Hanserd v. Harry

Filing 5

OPINION AND ORDER Summarily Denying the 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. (Sian, M)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
MARCUS HANSERD,
Petitioner,

Case No. 1:16-CV-14431
Honorable Thomas L. Ludington

v.
SHIRLEE HARRY,
Respondent,
_________________________________/

OPINION AND ORDER SUMMARILY DENYING THE PETITION FOR WRIT OF
HABEAS CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF
APPEALABILITY OR LEAVE TO APPEAL IN FORMA PAUPERIS
Petitioner, Marcus Hanserd, presently confined at the Brooks Correctional Facility in
Muskegon Heights, Michigan, filed a pro se application for a writ of habeas corpus pursuant to
28 U.S.C. § 2254 on December 21, 2016. ECF No. 1. Petitioner was convicted in the Saginaw
County Circuit Court of armed robbery, Mich. Comp Laws § 750.529, and sentenced to fifteen to
forty-five years in prison. Petitioner contends that the trial court improperly scored points under
the offense variables of the Michigan Sentencing Guidelines by considering factors which had
not been submitted to a jury and proven beyond a reasonable doubt or admitted to by Petitioner.
Petitioner further contends that the trial court erred in assessing twenty five points under prior
record variable 1 of the Michigan Sentencing Guidelines. Petitioner further argues that trial
counsel was ineffective for failing to object to the scoring of the sentencing guidelines. For the
reasons that follow, the petition for writ of habeas corpus will be summarily denied.
I.
Petitioner was convicted following a jury trial in the Saginaw County Circuit Court.
Petitioner’s conviction and sentence were affirmed on direct appeal. People v. Hanserd, No.

259868, 2006 WL 1009040 (Mich. Ct. App. Apr. 18, 2006); lv. den. 476 Mich. 868, 720 N.W.
2d 315 (2006).
Petitioner subsequently filed a post-conviction motion for relief from judgment, which
was denied. People v. Hanserd, No. 04-024484-FC (Saginaw Cty. Cir. Ct., June 10, 2014). The
Michigan appellate courts denied Petitioner leave to appeal. People v. Hanserd, No. 323099
(Mich.Ct.App. Nov. 7, 2014); lv. den. 499 Mich. 897, 876 N.W.2d 822 (2016).
Petitioner seeks a writ of habeas corpus on the following grounds:
I. Defendant must be resentenced because the trial court’s factual findings
supporting its scoring of the sentence guidelines offense variables were not
determined by a jury.
II. Defendant is entitled to resentencing where there was no basis for assessing 25
points for Prior Record Variable 1. A correct scoring of PRV 1 changes the
sentencing guidelines.
III. The Petitioner’s sentence is invalid because counsel failed to challenge the
inaccurate information that was used to enhance his sentence unconstitutionally.
Pet., ECF No. 1.
II.
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 also 28 U.S.C. § 2243. If, after preliminary
consideration, the Court determines that the petitioner is not entitled to relief, the Court must
summarily dismiss the petition. Id.; see also 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 federal
district court is authorized to summarily dismiss a habeas corpus petition if it plainly appears
from the face of the petition and any attached exhibits that the petitioner is not entitled to federal
habeas relief. See McFarland v. Scott, 512 U.S. 849, 856 (1994); Carson v. Burke, 178 F.3d 434,
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436 (6th Cir.1999); Rules Governing § 2254 Cases, Rule 4, 28 U.S.C. foll. § 2254. No response
to a habeas petition is necessary when the petition is frivolous, obviously lacks merit, or where
the necessary facts can be determined from the petition itself without consideration of a response
from the State. See Allen, 424 F.2d at 141; Robinson v. Jackson, 366 F. Supp. 2d 524, 525 (E.D.
Mich. 2005).
After undertaking the review required by Rule 4, this Court concludes that the
petitioner’s sentencing claims do not entitle him to habeas relief. See McIntosh v. Booker, 300 F.
Supp. 2d 498, 499 (E.D. Mich. 2004). The Court likewise concludes that Petitioner’s related
ineffective assistance of counsel claim is meritless. See Mathews v. United States, 11 F. 3d 583,
585 (6th Cir. 1993) (affirming the summary dismissal of an ineffective assistance of counsel
claim raised in a § 2255 motion to vacate sentence pursuant to Rule 4, where there was no merit
to the claim). The petition will be summarily denied.
III.
Petitioner initially claims that the trial court incorrectly scored several offense variables
and prior record variable 1 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 generally not 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).

