Jones v. Scutt

Filing 10

MEMORANDUM OPINION and ORDER DENYING re 1 Petition for Writ of Habeas Corpus; DENYING A CERTIFICATE OF APPEALABILITY AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL. Signed by District Judge Lawrence P. Zatkoff. (MVer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MARVIN JONES, #723115,
Petitioner,
CASE NO. 2:11-CV-12826
HONORABLE LAWRENCE P. ZATKOFF

v.
DEBRA SCUTT,

Respondent.
__________________________________/
OPINION & ORDER DENYING THE PETITION FOR WRIT OF HABEAS
CORPUS, DENYING A CERTIFICATE OF APPEALABILITY, &
DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
I.

Introduction
This is a habeas case brought under 28 U.S.C. § 2254. Michigan prisoner

Marvin Jones (“Petitioner”) was convicted of assault with intent to rob while armed,
MICH. COMP. LAWS § 750.89, following a jury trial in the Kent County Circuit Court.
He was sentenced to 85 to 360 months imprisonment in 2009. In his pleadings,
Petitioner raises claims concerning the sufficiency of the evidence and the validity of
his sentence. Respondent has filed an answer to the petition contending that it should
be denied. For the reasons set forth, the Court denies the petition for a writ of habeas

corpus. The Court also denies a certificate of appealability and denies leave to
proceed in forma pauperis on appeal.
II.

Facts and Procedural History
Petitioner’s conviction arises from the shooting and attempted robbery of store

clerk, David Pirkola, at the Apparitions Comics and Book Store in Kentwood,
Michigan, on the evening of April 25, 2008. The Michigan Court of Appeals
provided a factual overview of the case, which is presumed correct on habeas review.
Monroe v. Smith, 197 F. Supp. 2d 753, 758 (E.D. Mich. 2001), aff’d, 41 F. App’x 730
(6th Cir. 2002). Those facts are as follows:
David Pirkola was working at his comic book store when Jevon Sawyer
shot him after Pirkola refused to give Sawyer money from the cash
register. Defendant and James Thompson, both cousins of Sawyer, were
with Sawyer immediately before the shooting, and all three arrived at the
same location shortly after the shooting.
People v. Jones, No. 291882, 2010 WL 3718914, *1 (Mich. Ct. App. Sept. 23, 2010)
(unpublished).
Following his conviction and sentencing, Petitioner filed an appeal of right with
the Michigan Court of Appeals, essentially raising the same claims presented on
habeas review. The court affirmed his conviction and his sentence, but remanded for
the ministerial task of amending the judgment of sentence to reflect a 360-month
maximum sentence as ordered by the trial court at the sentencing hearing. Id.

2

Petitioner filed an application for leave to appeal with the Michigan Supreme Court,
which was denied in a standard order. People v. Jones, 488 Mich. 1050, 794 N.W.2d
334 (2011).
Petitioner thereafter filed his federal habeas petition raising the following
claims as grounds for relief:
I.

The trial court unlawfully deprived him of his due process, equal
protection, and other protected rights under the United States and
Michigan Constitutions when it entered a judgment of conviction
and sentence that is insufficient to support the conviction.

II.

The trial court unlawfully deprived him of his due process, equal
protection, and other protected rights under the United States and
Michigan Constitutions when it scored 10 points on OV-4.

III.

The trial court unlawfully deprived him of his due process, equal
protection, and other protected rights under the United States and
Michigan Constitutions when it failed to take into account all
mitigating evidence in sentencing him.

IV.

The trial court unlawfully violated the United States and Michigan
Constitutions in sentencing him to a prison term of 85-365 months
on the AWIRA conviction.

V.

The trial court unlawfully deprived him of his due process, equal
protection, and other protected rights under the United States and
Michigan Constitutions when it failed to enter a judgment of
conviction and sentence consistent with its oral pronouncement at
the sentencing hearing that the maximum sentence on the
AWIRWA conviction was to be 360 months not 365 months.

Respondent has filed an answer to the petition contending that it should be denied
because the claims lack merit and/or are barred by procedural default.
3

III.

Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),

codified 28 U.S.C. § 2241 et seq., provides the standard of review for federal habeas
cases brought by state prisoners. The AEDPA provides:
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.

