Gurnsey v. Prelesnik

Filing 8

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 Gerald E. Rosen. (JOwe)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DAVID GURNSEY,
Petitioner,
CASE NO. 2:11-CV-15038
HONORABLE GERALD E. ROSEN

v.
JOHN PRELESNIK,
Respondent.
_______________________________/

OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND
DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY OR LEAVE TO
APPEAL IN FORMA PAUPERIS
David Gurnsey, ("Petitioner"), presently incarcerated at the Richard A. Handlon
Correctional Facility in Ionia, Michigan, has filed a pro se petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254, in which he challenges his convictions of assault with intent to
murder, M.C.L.A. § 750.83; operating while intoxicated causing death, M.C.L.A.§ 257.6254;
and two counts of operating while intoxicated causing serious injury, M.C.L.A. § 257.6255A.
He also challenges application of the 4th Habitual Offender charge to counts 2, 3 and 4 at
sentencing.1 For the reasons stated below, the petition for writ of habeas corpus is DENIED.
I. Background
Petitioner caused the death of 21 year-old Andrew Leroy, and seriously injured his
parents, Gary and Susan, in a crash on Interstate 94 (I-94) on Thanksgiving evening, 2007. The
crash resulted from Gurney’s excessive blood alcohol level, the four drugs found in his system,

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Under Michigan’s 4th Habitual Offender charge, petitioner’s sentence on the other three
charges could be enhanced up to life in prison. M.C.L.A. § 769.12.
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and his desire to end his own life. Instead of ending his own life when he drove the wrong way
on I-94, he ended the life another and severely injured the other occupants in the vehicle.
Petitioner pleaded guilty but mentally ill to the above charges in the St. Clair County
Circuit Court. In exchange for his plea to the charges, the prosecution dismissed the
second-degree murder charge and the judge agreed to take a plea of guilty but mentally ill.
There was no sentencing agreement.
Petitioner’s Presentence Report calculated the minimal guideline range as 225-375
months imprisonment. (Tr. 5/27/08 pp. 6-7). Trial counsel requested that petitioner be sentenced
at the bottom of the guidelines, while the prosecution asked for the maximum 375 months within
the guideline range. The Court sentenced petitioner beyond the guideline range to 35-50 years
imprisonment on all four counts to run concurrently, after taking into consideration the
circumstances of the crimes and petitioner's prior record. (Tr. 5/27/08 p. 7, 22). Petitioner
moved to withdraw his plea at the time of sentencing, but the court denied his request. Counsel
later filed a motion to withdraw the guilty but mentally ill plea on December 15, 2008, which
was also denied.
The Michigan appellate court denied petitioner leave to appeal. People v. Gurnsey, No.
288313 (Mich.Ct.App. June 25, 2009); lv. den. 485 Mich. 978 (2009).
Petitioner seeks a writ of habeas corpus on the following grounds:
I. (A) The trial court should have allowed Gurnsey to withdraw his plea.
Additionally, (B) Gurnsey lacked the requisite intent for a charge of assault with
intent to murder, (C) Gurnsey was not properly charged as a habitual fourth
offender, (D) Gurnsey's plea was not knowing and voluntary, (E) Gurnsey’s plea
was rendered illusory, and (F) Gurnsey had a valid insanity defense.
II. Gurnsey is entitled to be resentenced within the guidelines.

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III. Gurnsey is entitled to have his presentence investigation report corrected.
IV. The trial court denied Gurnsey due process of law by failing to recuse itself
from the case where the court knew Andrew Leroy’s father. In the alternative,
Gurnsey was denied the effective assistance of counsel when his trial counsel
failed to request that the trial judge be disqualified.
V. Gurnsey’s guardian was improperly excluded from assisting him with his
defense and Gurnsey himself lacked the requisite capacity to consent to the plea
bargain.
VI. The trial court erred when it failed to give Gurnsey an adequate hearing on his
competence to stand trial.
VII. The trial court failed to acknowledge Gurnsey’s liberty interest in being free
from antipsychotic drugs; drugs that impacted his ability to follow the
proceedings.
II. Standard of Review
28 U.S.C. § 2254(d), as amended by The Antiterrorism and Effective Death Penalty Act
of 1996 (AEDPA), imposes 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
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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
state-court decision must be consistent with the respect due state courts in our federal system.”
Miller-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.
In the present case, the Michigan Court of Appeals on direct review of petitioner’s case
denied application for leave to appeal in a form order “for lack of merit in the grounds

