Petition for Writ of Certiorari — Scott Smith, Petitioner v. Shane Jackson, Warden

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Case 1:18-cv-00497-GJQ-PJG ECF No. 4 filed 05/25/18 PagelD.107

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

Page 2 of 7

Discussion

Factual alleaations

Petitioner, Scott Smith, is incarcerated with the Michigan Department of

SCOTT SMITH,

Corrections (MDOC) at the Earnest C. Brooks Correctional Facility (LRF) in Muskegon County,

Petitioner,

Case No. 1:I8-cv-497

Michigan. In 2016, he pled nolo contendere in Allegan County Circuit Court to one count of

V.

Honorable Gordon J. Quist

second-degree criminal sexual conduct, Mich. Comp. Laws § 750.520c(l)(a). The court

SHANE JACKSON,

Respondent.

subsequently sentenced him to 5 years and Ii months to 15 years in prison.

I

Petitioner applied for leave to appeal his decision to the Michigan Court of Appeals

and the Michigan Supreme Court. Those courts denied leave to appeal on June 7, 2016, and March

OPINION

This is a habeas corpus action brought by a state prisoner under 28 U.S.C. § 2254.

7, 2018, respectively.

The petition raises one ground for relief, as follows:

Promptly after the filing of a petition for habeas corpus, the Court must undertake a preliminary

RULES GOVERNING § 2254 CASES; see 28 U.S.C. § 2243. If so, the petition must be summarily

PETITIONER WAS DENIED A FAIR TRIAL AS GUARANTEED BY BOTH

STATE AND FEDERAL CONSTITUTIONS, WHEN THE TRIAL COURT

REFUSED TO ENTERTAIN THE 180-DAY RULE PRESENTED AT AN

EVIDENTIARY HEARING, THE RESULT BEING A VIOLATION OF

PETITIONER'S DUE PROCESS RIGHTS AND PROTECTIONS[.]

dismissed. Rule 4; see Allen v. Perini, 424 F.2d 134, 141 (6th Cir. 1970) (district court has the

(Pet., ECF No. 1, PagelD.8.) Petitioner raised this same ground on appeal. The appellate courts

duty to "screen out" petitions that lack merit on their face). A dismissal under Rule 4 includes

summarily rejected his claim.

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,

AEDPA standard

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

This action is governed by the Antiterrorism and Effective Death Penalty Act of

undertaking the review required by Rule 4, the Court concludes that the petition must be dismissed

1996, Pub.L. 104-132, 110 Stat. 1214 (AEDPA). The AEDPA "prevents federal habeas 'retrials"

because it fails to raise a meritorious federal claim.

and ensures that state court convictions are given effect to the extent possible under the law. Bell

v. Cone, 535 U.S. 685, 693-94 (2002). An application for writ of habeas corpus on behalf of a

person who is incarcerated pursuant to a state conviction cannot be granted with respect to any

claim that was adjudicated on the merits in state court unless the adjudication: "(1) resulted in a

2

APPENDIX

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decision that was contrary to, or involved an unreasonable application of, clearly established

federal law as determined by the Supreme Court of the United States; or (2) resulted in a decision

Case 1:18-cv-00497-GJQ-PJG ECF No. 4 filed 05/25/18 PagelD.109 Page 4 of 7

135 S. Ct at 1376 (quoting Harrington v. Richter, 562 U.S. 86, 103 (2011)). In other words,

[w] here the precise contours of the right remain unclear, state courts enjoy broad discretion in

that was based upon an unreasonable determination of the facts in light of the evidence presented

their adjudication of a prisoner's claims." White v. Woodall, 572 U.S.

in the state court proceeding." 28 U.S.C. § 2254(d). This standard is "intentionally difficult to

(2014) (internal quotations omitted).

134 S. Ct. 1697, 1705

-'

meet." Woods v. Donald, 575 U.S. —' 135 S. Ct. 1372, 1376 (2015) (internal quotation omitted).

The AEDPA requires heightened respect for state factual findings. Herbert v. Billy,

The AEDPA limits the source of law to cases decided by the United States Supreme

160 F.3d 1131, 1134 (6th Cir. 1998). A determination of a factual issue made by a state court is

Court. 28 U.S.C. § 2254(d). This Court may consider only the "clearly established" holdings, and

presumed to be correct, and the petitioner has the burden of rebutting the presumption by clear and

not the dicta, of the Supreme Court. Williams v. Taylor, 529 U.S. 362, 412 (2000); Bailey v.

convincing evidence. 28 U.S.C. § 2254(e)(1); Lancaster v. Adams, 324 F.3d 423, 429 (6th Cir.

