Oom v. Christiansen

• Decision Date: 21 March 2022
• Docket Number: 1:22-cv-83
• Court: U.S. District Court — Western District of Michigan
• Parties: MAX HENRY OOM, Petitioner, v. JOHN CHRISTIANSEN, Respondent.

MAX HENRY OOM, Petitioner, v. JOHN CHRISTIANSEN, Respondent.

No. 1:22-cv-83

United States District Court, W.D. Michigan, Southern Division

March 21, 2022

OPINION

SALLY J. BERENS U.S. MAGISTRATE JUDGE.

This is a habeas corpus action brought by a state prisoner under 28 U.S.C. § 2254. Pursuant to 28 U.S.C. § 636(c) and Rule 73 of the Federal Rules of Civil Procedure, Petitioner consented to proceed in all matters in this action under the jurisdiction of a United States magistrate judge. (ECF No 4.) Section 636(c) provides that “[u]pon the consent of the parties, a full-time United States magistrate judge may conduct any or all proceedings in a jury or nonjury civil matter and order the entry of judgment in the case .” 28 U.S.C. § 636(c).

This case is presently before the Court for preliminary review pursuant to 28 U.S.C. § 2253 and Rule 4 of the Rules Governing § 2254 Cases. The Court is required to conduct this initial review prior to the service of the petition. Rule 4, Rules Governing § 2254 Cases.

Service of the petition on the respondent is of particular significance in defining a putative respondent's relationship to the proceedings. “An individual or entity named as a defendant is not obliged to engage in litigation unless notified of the action, and brought under a court's authority, by formal process.” Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S 344, 347 (1999). “Service of process, under longstanding tradition in our system of justice, is fundamental to any procedural imposition on a named defendant.” Id. at 350. “[O]ne becomes a party officially, and is required to take action in that capacity, only upon service of a summons or other authority-asserting measure stating the time within which the party served must appear and defend.” Id. (citations omitted). That is, “[u]nless a named defendant agrees to waive service, the summons continues to function as the sine qua non directing an individual or entity to participate in a civil action or forgo procedural or substantive rights.” Id. at 351.

Rule 4, by requiring courts to review and even resolve the petition before service, creates a circumstance where there may only be one party to the proceeding-the petitioner. Because Respondent has not yet been served, the undersigned concludes that Respondent is not presently a party whose consent is required to permit the undersigned to conduct a preliminary review of the petition. See Neals v. Norwood, 59 F.3d 530, 532 (5th Cir. 1995) (“The record does not contain a consent from the defendants[; h]owever, because they had not been served, they were not parties to this action at the time the magistrate entered judgment.”).^[1] Petitioner's consent is sufficient to permit the undersigned to conduct the Rule 4 review.

The Court conducts a preliminary review of the petition under Rule 4 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.

Discussion

I. Factual allegations

Petitioner Max Henry Oom is incarcerated with the Michigan Department of Corrections (MDOC) at the Central Michigan Correctional Facility (STF) in St. Louis, Gratiot County, Michigan. On December 7, 2017, in Emmet County Circuit Court Case No. 17-004621-FH, Petitioner pleaded guilty to delivery of a controlled substance in violation of Mich. Comp. Laws § 333.7401(2)(b)(i). In exchange for Petitioner's plea, the prosecutor dismissed two additional counts charging the same offense, a charge of obstruction of justice, and a second habitual offender sentence enhancement. On January 23, 2018, the court sentenced Petitioner to a prison term of 6 to 20 years, to be served consecutively to a sentence of 1 year, 4 months to 5 years imposed by the same court for attempted third-degree criminal sexual conduct (CSC-III) in Case No. 17-004525-FH following Petitioner's guilty plea in that case.^[2] After sentencing, Petitioner challenged the propriety of the sentence, objecting to the court's assignment of points for offense variable 14^[3] and objecting to the court's decision to make the sentence consecutive to Petitioner's sentence for the CSC-III conviction. (Pet'r's 2d Mich. Ct. App. Appl. for Leave to Appeal, ECF No. 1-1, PageID.41.) The trial court denied relief. (Emmet Cnty. Cir. Ct. Register of Actions, ECF No. 1-1, PageID.34.)