28 U.S.C. §2254(d) (1996).
“A state court’s decision is ‘contrary to’ . . . clearly established law if it
‘applies a rule that contradicts the governing law set forth in [Supreme Court cases]’
or if it ‘confronts a set of facts that are materially indistinguishable from a decision
of [the Supreme] Court and nevertheless arrives at a result different from [that]
precedent.’” Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003) (per curiam) (quoting
Williams v. Taylor, 529 U.S. 362, 405-06 (2000)); see also Bell v. Cone, 535 U.S.
685, 694 (2002).

4

“[T]he ‘unreasonable application’ prong of § 2254(d)(1) permits a federal
habeas court to ‘grant the writ if the state court identifies the correct governing legal
principle from [the Supreme] Court but unreasonably applies that principle to the
facts of petitioner’s case.” Wiggins v. Smith, 539 U.S. 510, 520 (2003) (quoting
Williams, 529 U.S. at 413); see also Bell, 535 U.S. at 694. However, “[i]n order for
a federal court to find a state court’s application of [Supreme Court] precedent
‘unreasonable,’ the state court’s decision must have been more than incorrect or
erroneous. The state court’s application must have been ‘objectively unreasonable.’”
Wiggins, 539 U.S. at 520-21 (citations omitted); see also Williams, 529 U.S. at 409.
“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, _ U.S. _, 130 S. Ct. 1855, 1862 (2010) (quoting Lindh, 521 U.S. at
333, n. 7; Woodford v. Viscotti, 537 U.S. 19, 24 (2002) (per curiam)).
The United States Supreme Court has held that “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, _ U.S. _, 131 S. Ct. 770, 786 (2011) (citing Yarborough v. Alvarado, 541
U.S. 652, 664 (2004)). The Supreme Court emphasized “that even a strong case for
relief does not mean the state court’s contrary conclusion was unreasonable.” Id.

5

(citing Lockyer v. Andrade, 538 U.S. 63, 75 (2003). 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. Thus, in order to
obtain federal habeas relief, a state prisoner must show that the state court’s rejection
of his claim “was so lacking in justification that there was an error well understood
and comprehended in existing law beyond any possibility for fairminded
disagreement.” Id.
Section 2254(d)(1) limits a federal habeas court’s review to a determination
of whether the state court’s decision comports with clearly established federal law as
determined by the Supreme Court at the time the state court renders its decision.
Williams, 529 U.S. at 412; see also Knowles v. Mirzayance, 556 U.S. 111, 122
(2009) (noting that the Supreme Court “has held on numerous occasions that it is not
‘an unreasonable application of clearly established Federal law’ for a state court to
decline to apply a specific legal rule that has not been squarely established by this
Court”) (quoting Wright v. Van Patten, 552 U.S. 120, 125-26 (2008) (per curiam));
Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). Section 2254(d) “does not require
a state court to give reasons before its decision can be deemed to have been

6

‘adjudicated on the merits.’” Harrington, 131 S. Ct. at 785. Furthermore, it “does
not require citation of [Supreme Court] cases–indeed, it does not even require
awareness of [Supreme Court] cases, so long as neither the reasoning nor the result
of the state-court decision contradicts them.” Early v. Packer, 537 U.S. 3, 8 (2002);
see also Mitchell, 540 U.S. at 16. While the requirements of “clearly established
law” are to be determined solely by Supreme Court precedent, the decisions of lower
federal courts may be useful in assessing the reasonableness of the state court’s
resolution of an issue. Stewart v. Erwin, 503 F.3d 488, 493 (6th Cir. 2007) (citing
Williams v. Bowersox, 340 F.3d 667, 671 (8th Cir. 2003)); Dickens v. Jones, 203 F.
Supp. 354, 359 (E.D. Mich. 2002).
Lastly, a state court’s factual determinations are presumed correct on federal
habeas review. See 28 U.S.C. § 2254(e)(1). A petitioner may rebut this presumption
with clear and convincing evidence. Warren v. Smith, 161 F.3d 358, 360-61 (6th Cir.
1998). Moreover, habeas review is “limited to the record that was before the state
court.” Cullen v. Pinholster, _ U.S. _, 131 S. Ct. 1388, 1398 (2011).
IV.

Analysis
A.

