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Jamil v. Berghuis et al - Document No. 2

Jamil v. Berghuis et al - Document No. 2

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Published by Justia.com
OPINION and ORDER of Summary Dismissal re 1 Petition for Writ of Habeas Corpus; and Denying Certificate of Appealability and Leave to Proceed on Appeal in forma pauperis. Signed by Honorable John Corbett O'Meara. (WBar) 5:2007cv15177 Michigan Eastern District Court
OPINION and ORDER of Summary Dismissal re 1 Petition for Writ of Habeas Corpus; and Denying Certificate of Appealability and Leave to Proceed on Appeal in forma pauperis. Signed by Honorable John Corbett O'Meara. (WBar) 5:2007cv15177 Michigan Eastern District Court

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JAMIL B. THOMAS,
Petitioner,
CASE NO. 07-CV-15177
v.
HONORABLE JOHN CORBETT O\u2019MEARA
MARY BERGHUIS,
Respondent.
_______________________________/
OPINION AND ORDER OF SUMMARY DISMISSAL
I. Introduction

Jamil B. Thomas (\u201cPetitioner\u201d), a Michigan prisoner, has filed a petition for writ of
habeas corpus pursuant to 28 U.S.C. \u00a7 2254. Petitioner was convicted of second-degree murder
and possession of a firearm during the commission of a felony following a jury trial in the
Wayne County Circuit Court and was sentenced to 30 to 50 years imprisonment in 1996. In his
habeas petition, Petitioner raises two claims concerning the validity of his sentence.

Promptly after the filing of a petition for habeas corpus, the Court must undertake a
preliminary review of the petition to determine whether \u201cit 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.\u201d Rule 4, Rules Governing \u00a7 2254 Cases; see also 28 U.S.C. \u00a7 2243. If, after preliminary
consideration, the Court determines that the petitioner is not entitled to relief, the court must
summarily dismiss the petition.Id., see also Allen v. Perini, 424 F.2d 134, 141 (6th Cir. 1970)
(district court has the duty to \u201cscreen out\u201d petitions that lack merit on their face). A federal
district court is authorized to summarily dismiss a habeas corpus petition if it plainly appears

Case 5:07-cv-15177-JCO-SDP Document 2
Filed 12/13/2007 Page 1 of 9
Jamil v. Berghuis et al
Doc. 2
Dockets.Justia.com
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from the face of the petition and any attached exhibits that the petitioner is not entitled to federal
habeas relief.See McFarland v. Scott, 512 U.S. 849, 856 (1994); Carson v. Burke, 178 F.3d
434, 436 (6th Cir. 1999); Rules Governing \u00a7 2254 Cases, Rule 4, 28 U.S.C. foll. \u00a7 2254. No
response to a habeas petition is necessary when the petition is frivolous, obviously lacks merit,
or where the necessary facts can be determined from the petition itself without consideration of a
response from the State.See Allen, 424 F.2d at 141; Robinson v. Jackson, 366 F. Supp. 2d 524,
525 (E.D. Mich. 2005). After undertaking the review required by Rule 4, the Court denies with
prejudice the petition for a writ of habeas corpus. The Court also denies a certificate of
appealability and leave to proceed on appeal in forma pauperis.

II. Facts and Procedural History

Petitioner\u2019s convictions arise from a shooting death which occurred on June 22, 1995 in
Wayne County, Michigan. The record indicates that Petitioner shot the victim twice in the chest.
Following his convictions and sentencing, Petitioner filed an appeal as of right with the
Michigan Court of Appeals raising claims concerning the trial court\u2019s state of mind jury
instruction (and defense counsel\u2019s failure to object), the trial court\u2019s admission of gun evidence
(and defense counsel\u2019s failure to object), the trial court\u2019 s upward departure from the sentencing
guidelines, and the trial court\u2019s denial of a motion for expenses. The Michigan Court of Appeals
affirmed Petitioner\u2019s convictions and sentence.See People v. Thomas, No. 193869, 1997 WL

33331088 (Mich. Ct. App. Nov. 21, 1997) (unpublished). Petitioner filed an application for
leave to appeal with the Michigan Supreme Court, which was denied in a standard order.See
People v. Thomas, 459 Mich. 857, 583 N.W.2d 902 (1998).
On September 21, 2004, Petitioner filed a motion for relief from judgment with the trial
court raising his sentencing claims, which was denied on February 13, 2005. Petitioner filed an
Case 5:07-cv-15177-JCO-SDP Document 2
Filed 12/13/2007 Page 2 of 9
1The Court notes that Petitioner\u2019s claims also appear to be barred by the one-year statute

of limitations applicable to habeas actions given that he concluded his state direct appeals in
1998 and did not file his motion for relief from judgment with the trial court until 2004.See 28
U.S.C. \u00a7 2244(d). Petitioner has presented no arguments for statutory or equitable tolling of the
one-year period. Moreover, any assertion that theBlakely decision should extend the one-year
period lacks merit as that decision has not been made retroactive to cases on collateral review.

See Spiridigliozzi v. United States, 117 Fed. Appx. 385, 394 (6th Cir. Nov. 15, 2004) (Blakelyand

related decisions do not apply retroactively on collateral review); see also Lang v. United States, 474 F.3d 348, 353 (6th Cir. 2007); Humphress v. United States, 398 F.3d 855, 860 (6th Cir. 2005) (citing Schriro v. Summerlin, 542 U.S. 348, 354 (2004)).

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application for leave to appeal with the Michigan Court of Appeals which was also denied.See
People v. Thomas, No. 268241 (Mich. Ct. App. Aug. 16, 2006) (unpublished). He then filed an
application for leave to appeal with the Michigan Supreme Court, which was denied.See People
v. Thomas, 477 Mich. 975, 725 N.W.2d 34 (2006).
Petitioner, through counsel, has submitted his federal habeas petition, asserting the
following claims:
I.

The sentencing court increased the statutory sentencing guidelines range
based on facts not found by the jury beyond a reasonable doubt or
admitted by defendant in violation of Blakely v. Washington.

II.

The trial judge failed to state sufficient objective and verifiable reasons,
that are not already taken into account in the sentencing guidelines, to
support the deviation above the recommended range of the guidelines; and
even if the reasons for deviation are permissible they did not support the
extent of the upward deviation.

The Court shall address the merits of Petitioner\u2019s claims.1
III. Analysis
A. Standard of Review

The provisions of the Antiterrorism and Effective Death Penalty Act of 1996
(\u201cAEDPA\u201d), codified at 28 U.S.C. \u00a7 2241 et seq., govern this case because Petitioner filed his
habeas petition after the AEDPA\u2019s effective date.See Lindh v. Murphy, 521 U.S. 320, 336

Case 5:07-cv-15177-JCO-SDP Document 2
Filed 12/13/2007 Page 3 of 9

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