Evans #183132 v. Ludwick, No. 1:2009cv00741 - Document 6 (W.D. Mich. 2009)
Court Description: OPINION; Order and Judgment to issue; signed by Judge Janet T. Neff (Judge Janet T. Neff, clb)
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UNITED STATES OF AMERICA UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION TOMMY DELANZO EVANS, Petitioner, v. Case No. 1:09-cv-741 Honorable Janet T. Neff NICK LUDWICK, Respondent. _______________________________/ OPINION This is a habeas corpus action brought by a state prisoner pursuant to 28 U.S.C. § 2254. Promptly after the filing of a petition for habeas corpus, the Court must undertake a preliminary review of the petition 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. Factual Allegations Petitioner Tommy Delanzo Evans presently is incarcerated at the Mid-Michigan Correctional Facility. He currently is serving a prison term of two years and five months to fifteen years, imposed by the Kalamazoo County Circuit Court after Petitioner, as a second felony offender, MICH. COMP. LAWS § 769.10, pleaded guilty to larceny from a person, MICH. COMP. LAWS § 750.357. Petitioner filed an application for leave to appeal his conviction to the Michigan Court of Appeals, raising the same four grounds presented in the instant habeas petition: I. THE TRIAL COURT UNLAWFULLY DEPRIVED THE DEFENDANT OF HIS DUE PROCESS, EQUAL PROTECTION, AND OTHER PROTECTED RIGHTS UNDER THE UNITED STATES AND MICHIGAN CONSTITUTION[S] WHEN IT SCORED 10 POINTS ON OV-9 AND 15 POINTS ON OV-19. II. THE TRIAL COURT UNLAWFULLY DEPRIVED THE DEFENDANT OF HIS DUE PROCESS, EQUAL PROTECTION, AND OTHER PROTECTED RIGHTS UNDER THE UNITED STATES AND MICHIGAN CONSTITUTION[S] WHEN IT FAILED TO TAKE INTO ACCOUNT ALL MITIGATING EVIDENCE IN SENTENCING THE DEFENDANT. III. THE TRIAL COURT UNLAWFULLY VIOLATED THE UNITED STATES AND MICHIGAN CONSTITUTION[S] IN SENTENCING THE DEFENDANT TO A PRISON TERM OF 29 MONTH[S] TO 15 YEARS ON A HABITUAL OFFENDER 2[N]D SUPPLEMENT ARISING OUT OF THE LARCENY FROM A PERSON CONVICTION. IV. THE TRIAL COURT UNLAWFULLY DEPRIVED THE DEFENDANT OF HIS DUE PROCESS, EQUAL PROTECT[ION] RIGHTS UNDER THE UNITED STATES AND MICHIGAN CONSTITUTION[S] WHEN IT SCORED THE DEFENDANT 50 POINTS ON PRV 1. (Attach. A to Second Am. Pet., docket #5-2.) In lieu of granting leave to appeal, the court of appeals vacated and remanded that portion of the sentence that ordered Petitioner to pay attorney fees without first assessing his ability to pay. In all other respects, leave to appeal was denied. See -2- People v. Evans, Mich. Ct. App. Electronic Docket, Case No. 290061, http://coa.courts.mi.gov/ documents/coa/publicorders/2009/290061(15)_order.pdf. Petitioner sought leave to appeal to the Michigan Supreme Court, raising the same four issues raised before and rejected by the court of appeals. The supreme court denied leave to appeal on July 17, 2009. Id. Discussion I. Standard of Review This action is governed by the Antiterrorism and Effective Death Penalty Act, PUB. L. 104-132, 110 STAT. 1214 (AEDPA). See Penry v. Johnson, 532 U.S. 782, 792 (2001). The AEDPA prevents federal habeas retrials and ensures that state court convictions are given effect to the extent possible under the law. Bell v. Cone, 535 U.S. 685, 693-94 (2002). The AEDPA has drastically changed the nature of habeas review. Bailey v. Mitchell, 271 F.3d 652, 655 (6th Cir. 2001). An application for writ of habeas corpus on behalf of a person who is incarcerated pursuant to a state conviction cannot be granted with respect to any claim that was adjudicated on the merits in state court unless the adjudication: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based upon an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. 28 U.S.C. § 2254(d). The AEDPA limits the source of law to cases decided by the United States Supreme Court. 