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Petitioner’s claims that the state trial court incorrectly scored or calculated his sentencing
guidelines range under the Michigan Sentencing Guidelines are not cognizable claims for federal
habeas review because they are fundamentally state law claims. See Tironi v. Birkett, 252 F.
App’x 724, 725 (6th Cir. 2007) (unpublished); Howard v. White, 76 F. App’x 52, 53 (6th Cir.
2003) (unpublished); McPhail v. Renico, 412 F. Supp. 2d 647, 656 (E.D. Mich. 2006). Errors in
the application of state sentencing guidelines cannot independently support habeas relief. See
Kissner v. Palmer, 826 F. 3d 898, 904 (6th Cir. 2016). Petitioner had “no state-created 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, 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 claims
that the state trial court improperly departed above the correct sentencing guidelines range would
thus not entitle him to habeas relief because such departures do not violate federal due process
rights. Austin v. Jackson, 213 F. 3d 298, 301 (6th Cir. 2000).
Petitioner further contends, however, that the trial judge violated his Sixth Amendment
right to a jury trial by using facts that had not been submitted to a jury in order to score the
offense variables in his case.1
On June 17, 2013, the United States Supreme Court ruled that any fact that increases the
mandatory minimum sentence for a crime is an element of the criminal offense that must be

1

Under Michigan law, only the minimum sentence must presumptively be set within the appropriate sentencing
guidelines range. See People v. Babcock, 469 Mich. 247, 255, n. 7, 666 N.W. 2d 231 (2003) (citing M.C.L.A.
769.34(2)). The maximum sentence is not determined by the trial judge but is set by law. See People v. Claypool,
470 Mich. 715, 730, n. 14, 684 N.W. 2d 278 (2004)(citing M.C.L.A. 769.8).

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proven beyond a reasonable doubt. See Alleyne v. United States, 133 S. Ct. 2151, 2155 (2013).
Alleyne is an extension of the Supreme Court’s holdings in Apprendi v. New Jersey, 530 U.S.
466 (2000) and Blakely v. Washington, 542 U.S. 296 (2004), in which the U.S. Supreme Court
held that any fact that increases or enhances a penalty for a crime beyond the prescribed statutory
maximum for the offense must be submitted to the jury and proven beyond a reasonable doubt.
In reaching this conclusion, the Supreme Court overruled Harris v. United States, 536 U.S. 545
(2002), in which the Supreme Court held that only factors that increase the maximum, as
opposed to the minimum, sentence must be proven beyond a reasonable doubt to a factfinder.
Alleyne, 133 S. Ct. at 2157–58.
At the time of the petitioner’s conviction and sentence, Harris was the law. In addition,
Alleyne has not been made retroactive to cases on collateral review. See In re Mazzio, 756 F.3d
487, 489-90 (6th Cir. 2014). Because the Supreme Court did not require, at the time of the
petitioner’s conviction, that facts which increase a criminal defendant’s minimum sentence be
proven beyond a reasonable doubt, Petitioner is not entitled to habeas relief on his first claim.
See Gibson v. Tribley, No. 10-13364, 2013 WL 3353905, at * 8 (E.D. Mich. July 3, 2013).
Moreover, Alleyne is inapplicable to the petitioner’s case because the Supreme Court’s
holding in “Alleyne dealt with judge-found facts that raised the mandatory minimum sentence
under a statute, not judge-found facts that trigger an increased guidelines range.” See United
States v. Cooper, 739 F.3d 873, 884 (6th Cir. 2014); see also United States v. James, 575 F.
App’x 588, 595 (6th Cir. 2014) (unpublished) (collecting cases and noting that at least four postAlleyne unanimous panels of the Sixth Circuit have “taken for granted that the rule of Alleyne
applies only to mandatory minimum sentences.”); Saccoccia v. Farley, 573 F. App’x 483, 485
(6th Cir. 2014) (unpublished) (“But Alleyne held only that ‘facts that increase a mandatory

