Grondon v. McKee

Filing 9

OPINION and ORDER denying 1 Petition for Writ of Habeas Corpus, and Declining to Issue a Certificate of Appealability or Leave to Appeal in Forma Pauperis. Signed by District Judge Thomas L. Ludington. (SGam)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
JASON MATTHEW GRONDON,
Plaintiff,
v

Case No. 12-cv-13158
Honorable Thomas L. Ludington

KENNETH McKEE,
Respondent.
__________________________________________/
OPINION AND ORDER DENYING THE PETITION FOR WRIT OF HABEAS CORPUS
AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY OR LEAVE TO
APPEAL IN FORMA PAUPERIS
Petitioner, Jason Matthew Grondon, is confined at the Bellamy Creek Correctional
Facility in Ionia, Michigan. He has filed a pro se application for a writ of habeas corpus pursuant
to 28 U.S.C. § 2254. Petitioner was convicted by a jury in the Washtenaw County Circuit Court
of second-degree murder, Mich. Comp Laws § 750.317; stealing or retaining a financial
transaction device without consent, Mich. Comp Laws § 750.157n(1); illegal use of a financial
transaction device, Mich. Comp Laws § 750.157q; and larceny less than $ 200.00, Mich. Comp
Laws § 750.356(5). Petitioner was sentenced to thirty four to fifty one years imprisonment on
the second-degree murder conviction, two to four years in prison on each of the financial
transaction device convictions, and ninety three days in jail on the larceny conviction.
Petitioner contends that the trial court erred in failing to suppress his confession on the
ground it was not voluntarily made, that he was denied a fair trial because of prosecutorial
misconduct, and that his sentencing guidelines were incorrectly scored. The respondent filed an
answer to the petition asserting that the claims lack merit or are procedurally defaulted. The

Court agrees that Petitioner’s claims are either meritless or procedurally defaulted, and therefore
the petition will be denied.
I
Petitioner was convicted of the above offenses following a jury trial in the Washtenaw
County Circuit Court. This Court recites verbatim the relevant facts relied upon by the Michigan
Court of Appeals, which are presumed to be correct on habeas review pursuant to 28 U.S.C. §
2254(e)(1). See Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009):
Defendant was convicted of murdering his uncle, Robert Green, and of
taking and using Green’s debit card without consent to make numerous purchases
thereafter. A car resembling defendant’s car was visible on surveillance video at
a gas station at the approximate time that Green’s debit card was used to make a
purchase there. And, when he was arrested, defendant had dried blood on his
pants and on his hands, which DNA analysis later established came from Green.
During police questioning, defendant confessed to striking Green in the head
repeatedly with a pipe and to disposing of the pipe by throwing it out of his car
window while driving away from Green’s home.
********************************************************************
The medical examiner testified that Green’s “scalp was split” by five blows with a
“linear rod-like object,” possibly a bar or a pipe. Green was also struck across the
right eye socket and eyelid and sustained superficial injuries on his lower right
leg. Cassin opined that Green died from the multiple blunt force impacts to his
head, which caused bleeding on the brain surface and acute swelling of the brain.
The medical examiner said that it was “impossible for [him] to say that any one
injury did or might have caused this death.” There was also evidence that
defendant chased Green around his basement, that Green dragged himself across
the basement floor, and that defendant continued to beat Green after he got
wedged into a corner.

People v. Grondon, No. 292494, * 1, 5 (Mich.Ct.App. November 9, 2010).
Petitioner’s conviction was affirmed on appeal. Id., lv. den. 489 Mich. 898, 796 N.W.2d
81 (2011).
Petitioner seeks a writ of habeas corpus on the following grounds:

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I.

The state court erred in its decision not to overturn Petitioner’s conviction because
the trial court allowed a coerced, involuntary confession to be admitted into
evidence.

II.

The prosecutor committed prejudicial misconduct in closing argument.

III.