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presented.” The Michigan Supreme Court subsequently denied petitioner leave to appeal in a
standard form order without any extended discussion. Determining whether a state court’s
decision resulted from an unreasonable legal or factual conclusion, as would warrant federal
habeas relief, does not require that there be an opinion from the state court that explains the state
court's reasoning. Harrington, 131 S. Ct. at 784. “Where a state court's decision is
unaccompanied by an explanation, the habeas petitioner’s burden still must be met by showing
there was no reasonable basis for the state court to deny relief.” Id. In fact, when a habeas
petitioner has presented a federal claim to a state court and that state court has denied relief, “it
may be presumed that the state court adjudicated the claim on the merits in the absence of any
indication or state-law procedural principles to the contrary.” Id. at 784-85. That presumption
may be overcome only when there is a reason to think that some other explanation for the state
court’s decision is more likely. Id. at 785.
In the present case, the AEDPA deferential standard of review applies to petitioner’s case
where the Michigan Court of Appeals rejected petitioner’s appeal “for lack of merit in the
grounds presented” and the Michigan Supreme Court subsequently denied leave to appeal in a
standard form order, because these orders amounted to a decision on the merits. See Werth v.
Bell, 692 F. 3d 486, 492-94 (6th Cir. 2012); Hardaway v. Robinson, 655 F. 3d 445, 447, 449, n.
1 (6th Cir. 2011).
III. Discussion
A. Claim # 1. Withdrawal of the plea.
Petitioner first contends that he should have been permitted to withdraw his guilty plea,
because he lacked the requisite intent to be charged with the offense assault with intent to

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murder, was not properly charged as a 4th habitual offender, the plea was not knowing and
voluntary, the plea was illusory, and petitioner had a valid insanity defense.
Initially, the Court observes that petitioner has no absolute right to withdraw his guilty
plea. See Shanks v. Wolfenbarger, 387 F. Supp. 2d 740, 748, 655 (E.D. Mich. 2005)(internal
citations omitted). Therefore, unless the plea violated a clearly-established constitutional right,
whether to allow the withdrawal of a criminal defendant’s guilty plea is discretionary with the
state trial court. Id.
A guilty plea that is entered in state court must be voluntarily and intelligently made. See
Shanks, 387 F. Supp. 2d at 749; Doyle v. Scutt, 347 F. Supp. 2d 474, 482 (E.D. Mich. 2004)(both
citing Boykin v. Alabama, 395 U.S. 238, 242 (1969)). In order for a plea of guilty to be
voluntarily and intelligently made, the defendant must be aware of the “relevant circumstances
and likely consequences” of his plea. Hart v. Marion Correctional Institution, 927 F. 2d 256,
257 (6th Cir. 1991); Shanks, 387 F. Supp. 2d at 749. The defendant must also be aware of the
maximum sentence that can be imposed for the crime for which he or she is pleading guilty.
King v. Dutton, 17 F. 3d 151, 154 (6th Cir. 1994). When a petitioner brings a federal habeas
petition challenging his plea of guilty, the state generally satisfies its burden by producing a
transcript of the state court proceedings showing that the plea was made voluntarily. Garcia v.
Johnson, 991 F. 2d 324, 326 (6th Cir. 1993). The factual findings of a state court that the guilty
plea was properly made are generally accorded a presumption of correctness. Petitioner must
overcome a heavy burden if the federal court is to overturn these findings by the state court. Id.
It is only when the consensual character of a guilty plea is called into question that the
validity of a guilty plea may be impaired. Mabry v. Johnson, 467 U.S. 504, 508-09 (1984). A