Insufficient Evidence Claim

Petitioner first asserts that he is entitled to habeas relief because the
prosecution failed to present sufficient evidence to support his conviction for assault

7

with intent to rob while armed as an aider and abettor. In particular, he claims that
the prosecution failed to establish that he possessed the requisite intent to support the
conviction. Respondent contends that this claim lacks merit and does not warrant
habeas relief.
The federal due process clause “protects the accused against conviction except
upon proof beyond a reasonable doubt of every fact necessary to constitute the crime
with which he is charged.” In re Winship, 397 U.S. 358, 364 (1970). The question
on a sufficiency of the evidence claim is “whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443
U.S. 307, 319 (1979). A federal habeas court views this standard through the
framework of 28 U.S.C. § 2254(d). Martin v. Mitchell, 280 F.3d 594, 617 (6th Cir.
2002). Under the AEDPA, challenges to the sufficiency of the evidence “must
survive two layers of deference to groups who might view facts differently” than a
reviewing court on habeas review – the factfinder at trial and the state court on
appellate review – as long as those determinations are reasonable. Brown v. Konteh,
567 F.3d 191, 205 (6th Cir. 2009). The Jackson standard must also be applied “with
explicit reference to the substantive elements of the criminal offense as defined by
state law.” Jackson, 443 U.S. at 324 n.16. “A reviewing court does not re-weigh the

8

evidence or re-determine the credibility of the witnesses whose demeanor has been
observed by the trial court.” Matthews v. Abramajtys, 319 F.3d 780, 788 (6th Cir.
2003) (citing Marshall v. Lonberger, 459 U.S. 422, 434 (1983)). “The mere
existence of sufficient evidence to convict therefore defeats a petitioner’s claim.” Id.
at 788-89 (citation omitted).
Michigan law defines the crime of assault with intent to rob while armed as
follows:
Assault with intent to rob and steal being armed—Any person, being
armed with a dangerous weapon, or any article used or fashioned in a
manner to lead a person so assaulted reasonably to believe it to be a
dangerous weapon, who shall assault another with intent to rob and steal
shall be guilty of a felony, punishable by imprisonment in the state
prison for life, or for any term of years.
MICH. COMP. LAWS § 750.89. The elements of the offense are: (1) an assault, (2) an
attempt to rob, (3) while armed. People v. Akins, 259 Mich. App. 545, 554, 675
N.W.2d 863 (2003). To convict a defendant under an aiding and abetting theory, the
prosecution must establish that the crime was committed by the defendant or some
other person, that the defendant performed acts or gave encouragement that aided or
assisted in the commission of the crime, and that the defendant either intended to
commit the crime or knew that the principal intended to commit the crime at the time
he or she gave the aid or encouragement. People v. Carines, 460 Mich. 750, 757-58,
597 N.W.2d 130 (1999); see also People v. Moore, 470 Mich. 56, 679 N.W.2d 41,
9

49 (2004); MICH. COMP. LAWS § 767.39. An aider and abettor’s state of mind may
be inferred from all the facts and circumstances, including a close association
between the defendant and the principal, the defendant’s participation in the planning
or execution of the crime, and evidence of flight after the crime. Carines, 460 Mich.
at 757-58.
Applying the Jackson standard, the Michigan Court of Appeals concluded that
the prosecution presented sufficient evidence to support Petitioner’s conviction for
assault with intent to rob while armed as an aider and abettor. The court explained
in relevant part:
Viewing the evidence in the light most favorable to the prosecution, a
rational trier of fact could have found that defendant intended to commit
the crime of assault with intent to rob while armed, or that he knew that
Sawyer intended to commit this crime at the time he provided
assistance. Although defendant insisted to the police that Sawyer was
Thompson’s friend and that defendant had no independent relationship
with him, the evidence established that all three men were in fact
cousins. It is beyond question that defendant and Thompson were with
Sawyer in the immediate vicinity of Pirkola’s store in the hour before
the shooting.FN1 Employees of a Frames Unlimited store adjacent to
Pirkola’s store testified that two men matching the description of
defendant and Sawyer came into their store shortly before the time of
the shooting. The jury could rationally have inferred from the testimony
of these witnesses regarding the odd demeanor of the two men, their
unusual request to use the restroom together, the strange position of the
taller man’s hands as they left, and the watchful behavior of a third man
waiting outside in the men’s vehicle that, as theorized by the
prosecution, the two were “casing” the store as a possible armed
robbery site and that defendant was aware that Sawyer was carrying a
weapon.
10

FN1.