The trial court abused its discretion in scoring 50 points for Offense Variable 7 for
sadism, torture, or excessive brutality.
II

28 U.S.C. § 2254(d), as amended by The Antiterrorism and Effective Death Penalty Act
of 1996 (AEDPA), provides the following standard of review for habeas cases:
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 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 proceeding.
A decision of a state court is “contrary to” clearly established federal law if the state court
arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if
the state court decides a case differently than the Supreme Court has on a set of materially
indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). An “unreasonable
application” occurs when “a state court decision unreasonably applies the law of [the Supreme
Court] to the facts of a prisoner’s case.” Id. at 409. 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.” Id. at 410-11.
The Supreme Court has explained that “[A] federal court’s collateral review of a statecourt decision must be consistent with the respect due state courts in our federal system.” Miller-

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El v. Cockrell, 537 U.S. 322, 340 (2003). The “AEDPA thus imposes a ‘highly deferential
standard for evaluating state-court rulings,’and ‘demands that state-court decisions be given the
benefit of the doubt.’” Renico v. Lett, 130 S. Ct. 1855, 1862 (2010)((quoting Lindh v. Murphy,
521 U.S. 320, 333, n. 7 (1997); Woodford v. Viscotti, 537 U.S. 19, 24 (2002) (per curiam)). “[A]
state court’s determination that a claim lacks merit precludes federal habeas relief so long as
‘fairminded jurists could disagree’ on the correctness of the state court’s decision.” Harrington v.
Richter, 131 S. Ct. 770, 786 (2011)(citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).
The Supreme Court has emphasized “that even a strong case for relief does not mean the state
court’s contrary conclusion was unreasonable.” Id. (citing Lockyer v. Andrade, 538 U.S. 63, 75
(2003)). Furthermore, pursuant to § 2254(d), “a habeas court must determine what arguments or
theories supported or...could have supported, the state court’s decision; and then it must ask
whether it is possible fairminded jurists could disagree that those arguments or theories are
inconsistent with the holding in a prior decision” of the Supreme Court. Id.
III
A
Petitioner first contends that the trial court erred in failing to suppress his confession on
the grounds that it was involuntary.

Petitioner claims that his confession was involuntary

because he was intoxicated on cocaine, was in excruciating pain before his arrest and during his
two police interrogations. He contends that he had kidney stones and was unable to urinate, was
not provided medical treatment until he confessed, and had the subjective belief that he would
not receive medical attention until he confessed.
Petitioner was arrested by the police at a gas station at about 12:45 a.m. on January 29,
2008. The police interviewed Petitioner briefly that morning, before leaving him to rest before

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re-interviewing Petitioner later that day from about 3:10 p.m. to 3:55 p.m. During this second
interrogation, Petitioner admitted to killing his uncle. During the second half of this second
interview, Petitioner began complaining of pain from a kidney stone. As a result, the detective
stopped the interrogation and took Petitioner back to his cell.
The Michigan Court of Appeals rejected Petitioner’s claim:
Defendant does not dispute that he confessed while in custody and after
receiving a Miranda warning. Likewise, he does not dispute that the waiver of his
right against self-incrimination was knowing and intelligent. At issue, then, is
whether defendant’s confession was voluntary.
Contrary to defendant’s claims, there was no evidence presented that the
police withheld medical treatment in order to force defendant to confess. The
videotaped portion of the interview did not show coercive conduct on the part of
the police officers, or that defendant made statements in response to coercion.
Although contradicted by defendant, Saline Police Department Detective Don
Lupi specifically denied telling defendant that he would only receive medical
treatment if he answered questions. The fact that police officers asked defendant
if he could answer a few more questions before receiving treatment, and that
defendant responded affirmatively, weighs heavily against defendant’s argument
that his statements were involuntary. Moreover, at no time during the interview
did defendant indicate that he wanted the interview to stop for any reason. Also,
that defendant was able to stand up and demonstrate how he struck Green
suggests that his pain was not as severe as he now claims. Finally, although there
was evidence that defendant had ingested crack cocaine, that occurred at least 15
hours before the interview at issue. Moreover, drug intoxication is not dispositive
on this issue.
Additionally, other factors support the trial court’s determination that the
confession was voluntary. Defendant had been in custody for less than 15 hours,
and the interrogation was short, lasting only 45 minutes. He had committed other
offenses and previously served time with the Michigan Department of
Corrections, so he was likely familiar with police procedure and techniques.
Considering the totality of the circumstances, the trial court did not err in
concluding that defendant’s statements were made voluntarily.

Grondon, Slip. Op. at 2-3 (internal citations and footnote omitted).

