 9-1, PageID.72.) By order entered November 15, 2017, the Michigan Court of Appeals denied leave to appeal because Petitioner’s claims lacked merit. (Mich. Ct. App. Order, ECF No. 9-1, PageID.70.)

         Petitioner then sought leave to appeal in the Michigan Supreme Court raising issues 1 and 3a from his Michigan Court of Appeals application and one new claim: Petitioner’s counsel and the prosecutor discussed a plea deal from a previous case and charges with respect to another victim that were not pursued because of that deal. (Pet’r’s Appl. for Leave to Appeal, ECF No. 9-1, PageID.105-108.) By order entered May 1, 2018, the Michigan Supreme Court denied leave to appeal because it was not persuaded the questions raised should be reviewed. (Mich. Order, ECF No. 9-1, PageID.122.)

         On June 1, 2019, Petitioner timely filed his form habeas corpus petition. Petitioner also moved to stay the proceedings to permit him to return to the state courts to raise new constitutional issues. (ECF Nos. 3, 4.) Petitioner left many parts of the form habeas corpus petition blank, including that part of the form where Petitioner was supposed to identify the constitutional violations that warranted habeas relief. (Pet., ECF No. 1, PageID.6-11.) By way of Petitioner’s motion to stay, however, Petitioner identified certain constitutional challenges. Specifically, Petitioner explained that he was raising an ineffective assistance of counsel claim based on counsel’s advice to plead guilty despite a 25-year mandatory minimum sentence. (Mot. to Stay, ECF No. 3, PageID.24.) Additionally, Petitioner indicated his intention to raise the trial court’s error regarding the habitual offender-fourth offense sentence enhancement; but, to raise it for the first time as a violation of Petitioner’s due process rights. (Id.)

         To ensure that Petitioner had identified all of his habeas issues, the Court ordered Petitioner to submit an amended petition that set forth all of the grounds for relief that Petitioner intended to raise. (ECF No. 6.) Petitioner filed his amended petition on August 20, 2019, raising three issues:

I. Trial counsel was ineffective in violation of Petitioner’s Sixth Amendment right when he counseled Petitioner to plead guilty.
II. Trial court violated due process rights under the Fourteenth Amendment when erroneously enhancing Petitioner’s sentence under the Habitual Offender Act.
III. Trial court violated Ex Post Facto and Due Process Clauses under the Fourteenth Amendment when erroneously enhancing Petitioner’s sentence under ...

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