Defendant and Thompson were recorded on videotape in an adjacent
Alltel store minutes before the shooting. While at the Alltel store,
defendant completed a credit application, using his correct name and
address.
The testimony of the witnesses, together with defendant’s statement to
the police, constituted sufficient circumstantial evidence to establish
that he knew of and participated in the plan to rob Pirkola at gunpoint,
that he agreed to aid in the crime by driving the getaway car, and that he
did, in fact, drive the getaway car following the shooting. See People
v. Norris, 236 Mich. App. 411, 421-22, 600 N.W.2d 658 (1999); People
v. Smielewski, 235 Mich. App. 196, 207, 596 N.W.2d 636 (1999).
Defendant admitted to the police that he was with both Thompson and
Sawyer before the shooting. Defendant further admitted that he and the
others had intended to commit a crime together; he stated that the three
had formulated a plan to steal items from Pirkola’s store and that
defendant’s role in the crime was to drive the getaway car. Defendant
stated that he drove Thompson away from the scene of the crime, and
approximately 40 minutes after the shooting, defendant, Thompson, and
Sawyer arrived at defendant’s sister’s house. Although defendant’s
version of events did not include a specific admission that he knew
Sawyer had a gun and planned to rob Pirkola at gunpoint or that Sawyer
was present in the getaway car, it was up to the jury to determine what
inferences to draw from defendant’s statement and the other evidence
and to decide the weight to be given to those inferences. People v.
Hardman, 466 Mich. 417, 428, 646 N.W.2d 158 (2002) Because
sufficient evidence was presented to establish defendant’s guilt on an
aiding and abetting theory, the prosecutor was not required to disprove
any other theory, such as defendant’s claim that he assisted only in a
plan to steal comic books. People v. Nowack, 462 Mich. 392, 200, 614
N.W.2d 78 (2000).

Jones, 2010 WL 3718914 at *2.
Having reviewed the record, this Court finds that the Michigan Court of
Appeals’ determination is neither contrary to Supreme Court precedent nor an

11

unreasonable application of federal law or the facts. The prosecution presented
sufficient evidence to establish Petitioner’s guilt as an aider and abettor of the
charged offense. The trial testimony showed that Petitioner was Sawyer’s and
Thompson’s cousin and that the three men were together before and after the crime.
Petitioner admitted that he and the others had planned to steal comic books from
Pirkola’s store and that he would serve as the driver of the getaway car. Sawyer shot
Pirkola after Pirkola refused to give him money from the cash register. Petitioner
admitted that he drove Thompson from the scene to his sister’s house where they met
up with Sawyer. Petitioner was in the nearby Alltel store with Thompson minutes
before the shooting – he was recorded on videotape in that store and completed a
credit application using his correct name and address. Employees from a Frames
Unlimited store adjacent to Pirkola’s store observed two men fitting Petitioner’s and
Sawyer’s descriptions. The Frames Unlimited employees said that the two men had
an odd demeanor and made an unusual request to use the restroom together. The
employees also saw Sawyer leave the store with his hands in a strange position.
Considered in a light most favorable to the prosecution, the evidence was sufficient
to show that Petitioner and the others intended to rob Pirkola’s store, that Petitioner
knew that Sawyer was armed, and that Petitioner intended to commit the crime of
assault with intent to rob while armed and/or knew that Sawyer intended to do so

12

when he assisted him.
Petitioner challenges the jury’s view of the facts and the inferences the jury
drew from the testimony at trial. But it is the job of the factfinder at trial, not a
federal habeas court, to resolve evidentiary conflicts. Jackson, 443 U.S. at 326;
Martin v. Mitchell, 280 F.3d 94, 618 (6th Cir. 2002); Walker v. Engle, 703 F.2d 959,
969-70 (6th Cir. 1983) (“A federal habeas corpus court faced with a record of
historical facts that supports conflicting inferences must presume – even if it does not
affirmatively appear in the record – that the trier of fact resolved any such conflicts
in favor of the prosecution, and must defer to that resolution.”). The jury’s verdict
and the Michigan Court of Appeals’ decision affirming that verdict were reasonable.
Habeas relief is not warranted.
B.