Mitchell, 271 F.3d 652, 655 (6th Cir. 2001). In determining whether federal law is clearly

2003); Bailey, 271 F.3d at 656. This presumption of correctness is accorded to findings of state

established, the Court may not consider the decisions of lower federal courts. Lopez v. Smith, 135

appellate courts, as well as the trial court. See Sumner v. Mata, 449 U.S. 539, 546 (1981); Smith

S. Ct. 1, 3 (2014); Bailey, 271 F.3d at 655. Moreover, "clearly established Federal law" does not

v. Jago, 888 F.2d 399, 407 n.4 (6th Cir. 1989).

include decisions of the Supreme Court announced after the last adjudication of the merits in state

III.

court. Greene v. Fisher, 565 U.S. 34(2011). Thus, the inquiry is limited to an examination of the

Petitioner argues that the MDOC failed to comply with Mich. Comp. Laws

legal landscape as it would have appeared to the Michigan state courts in light of Supreme Court

precedent at the time of the state-court adjudication on the merits. Miller v. Stovall, 742 F.3d 642,

644 (6th Cir. 2014) (citing Greene, 565 U.S. at 38).

A federal habeas Court may issue the writ under the "contrary to" clause if the state

court applies a rule different from the governing law set forth in the Supreme Court's cases, or if

it decides a case differently than the Supreme Court has done on a set of materially

indistinguishable facts. Bell, 535 U.S. at 694 (citing Williams, 529 U.S. at 405-06). "To satisfy

this high bar, a habeas petitioner is required to 'show that the state court's ruling on the claim being

presented in federal Court was so lacking in justification that there was an error well understood

and comprehended in existing law beyond any possibility for fairminded disagreement." Woods,

Analysis

§ 780.131(1), which provides:

Whenever the department of corrections receives notice that there is pending in this

state any untried warrant, indictment, information, or complaint setting forth

against any inmate of a correctional facility of this state a criminal offense for which

a prison sentence might be imposed upon conviction, the inmate shall be brought

to trial within 180 days after the department of corrections causes to be delivered

to the prosecuting attorney of the county in which the warrant, indictment,

information, or complaint is pending written notice of the place of imprisonment of

the inmate and a request for final disposition of the warrant, indictment,

information, or complaint. The request shall be accompanied by a statement setting

forth the term of commitment under which the prisoner is being held, the time

already served, the time remaining to be served on the sentence, the amount of good

time or disciplinary credits earned, the time of parole eligibility of the prisoner, and

any decisions of the parole board relating to the prisoner. The written notice and

statement shall be delivered by certified mail.

Mich. Comp. Laws § 780.131(1). Specifically, Petitioner contends that the MDOC did not send

written notice by certified mail to the prosecutor as required by the foregoing statute. In addition,

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it did not respond to his requests for disposition of the charge against him. Consequently, he was

not prosecuted "within the time allotted by law[.]" (Br. in Supp. of Pet., ECF No. 2, PagelD.26.)

Petitioner's claim is based on a violation of state law. Petitioner apparently argues

that, because the MDOC did not provide the notice required by statute, it did not start the clock

for the 180-day rule under Mich. Comp. Laws § 780.131. This sort of claim is not cognizable in

this action.

Case 1:18-cv-00497-GJQ-PJG ECE No. 4 filed 05/25/18 PagelD.111 Page 6 of 7

Howard v. White, 76 F. App'x 52, 53 (6th Cir. 2003) (speedy trial claim was waived when

petitioner entered an unconditional nolo contendere plea because the right to a speedy trial is not

a jurisdictional issue). A nolo contendere plea stands on equal footing with a guilty plea. North

Carolina v. Alford, 400 U.S. 25,35-36(1970); see also Howard, 76 F. App'x at 53. Consequently,

Petitioner's nolo contendere plea to second-degree criminal sexual conduct waived any claim that

he was denied his right to a speedy trial. Similarly, Petitioner cannot claim, as he does in his

"[A] federal court may issue 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, 562 U.S. 1,5 (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,

petition, that he was denied a "fair trial" when he expressly waived his right to any trial at all.

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.

Certificate of Appealability

Under 28 U.S.C. § 2253(c)(2), the Court must determine whether a certificate of

562 U.S. at 5; Bradshaw v. Richey, 546 U.S. 74, 76 (2005); Estelle v. McGuire, 502 U.S. 67-68

appealability should be granted. A certificate should issue if Petitioner has demonstrated a

(1991); Pulley v. Harris, 465 U.S. 37,41 (1984). Petitioner's claim that the MDOC did not comply

"substantial showing of a denial of a constitutional right." 28 U.S.C. § 2253(c)(2). This Court's

with Mich. Comp. Laws § 780.131 raises only a claim concerning state law. Therefore, this claim

dismissal of Petitioner's action under Rule 4 of the Rules Governing § 2254 Cases is a

is not cognizable on federal habeas review.

determination that the habeas action, on its face, lacks sufficient merit to warrant service. It would

Even if Petitioner had articulated a violation of his federal constitutional rights,

be highly unlikely for this Court to grant a certificate, thus indicating to the Sixth Circuit Court of

which he does not, he still would not be entitled to relief. A criminal defendant has a fundamental