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The Fifth Amendment prohibits the prosecution’s use of a criminal defendant’s
compelled testimony. Oregon v. Elstad, 470 U.S. 298, 306-07 (1985). The Due Process Clause
of the Fourteenth Amendment likewise prohibits the admission at trial of coerced confessions
obtained by means “so offensive to a civilized system of justice that they must be condemned.”
Miller v. Fenton, 474 U.S. 104, 109 (1985). An admission is deemed to be coerced when the
conduct of law enforcement officials is such as to overbear the accused’s will to resist. Ledbetter
v. Edwards, 35 F. 3d 1062, 1067 (6th Cir. 1994)(citing Beckwith v. United States, 425 U.S. 341,
347-48 (1976)). An involuntary confession may result from psychological, no less than physical,
coercion or pressure by the police. Arizona v. Fulminante, 499 U.S. 279, 285-89 (1991);
Miranda v. Arizona, 384 U.S. 436, 448 (1966).
In determining whether a confession is voluntary, the ultimate question for a court is
“whether, under the totality of the circumstances, the challenged confession was obtained in a
manner compatible with the requirements of the Constitution.” Miller v. Fenton, 474 U.S. at 112.
These circumstances include:
1. police coercion (a “crucial element”);
2. the length of interrogation;
3. the location of interrogation;
4. the continuity of the interrogation;
5. the suspect’s maturity;
6. the suspect’s education;
7. the suspect’s physical condition and mental health;
8. and whether the suspect was advised of his or her Miranda Rights.

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Withrow v. Williams, 507 U.S. 680, 693-94 (1993).
All of the factors involved in the giving of the statement should be closely scrutinized.
Culombe v. Connecticut, 367 U.S. 568, 602 (1961). However, without coercive police activity, a
confession should not be deemed involuntary. Colorado v. Connelly, 479 U.S. 157, 167 (1986).
Petitioner first contends that his confession should have been suppressed because he had
ingested cocaine prior to his arrest. Detective Don Lupi of the Saline Police Department testified
at the Walker hearing1 that he first met Petitioner at about 2 a.m. on the morning of Petitioner’s
arrest. Petitioner told Detective Lupi that he had used cocaine on the night of his arrest as well
as the day before. Petitioner was taken back to his cell at that time. (Tr. 10/24/08, pp. 52-53, 62,
73, 89). Detective Lupi re-interviewed Petitioner at about 3:10 p.m. (Id., pp. 8-9, 52, 63). There
was no evidence presented that Petitioner was still under the influence of cocaine at the time of
this second interrogation.
In the present case, there is no evidence that Petitioner was still intoxicated at the time
that he spoke with Detective Lupi on the afternoon of January 29th, nor is there any evidence of
police coercion. In the absence of any evidence that Petitioner was still under the influence of
cocaine or that the police had engaged in coercive activity, Petitioner cannot show that his
confession should have been suppressed merely because he claimed that he had ingested cocaine
the night before his arrest. See Abela v. Martin, 380 F. 3d 915, 928 (6th Cir. 2004).
Petitioner next argues that his confession should have been suppressed because he was
suffering from extreme pain at the time of the second interrogation due to a kidney stone and the
inability to urinate.
The trial judge rejected this portion of Petitioner’s claim. In so doing, the judge noted
that she had actually reviewed the videotaped portion of Petitioner’s confession. Although there
1

People v. Walker (On Rehearing), 132 N.W.2d 87 (Mich. 1965).

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were “signs of discomfort intermittently” during the interview by Petitioner, that he was bent
over at times and showed some degree of pain, nothing on the tape showed coercive conduct on
the part of the officers or that Petitioner made his confession in response to coercion and his
insisting on medical treatment. (Tr. 11/3/08, pp. 4-5). Although Petitioner had made some
requests for medical treatment, the judge noted that Petitioner at no point asked the detectives to
stop questioning him nor did he state that he wanted to leave and see a doctor. The judge further
noted that in response to what she thought were “gentle questions” on the part of the detectives,
in which they asked Petitioner whether he was willing to answer a few more questions, Petitioner
responded that he was willing to do so. (Id., p. 5).
In the present case, even if Petitioner was in pain as a result of kidney stones and an
inability to urinate, this would not render his confession involuntary. The detectives interrogated
Petitioner for only forty five minutes. The detectives asked Petitioner if he could answer a few
more questions before receiving medical treatment and he responded affirmatively. There is
nothing from the record that suggests that Petitioner asked for the interview to stop because he
was in pain. There was no evidence of coercive activity on the part of the police. The fact that
Petitioner was able to stand during the interrogation and demonstrate to the detectives how he
struck the victim suggests that the pain may not have been as excruciating and unremitting as
Petitioner claims.
While Petitioner may well have been in some pain, his situation is markedly different
from those cases in which courts have held that a defendant’s physical condition rendered his
confession involuntary. See Mincey v. Arizona, 437 U.S. 385, 398-402 (1978)(confession was
involuntary where officers questioned the defendant over his objection for four hours while he
was incapacitated and sedated in an intensive-care unit after being shot by police); Greenwald v.

