Jett #891570 v. Jackson

Filing 4

OPINION; signed by District Judge Paul L. Maloney (Judge Paul L. Maloney, cmc)

UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

DONALD PIERRE JETT,
Petitioner,
v.

Case No. 1:17-cv-393
Honorable Paul L. Maloney

SHANE JACKSON,
Respondent.
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OPINION
This is a habeas corpus action brought by a state prisoner pursuant to 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 claim.

Factual Allegations
Petitioner is presently incarcerated with the Michigan Department of Corrections (MDOC)
at the Carson City Correctional Facility in Carson City, Michigan. On April 23, 2015, in the Gogebic
County Circuit Court, Petitioner pleaded guilty to delivery of a controlled substance (heroin), MICH. COMP.
LAWS § 333.7401(2)(a)(iv), delivery/possession of a controlled substance in proximity to a park, MICH.
COMP. LAWS § 333.7410a, and maintaining a drug house, MICH. COMP. LAWS § 333.7405(1)(d). On
June 11, 2015, the trial court sentenced Petitioner as a habitual offender, second offense, to concurrent
terms of imprisonment: 42 months to 30 years for the heroin delivery; 18 months to 3 years for the
proximity to the park, and 2 years to 3 years for maintaining a drug house.
Petitioner, assisted by counsel, filed an application for leave to appeal his convictions and
sentences in the Michigan Court of Appeals. Petitioner raised two issues:
I.

SINCE MR. JETT ESTABLISHED BY A PREPONDERANCE OF THE
EVIDENCE THAT HE WAS ENTRAPPED BY THE POLICE WHEN THEY
INDUCED HIM TO DELIVER HEROIN TO AN INFORMANT WHO WAS
THE MOTHER OF HIS CHILD WHO ARRANGED THE CONTROLLED
BUYS, WHO HAD A LONG TERM PRIOR RELATIONSHIP WITH HIM,
USED HEROIN THAT SHE OBTAINED FROM HIM DURING THE TIME
THAT SHE CONDUCTED THE CONTROLLED BUYS, WITHHELD
PARENTING TIME WITH HIS CHILD IF HE DID NOT OBTAIN HEROIN
FOR HER, AND USED SYMPATHY SO SHE WOULD OBTAIN HEROIN
FROM HIM. MR. JETT ALSO ESTABLISHED THAT THIS WAS
REPREHENSIBLE POLICE CONDUCT THAT SHOULD NOT BE
TOLERATED AND AS A RESULT, DID THE TRIAL JUDGE CLEARLY
ERR BY NOT DISMISSING THE CHARGES WHICH REQUIRES THIS
COURT TO SET ASIDE MR. JETT'S CONVICTION PURSUANT TO THE
FEDERAL AND MICHIGAN CONSTITUTIONS, US CONST AMEND
V,VI,VIX; MICH CONST. ART 1, SEC. 17, 20?

II.

SINCE THE TRIAL JUDGE ENGAGED IN IMPERMISSIBLE JUDICIAL
FACT-FINDING WHEN HE ERRONEOUSLY RULED THAT MR. JETT
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WAS A LEADER IN A MULTIPLE PERSON OFFENSE TO SCORE OV 14
AT 10 POINTS, THIS COURT MUST REVERSE THE TRIAL JUDGE'S
RULING AND REMAND FOR A RESENTENCING PURSUANT TO THE
FEDERAL AND MICHIGAN CONSTITUTIONS, US CONST. AMEND
VI,V,VI; MICH CONST 1963 ART 1, SEC 17, 20?
(Pet.’s Mich. Ct. App. Appl. for Leave to Appeal, ECF No. 1-1, PageID.29.) The court of appeals
denied leave by order entered January 1, 2016. (Mich. Ct. App. Ord., ECF No. 1-1, PageID.68.)
Petitioner then filed a pro per application for leave to appeal in the Michigan Supreme
Court raising the same issues he had raised in the court of appeals. The Michigan Supreme Court denied
leave by order entered September 6, 2016. (Mich. Ord., ECF No. 1-1, PageID.67.) Petitioner filed his
habeas petition in this Court on April 26, 2017, raising the same issues he raised in the state appellate
courts.
Petitioner concisely described the factual background for his prosecution in his application
for leave to appeal filed in the Michigan Court of Appeals:
Mr. Jett admitted that on October 21, 2014, he delivered heroin to his girlfriend, Missy
Sharrow (who was acting as a police informant) at 251 Oak Street, which was within
1,000 feet of a park. Mr. Jett further acknowledged that others stayed in the house where
drugs were being used. (PT, 4-11 ).
(Pet.'s Mich. Ct. App. Appl. for Leave to Appeal, ECF No. 1-1, PageID.30.)
Prior to entering his plea, Petitioner had raised several pretrial challenges to the charges.
Among the arguments he raised was the claim that he was entrapped by police. The trial court took
testimony from Sergeant Adam Clemens of the Ironwood Police Department, Missy Sharrow, and Mr.
Jett. (Id., PageID.31.) The trial court denied the entrapment challenge.