Sentencing Claims

Petitioner next asserts that he is entitled to habeas relief because his sentence
is invalid under state and federal law. He claims that the trial court erred in scoring
an offense variable, that his sentence was imposed in violation of his Sixth
Amendment rights, that the trial court failed to consider mitigating evidence,
individualize his sentence, and depart downward, that his sentence is based upon
inaccurate information, that his sentence is disproportionate, that his sentence
constitutes cruel and unusual punishment, and that the judgment of sentence has the

13

wrong maximum sentence. Respondent contends that these claims are barred by
procedural default and/or lack merit.
Petitioner first raised the sentencing issues on direct appeal before the
Michigan Court of Appeals. The court ruled that the claims were unpreserved, but
reviewed them for plain error. Upon such review, the court determined that the
claims lacked merit (other than clerical correction to the maximum sentence on the
judgment of sentence) and denied relief. Jones, 2010 WL 3718914 at *3-5.
The state court’s decision is neither contrary to Supreme Court precedent nor
an unreasonable application of federal law or the facts. As an initial matter, the Court
notes that Petitioner’s sentence of 85 months to 360 months imprisonment (7 years
1 month to 30 years) is within the statutory maximum of life imprisonment for assault
with intent to rob while armed. MICH. COMP. LAWS § 750.89. A sentence within the
statutory limits is generally not subject to federal habeas review. Townsend v. Burke,
334 U.S. 736, 741 (1948); Cook v. Stegall, 56 F. Supp. 2d 788, 797 (E.D. Mich.
1999). Claims which arise out of a state court’s sentencing decision are not
cognizable upon habeas review unless the petitioner can show that the sentence
imposed exceeded the statutory limits or is wholly unauthorized by law. Lucey v.
Lavigne, 185 F. Supp. 2d 741, 745 (E.D. Mich. 2001). Petitioner makes no such
showing.

14

Petitioner asserts that the trial court erred in scoring Offense Variable 4 under
the state sentencing guidelines. This claim, however, is not cognizable on federal
habeas review because it is a state law claim. See Howard v. White, 76 F. App’x 52,
53 (6th Cir. 2003) (“A state court’s alleged misinterpretation of state sentencing
guidelines and crediting statutes is a matter of state concern only.”); McPhail v.
Renico, 412 F. Supp. 2d 647, 656 (E.D. Mich. 2006); Robinson v. Stegall, 157 F.
Supp. 2d 802, 823 (E.D. Mich. 2001). Any error in scoring the offense variables and
determining the guideline range does not merit habeas relief. State courts are the
final arbiters of state law and the federal courts will not intervene in such matters.
Lewis v. Jeffers, 497 U.S. 764, 780 (1990); Oviedo v. Jago, 809 F.2d 326, 328 (6th
Cir. 1987); see also Bradshaw v. Richey, 546 U.S. 74, 76 (2005); Sanford v. Yukins,
288 F.3d 855, 860 (6th Cir. 2002). Habeas relief does not lie for perceived errors of
state law. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Petitioner has thus failed
to state a claim upon which relief may be granted as to this issue.
Petitioner also asserts that the trial court violated the Sixth Amendment by
relying upon facts neither admitted by him nor proven beyond a reasonable doubt in
imposing his sentence in violation of Blakely v. Washington, 542 U.S. 296 (2004),
and related cases. The United States Court of Appeals for the Sixth Circuit has held
that Michigan’s sentencing guidelines do not violate the Sixth Amendment because

15

they set a minimum sentence range while the maximum is set by statute. Montes v.
Trombley, 599 F.3d 490, 494–98 (6th Cir. 2010); Chontos v. Berghuis, 585 F.3d 1000
(6th Cir. 2009); see also People v. Harper, 479 Mich. 599, 644-45, 739 N.W.3d 523
(2007); People v. Drohan, 475 Mich. 140, 160-61, 715 N.W.2d 778 (Mich. 2006).
This Court is bound by those decisions. Because Petitioner’s sentence is within the
statutory maximum penalty, which was not enhanced by judicial fact-finding, no
Sixth Amendment or due process violation occurred.
Petitioner also asserts that the trial court failed to properly consider mitigating
evidence at sentencing and relied upon inaccurate information in imposing his
sentence. Contrary to Petitioner’s assertion, there is no constitutional requirement
that a court consider mitigating evidence at sentencing in non-capital cases. Engle
v. United States, 26 F. App’x 394, 397 (6th Cir. 2001); Hastings v. Yukins, 194 F.
Supp. 2d 659, 673 (E.D. Mich. 2002). A sentence may violate federal due process,
however, if it is carelessly or deliberately pronounced on an extensive and materially
false foundation which the defendant had no opportunity to correct. Townsend, 334
U.S. at 741; see also United States v. Tucker, 404 U.S. 443, 447 (1972); United States
v. Sammons, 918 F.2d 592, 603 (6th Cir. 1990) (defendant must have a meaningful
opportunity to rebut contested sentencing information). To prevail on such a claim,
a petitioner must show that the court relied upon the allegedly false information.