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plea of guilty entered by one fully aware of the direct consequences, including the actual value
of any commitments made to him by the court, prosecutor, or his or her own counsel, must stand
unless induced by threats (or promises to discontinue improper harassment), misrepresentation
(including unfulfilled or unfulfillable promises), or perhaps by promises that are by their nature
improper as having no proper relationship to the prosecutor’s business (i.e. bribes). Id. Federal
and state courts will uphold a state court guilty plea if the circumstances demonstrate that the
defendant understood the nature and consequences of the charges and voluntarily chose to plead
guilty. See Thirkield v. Pitcher, 199 F. Supp. 2d 637, 652 (E.D. Mich. 2002).
The evidence establishes that petitioner freely and voluntarily pleaded guilty to the above
charges. Petitioner was advised of the maximum penalties for the charge and the rights that he
would be waiving by pleading guilty. Petitioner was advised of the terms of the plea agreement
and acknowledged that this was the complete terms of the agreement. In response to the trial
court’s questions, petitioner denied that any other promises had been made to get him to plead
guilty.
Petitioner appears to argue that his plea was not knowing and voluntary due to lack of
competence associated with his mental illness, medications, and closed head injury sustained in
the accident. He further alleges that the plea was illusory because the trial court exceeded the
sentencing guidelines.
A defendant may not be put to trial unless he or she has a sufficient present ability to
consult with his lawyer with a reasonable degree of rational understanding and a rational as well
as a factual understanding of the proceedings against him. Cooper v. Oklahoma, 517 U.S. 348,
354 (1996). The competency standard for pleading guilty is the same as the competency for

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standing trial and is not a higher standard. Godinez v. Moran, 509 U.S. 389, 398 (1993).
Petitioner has presented no evidence that he was unable to understand the proceedings
against him or assist his attorney. Not every manifestation of mental illness demonstrates
incompetency to stand trial. Neither low intelligence, mental deficiency, nor the fact that a
defendant has been treated with anti-psychotic drugs can automatically be equated with
incompetence. Burket v. Angelone, 208 F. 3d 172, 192 (4th Cir. 2000); Miles v. Dorsey, 61 F. 3d
1459, 1474 (10th Cir. 1995); Hastings v. Yukins, 194 F. Supp. 2d 659, 671-672 (E.D. Mich.
2002). Major depression, generalized anxiety, or even borderline personality disorders do not
necessarily show that a defendant is unable to consult with his or her lawyer or is incapable of
understanding the proceedings against him or her, to establish that the defendant is incompetent
to stand trial, United States v. Teague, 956 F. 2d 1427, 1432 (7th Cir. 1992), nor will every
suicide attempt create a bona fide doubt concerning a defendant's competency to stand trial.
Hastings, 194 F. Supp. 2d at 672.
In the present case, a review of petitioner’s plea transcript shows that he was lucid and
articulate at the time that he entered his plea of guilty but mentally ill and was responsive to the
trial court’s questions. Following the colloquy on the record, and upon review of two letters
from the Forensic Center (one finding that petitioner was able to comprehend the proceedings
and could assist in his defense, and the other finding that petitioner should be regarded as
responsible, but mentally ill), the trial court found that the plea was fully understood and
voluntary. (Tr., 4/29/08, pp. 20-22).
While Petitioner claims that he has no memory of the events due to a head injury which
resulted from the accident, he failed to present evidence to either the state courts or to this Court

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to corroborate his claim that he suffers from a brain malfunction that would either prevent him
from remembering the events surrounding the death or would make him unduly susceptible to
falsely confessing to the crime. Petitioner argues solely that he was not mentally competent to
enter a plea of guilty but mentally ill to the charges.
Being that petitioner has presented no evidence that he was not in possession of his
mental faculities at the time that he entered his plea of guilty but mentally ill, any “after the fact”
incompetency claim would be without merit. See United States v. Calvin, 20 Fed. Appx. 452,
453 (6th Cir. 2001); Hastings v. Yukins, 194 F. Supp. 2d at 672. Petitioner is not entitled to
habeas relief on this claim because there was nothing in the plea transcript to indicate that due to
mental illness, medications being taken by petitioner, or the head injury sustained in the
accident, he lacked understanding of the proceedings. See e.g. Williams v. Hargett, 9 Fed. Appx.
958, 962 (10th Cir. 2001).
Petitioner also claims that he should be allowed to withdraw his plea because the trial
court rendered the plea illusory when it sentenced him beyond the sentencing guideline range.
A plea agreement is entered into involuntarily and unknowingly if the defendant is
unaware that the prosecution’s promise is illusory. See United States v. Randolph, 230 F.3d 243,
250-51 (6th Cir. 2000). Illusory representations made by the prosecutor to induce a defendant to
waive his right to trial and enter a guilty plea have been found to constitute coercion justifying
the withdrawal of a guilty plea. See Spearman v. United States, 860 F. Supp. 1234, 1249 (E.D.
Mich. 1994).
Petitioner’s plea agreement was not illusory. The prosecutor allowed petitioner to plead
to assault with intent to murder, an A Level Offense, which drastically reduced the sentencing