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Wisconsin, 390 U.S. 519, 520-21 (1968)(confession was involuntary where officers questioned
defendant for more than 18 hours while depriving him of food, sleep and medication); Beecher v.
Alabama, 389 U.S. 35, 38 (1967)(confession involuntary where police, after shooting the
defendant, ordered him at gunpoint to confess or be killed); Davis v. North Carolina, 384 U.S.
737, 745-47 (1966)(confession involuntary where officers interrogated the defendant over 16
days and held him incommunicado in a closed cell without windows and with limited food).
In contrast to these cases, Petitioner was interviewed by the police for less than one hour.
The police did not engage in any coercive activity. Petitioner indicated a willingness and an
ability to continue answering a few more questions from the police.

Because Petitioner’s

situation was not “sufficiently analogous to the grave medical conditions and coercive
environments in Mincey and Beecher,” Petitioner has failed to show that his medical condition
rendered his confession involuntary so as to entitle him to habeas relief. See Abela v. Martin, 380
F. 3d at 929.
With respect to Petitioner’s related claim that he confessed only because the detectives
indicated that he would not receive medical treatment until he confessed, Detective Lupi
specifically denied threatening to withhold medical treatment from Petitioner until he confessed.
(Tr. 10/24/08, pp. 56-57). Although the trial court judge did not explicitly address the claim that
the detectives threatened to withhold medical treatment unless Petitioner confessed, by rejecting
Petitioner’s claim that his confession was involuntary, the judge implicitly found that no threats
to withhold medical treatment had been made to induce Petitioner’s confession. In considering
federal habeas petitions, a federal district court must presume the correctness of state court
factual determinations, and a habeas petitioner may rebut this presumption only with clear and
convincing evidence. Bailey v. Mitchell, 271 F. 3d 652, 656 (6th Cir. 2001); 28 U.S.C. §

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2254(e)(1). Subsidiary factual questions in determining the voluntariness of a statement to
police, such as whether the police engaged in intimidation tactics alleged by a habeas petitioner,
are entitled to the presumption of correctness accorded to state court findings of fact. Miller v.
Fenton, 474 U.S. at 112. The presumption of correctness also “applies to implicit findings of
fact, logically deduced because of the trial court’s ability to adjudge the witnesses’ demeanor and
credibility.” Carey v. Myers, 74 Fed. Appx. 445, 448 (6th Cir. 2003) (citing McQueen v.
Scroggy, 99 F. 3d 1302, 1310 (6th Cir. 1996)). Moreover, the Michigan Court of Appeals, in
rejecting Petitioner’s claim, did so in part by finding that there had been no threats by Detective
Lupi to withhold medical treatment unless Petitioner confessed or promises to provide him
treatment if he confessed. The presumption of correctness extends to factual findings made by
state appellate courts on the basis of their review of trial court records. Brumley v. Wingard, 269
F.3d 629, 637 (6th Cir. 2001)(citing Sumner v. Mata, 449 U.S. 539, 546-47 (1981)). The trial
court judge and the Michigan Court of Appeals rejected Petitioner’s factual allegations that the
police promised him medical care only if he confessed, and Petitioner has failed to offer clear
and convincing evidence to the contrary; thus, Petitioner has not shown that his confession was
involuntary on this basis. See Brown v. Jackson, 501 Fed. Appx. 376, 378-79 (6th Cir. 2012).
Finally, Petitioner contends that his confession was involuntary because he subjectively
believed that he would only be given medical treatment if he confessed.
A confession, to be admissible, must be free and voluntary and it cannot be the result of
any direct or implied promises, however slight. See Shotwell Mfg. Co. v. U.S., 371 U.S. 341, 347
(1963). However, Petitioner’s subjective belief that he would receive medical treatment if he
confessed is insufficient to establish that Petitioner’s statement was coerced. See U.S. v. Hopkins,
295 F.3d 549, 552 (6th Cir. 2002).

