UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

VERN ARNOLD SOLI,

Petitioner,

v.

THOMAS BELL,

Respondent. 

/

Case Number: 5:09-CV-11201

HON. JOHN CORBETT O’MEARA

OPINION AND ORDER OF SUMMARY DISMISSAL

AND DENYING CERTIFICATE OF APPEALABILITY

Petitioner Vern Arnold Soli is a state inmate currently incarcerated at the Gus Harrison

Correctional Facility in Adrian, Michigan. He has filed a pro se petition for a writ of habeas

corpus pursuant to 28 U.S.C. § 2254, claiming that he is incarcerated in violation of his

constitutional rights. For the reasons which follow, the petition will be dismissed.

I.

Petitioner pleaded no contest in Oakland County Circuit Court to armed robbery and

bank robbery. On February 27, 2007, he was sentenced to ten to thirty years’ imprisonment for

each of these convictions, to be served concurrently with one another. 

Petitioner filed an application for leave to appeal in the Michigan Court of Appeals. The

Michigan Court of Appeals denied leave to appeal. People v. Soli, No. 283918 (Mich. Ct. App.

Apr. 7, 2008). Petitioner filed an application for leave to appeal in the Michigan Supreme Court,

which was denied. People v. Soli, No. 136558 (Mich. Oct. 29, 2008). 

Petitioner then filed the pending petition for a writ of habeas corpus. He presents the

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following claims:

I. Petitioner is entitled to resentencing as his single criminal act cannot be counted

twice in scoring OV13 whether or not his two criminal convictions constitute

double jeopardy in violation of Petitioner’s right to the double jeopardy

protection.

II. The interpretation of the sentence credit statute to preclude sentence credit for

persons committing offenses while on parole is inconsistent with the plain

language of the statute and violates Petitioner’s constitutional rights.

II.

A.

Upon the filing of a habeas corpus petition, the Court must promptly examine the petition

to determine “if it plainly appears from the face of the petition and any exhibits annexed to it that

the petitioner is not entitled to relief.” Rule 4, Rules Governing Section 2254 cases. If the Court

determines that the petitioner is not entitled to relief, the Court shall summarily dismiss the

petition. McFarland v. Scott, 512 U.S. 849, 856 (1994) (“Federal courts are authorized to

dismiss summarily any habeas petition that appears legally insufficient on its face”). The habeas

petition does not present grounds which may establish the violation of a federal constitutional

right, therefore, the petition will be dismissed.

B.

28 U.S.C. § 2254(d) imposes the following standard of review on federal courts

reviewing applications for a writ of habeas corpus:

An application for a writ of habeas corpus on behalf of a person in custody

pursuant to the judgment of a State court shall not be granted with respect to any

claim that was adjudicated on the merits in State court proceedings unless the

adjudication of the claim –

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

application of, clearly established Federal law, as determined by the Supreme

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Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of

the facts in light of the evidence presented in the State court proceedings. 

28 U.S.C. § 2254(d). Therefore, federal courts are bound by a state court's adjudication of a

petitioner's claims unless the state court's decision was contrary to or involved an unreasonable

application of clearly established federal law. Franklin v. Francis, 144 F.3d 429 (6th Cir. 1998). 

Additionally, this court must presume the correctness of state court factual determinations. 28

U.S.C. § 2254(e)(1); see also Cremeans v. Chapleau, 62 F.3d 167, 169 (6th Cir. 1995) ("We give

complete deference to state court findings unless they are clearly erroneous"). 

The United States Supreme Court has explained the proper application of the "contrary

to" clause as follows:

A state-court decision will certainly be contrary to [the Supreme Court's] clearly

established precedent if the state court applies a rule that contradicts the

governing law set forth in our cases. . . .

A state-court decision will also be contrary to this Court's clearly established

precedent if the state court confronts a set of facts that are materially

indistinguishable from a decision of this Court and nevertheless arrives at a result

different from [the Court's] precedent. 

Williams v. Taylor, 529 U.S. 362, 405-06 (2000). 

With respect to the "unreasonable application" clause of § 2254(d)(1), the United States

Supreme Court held that a federal court should analyze a claim for habeas corpus relief under the

"unreasonable application" clause when "a state-court decision unreasonably applies the law of

this Court to the facts of a prisoner's case." Id. at 409. The Court defined "unreasonable

application" as follows:

[A] federal habeas court making the "unreasonable application" inquiry should

ask whether the state court's application of clearly established federal law was

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objectively unreasonable. . .

[A]n unreasonable application of federal law is different from an incorrect

application of federal law. . . . Under § 2254(d)(1)'s "unreasonable application"

clause, then, a federal habeas court may not issue the writ simply because that

court concludes in its independent judgment that the relevant state-court decision

applied clearly established federal law erroneously or incorrectly. Rather, that

application must also be unreasonable. 

Id. at 410-11. 