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guidelines. (Tr. 12/15/08, p. 12). The sentencing guideline range on a second-degree murder
charge would have exposed petitioner to a possible sentence of 80 plus years imprisonment,
without consideration of the habitual offender charge. (Tr. Id.). Although petitioner ultimately
pleaded guilty but mentally ill to assault with intent to murder, which has a maximum sentence
of life in prison, instead of taking a chance at trial with a charge of second-degree murder, which
also has a maximum sentence of life in prison, petitioner still obtained a benefit through his plea
because he was not sentenced to life and he was also able to plead to an A Level Offense. (Tr.
Id.). This Court concludes that the plea agreement was not illusory because petitioner was
allowed to plead to a significantly lower charge which therefore amounted to a real, tangible
benefit in consideration for the plea. See Daniels v. Overton, 845 F. Supp. 1170, 1174 (E.D.
Mich. 1994). Because petitioner derived a real benefit from his plea bargain in this case, his plea
was not illusory and he is therefore not entitled to habeas relief. See McAdoo v. Elo, 365 F. 3d
487, 498 (6th Cir. 2004).
To the extent that petitioner believed that he would be sentenced within the guidelines, a
state court’s proper plea colloquy will cure any misunderstandings that a petitioner may have had
about the consequences of the plea. Ramos v. Rogers, 170 F. 3d 560, 565 (6th Cir. 1999). Prior
to accepting petitioner’s guilty plea, the trial judge and the prosecutor placed the entire plea
agreement on the record, which called for petitioner to plead guilty to assault with intent to
murder, operating while intoxicated causing death to be enhanced by the habitual offender 4 th
notice, and two counts of operating while intoxicated causing serious injury to be enhanced by
the habitual offender 4th notice, in exchange for dismissal of the second-degree murder charge.
There was no sentencing agreement. (Tr. 4/29/2008, pp. 20-21). During the hearing on