Petitioner then sought leave to appeal to the Michigan Court of Appeals raising, apparently among other issues, his claim that the trial court erred when assigning 10 points for offense variable 14. The court of appeals initially denied leave to appeal for lack of merit in the grounds presented. People v. Oom, No. 346557 (Mich. Ct. App. Jan. 25, 2019), available at https://www.courts. michigan.gov/c/courts/coa/case/346557 (last visited Feb. 18, 2022). Petitioner filed an application for leave to appeal to the Michigan Supreme Court. By order entered September 20, 2019, the supreme court denied leave to appeal as to all issues except one-the assignment of 10 points for offense variable 14. People v. Oom, 504 Mich. 964, 932 N.W.2d 789 (Mich. 2019). With regard to that issue, in lieu of granting leave, the court remanded the matter to the Michigan Court of Appeals “as on leave granted.” Id.

On remand, the court of appeals agreed with Petitioner that the trial court had erred by assessing 10 points for offense variable 14. People v. Oom, No. 346557, 2020 WL 5582242, at *3 (Mich. Ct. App. Sept. 17, 2020). The court noted that Petitioner's offense variable points totaled 35 before correction of the error, which resulted in Petitioner having a minimum guidelines range of 72 to 120 months. Id. Subtracting the erroneously scored 10 points, however, would reduce Petitioner's offense variable score by enough to change his minimum guidelines range to 57 to 95 months. Id. Because the error affected the statutory sentencing guidelines range, the court of appeals vacated Petitioner's judgment of sentence and remanded the matter to the trial court for resentencing. Id.

Upon Petitioner's return to the trial court, a new presentence investigation report was prepared. The new report removed the 10-point score for offense variable 14, but increased Petitioner score on offense variable 19 from 10 points to 25 points.^[4] The net impact of the scoring changes increased Petitioner's offense variable score by 5 points, but left Petitioner in the same cell on the sentencing grid, with a minimum sentence range of 72 to 120 months. Mich. Comp. Laws § 777.63. The trial court resentenced Petitioner to the same sentence: 6 to 20 years.

Petitioner, with the assistance of counsel, filed an application for leave to appeal to the Michigan Court of Appeals, raising the same issues he raises in his habeas petition. By order entered September 17, 2021, the court of appeals denied Petitioner's application “for lack of merit in the grounds presented.” (Mich. Ct. App. Order, ECF No. 1-1, PageID.30.) Petitioner then attempted to file a pro per application for leave to appeal to the Michigan Supreme Court raising the same issues he raises in his habeas petition. (Pet'r's Mich. Appl. for Leave to Appeal, ECF No. 1-1, PageID.20-29.) By letter dated November 30, 2021, the Michigan Supreme Court returned Petitioner's application because he filed it late. (Nov. 30, 2021, Corr., ECF No. 1-1, PageID.18.)

On January 26, 2022, Petitioner filed his habeas corpus petition raising three grounds for relief, as follows:

I. Did the trial court err by failing to speak directly to the defendant to advise him that he could be sentenced to consecutive terms?

II. Was the trial court's sentence for 6 years consecutive minimum in the MDOC disproportionate, unjustified and unreasonable where the minimum possible sentence was 6 years for this case concurrent with another sentence?

III. Was [Offense Variable] 19 incorrectly scored for conduct that occurred while incarcerated on another offense, and applied more than 3 years after the sentencing crime was committed?

(Pet'r's Mich. Ct. App. Appl. for Leave to Appeal., ECF No. 1-1, PageID.40.)

II. Exhaustion and procedural default

Before the court may grant habeas relief to a state prisoner, the prisoner must exhaust remedies available in the state courts. 28 U.S.C. § 2254(b)(1); O'Sullivan v Boerckel, 526 U.S. 838, 842 (1999). Exhaustion requires a petitioner to “fairly present[]” federal claims so that state courts have a “fair opportunity” to apply controlling legal principles to the facts bearing upon a petitioner's constitutional claim. See id.. at 844, 848; Picard v. Connor, 404 U.S. 270, 275-77 (1971) (cited by Duncan v. Henry, 513 U.S. 364, 365 (1995), and Anderson v. Harless, 459 U.S. 4, 6 (1982)). To fulfill the exhaustion requirement, a petitioner must have fairly presented his federal claims to all levels of the state appellate system, including the state's highest court. Duncan, 513 U.S. at 365-66; Wagner v. Smith, 581 F.3d 410, 414 (6th Cir. 2009); Hafley v. Sowders, 902 F.2d 480, 483 (6th Cir. 1990). “[S]tate prisoners must give the state...