Appeals that an issue merits review, when the Court has already determined that the action is so

right to a speedy trial under the Sixth Amendment to the Constitution and the Due Process Clause

lacking in merit that service is not warranted. See Love v. Butler, 952 F.2d 10 (1st Cir. 1991) (it

of the Fourteenth Amendment. Klopfer v. North Carolina, 386 U.S. 213, 223 (1967). Petitioner

is "somewhat anomalous" for the court to summarily dismiss under Rule 4 and grant a certificate);

waived his right to a speedy trial when he pled nolo contendere. An unconditional guilty plea

Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990) (requiring reversal where court summarily

constitutes a waiver of all pre-plea, non-jurisdictional constitutional deprivations. Tollett V.

dismissed under Rule 4 but granted certificate); Dory v. Comm 'r of Corr. of New York, 865 F.2d

Henderson, 411 U.S. 258, 267 (1973). This waiver includes alleged speedy trial violations. See

44, 46 (2d Cir. 1989) (it was "intrinsically contradictory" to grant a certificate when habeas action

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does not warrant service under Rule 4); Williams v. Kullman, 722 F.2d 1048, 1050 n.l (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 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.

/s/ Gordon J. Quist

GORDON J. QUIST

UNITED STATES DISTRICT JUDGE

Dated: May 25, 2018

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

SCOTT SMITH,

SCOTT SMITH,

Petitioner,

V.

Petitioner,

Case No. 1:18-cv-497

Honorable Gordon J. Quist

SHANE JACKSON,

V.

Case No. 1:18-cv-497

Honorable Gordon J. Quist

SHANE JACKSON,

Respondent.

Respondent.

ORDER

JUDGMENT

In accordance with the Opinion entered this day:

In accordance with the Opinion entered this day:

IT IS ORDERED that the petition for writ of habeas corpus is DENIED WITH

IT IS ORDERED that a certificate of appealability is DENIED.

PREJUDICE under Rule 4 of the Rules Governing § 2254 Cases for failure to raise a meritorious

federal claim.

Dated: May 25, 2018

Dated: May 25, 2018

Is! Gordon J. Quist

GORDON J. QUIST

UNITED STATES DISTRICT JUDGE

Is! Gordon J. Quist

GORDON J. QUIST

UNITED STATES DISTRICT JUDGE

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No. 18-1681

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II

FILED

A COA may be issued "only if the applicant has made a substantial showing of the denial

Oct 15, 2018

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

LDEBORAH S. HUNT, Clerk

of a constitutional right." 28 U.S.C. § 2253(c)(2). To satisfy this standard, the applicant must

demonstrate that "jurists of reason could disagree with the district court's resolution of his

SCOTT SMITH,

constitutional claims or 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). Under the

Petitioner-Appellant,

ORDER

V.

SHANE JACKSON,

Antiterrorism and Effective Death Penalty Act, a district court shall not grant a habeas petition

with respect to any claim that was adjudicated on the merits in the state courts unless the

adjudication resulted in a decision that: (1) was contrary to, or involved an unreasonable

Respondent-Appellee.

application of, clearly established federal law as determined by the Supreme Court; or (2) was

based on an unreasonable determination of the facts in light of the evidence presented to the state

courts. See 28 U.S.C. § 2254(d).

Scott Smith, a pro se Michigan prisoner, appeals the district court's judgment dismissing

Smith's claim is based on a violation of state law and therefore is not cognizable in

his petition for a Writ of habeas corpus under 28 U.S.C. § 2254. The court construes Smith's

§ 2254 proceedings. See Cristini v. McKee, 526 F.3d 888, 897 (6th Cit. 2008). Moreover, since

notice of appeal as an application for a certificate of appealability (COA). See Fed. R. App.

the right to a speedy trial is not a jurisdictional issue, Smith's no-contest plea waived any claim

P. 22(b)(2). Smith also moves the court to proceed in forma pauperis on appeal.

that the State violated his constitutional rights by not bringing him to trial in a timely fashion.

In 2016, Smith pleaded no contest to a charge of second-degree criminal sexual conduct,

was convicted, and was sentenced to 86 to 180 months in prison. The Michigan Court of

Appqals denied Smith's delayed application for leave to appeal, and the Michigan Supreme

Court denied leave to appeal, People v. Smith, 907 N.W.2d 578 (Mich. 2018) (mem.).

See Howard v. White, 76 F. App'x 52, 53 (6th Cit. 2003). Consequently, reasonable jurists

would not debate the district court's disposition of Smith's petition.

Accordingly, the court DENIES Smith's COA application and DENIES as moot his

motion to proceed in forms pauperis.

In May 2018, Smith filed a § 2254'petition in the district court, seeking relief from his

ENTERED BY ORDER OF THE COURT

conviction on the ground that the trial court allegedly failed to rule on his pre-plea motion to

dismiss based on the State's alleged failure to bring him to trial within 180 days as required by

Michigan Compiled Laws § 780.131. The district court screened Smith's petition under Rule

Deborah S. Hunt, Clerk

of the Rules Governing § 2254 Cases and concluded that Smith was not entitled to relief because

he presented only a non-cognizable state-law violation and in any event that his no-contest plea

waived any pre-plea non-jurisdictional constitutional violations. The district Court dismissed

Smith's petition and declined to issue a COA.

APPENDIX B

5