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Based upon the totality of the circumstances in this case, it was objectively reasonable for
the Michigan Court of Appeals to conclude that Petitioner’s confession was voluntary. See
McCalvin v. Yukins, 444 F. 3d 713, 720 (6th Cir. 2006). Petitioner was advised of his Miranda
rights, had prior familiarity with criminal procedures due to his past contacts with the criminal
justice system, he was only in custody for fifteen hours, and the interrogation lasted only forty
five minutes. There was no evidence that the detectives physically assaulted Petitioner or made
any threats towards him. Moreover, given the factors supporting a finding that Petitioner’s
confession was voluntary, the decision of the Michigan Court of Appeals in finding Petitioner’s
confession to have been voluntary was a reasonable application of federal law. Id.
In addition, even if the statement should have been suppressed, Petitioner is unable to
establish that he is entitled to habeas relief in light of the fact that admission of this statement
against him at trial was harmless error at most. Harmless-error analysis applies to coerced or
involuntary confessions. Arizona v. Fulminante, 499 U.S. at 295. In Brecht v. Abrahamson, 507
U.S. 619, 637 (1993), the U.S. Supreme Court held that for purposes of determining whether
federal habeas relief must be granted to a state prisoner on the ground of federal constitutional
error, the appropriate harmless error standard to apply is whether the error had a substantial and
injurious effect or influence in determining the jury's verdict.
In the present case, there was sufficient evidence, absent Petitioner’s confession, to
sustain his convictions. It was undisputed from the physical and medical evidence that the
victim had been brutally assaulted. The victim’s debit card had been stolen. A car resembling
Petitioner’s vehicle was seen on a surveillance video at a gas station at the approximate time that
the victim’s debit card was used to make a purchase there. Significantly, when Petitioner was
arrested, he had the victim’s dried blood on his pants and on his hands. In light of this

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significant evidence of guilt, the admission of Petitioner’s confession was harmless error at most.
Petitioner is not entitled to habeas relief on his first claim.
B
Petitioner next contends that he was deprived of a fair trial because of prosecutorial
misconduct. He contends that the prosecutor injected her personal beliefs, denigrated the
defense, and inflamed the jurors’ passions against Petitioner in her rebuttal argument.
Respondent contends that Petitioner’s prosecutorial misconduct claim is procedurally
defaulted, because Petitioner did not preserve the issue by objecting in the state trial court and
the Michigan Court of Appeals relied on this waiver to deny Petitioner’s claim on his appeal of
right.
The Michigan Court of Appeals found that Petitioner’s claim of prosecutorial misconduct
was unpreserved and reviewed the claim for plain error, because Petitioner had failed to object to
the prosecutorial misconduct at trial. Finding none, the Michigan Court of Appeals rejected
Petitioner’s prosecutorial misconduct claim. Grondon, Slip. Op. at * 3.
In all cases in which a state prisoner has defaulted his federal claims in state court
pursuant to an independent and adequate state procedural rule, federal habeas review of the
claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as
a result of the alleged violation of federal law, or demonstrate that failure to consider the claims
will result in a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 750
(1991). Such a default may occur if the state prisoner files an untimely appeal, Coleman, 501
U.S. at 752, if he fails to present an issue to a state appellate court at his only opportunity to do
so, Rust v. Zent, 17 F. 3d 155, 160 (6th Cir. 1994), or if he fails to comply with a state procedural
rule that required him to have done something at the trial court level to preserve his claimed error

