Cleary v. Rivard
OPINION and ORDER Summarily Denying the 1 Petition for Writ of Habeas Corpus, Denying a Certificate of Appealability, and Denying Petitioner Leave to Appeal In Forma Pauperis. Signed by District Judge Judith E. Levy. (SBur)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case No. 16-cv-12641
Judith E. Levy
United States District Judge
Mag. Judge R. Steven Whalen
OPINION AND ORDER SUMMARILY DENYING THE PETITION
FOR WRIT OF HABEAS CORPUS, DENYING A CERTIFICATE
OF APPEALABILITY, AND DENYING PETITIONER LEAVE TO
APPEAL IN FORMA PAUPERIS
Tyree Kelly Cleary (“Petitioner”), confined at the St. Louis
Correctional Facility in St. Louis, Michigan, filed a pro se petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254.
challenges his sentence on his convictions for unlawful imprisonment,
Mich. Comp. Laws § 750.349b, carrying a concealed weapon, Mich.
Comp. Laws § 750.227, first-degree home invasion, Mich. Comp. Laws
§ 750.110a(2), and felony firearm, Mich. Comp. Laws § 750.227b. For
the reasons set for the below, the petition is summarily denied.
Petitioner pleaded guilty in the Jackson County Circuit Court to
offenses set forth above. He was sentenced to eight to twenty-two years
in prison on the unlawful imprisonment conviction, three to seven years
on the carrying a concealed weapons conviction, fourteen to thirty years
on the home invasion conviction, and two years on the felony-firearm
Petitioner’s conviction was affirmed on appeal. People v. Cleary,
No. 322089 (Mich. Ct. App. Sept. 16, 2014); People v. Cleary, 497 Mich.
1012, 1012 (2015).
Petitioner seeks a writ of habeas corpus on the following grounds:
The trial court erred in considering conduct that
occurred after completion of the guideline offense and
conduct from dismissed charges in assessing offense
variable points. The sentencing guidelines must be
corrected and the defendant resentenced.
The trial court, Court of Appeals, and Michigan
Supreme Court erred in their holding in considering
conduct that occurred after completion of the guideline
Petitioner indicates he was sentenced to sixteen to thirty years in prison without
specifying what charges the sentences were for.
This Court obtained the
information on the sentences for each charge from the Michigan Department of
Corrections’ Offender Tracking Information System, of which this Court is
permitted to take judicial notice. See Ward v. Wolfenbarger, 323 F. Supp. 2d 818,
821, n.3 (E.D. Mich. 2004).
offense and conduct from dismissed charges in
assessing offense variable points. A defendant is
entitled as a matter of due process to be sentenced on
the basis of accurate information. U.S. CONST., amend.
XIV; MICH. CONST. 1963, art. 1, § 17. The sentencing
guidelines must be corrected and the defendant
(Dkt. 1 at 3-5.)
Petitioner claims that the trial court incorrectly scored Offense
Variable 4 of the Michigan Sentencing Guidelines and that the
Michigan appellate courts erred in upholding his sentence.
A petition for a writ of habeas corpus must set forth facts that give
rise to a cause of action under federal law or it may be summarily
dismissed. See Perez v. Hemingway, 157 F. Supp. 2d 790, 796 (E.D.
Mich. 2001). Any habeas petition that appears legally insufficient on its
face may be dismissed. McFarland v. Scott, 512 U.S. 849, 856 (1994);
see Carson v. Burke, 178 F.3d 434, 436 (6th Cir. 1999) (a habeas corpus
petition may be summarily dismissed if it plainly appears from the face
of the petition or the exhibits that are attached to it that the petitioner
is not entitled to federal habeas relief).
Thus, “a show cause order [to the respondent]” should not issue
“until after the District Court first has made a careful examination of
the petition.” Allen v. Perini, 424 F.2d 134, 140 (6th Cir. 1970). The
district court must screen any habeas petition, and a response is
unnecessary when the petition is frivolous, obviously lacks merit, or the
necessary facts can be determined from the petition itself without
consideration of a return by the state. Id. at 141. For the reasons set
forth below, Petitioner is not entitled to habeas relief on her sentencing
claims, and the petition is summarily denied. See McIntosh v. Booker,
300 F. Supp. 2d 498, 499 (E.D. Mich. 2004).
Petitioner is not entitled to habeas relief on his sentencing claim.
See McIntosh v. Booker, 300 F. Supp. 2d 498, 499 (E.D. Mich. 2004).
State courts are the final arbiters of state law. See Bradshaw v. Richey,
546 U.S. 74, 76 (2005); Sanford v. Yukins, 288 F.3d 855, 860 (6th Cir.
2002). Claims that arise out of a state trial court’s sentencing decision
are not normally cognizable on federal habeas review, unless the
petitioner can show that the sentence exceeded the statutory limits or is
wholly unauthorized by law. See Vliet v. Renico, 193 F. Supp. 2d 1010,
1014 (E.D. Mich. 2002). Thus, a sentence within the statutory limits or
otherwise authorized by law is not subject to habeas review. Townsend
v. Burke, 334 U.S. 736, 741 (1948); Cook v. Stegall, 56 F. Supp. 2d 788,
797 (E.D. Mich. 1999).
Errors in the application of state sentencing guidelines, such as
those challenged by Petitioner, cannot independently support habeas
relief. See Kissner v. Palmer, 826 F.3d 898, 904 (6th Cir. 2016). Such
errors, alone, do not violate federal due process rights.
Jackson, 213 F.3d 298, 301 (6th Cir. 2000). Thus, the Court summarily
denies the petition for writ of habeas corpus with prejudice.
A certificate of appealability is denied, because Petitioner fails to
make “a substantial showing of the denial of a constitutional right.” See
28 U.S.C. § 2253(c)(2). Reasonable jurists could not “debate whether
(or, for that matter, agree that) the petition should have been resolved
in a different manner or that the issues presented were ‘adequate to
deserve encouragement to proceed further.’” Slack v. McDaniel, 529
U.S. 473, 483 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4
Leave to appeal in forma pauperis is also denied.
would not be taken in good faith, because any such appeal would be
frivolous. 28 U.S.C. § 1915(a)(3) (a court may grant in forma pauperis
status if the court finds that an appeal would be taken in good faith);
Foster v. Ludwick, 208 F. Supp. 2d 750, 764 (E.D. Mich. 2002) (“The
standard for issuing a certificate of appealability has a higher threshold
than the standard for granting in forma pauperis status, which requires
showing that the appeal is not frivolous.”) (citing United States v.
Youngblood, 116 F.3d 1113, 1115 (5th Cir. 1997)).
Accordingly, the petition for writ of habeas corpus (Dkt. 1) is
DENIED WITH PREJUDICE, a Certificate of Appealability is
DENIED, and leave to appeal in forma pauperis is DENIED.
IT IS SO ORDERED.
Dated: July 31, 2017
Ann Arbor, Michigan
s/Judith E. Levy
JUDITH E. LEVY
United States District Judge
CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served
upon counsel of record and any unrepresented parties via the Court’s
ECF System to their respective email or First Class U.S. mail addresses
disclosed on the Notice of Electronic Filing on July 31, 2017.
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