Smith v. Caruso et al

Filing 18

OPINION ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)

UNITED STATES OF AMERICA U N IT E D STATES DISTRICT COURT FO R THE WESTERN DISTRICT OF MICHIGAN N O R T H E R N DIVISION

PAUL SMITH #178582, P e ti t i o n e r , v. M IC H A E L CURELY, R e s p o n d e n t. ____________________________________/ O P IN IO N P e titio n e r Paul Smith #178582 filed this petition for writ of habeas corpus c h a lle n gin g the validity of the sentences imposed for five "unlawfully driving away of an a u to m o b ile " convictions he received in 1985. Petitioner was convicted pursuant to guilty pleas, and w a s sentenced to concurrent sentences of 3 to 5 years in prison. Petitioner is not challenging the v a lid ity of these convictions, but is merely complaining that these sentences were not discharged w h e n he completed serving them. A review of the MDOC's Offender Tracking Information System (O T IS ), shows that the above sentences continue to be "active." In addition, a review of OTIS re v e a ls that after Petitioner was sentenced to the above in 1985, he received a 4 to 10 year sentence fo r "unlawfully driving away of an automobile" in 1990, two 2 year 10 month to 10 year sentences fo r "unlawfully driving away of an automobile" in 2002, a 2 year 4 month to 10 year sentence for " u n la w f u lly driving away of an automobile" in 2003, a 6 to 10 year sentence for "unlawfully driving a w a y of an automobile" in 2005, and a 2 to 4 year sentence for "police officer - assault / resist / o b stru c t" in 2005. See http://www.state.mi.us/mdoc/asp/otis2profile.asp?mdocNumber=178582. C a s e No. 2:08-cv-146 H o n o ra b le Robert Holmes Bell

P ro m p tly after the filing of a petition for habeas corpus, the court must undertake a p r e lim in a ry review of the petition to determine whether "it plainly appears from the face of the p e titio n and any exhibits annexed to it that the petitioner is not entitled to relief in the district court." R u l e 4, RULES GOVERNING § 2254 CASES; see 28 U.S.C. § 2243. If so, the petition must be s u m m a r ily dismissed. Rule 4; see Allen v Perini, 424 F.2d 134, 141 (6th Cir.), cert. denied, 400 U .S . 906 (1970) (district court has the duty to "screen out" petitions that lack merit on their face). A fte r undertaking the review required by Rule 4, the Court will dismiss Petitioner's application for h a b e a s corpus relief with prejudice. A s stated above, Petitioner is currently serving numerous concurrent sentences, the la te st of which were imposed on December 8, 2005. Petitioner's earliest release date is December 7, 2 0 1 1 , and his maximum discharge date is October 12, 2024. See http://www.state.mi.us/mdoc/a s p /o tis2 pro file.asp ?m d o cN u m b er= 1 78 58 2. Petitioner's habeas corpus application may be dismissed p u r s u a n t to the concurrent sentencing doctrine. U n d e r the "concurrent sentencing doctrine," a "court may decline to h e a r a substantive challenge to a conviction when the sentence on the c h a lle n ge d conviction is being served concurrently with an equal or lo n g e r sentence on a valid conviction." Dale v. Haeberlin, 878 F.2d 9 3 0 , 935 n. 3 (6th Cir.1989); see also, United States v. Hughes, 964 F.2 d 536, 541 (6th Cir.1992). The doctrine is a discretionary one, see H u g h e s , 964 F.2d at 541, and courts "are admittedly hesitant to apply th is doctrine." Dale, 878 F.2d at 935 n. 3; see also, Winn v. Renico, 1 7 5 Fed. Appx. 728, 732 (6th Cir.2006).. The doctrine is applicable o n ly "when there is no possibility of adverse `collateral consequences' if the convictions stand." Winn, 175 Fed. Appx. at 732 (emphasis a d d e d ); see also, Dale, 878 F.2d at 935 n. 3; Wilson v. Straub, 185 F. S u p p .2 d 766, 769 (E.D. Mich.2002) (Hood, J.). The Court should p r e s u m e that petitioner's conviction carries adverse collateral c o n se q u e n c e s, see Wilson, 185 F. Supp.2d at 769-70 (citing Sibron v . New York, 392 U.S. 40, 55 (1968)); see also, Spencer v. Kemna, 5 2 3 U.S. 1, 8-9, 118 S.Ct. 978, 140 L. Ed. 2d 43 (1998) (noting that th e Court generally presumes that a criminal conviction carries