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for appellate review, e.g., to make a contemporaneous objection, or file a motion for a directed
verdict. United States v. Frady, 456 U.S. 152, 167-69 (1982); Simpson v. Sparkman, 94 F. 3d
199, 202 (6th Cir. 1996). Application of the cause and prejudice test may be excused if
Petitioner “presents an extraordinary case whereby a constitutional violation resulted in the
conviction of one who is actually innocent.” Rust, 17 F. 3d at 162; Murray v. Carrier, 477 U.S.
478, 496 (1986).
For the doctrine of procedural default to apply, a firmly established state procedural rule
applicable to the petitioner’s claim must exist, and the petitioner must have failed to comply with
that state procedural rule. Williams v. Coyle, 260 F. 3d 684, 693 (6th Cir. 2001). In addition, the
last state court from which the petitioner sought review must have invoked the state procedural
rule as a basis for its decision to reject review of the petitioner’s federal claim. Coleman, 501
U.S. at 729-30. “When a state court judgment appears to have rested primarily on federal law or
was interwoven with federal law, a state procedural rule is an independent and adequate state
ground[ ] only if the state court rendering judgment in the case clearly and expressly stated that
its judgment rested on a procedural bar.” Simpson, 94 F. 3d at 202. Whether the independent
state ground is adequate to support the judgment is itself a federal question. Lee v. Kemna, 534
U.S. 362, 375 (2002). If the last state court from which a petitioner sought review affirmed the
conviction both on the merits and, alternatively, on a procedural ground, the procedural default
bar is invoked and the petitioner must establish cause and prejudice for the federal court to
review the petition. Rust, 17 F. 3d at 161; Williams v. Withrow, 328 F. Supp. 2d 735, 750 (E.D.
Mich. 2004).
Michigan law requires that a criminal defendant object to prosecutorial misconduct to
preserve such a claim for appellate review. See Burton v. Bock, 320 F. Supp. 2d 582, 589 (E.D.

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Mich. 2004)(citing People v. Ullah, 216 Mich. App. 669, 679; 550 N.W. 2d 568 (1996)); See
also People v. Stanaway, 446 Mich. 643, 687; 521 N.W. 2d 557 (1994). Petitioner in this case
does not dispute that this procedural rule was firmly established and regularly followed with
respect to his prosecutorial misconduct claim before Petitioner’s 2009 trial. In this case, the
Michigan Court of Appeals clearly indicated that by failing to object at trial, Petitioner had not
preserved his prosecutorial misconduct claim. The fact that the Michigan Court of Appeals
engaged in plain error review of Petitioner’s prosecutorial misconduct claim does not constitute a
waiver of the state procedural default. See Seymour v. Walker, 224 F. 3d 542, 557 (6th Cir.
2000). Instead, this Court should view the Michigan Court of Appeals’ review of Petitioner’s
claim for plain error as enforcement of the procedural default. See Hinkle v. Randle, 271 F. 3d
239, 244 (6th Cir. 2001). Petitioner’s prosecutorial misconduct claim is procedurally defaulted.
A state prisoner who fails to comply with a state’s procedural rules waives the right to
federal habeas review absent a showing of cause for noncompliance and actual prejudice
resulting from the alleged constitutional violation, or a showing of a fundamental miscarriage of
justice. Coleman, 501 U.S. at 750; See also Gravley v. Mills, 87 F. 3d 779, 784-85 (6th Cir.
1996). With respect to Petitioner’s prosecutorial misconduct claim, Petitioner has neither alleged
nor established cause to excuse his procedural default. When cause has not been shown, the
Court need not consider whether actual prejudice has been demonstrated. See, e.g., Smith v.
Murray, 477 U.S. 527, 533 (1986); Long v. McKeen, 722 F. 2d 286, 289 (6th Cir. 1983).
Further, Petitioner has not established that a fundamental miscarriage of justice has
occurred. The miscarriage of justice exception requires a showing that a constitutional violation
probably resulted in the conviction of one who is actually innocent. Schlup v. Delo, 513 U.S.
298, 326-27 (1995).