16

United States v. Polselli, 747 F.2d 356, 358 (6th Cir. 1984); Draughn v Jabe, 803 F.
Supp. 70, 81 (E.D. Mich. 1992). Petitioner has not done so. The record reflects that
the trial court considered the circumstances of the crime, Petitioner’s history and the
pre-sentence reports, letters submitted on Petitioner’s behalf, and other permissible
factors at sentencing. Petitioner had an opportunity to contest the accuracy of the
reports, to present mitigating evidence, and to make a statement at sentencing. He
has failed to establish that the trial court relied upon materially false or inaccurate
information in imposing his sentence which he had no opportunity to correct.
To the extent that Petitioner asserts that his sentence is disproportionate or
otherwise invalid under state law, he fails to state a claim for federal habeas relief.
Austin v. Jackson, 213 F.3d 298, 300 (6th Cir. 2000).

There is no federal

constitutional right to individualized sentencing. United States v. Thomas, 49 F.3d
253, 261 (6th Cir. 1995). Similarly, any challenge to the trial court’s decision not to
depart downward from the sentencing guidelines is not cognizable on federal habeas
review because it is a state law claim. Howard, 76 F. App’x at 53; Cheatham v.
Hosey, 12 F.3d 211, 1993 WL 478854, *2 (6th Cir. Nov.19, 1993) (departure from
state sentencing guidelines is a state law issue not cognizable on federal habeas
review); Mitchell v. Vasbinder, 644 F. Supp. 2d 846, 867 (E.D. Mich. 2009). As
discussed, state courts are the final arbiters of state law and the federal courts will not

17

intervene in such matters. Lewis, 497 U.S. at 780; Oviedo, 809 F.2d at 328; see also
Bradshaw, 546 U.S. at 76; Sanford, 288 F.3d at 860. Habeas relief does not lie for
perceived state law errors. Estelle, 502 U.S. at 67-68.
Petitioner is also not entitled to relief on his claim that his sentence constitutes
cruel and unusual punishment under the Eighth Amendment. The United States
Constitution does not require strict proportionality between a crime and its
punishment. Harmelin v. Michigan, 501 U.S. 957, 965 (1991). A sentence that falls
within the maximum penalty authorized by statute “generally does not constitute
‘cruel and unusual punishment.’” Austin, 213 F.3d at 302 (internal citation omitted).
Petitioner’s sentence is within the statutory maximum. The trial court acted within
its discretion in imposing Petitioner’s sentence and there is no extreme disparity
between his crime and sentence so as to offend the Eighth Amendment. Simply
stated, Petitioner not shown that his sentence is unconstitutional.
Lastly, Petitioner is not entitled to relief on his claim challenging the original
judgment of sentence, which reflected a maximum sentence of 365 months
imprisonment instead of 360 months imprisonment. The Michigan Court of Appeals
determined that this was a clerical error and remanded the case for the judgment of
sentence to be corrected. The trial court made the necessary correction as instructed.
This Court can provide no further remedy – the claim is moot. The Court thus

18

concludes that Petitioner’s sentencing claims lack merit and do not warrant habeas
relief.1
V.

Conclusion
For the reasons stated, the Court concludes that Petitioner is not entitled to

federal habeas relief on the claims contained in his petition. Accordingly, the Court
DENIES WITH PREJUDICE the petition for a writ of habeas corpus.
Before Petitioner may appeal this decision, a certificate of appealability must
issue. 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). This standard is met if the petitioner
demonstrates that reasonable jurists would find the court’s assessment of the claim
debatable or wrong. 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). A court may not conduct a full merits review,
but must limit its examination to a threshold inquiry into the underlying merits. Id.
at 336-37.
Having conducted the requisite review, the Court concludes that Petitioner has

1

Given this determination, the Court need not address the issue of procedural default.
19

not made a substantial showing of the denial of a constitutional right as to his habeas
claims. Accordingly, the Court DENIES a certificate of appealability. The Court
also DENIES leave to proceed in forma pauperis on appeal as an appeal cannot be
taken in good faith. See FED. R. APP. P. 24 (a).
IT IS SO ORDERED.

S/Lawrence P. Zatkoff
LAWRENCE P. ZATKOFF
UNITED STATES DISTRICT JUDGE
Dated: July 22, 2013

20