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petitioner’s motion to withdraw his plea, the prosecutor made clear that sentencing agreements
are not entered into in that jurisdiction. (Tr. 12/15/08, p. 11).
Prior to accepting petitioner's plea, the trial judge advised petitioner of the maximum
penalties for the offenses that he was pleading guilty to and the rights that he would be waiving
by pleading guilty. The record reflects that the trial court judge advised petitioner that he could
be given up to life at the time of sentencing. (Id. at 14-21). Petitioner acknowledged on the
record that there had been no additional promises or threats to get him to plead guilty. The
prosecutor also elicited a factual basis from petitioner, in which petitioner acknowledged that he
had driven down the I-94 ramp the wrong way with the intention to commit suicide, resulting in
the death of another and serious injury to the other occupants in the vehicle.
[GURNSEY]: I believe I was going to commit suicide because my wife had left
me. I was, I was suicidal. . . .dad died and my whole life just fall apart and, um, I
began mistreating my wife and I started to drink real heavy and I did what I'm
charged with.
[DEFENSE COUNSEL]: Okay. And then you ran head-on into the Leroy vehicle?
[GURNSEY]: That's what the records indicate and that's what I believe I did.
[DEFENSE COUNSEL]: And Andrew Leroy was killed as a result - [GURNSEY]: Yeah. Yes. Yes, sir.
Petitioner also stated that Susan Leroy was seriously injured and taken to the hospital,
Gary Leroy was injured and taken to the hospital, and that he (petitioner) sustained a head injury
as a result of the accident. (Tr. 4/29/08 pp. 13-19). After taking into consideration the
circumstances of the crimes and petitioner’s prior record, the Court sentenced petitioner beyond
the guideline range on the underlying convictions. (Tr. 5/27/08 p. 7, 22).
Petitioner’s claims that he had a valid insanity defense, that he lacked the requisite intent
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to murder, that he was not properly charged as a habitual fourth, and any other affirmative
defenses, are waived by the plea. An unconditional guilty plea constitutes a waiver of all
pre-plea non-jurisdictional constitutional deprivations. Tollett v. Henderson, 411 U.S. 258, 267
(1973); See also U.S. v. Martin, 526 F. 3d 926, 932 (6th Cir. 2008). A defendant who knowingly
and intelligently enters a plea of guilty waives any potential insanity defense. See United States
v. Bruggeman, 201 F. 3d 441; 1999 WL 1252853, * 1 (6th Cir. December 15, 1999). Petitioner is
not entitled to relief on his first claim.
B. Claims ##2 and 3. The sentencing issues.
The Court will consolidate petitioner’s second and third issues for purposes of judicial
clarity. Petitioner’s second claim alleges that he is entitled to be resentenced within the
guidelines while his third claim alleges that he is entitled to have his presentence investigation
report corrected.
This Court initially notes that petitioner’s sentence of 35 to 50 years in prison was within
the statutory limit under Michigan law for the crime of assault with intent to murder and being a
fourth felony habitual offender on the other three counts. 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).
It is well-established that “federal habeas corpus relief does not lie for errors of state
law.” Estelle v. McGuire, 502 U.S. 62, 67 (1991). Petitioner’s claim that the state trial court
misapplied the Michigan Sentencing Guidelines is not a cognizable claim for federal habeas
review, because it is basically a state law claim. See Howard v. White, 76 Fed. Appx. 52, 53 (6th
Cir. 2003); See also Coy v. Renico, 414 F. Supp. 2d 744, 780 (E.D. Mich. 2006). “Petitioner has

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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)(citing Shanks v. Wolfenbarger, 387 F. Supp. 2d 740, 752 (E.D. Mich. 2005)). Petitioner’s
claim that the state trial court improperly departed above the 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. See Austin v. Jackson, 213 F. 3d 298, 301 (6th Cir. 2000); See also
Drew v. Tessmer, 195 F. Supp. 2d 887, 889-90 (E.D. Mich. 2001). “[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 or in departing above his sentencing guidelines
range alone would not merit habeas relief. Id.
Furthermore 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). 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 sentence of 35 to 50 years in prison was within the statutory
limits for the offenses of which he was convicted. The trial judge sentenced petitioner to less
than the maximum sentence of life imprisonment. Petitioner’s second claim is non-cognizable
and without merit.

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In his third claim, petitioner contends that he is entitled to have his presentence
investigation report corrected.
There is no federal constitutional right to a pre-sentence investigation and report. See
Bridinger v. Berghuis, 429 F. Supp. 2d 903, 909 (E.D. Mich. 2006); Allen v. Stovall, 156 F.
Supp. 2d 791, 797 (E.D. Mich. 2001). Therefore, the mere presence of hearsay or inaccurate
information in a pre-sentence report does not constitute a denial of due process so as to entitle a
petitioner to habeas relief. Allen, 156 F. Supp. 2d at 797. Moreover, because the federal
constitution does not require a state court to prepare or consider a pre-sentence report, petitioner
had no federal constitutional right to review any such report prior to sentencing. Bridinger, 429
F. Supp. 2d at 909.
To the extent that petitioner claims that the trial court failed to correct the inaccuracies in
his pre-sentence report, in violation of M.C.R. 6.429, this would be noncognizable in federal
habeas review, because it involves an issue of state law. See e.g. Koras v. Robinson, 257 F.
Supp. 2d 941, 955 (E.D. Mich. 2003); aff'd in part and rev'd in part on other grds, 123 Fed.
Appx 207 (6th Cir. 2005).
More importantly, even where there is an alleged factual inaccuracy in a pre-sentence
report, a court need not resolve the dispute when the information is not relied on in arriving at
the sentence that was imposed. See Warren v. Miller, 78 F. Supp. 2d 120, 131 (E.D.N.Y. 2000).
Although a criminal defendant possesses a constitutional right not to be sentenced on the basis of
“misinformation of constitutional magnitude,” See Roberts v. United States, 445 U.S. 552, 556
(1980), in order to prevail on a claim that a trial court relied on inaccurate information at
sentencing, a habeas petitioner must demonstrate that the sentencing court relied upon this