28 U.S.C. § 2254(d). This Court may consider only the clearly established holdings, and not the dicta, of the Supreme Court. Williams v. Taylor, 529 U.S. 362, 412 (2000); Bailey, 271 F.3d at 655. In determining whether federal law is clearly established, the Court may not consider the decisions of lower federal courts. Bailey, 271 F.3d at 655; Harris v. Stovall, 212 F.3d 940, 943 (6th -3- Cir. 2000). The inquiry is limited to an examination of the legal landscape as it would have appeared to the Michigan state courts in light of Supreme Court precedent at the time [the petitioner s] conviction became final. Onifer v. Tyszkiewicz, 255 F.3d 313, 318 (6th Cir. 2001). A decision of the state court may only be overturned if (1) it applies a rule that contradicts the governing law set forth by the Supreme Court, (2) it confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at a different result; (3) it identifies the correct governing legal rule from the Supreme Court precedent but unreasonably applies it to the facts of the case; or (4) it either unreasonably extends a legal principle from Supreme Court precedent to a new context where it should not apply or unreasonably refuses to extend a principle to a context where it should apply. Bailey, 271 F.3d at 655 (citing Williams, 529 U.S. at 413); see also Bell, 535 U.S. at 694; Lancaster v. Adams, 324 F.3d 423, 429 (6th Cir. 2003). A federal habeas court may not find a state adjudication to be unreasonable simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Williams, 529 U.S. at 411; accord Bell, 535 U.S. at 699. Rather, the issue is whether the state court s application of clearly established federal law is objectively unreasonable. Williams, 529 U.S. at 410. Where the state court has not articulated its reasoning, the federal courts are obligated to conduct an independent review to determine if the state court s result is contrary to federal law, unreasonably applies clearly established law, or is based on an unreasonable determination of the facts in light of the evidence presented. See Harris, 212 F.3d at 943; McKenzie v. Smith, 326 F.3d 721, 727 (6th Cir. 2003). Where the circumstances suggest that the state court actually considered -4- the issue, the review is not de novo. Onifer, 255 F.3d at 316. The review remains deferential because the court cannot grant relief unless the state court s result is not in keeping with the strictures of the AEDPA. Harris, 212 F.3d at 943. The AEDPA requires heightened respect for state factual findings. Herbert v. Billy, 160 F.3d 1131, 1134 (6th Cir. 1998). A determination of a factual issue made by a state court is presumed to be correct, and the petitioner has the burden of rebutting the presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Lancaster, 324 F.3d at 429; Bailey, 271 F.3d at 656. This presumption of correctness is accorded to findings of state appellate courts, as well as the trial court. See Sumner v. Mata, 449 U.S. 539, 546 (1981); Smith v. Jago, 888 F.2d 399, 407 n.4 (6th Cir. 1989). Applying the foregoing standards under the AEDPA, I find that Petitioner is not entitled to relief. II. Merits All four of Petitioner s claims assert that the trial court violated both the federal and Michigan constitutions during sentencing. Ground I suggests that such error occurred when the trial court improperly scored Offense Variable (OV) 9 and OV 15. In Ground II, Petitioner argues that the trial court failed to consider all mitigating evidence when sentencing Petitioner. Ground III states that the prison term of 29 months to 15 years was an unconstitutional sentence for a larceny from a person as a second felony offender. Finally, in Ground IV, Petitioner complains that both constitutions were violated by the scoring of 50 points on Prior Record Variable (PRV) 1. Petitioner fails to raise a meritorious federal claim. First, to the extent Petitioner claims a violation of the Michigan Constitution, his claim is not cognizable in a federal habeas proceeding. The court may entertain an application for habeas relief on behalf of a person in -5- custody pursuant to the judgment of a State court in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a). A habeas petition must state facts that point to a real possibility of constitutional error. Blackledge v. Allison, 431 U.S. 63, 75 n.7 (1977) (quoting Advisory Committee Notes on Rule 4, RULES GOVERNING HABEAS CORPUS CASES). The federal courts have no power to intervene on the basis