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statutory minimum [are] part of the substantive offense.’ . . . It said nothing about guidelines
sentencing factors. . . .”). The same thing occurred in this case. The Sixth Circuit, in fact, has
ruled that Alleyne did not decide the question whether judicial factfinding under Michigan’s
indeterminate sentencing scheme violates the Sixth Amendment. See Kittka v. Franks, 539 F.
App’x 668, 673 (6th Cir. 2013) (unpublished).
The Court is aware that the Michigan Supreme Court recently relied on the Alleyne
decision in holding that Michigan’s Sentencing Guidelines scheme violates the Sixth
Amendment right to a jury trial. See People v. Lockridge, 870 N.W.2d 502 (Mich. 2015).
The petitioner cannot rely on Lockridge to obtain relief with this Court. The AEDPA
standard of review found in 28 U.S.C. § 2254 (d)(1) prohibits the use of lower court decisions in
determining whether the state court decision is contrary to, or an unreasonable application of,
clearly established federal law. See Miller v. Straub, 299 F. 3d 570, 578–579 (6th Cir. 2002).
“The Michigan Supreme Court’s decision in Lockridge does not render the result ‘clearly
established’ for purposes of habeas review.” Haller v. Campbell, No. 1:16-CV-206, 2016 WL
1068744, at *5 (W.D. Mich. Mar. 18, 2016). In light of the fact that the Sixth Circuit has ruled
that Alleyne does not apply to sentencing guidelines factors, reasonable jurists at a minimum
could disagree about whether Alleyne applies to the calculation of Michigan’s minimum
sentencing guidelines. Id. at *6.

“Alleyne therefore did not clearly establish the

unconstitutionality of the Michigan sentencing scheme and cannot form the basis for habeas
corpus relief.” Id.; See also Perez v. Rivard, No. 2:14-CV-12326, 2015 WL 3620426, at *12
(E.D. Mich., June 9, 2015) (petitioner not entitled to habeas relief on claim that his sentencing
guidelines scored in violation of Alleyne). Petitioner is not entitled to relief on this portion of his
first claim.

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In his second claim, Petitioner argues that the trial court improperly assessed 25 points
against the petitioner under prior record variable 1 for having a prior high severity felony
conviction. Petitioner argues that his prior conviction for attempted assault with intent to rob
unarmed does not constitute a prior high severity felony conviction. Petitioner’s third claim
asserts that his trial counsel was ineffective foe failing to object to the assessment.
Petitioner raised these claims in his motion for relief from judgment. The trial judge
denied the motion, finding that prior record variable 1 had been correctly scored, meaning
counsel was not ineffective for agreeing that this variable should be scored at 25 points. People
v. Hanserd, No. 04-024484-FC, *2 (Saginaw Cty. Cir. Ct., June 10, 2014). The Michigan Court
of Appeals and the Michigan Supreme Court subsequently denied the petitioner leave to appeal.
To show that he was denied the effective assistance of counsel under federal
constitutional standards, a defendant must satisfy a two prong test. First, the defendant must
demonstrate that, considering all of the circumstances, counsel’s performance was so deficient
that the attorney was not functioning as the “counsel” guaranteed by the Sixth Amendment.
Strickland v. Washington, 466 U.S. 668, 687 (1984). In so doing, the defendant must overcome
a strong presumption that counsel’s behavior lies within the wide range of reasonable
professional assistance. Id. In other words, petitioner must overcome the presumption that, under
the circumstances, the challenged action might be sound trial strategy. Strickland, 466 U.S. at
689. Second, the defendant must show that such performance prejudiced his defense. Id. To
demonstrate prejudice, the defendant must show that “there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694. The Supreme Court’s holding in Strickland places the burden on the
defendant who raises a claim of ineffective assistance of counsel to show a reasonable

