Johnny Harper v. George A. Kropp, Warden, State Prison of Southern Michigan

426 F.2d 108, 1970 U.S. App. LEXIS 9186

• Court: Court of Appeals for the Sixth Circuit
• Decided: May 18, 1970
• Docket: 19567
• Status: Published

Opinions

COMBS, Circuit Judge.

Petitioner-appellant was convicted on January 28, 1960, of the unlawful sale and possession of narcotics in the Circuit Court for the County of Genesee, Michigan on charges contained in a two-count information. He is presently confined in the State Prison of Southern Michigan serving concurrent sentences of 20-to-30 years imprisonment on Count I, and 8-to-lO years imprisonment on Count II. The statutory provisions under which he was convicted are contained in the Michigan Suppression of Illegitimate Traffic in Narcotic Drugs Act, M.S.A. 18.1121-18.1127 (C.L. ’48, §§ 335.151-335.157).

In June, 1965, petitioner filed an original action in the Michigan Supreme Court in which he sought a writ of habeas corpus with an ancillary writ of certiorari to the Circuit Court of Genesee County. The court" considered the petition as an application for leave to appeal and granted leave. The court then remanded the cause to the Michigan Court of Appeals pursuant to Michigan General Court Rule 865.1(7).

In the Michigan Court of Appeals petitioner contended that the statutes under which he was convicted violate the Equal Protection Clause of the Fourteenth Amendment since it punished the act committed by him with a minimum sentence of twenty years imprisonment and a maximum sentence of life imprisonment, which act, if committed by a person classified as a person “having a license under the provision of Act 343,” could be punished without any minimum sentence and a maximum sentence of up to ten years.

Petitioner’s claim was rejected by the Michigan Court of Appeals, which wrote two opinions. People v. Harper, 1 Mich. App. 480, 136 N.W.2d 768 (1965). The Michigan Supreme Court affirmed in two opinions, agreeing respectively with the reasoning of the Michigan Court of Appeals. Three justices dissented and held the statutes unconstitutional. People v. Harper, 379 Mich. 440, 152 N.W.2d 645 (1967). Petitioner’s appeal to the Supreme Court was dismissed in a per curiam decision on June 17, 1968. Harper v. Michigan, 392 U.S. 644, 88 S.Ct. 2296, 20 L.Ed.2d 1353.

Petitioner, having exhausted his state remedies, filed in the district court a petition for writ of habeas corpus relying on the same ground raised in the Michigan courts.

Upon the foregoing facts as stated in his memorandum opinion, the district judge held that the statutes in question do not actually make a classification and, even if they do, the classification is reasonable.

We are of opinion the district judge properly dismissed the petition. Petitioner was convicted for selling heroin. The State of Michigan is without power to license the sale of heroin, such sale being prohibited by federal law. 18 U.S.C. § 1402. Since a license to sell heroin cannot be obtained from the State of Michigan, any person selling heroin in that state would be an unlicensed person and would be in violation of the statute under which petitioner was convicted (M.S.A. 18.1122) and subject to the same penalty imposed upon him. It follows that there is no statutory classification of persons as regards the sale of heroin in Michigan, and petitioner’s claim of denial of equal protection of the laws must fail.

The judgment is affirmed.