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a d v e rs e collateral consequences beyond the sentence imposed), and re sp o n d e n t bears a heavy "burden of showing that the risk of c o lla te ra l consequences is too slight to justify review." Suarez v. B e n n e tt, 207 Fed. Appx. 114, 115 (2d Cir.2006). The concurrent s e n t e n c e doctrine is not jurisdictional-that is, the existence of c o n c u r r e n t sentences does not render a challenge to one sentence m o o t and therefore outside the Court's jurisdiction. See United States v . Williams, --- U.S. ----, ---- n. 1, 128 S.Ct. 1830, 1838 n. 1, 170 L. E d . 2d 650 (2008); Benton v. Maryland, 395 U.S. 784, 791, 89 S.Ct. 2 0 5 6 , 23 L. Ed. 2d 707 (1969). S e e Lumsden v. Smith, 2008 WL 3979494, 5 (E.D. Mich. Aug. 25, 2008). A s noted above, Petitioner is not challenging the underlying convictions, but is m e re ly complaining that his sentences have not been officially discharged. However, this contention is irrelevant since Petitioner is serving longer concurrent sentences for subsequent offenses. A c c o rd in gly, the Court will dismiss this action with prejudice. In addition, if Petitioner should choose to appeal this action, the Court will deny a c e rtific a te of appealability as to each issue raised by Petitioner in this application for habeas corpus re lie f. Under 28 U.S.C. § 2253(c)(2), the court must determine whether a certificate of appealability s h o u ld be granted. A certificate should issue if Petitioner has demonstrated a "substantial showing o f a denial of a constitutional right." 28 U.S.C. § 2253(c)(2). A dismissal of Petitioner's action u n d e r Rule 4 of the Rules Governing § 2254 Cases is a determination that the habeas action, on its fa c e , lacks sufficient merit to warrant service. It would be highly unlikely for this court to grant a c e rtific a te , thus indicating to the Sixth Circuit Court of Appeals that an issue merits review, if the c o u rt has already determined that the action is so lacking in merit that service is not warranted. See L o v e v. Butler, 952 F.2d 10 (1st Cir. 1991) (it is "somewhat anomalous" for the court to summarily d ism iss under Rule 4 and grant a certificate); Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990) (r e q u irin g reversal where court summarily dismissed under Rule 4 but granted certificate); Dory v.

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C o m m is s io n e r of Correction of the State of New York, 865 F.2d 44, 46 (2d Cir. 1989) (it was " in trin s ic a lly contradictory" to grant a certificate when habeas action does not warrant service under R u le 4); Williams v. Kullman, 722 F.2d 1048, 1050 n.1 (2d Cir. 1983) (issuing certificate would be in c o n siste n t 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. Aug. 27, 2001). Rather, the d is tr ic t court must "engage in a reasoned assessment of each claim" to determine whether a c e rtific a te is warranted. Id. Each issue must be considered under the standards set forth by the S u p re m e Court in Slack v. McDaniel, 529 U.S. 473 (2000). Murphy v. Ohio, 263 F.3d 466 (6th Cir. A u g. 27, 2001). Consequently, the Court has examined each of Petitioner's claims under the Slack s ta n d a r d . U n d e r Slack, 529 U.S. at 484, to warrant a grant of the certificate, "[t]he petitioner m u s t demonstrate that reasonable jurists would find the district court's assessment of the c o n s titu tio n a l claims debatable or wrong." Id. "A petitioner satisfies this standard by demonstrating th a t . . . jurists could conclude the issues presented are adequate to deserve encouragement to p r o c e e d further." Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). In applying this standard, the c o u rt may not conduct a full merits review, but must limit its examination to a threshold inquiry into th e underlying merit of petitioner's claims. Id. The Court finds that reasonable jurists could not find that this Court's dismissal of e a c h of Petitioner's claims pursuant to the concurrent sentence doctrine was debatable or wrong. T h e re fo re , the Court will deny Petitioner a certificate of appealability.

Dated: O c to b e r 22, 2008

/s/ Robert Holmes Bell ROBERT HOLMES BELL U N IT E D STATES DISTRICT JUDGE

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