of a perceived error of state law. Bradshaw v. Richey, 546 U.S. 74, 76 (2005); Pulley v. Harris, 465 U.S. 37, 41 (1984). Second, Petitioner s Grounds I and IV, which are based on scoring errors under the Michigan Sentencing Guidelines, are not reviewable in this proceeding. Claims concerning the improper scoring of sentencing guidelines are state-law claims and typically are not cognizable in habeas corpus proceedings. See Hutto v. Davis, 454 U.S. 370, 373-74 (1982) (federal courts normally do not review a sentence for a term of years that falls within the limits prescribed by the state legislature); Austin v. Jackson, 213 F.3d 298, 301-02 (6th Cir. 2000) (alleged violation of state law with respect to sentencing is not subject to federal habeas relief); Cheatham v. Hosey, No. 931319, 1993 WL 478854, at *2 (6th Cir. Nov. 19, 1993) (departure from sentencing guidelines is an issue of state law, and, thus, not cognizable in federal habeas review); Cook v. Stegall, 56 F. Supp. 2d 788, 797 (E.D. Mich. 1999) (the sentencing guidelines establish only rules of state law). There is no constitutional right to individualized sentencing. United States v. Thomas, 49 F.3d 253, 261 (6th Cir. 1995). Moreover, a criminal defendant has no federal constitutional right to be sentenced within Michigan s guideline minimum sentence recommendations. Doyle v. Scutt, 347 F. Supp. 2d 474, 485 (E.D. Mich. 2004); accord Lovely v. Jackson, 337 F. Supp. 2d 969, 977 (E.D. Mich. 2004); Thomas v. Foltz, 654 F. Supp. 105, 106-07 (E.D. Mich. 1987). -6- Third, Petitioner s second and third grounds for habeas relief, while cognizable, are without merit. In Grounds II and III of his petition, Petitioner argues that he was denied due process and equal protection when the sentencing court failed to take into consideration all mitigating evidence in his favor and when it imposed a sentence of 29 months to 15 years on the offense of conviction. Although state-law errors generally are not reviewable in a federal habeas proceeding, an alleged violation of state law could, potentially, be sufficiently egregious to amount to a denial of equal protection or of due process of law guaranteed by the Fourteenth Amendment. Koras v. Robinson, 123 F. App x 207, 213 (6th Cir. Feb. 15, 2005) (citing Bowling v. Parker, 344 F.3d 487, 521 (6th Cir. 2003)). See also Doyle, 347 F. Supp. 2d at 485 (a habeas court will not set aside, on allegations of unfairness or an abuse of discretion, terms of a sentence that is within state statutory limits unless the sentence is so disproportionate to the crime as to be completely arbitrary and shocking. ) (citation omitted). A sentence may violate due process if it is based upon material misinformation of constitutional magnitude. Koras, 123 F. App x at 213 (quoting Roberts v. United States, 445 U.S. 552, 556 (1980)); see also United States v. Tucker, 404 U.S. 443, 447 (1972); Townsend v. Burke, 334 U.S. 736, 741 (1948). To prevail on such a claim, the petitioner must show (1) that the information before the sentencing court was materially false, and (2) that the court relied on the false information in imposing the sentence. Tucker, 404 U.S. at 447;United States v. Polselli, 747 F.2d 356, 358 (6th Cir. 1984). Koras, 123 F. App x at 213 (quoting United States v. Stevens, 851 F.2d 140, 143 (6th Cir. 1988)). A sentencing court demonstrates actual reliance on misinformation when the court gives explicit attention to it, found[s] its sentence at least in part on it, or gives specific consideration to the information before imposing sentence. Tucker, 404 U.S. at 444, 447. -7- Petitioner s sentence clearly is not so disproportionate to the crime as to be arbitrary or shocking. Doyle, 347 F. Supp. 2d at 485. Under Michigan law, the offense of larceny from a person is punishable by a prison term up to a maximum of ten years. MICH. COMP. LAWS § 750.357. However, where a second felony offender is convicted of a felony that is punishable by a term of years less than life, he may be sentenced to a maximum term that is not more than one-andone-half times the longest term prescribed for the underlying offense. See MICH. COMP. LAWS § 769.10(1)(a). Under