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After his plea and sentencing, Petitioner asked to be resentenced because he believed there
was insufficient evidence to support the scoring of ten points on Offense Variable 14. That variable calls
for an evaluation, in each multi-offender situation, as to whether the person being sentenced was a leader.
MICH. COMP. LAWS § 777.44. Leaders are scored ten points; followers are scored zero points. Id.
Petitioner states that he based his motion on his plea and the facts set forth in the presentence investigation
report:
According to Mr. Jett’s factual basis for his plea, he obtained heroin for his then girlfriend,
Missy Sharrow, who happened to live within 1,000 feet from a park, and he admitted to
maintaining a drug house in the process of this transaction. In the presentence investigation
report under agent’s description of the offense, it details several drug transactions that were
conducted by a confidential informant with both Mr. Jett and James Schaus, and a police
raid at 251 E. Oak St. in Ironwood, Michigan, that led to the removal of fourteen people
from the house. (PSIR 2-4).
Mr. Jett argued that even with the entire criminal transaction considered, there was
insufficient evidence to show that he was the leader of a multiple offender situation. The
record only showed that Mr. Jett may have been working with James Schaus to distribute
heroin to an informant, and there was insufficient proof that Mr. Jett acted as a leader and
gave anyone directions or orders above and beyond what was required to commit the
within offenses. Furthermore, Mr. Jett argued that it was not shown that he recruited
others to distribute a controlled substance when the controlled buys occurred nor did it
show that he possessed a greater amount of initiative or involvement than James Straus.
(Pet.'s Mich. Ct. App. Appl. for Leave to Appeal, ECF No. 1-1, PageID.32-33.)
Discussion
I.

Entrapment

Petitioner first contends that his entrapment by police invalidates his convictions. Petitioner
waived that contention when he pleaded guilty.

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Claims about the deprivation of constitutional rights that occur before the entry of a guilty
plea are foreclosed by that plea. See United States v. Broce, 488 U.S. 563, 569 (1989); Tollett, 411
U.S. at 267. The United States Supreme Court has explained:
[A] guilty plea represents a break in the chain of events which has preceded it in the
criminal process. When a criminal defendant has solemnly admitted in open court that he
is in fact guilty of the offense with which he is charged, he may not thereafter raise
independent claims relating to the deprivation of constitutional rights that occurred prior to
the entry of the guilty plea. He may only attack the voluntary and intelligent character of the
guilty plea by showing that the advice he received from counsel was not within
[constitutional standards].
Tollett, 411 U.S. at 267. Consequently, a knowing and voluntary guilty plea waives all nonjurisdictional
defects in the proceedings that do not relate to the voluntariness of the plea, including the affirmative
defense of entrapment. See Eaton v. United States, 458 F.2d 704, 707 (7th Cir. 1972) (“[I]t is well
settled that a defendant’s plea of guilty admits, in legal effect, the facts as charged and waives all
non-jurisdictional defenses. Entrapment is a non-jurisdictional defense on the merits and petitioners have
waived their right to assert it.”). Moreover, “[t]he argument of entrapment is a defense based on statutory
interpretation and is therefore a non-constitutional claim.” Graves v. United States, No. 1:13-cv-378,
2014 WL 2604561 at *1 (W.D. Mich. Jun. 11, 2014) (citing Sosa v. Jones, 389 F.3d 644, 647-49 (6th
Cir. 2004) (holding habeas petition could not be based on entrapment claim because entrapment is not a
constitutional claim)). In short, Petitioner’s challenge to the trial court’s decision rejecting his entrapment
defense is not cognizable on habeas review and, even if it were, Petitioner has waived it by his guilty plea.
II.