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probability that the result of the proceeding would have been different, but for counsel’s
allegedly deficient performance. See Wong v. Belmontes, 558 U.S. 15, 27 (2009).
A right to the effective assistance of counsel exists during sentencing in both noncapital
and capital cases. See Lafler v. Cooper, 132 S. Ct. 1376, 1385–86 (2012). Although sentencing
does not involve a criminal defendant’s guilt or innocence, “ineffective assistance of counsel
during a sentencing hearing can result in Strickland prejudice because ‘any amount of
[additional] jail time has Sixth Amendment significance.’” Lafler, 132 S. Ct. at 1386 (quoting
Glover v. United States, 531 U.S. 198, 203 (2001)).
In this case, the trial judge concluded that there was a factual basis for the scoring of
Prior Record Variable 1 under Michigan’s Sentencing Guidelines and the Michigan appellate
courts upheld this ruling.
As the Eleventh Circuit noted, when the alleged attorney error involves the failure to
object to a violation of state law that does not involve the enforcement of federal constitutional
rights or interests, there is no Supreme Court case which prevents a federal court sitting in
habeas review of a state court conviction from looking “to whether there is a reasonable
probability that the do-over proceeding state law provides would reach a different result.” See
Hammond v. Hall, 586 F.3d 1289, 1340 (11th Cir. 2009).
Here, the trial judge concluded that there was a factual basis for the scoring of prior
record variable 1 under the Sentencing Guidelines and the Michigan appellate courts upheld this
ruling. Petitioner’s second claim was thus raised and rejected on direct appeal. 28 U.S.C. §
2254(d)(1) curtails a federal court’s review of constitutional claims raised by a state prisoner in a
habeas action if the claims were adjudicated on the merits by the state courts. Relief is barred
under this section unless the state court adjudication was “contrary to” or resulted in an

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“unreasonable application of” clearly established Supreme Court law. Petitioner has not provided
any reason to believe that the Michigan appellate court’s decision was contrary to clearly
established Supreme Court law. Petitioner’s second claim thus fails.
Likewise, Petitioner is unable to show that he was prejudiced by his counsel’s purported
ineffectiveness in failing to object to the scoring of his sentencing guidelines. See Coleman v.
Curtin, 425 F. App’x 483, 485 (6th Cir. 2011) (unpublished). If “one is left with pure speculation
on whether the outcome of . . . the penalty phase could have been any different,” there has been
an insufficient showing of prejudice. Baze v. Parker, 371 F. 3d 310, 322 (6th Cir. 2004). Because
Petitioner has offered no evidence to show that the state trial court judge would have been
inclined to impose a lesser sentence, Petitioner is unable to show that he was prejudiced by his
counsel’s purported ineffectiveness in failing to object to the scoring of prior record variable 1.
See Spencer v. Booker, 254 F. App’x. 520, 525–26 (6th Cir. 2007) (unpublished). Petitioner is
not entitled to relief on his third claim.
IV.
The Court will summarily deny the petition for writ of habeas corpus. The Court will
also deny a certificate of appealability to petitioner.

In order to obtain a certificate of

appealability, a prisoner must make a substantial showing of the denial of a constitutional right.
28 U.S.C. § 2253(c)(2). To demonstrate this denial, the applicant is required to show that
reasonable jurists could debate whether the petition should have been resolved in a different
manner, or that the issues presented were adequate to deserve encouragement to proceed further.
Slack v. McDaniel, 529 U.S. 473, 483-84 (2000).

When a district court rejects a habeas

petitioner’s constitutional claims on the merits, the petitioner must demonstrate that reasonable
jurists would find the district court’s assessment of the constitutional claims to be debatable or

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wrong. Id. at 484. “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.
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. The Court will also deny petitioner leave to appeal in forma pauperis,
because the appeal would be frivolous.
V.
Accordingly, it is ORDERED that the petition for a writ of habeas corpus, ECF No. 1, is
SUMMARILY 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.

Dated: January 17, 2017

s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge

PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on January 17, 2017.
s/Michael A. Sian
MICHAEL A. SIAN, Case Manager

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