“‘[A]ctual innocence’ means factual innocence, not mere legal

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insufficiency.” Bousley v. United States, 523 U.S. 614, 623 (1998). “To be credible, [a claim of
actual innocence] requires petitioner to support his allegations of constitutional error with new
reliable evidence—whether it be exculpatory scientific evidence, trustworthy eyewitness
accounts, or critical physical evidence—that was not presented at trial.” Schlup, 513 U.S. at 324.
Petitioner has made no such showing in this case. Petitioner’s prosecutorial misconduct claim is
barred by procedural default and does not warrant habeas relief.
C
Finally, Petitioner claims that the trial court incorrectly scored fifty points for sadism or
excessive brutality under Offense Variable 7 of the Michigan Sentencing Guidelines.
State courts are the final arbiters of state law. See Bradshaw v. Richey, 546 U.S. 74, 76
(2005); Sanford v. Yukins, 288 F.3d 855, 860 (6th Cir. 2002). Therefore, claims which arise out
of a state trial court’s sentencing decision are not normally cognizable on federal habeas review,
unless the habeas petitioner can show that the sentence imposed exceeded the statutory limits or
is wholly unauthorized by law. See Vliet v. Renico, 193 F. Supp. 2d 1010, 1014 (E.D. Mich.
2002). Thus, a sentence imposed within the statutory limits is not generally subject to habeas
review. Townsend v. Burke, 334 U.S. 736, 741 (1948); Cook v. Stegall, 56 F. Supp. 2d 788, 797
(E.D. Mich. 1999).
Petitioner’s claim that the state trial court incorrectly scored or calculated his sentencing
guidelines range under the Michigan Sentencing Guidelines is not a cognizable claim for federal
habeas review, because it is a state law claim. See Tironi v. Birkett, 252 Fed. Appx. 724, 725 (6th
Cir. 2007); Howard v. White, 76 Fed. Appx. 52, 53 (6th Cir. 2003). Petitioner had “no statecreated interest in having the Michigan Sentencing Guidelines applied rigidly in determining his
sentence.” See Mitchell v. Vasbinder, 644 F. Supp. 2d 846, 867 (E.D. Mich. 2009). “[I]n short,

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petitioner had 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). Any error by the trial court in calculating his guideline score would not merit habeas
relief. Id.

Petitioner’s claim that the state trial court improperly departed above the correct

sentencing guidelines range would thus not entitle him to habeas relief, because such a departure
does not violate any of Petitioner’s federal due process rights. Austin v. Jackson, 213 F. 3d 298,
301 (6th Cir. 2000). Petitioner is not entitled to habeas relief on his third claim.
IV
Before Petitioner may appeal this Court’s dispositive decision, a certificate of
appealability must issue. See 28 U.S.C. § 2253(c)(1)(a); Fed. R.App. P. 22(b). A certificate of
appealability may issue “only if the applicant has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). When a court rejects a habeas claim on the merits,
the substantial showing threshold is met if the petitioner demonstrates that reasonable jurists
would find the district court’s assessment of the constitutional claim debatable or wrong. See
Slack v. McDaniel, 529 U.S. 473, 484-85 (2000).

“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
that standard, a district court may not conduct a full merits review, but must limit its examination
to a threshold inquiry into the underlying merit of the petitioner’s claims. Id. at 336-37.
Likewise, when a district court denies a habeas petition on procedural grounds without
reaching the prisoner’s underlying constitutional claims, a certificate of appealability should
issue, and an appeal of the district court’s order may be taken, if the petitioner shows that jurists
of reason would find it debatable whether the petitioner states a valid claim of the denial of a

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constitutional right, and that jurists of reason would find it debatable whether the district court
was correct in its procedural ruling. Slack, 529 U.S. at 484. When a plain procedural bar is
present and the district court is correct to invoke it to dispose of the case, a reasonable jurist
could not conclude either that the district court erred in dismissing the petition or that the petition
should be allowed to proceed further. In such a circumstance, no appeal would be warranted. Id.
“The district court must issue or deny a certificate of appealability when it enters a final
order adverse to the applicant.” Rules Governing § 2254 Cases, Rule 11(a), 28 U.S.C. foll. §
2254.
The Court concludes that Petitioner has failed to make a substantial showing of the denial
of a constitutional right. Accordingly, a certificate of appealability is not warranted in this case.
The Court further concludes that Petitioner should not be granted leave to proceed in forma
pauperis on appeal, as any appeal would be frivolous. See Fed.R.App. P. 24(a).
V
For the reasons stated, the Court concludes that Petitioner is not entitled to federal habeas
relief on the claims contained in his petition.
Accordingly, it is ORDERED that the petition for writ of habeas corpus [ECF No. 1] is
DENIED.
It is further ORDERED that a certificate of appealability is DENIED.
It is further ORDERED that permission to proceed in forma pauperis on appeal is
DENIED.
s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge
Dated: September 12, 2013

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PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney of record herein by electronic means and upon Jason
Grondon #237510, Bellamy Creek Correctional Facility, 1727 West
Bluewater Highway, Ionia, MI 48846 by first class U.S. mail on
September 12, 2013.
s/Tracy A. Jacobs
TRACY A. JACOBS

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