Opinion
Docket No. 97911.
Decided September 20, 1988.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Donald E. Martin, Prosecuting Attorney, Robert B. Ebersole, Chief Appellate Attorney, and Susan L. LeDuc, Assistant Prosecuting Attorney, for defendants.
Plaintiff appeals as of right from an Ingham Circuit Court order dismissing with prejudice plaintiff's petition to compel withdrawal of a notice of state detainer. We affirm.
On February 17, 1976, plaintiff was convicted for possession of marijuana in the United States District Court for the Western District of Texas. Plaintiff was freed on bond pending appeal and returned to Michigan, where his parents reside. On March 21, 1979, plaintiff was arrested in Ingham County and charged with conspiracy to deliver cocaine. Plaintiff was also arrested in May, 1979, in Washtenaw County and charged with possession with intent to deliver 650 or more grams of cocaine.
On June 21, 1979, plaintiff was indicted by a federal grand jury on a cocaine trafficking charge unrelated to the charges brought against plaintiff in Ingham and Washtenaw Counties. On October 10, 1979, plaintiff was convicted in the United States District Court for the Western District of Michigan for distribution of cocaine. On August 15, 1980, plaintiff was sentenced to a term of ten years in prison. The sentence was to run consecutively to the five-year term to which plaintiff had been sentenced in the United States District Court in the Western District of Texas.
On January 30, 1980, the charge of conspiracy to deliver cocaine was dismissed by the Ingham Circuit Court. This Court, on appeal as of right, reversed and remanded the case for trial. People v Ward, 107 Mich. App. 38; 308 N.W.2d 664 (1981).
On April 7, 1981, plaintiff was convicted of possession with intent to deliver 650 or more grams of cocaine in Washtenaw Circuit Court. On May 8, 1981, plaintiff was sentenced to mandatory life imprisonment. On appeal, the conviction and sentence were affirmed. People v Ward, 133 Mich. App. 344; 351 N.W.2d 208 (1984). On May 12, 1981, Washtenaw County authorities turned plaintiff over to federal authorities for incarceration pursuant to his federal convictions.
On September 14, 1983, plaintiff was returned by federal authorities to Ingham County for trial on the 1979 charge of conspiracy to deliver cocaine. Plaintiff was convicted of conspiracy to deliver more than 50 but less than 225 grams of cocaine on December 22, 1983. Plaintiff was sentenced to ten to twenty years imprisonment on February 15, 1984, the sentence to run concurrently with plaintiff's other sentences. On February 17, 1984, plaintiff was returned to the federal penitentiary in Terre Haute, Indiana.
Following plaintiff's respective convictions, defendant Ingham County and Washtenaw County sent written communications to the federal prison authorities requesting that a "detainer" be placed in plaintiff's record. The detainer would ensure that, if plaintiff were released from federal prison before the conclusion of his Michigan sentences, plaintiff would be returned to complete his sentences in Michigan.
On October 23, 1986, plaintiff was transferred to the federal correctional facility in Milan, Michigan. Plaintiff became eligible for parole from federal prison on May 14, 1986, but waived parole so as to avoid incarceration in the Michigan penal system.
On August 14, 1986, plaintiff filed the instant case seeking an order to compel Ingham County authorities to withdraw the state detainer filed against him. The petition was one of several actions filed in various federal and state courts challenging plaintiff's detainer. Among those actions were civil lawsuits filed against the Washtenaw County prosecutor and the Ingham County Sheriff's Department and the East Lansing Police Department. Those actions were dismissed by entry of summary disposition and this Court affirmed. Ward v Washtenaw Co Prosecutor, unpublished opinion per curiam of the Court of Appeals, decided May 31, 1988 (Docket Nos. 91649, 92391).
On December 1, 1986, Ingham Circuit Judge James T. Kallman ordered that plaintiff's petition be dismissed with prejudice for failure to state a claim upon which relief could be granted. A motion for reconsideration and reassignment before a different judge was denied on January 5, 1987.
On appeal, plaintiff first claims that genuine issues of material fact precluded the circuit court from dismissing plaintiff's petition. This issue has no merit. Plaintiff's petition was not dismissed pursuant to MCR 2.116(C)(10). The Ingham Circuit Court ruling was phrased in terms of a motion to dismiss for failure to state a claim upon which relief could be granted. MCR 2.116(C)(8). The circuit court was bound to accept plaintiff's factual allegations as true. See Mills v White Castle System, Inc, 167 Mich. App. 202, 205; 421 N.W.2d 631 (1988). Here, the basis of plaintiff's claim was that the detainer lodged against him by Ingham County authorities denied plaintiff the opportunity for release from the federal penitentiary. Accepting plaintiff's factual allegations as true, plaintiff's Michigan conviction and sentence clearly prevent his release. We agree that plaintiff has failed to state a claim upon which relief could be granted.
Next, plaintiff argues that the circuit court erred by dismissing plaintiff's petition without adequately setting forth findings of fact or law. Plaintiff also argues that the court erred by not transferring the case to be heard by the judge who presided over plaintiff's criminal trial. Initially, we note that plaintiff fails to cite authority in support of his arguments. It is well established that this Court will not search for authority to sustain or reject a party's position. People v Qualls, 157 Mich. App. 552, 558; 403 N.W.2d 594 (1987). Nevertheless, we have reviewed the record in this case and find that the issues lack merit.
Next, plaintiff raises several issues already addressed by this Court in Ward v Washtenaw Co Prosecutor, supra, including a claimed right to appointment of counsel at public expenses, defendant's claimed failure to comply with the Uniform Criminal Extradition Act, MCL 780.1 et seq.; MSA 28.1285(1) et seq., and a challenge to plaintiff's detainer under the interstate agreement on detainers, MCL 780.601; MSA 4.147(1). We find these same issues to have been adequately addressed by this Court in Ward v Washtenaw Co Prosecutor, supra, pp 2-5.
Given our resolution of the issues addressed in this opinion, it is unnecessary to consider plaintiff's remaining allegation of error. The dismissal of plaintiff's petition was properly granted by the trial court.
Affirmed.