III.

A.

In his first claim for habeas corpus relief, Petitioner argues that the scoring of Offense

Variable 13 (OV13) violates his right to be free from double jeopardy. The Double Jeopardy

Clause of the Fifth Amendment provides, “No person . . . shall . . . be subject for the same

offense to be twice put in jeopardy of life or limb.” U.S. Const. Amend. V. This clause affords

defendants protection against three basic harms: second prosecution for the same offense after

acquittal, second prosecution for the same offense after conviction, and multiple punishments for

the same offense. Brown v. Ohio, 432 U.S. 161, 165 (1977). 

The Supreme Court “[h]istorically . . . [has] found double jeopardy protections

inapplicable to sentencing proceedings, . . . because the determinations at issue do not place a

defendant in jeopardy for an offense.” Monge v. California, 524 U.S. 721, 728 (1998) (internal

citation and quotation omitted). Therefore, the scoring of an offense variable does not implicate

the Double Jeopardy Clause and Petitioner is not entitled to habeas relief on this claim. Accord

Jones v. Trombley, No. 2:07-cv-10139, 2007 WL 405835, at *3 (E.D. Mich. Jan.31, 2007)

(finding noncognizable a habeas claim that the application of state sentencing guidelines violated

the Double Jeopardy Clause); Fisher v. Booker, No. 03-10029-BC, 2006 WL 2420229, at *8

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(E.D. Mich. Aug.22, 2006) (holding that the score a defendant receives on an offense variable is

not a form of punishment under the Double Jeopardy Clause). 

B.

In his second claim for habeas relief, Petitioner challenges the state court’s interpretation

of Mich. Comp. Law § 769.11b, to deny him credit for time served while awaiting trial because

of his parole status at the time of the offense. 

A state court's application of crediting statutes is a matter of state concern only. See

Howard v. White, 76 Fed. App’x 52, 53 (6th Cir.2003). It is well-settled that state law issues are

not cognizable on federal habeas review. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). 

Moreover, under Michigan law, when a parolee is arrested for a new criminal offense, he is held

on a parole detainer until he is convicted of that offense and is not entitled to credit for time

served in jail on the sentence for the new offense. See Mich. Comp. Laws Ann. § 791.238(2);

People v. Stewart, 203 Mich. App. 432, 433 (1994). Petitioner was on parole when he

committed the offenses at issues in this case. Accordingly, the trial court's failure to credit

Petitioner's sentence was in keeping with Michigan law. See Gora v. Romanowski, 2005 WL

3465725, *2 (E.D. Mich. Dec. 16, 2005). 

IV.

The Court next addresses whether Petitioner’s claims warrant the issuance of a certificate

of appealability. Before Petitioner may appeal the Court’s dispositive decision denying his

petition, a certificate of appealability must issue. 28 U.S.C. § 2253(c)(1)(B); Fed. R. App. P.

22(b). The Court must either issue a certificate of appealability indicating which issues satisfy

the required showing or provide reasons why such a certificate should not issue. 28 U.S.C. §

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2253(c)(3); Fed. R. App. P. 22(b); In re Certificates of Appealability, 106 F.3d 1306, 1307 (6th

Cir. 1997). 

“When a habeas applicant seeks permission to initiate appellate review of the dismissal

of his petition,” a federal court should “limit its examination to a threshold inquiry into the

underlying merit of his claims.” Miller-El v. Cockrell, 123 S. Ct. 1029, 1039 (2003). A

certificate of appealability may be issued “only if the applicant has made a substantial showing

of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The substantial showing

threshold is satisfied when a petitioner demonstrates “that reasonable jurists would find the

district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDonnell,

529 U.S. 473, 484 (2000). 

For the reasons stated in this opinion, the Court will deny Petitioner a certificate of

appealability because he has failed to make a substantial showing of the denial of a federal

constitutional right. It would be a "rare case" in which a district judge issues a certificate of

appealability after summarily dismissing a petition because it plainly appeared from the face of

the petition and any exhibits annexed to it that the petitioner was not entitled to habeas relief. See

Alexander v. Harris, 595 F. 2d 87, 91 (2nd Cir. 1979). 

V.

It plainly appears from the face of the petition that Petitioner is not entitled to habeas

relief from this Court and the petition, therefore, is subject to summary dismissal. See Rule 4,

Rules Governing Section 2254 Cases. Accordingly,

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

PREJUDICE.

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IT IS FURTHER ORDERED that a certificate of appealability is DENIED. 

IT IS FURTHER ORDERED that Petitioner’s Motion for Instant Hearing is DENIED

AS MOOT. 

s/John Corbett O’Meara

United States District Judge

Date: April 24, 2009

I hereby certify that a copy of the foregoing document was served upon the parties of record on

this date, April 24, 2009, by electronic and/or ordinary mail.

sWilliam Barkholz

Case Manager

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