Sentencing issues

Petitioner contends the trial court erred when it scored ten points on Offense Variable 14
because it concluded Petitioner was a “leader” in a multi-offender situation. “[A] federal court may issue
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the writ to a state prisoner ‘only on the ground that he is in custody in violation of the Constitution or laws
or treaties of the United States.’” Wilson v. Corcoran, 131 S. Ct. 13, 16 (2010) (quoting 28 U.S.C. §
2254(a)). A habeas petition must “state facts that point to a ‘real possibility of constitutional error.’”
Blackledge v. Allison, 431 U.S. 63, 75 n.7 (1977) (quoting Advisory Committee Notes on Rule 4, RULES
GOVERNING HABEAS CORPUS CASES). The federal courts have no power to intervene on the basis of a
perceived error of state law. Wilson, 131 S. Ct. at 14; Bradshaw v. Richey, 546 U.S. 74, 76 (2005);
Estelle v. McGuire, 502 U.S. 67-68 (1991); Pulley v. Harris, 465 U.S. 37, 41 (1984).
Claims concerning the improper application of sentencing guidelines are state-law claims
and typically are not cognizable in habeas corpus proceedings. See Hutto v. Davis, 454 U.S. 370, 373-74
(1982) (federal courts normally do not review a sentence for a term of years that falls within the limits
prescribed by the state legislature); Austin v. Jackson, 213 F.3d 298, 301-02 (6th Cir. 2000) (alleged
violation of state law with respect to sentencing is not subject to federal habeas relief). There are some
exceptions to the general rule. For example, a sentence may violate due process if it is based upon material
“misinformation of constitutional magnitude.” Roberts v. United States, 445 U.S. 552, 556 (1980),
quoted in Koras v. Robinson, 123 F. App’x 207, 213 (6th Cir. Feb. 15, 2005); see also United States
v. Tucker, 404 U.S. 443, 447 (1972); Townsend v. Burke, 334 U.S. 736, 741 (1948).
To prevail on such a claim, the petitioner must show (1) that the information before the
sentencing court was materially false, and (2) that the court relied on the false information in imposing the
sentence. Tucker, 404 U.S. at 447;United States v. Polselli, 747 F.2d 356, 358 (6th Cir. 1984); Koras,
123 F. App’x at 213 (quoting United States v. Stevens, 851 F.2d 140, 143 (6th Cir. 1988)). A
sentencing court demonstrates actual reliance on misinformation when the court gives “explicit attention”
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to it, “found[s]” its sentence “at least in part” on it, or gives “specific consideration” to the information
before imposing sentence. Tucker, 404 U.S. at 444, 447.
Petitioner states that the court relied upon false information here. Closer examination of
his argument, however, reveals that his true contention is that the court concluded Petitioner was a “leader”
based on insufficient evidence. Petitioner fails to identify any false information that formed the basis for that
conclusion. Thus, Petitioner’s challenge is accurately characterized as an objection to application of the
Michigan sentencing guidelines. Such a challenge is not cognizable on habeas review.
Plaintiff next attempts to cast his sentencing challenge as a cognizable habeas issue by
claiming his sentence is the product of impermissible judicial fact-finding, relying on Alleyne v. United
States, 133 S. Ct. 2151 (2013). To avoid the impermissible judicial fact-finding identified in Alleyne, in
People v. Lockridge, 870 N.W.2d 502 (Mich. 2015), the Michigan Supreme Court made the Michigan
sentencing guidelines advisory rather than mandatory. Although the Lockridge opinion was entered after
Petitioner was initially sentenced, it was issued well before the trial court ruled on Petitioner’s motion for
resentencing. Thus, at the time the trial court judge denied the motion to resentence, and stood firm on the
original sentence, he knew the guidelines were advisory only, removing any possible taint of impermissible
judicial fact-finding.
Conclusion
In light of the foregoing, the Court will summarily dismiss Petitioner’s application pursuant
to Rule 4 because it fails to raise a meritorious federal claim.

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Certificate of Appealability
Under 28 U.S.C. § 2253(c)(2), the Court must determine whether a certificate of
appealability should be granted. A certificate should issue if Petitioner has demonstrated a “substantial
showing of a denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This Court’s dismissal of
Petitioner’s action under Rule 4 of the Rules Governing § 2254 Cases is a determination that the habeas
action, on its face, lacks sufficient merit to warrant service. It would be highly unlikely for this Court to
grant a certificate, thus indicating to the Sixth Circuit Court of Appeals that an issue merits review, when
the Court has already determined that the action is so lacking in merit that service is not warranted. See
Love v. Butler, 952 F.2d 10 (1st Cir. 1991) (it is “somewhat anomalous” for the court to summarily
dismiss under Rule 4 and grant a certificate); Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990)
(requiring reversal where court summarily dismissed under Rule 4 but granted certificate); Dory v. Comm’r
of Corr. of New York, 865 F.2d 44, 46 (2d Cir. 1989) (it was “intrinsically contradictory” to grant a
certificate when habeas action does not warrant service under Rule 4); Williams v. Kullman, 722 F.2d
1048, 1050 n.1 (2d Cir. 1983) (issuing certificate would be inconsistent with a summary dismissal).
The Sixth Circuit Court of Appeals has disapproved issuance of blanket denials of a
certificate of appealability. Murphy v. Ohio, 263 F.3d 466 (6th Cir. 2001). Rather, the district court must
“engage in a reasoned assessment of each claim” to determine whether a certificate is warranted. Id. at
467. Each issue must be considered under the standards set forth by the Supreme Court in Slack v.
McDaniel, 529 U.S. 473 (2000). Murphy, 263 F.3d at 467. Consequently, this Court has examined
each of Petitioner’s claims under the Slack standard. Under Slack, 529 U.S. at 484, to warrant a grant
of the certificate, “[t]he petitioner must demonstrate that reasonable jurists would find the district court’s
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assessment of the constitutional claims debatable or wrong.” Id. “A petitioner satisfies this standard by
demonstrating that . . . jurists could conclude the issues presented are adequate to deserve encouragement
to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). In applying this standard, the
Court may not conduct a full merits review, but must limit its examination to a threshold inquiry into the
underlying merit of Petitioner’s claims. Id.
The Court finds that reasonable jurists could not conclude that this Court’s dismissal of
Petitioner’s claims was debatable or wrong. Therefore, the Court will deny Petitioner a certificate of
appealability.
A Judgment and Order consistent with this Opinion will be entered.

Dated:

May 12, 2017

/s/ Paul L. Maloney
Paul L. Maloney
United States District Judge

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