those provisions, Petitioner was properly sentenced to a maximum term of fifteen years. His minimum term, being only one-sixth of the maximum term, clearly was not shockingly disproportionate. Further, Petitioner does not even argue that the facts found by the court at sentencing were either materially false or based on false information. Tucker, 404 U.S. at 447. Instead, Petitioner argues only that the sentencing court did not adequately consider mitigating circumstances in his favor. Such a claim clearly falls far short of the sort of egregious circumstances implicating due process, and Petitioner fails to meet his burden of demonstrating misinformation of constitutional magnitude. Koras, 123 F. App x at 213. The state court s rejection of Petitioner s claim was not based on an unreasonable determination of the facts and was neither contrary to nor an unreasonable application of established Supreme Court precedent. 28 U.S.C. § 2254(d). For all these reasons, Petitioner s habeas grounds are either noncognizable or patently without merit. Conclusion In light of the foregoing, the Court will summarily dismiss Petitioner s application pursuant to Rule 4 because it fails to raise a meritorious federal claim. -8- Certificate of Appealability Under 28 U.S.C. § 2253(c)(2), the Court must determine whether a certificate of appealability should be granted. A certificate should issue if Petitioner has demonstrated a substantial showing of a denial of a constitutional right. 28 U.S.C. § 2253(c)(2). This Court s dismissal of Petitioner s action under Rule 4 of the Rules Governing § 2254 Cases is a determination that the habeas action, on its face, lacks sufficient merit to warrant service. It would be highly unlikely for this Court to grant a certificate, thus indicating to the Sixth Circuit Court of Appeals that an issue merits review, when the Court has already determined that the action is so lacking in merit that service is not warranted. See Love v. Butler, 952 F.2d 10 (1st Cir. 1991) (it is somewhat anomalous for the court to summarily dismiss under Rule 4 and grant a certificate); Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990) (requiring reversal where court summarily dismissed under Rule 4 but granted certificate); Dory v. Comm r of Corr. of the State of New York, 865 F.2d 44, 46 (2d Cir. 1989) (it was intrinsically contradictory to grant a certificate when habeas action does not warrant service under Rule 4); Williams v. Kullman, 722 F.2d 1048, 1050 n.1 (2d Cir. 1983) (issuing certificate would be inconsistent with a summary dismissal). The Sixth Circuit Court of Appeals has disapproved issuance of blanket denials of a certificate of appealability. Murphy v. Ohio, 263 F.3d 466 (6th Cir. 2001). Rather, the district court must engage in a reasoned assessment of each claim to determine whether a certificate is warranted. Id. at 467. Each issue must be considered under the standards set forth by the Supreme Court in Slack v. McDaniel, 529 U.S. 473 (2000). Murphy, 263 F.3d at 467. Consequently, this Court has examined each of Petitioner s claims under the Slack standard. Under Slack, 529 U.S. at 484, to warrant a grant of the certificate, [t]he petitioner must demonstrate that reasonable jurists -9- would find the district court s assessment of the constitutional claims debatable or wrong. Id. A petitioner satisfies this standard by demonstrating that . . . jurists could conclude the issues presented are adequate to deserve encouragement to proceed further. Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). In applying this standard, the Court may not conduct a full merits review, but must limit its examination to a threshold inquiry into the underlying merit of Petitioner s claims. Id. The Court finds that reasonable jurists could not conclude that this Court s dismissal of Petitioner s claims was debatable or wrong. Therefore, the Court will deny Petitioner a certificate of appealability. A Judgment and Order consistent with this Opinion will be entered. Dated: October 8, 2009 /s/ Janet T. Neff Janet T. Neff United States District Judge -10-
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