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information and that it was materially false. See Siebert v. Jackson, 205 F. Supp. 2d 727, 731
(E.D. Mich. 2002).
In the present case, there is no evidence that the trial court relied on the allegedly
incorrect information contained within the pre-sentence report in sentencing petitioner,
particularly where the trial court judge articulated other substantial and compelling reasons for
exceeding the sentencing guidelines. A habeas petitioner is not entitled to relief on his claim that
a pre-sentence investigation report contained inaccurate information where there is no indication
that the sentencing judge relied on this information in sentencing the petitioner. See Draughn v.
Jabe, 803 F. Supp. 70, 80 (E.D. Mich. 1992). Accordingly, petitioner is not entitled to habeas
relief on his third claim.
C. Claims ## 4, 5, 6, and 7. The defaulted claims.
Respondent contends that petitioner’s remaining claims are procedurally defaulted
because petitioner raised these claims for the first time in his post-conviction motion, and failed
to show cause and prejudice for failing to raise these claims in his appeal of right, as required by
M.C.R. 6.508(D)(3).
When the state courts clearly and expressly rely on a valid state procedural bar, federal
habeas review is also barred unless petitioner can demonstrate “cause” for the default and actual
prejudice as a result of the alleged constitutional violation, or can demonstrate that failure to
consider the claim will result in a “fundamental miscarriage of justice.” Coleman v. Thompson,
501 U.S. 722, 750-51 (1991). If petitioner fails to show cause for his procedural default, it is
unnecessary for the court to reach the prejudice issue. Smith v. Murray, 477 U.S. 527, 533
(1986). However, in an extraordinary case, where a constitutional error has probably resulted in

15

the conviction of one who is actually innocent, a federal court may consider the constitutional
claims presented even in the absence of a showing of cause for procedural default. Murray v.
Carrier, 477 U.S. 478, 479-80 (1986). However, to be credible, such a claim of innocence
requires a petitioner to support the allegations of constitutional error with new reliable evidence
that was not presented at trial. Schlup v. Delo, 513 U.S. 298, 324 (1995). “‘[A]ctual innocence’
means factual innocence, not mere legal insufficiency.” Bousley v. United States, 523 U.S. 614,
624 (1998).
Michigan Court Rule 6.508(D)(3) provides that a court may not grant relief to a
defendant if the motion for relief from judgment alleges grounds for relief which could have
been raised on direct appeal, absent a showing of good cause for the failure to raise such grounds
previously and actual prejudice resulting therefrom. For purposes of a conviction following a
guilty, guilty but mentally ill, or nolo contendere plea, a defendant must show that the defect in
the proceedings was such that it rendered “the plea an involuntary one to a degree that it would
be manifestly unjust to allow the conviction to stand.” M.C.R. 6.508(D)(3)(b)(ii).
The Supreme Court has noted that “a procedural default does not bar consideration of a
federal claim on either direct or habeas review unless the last state court rendering a judgment in
the case ‘clearly and expressly’ states that its judgment rests on the procedural bar.” Harris v.
Reed, 489 U.S. 255, 263 (1989). If the last state court judgment contains no reasoning, but
simply affirms the conviction in a standard order, the federal habeas court must look to the last
reasoned state court judgment rejecting the federal claim and apply a presumption that later
unexplained orders upholding the judgment or rejecting the same claim rested upon the same
ground. Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991).

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The Michigan Court of Appeals and the Michigan Supreme Court rejected petitioner’s
post-conviction appeal on the ground that “the defendant has failed to meet the burden of
establishing entitlement to relief under M.C.R 6.508(D).” These orders, however, did not refer
to subsection (D)(3) nor did they mention petitioner’s failure to raise these claims on his direct
appeal as their rationale for rejecting his post-conviction claims. Because the form orders in this
case citing Rule 6.508(D) are ambiguous as to whether they refer to procedural default or a
denial of post-conviction relief on the merits, the orders are unexplained. See Guilmette v.
Howes, 624 F. 3d 286, 291 (6th Cir. 2010). This court must “therefore look to the last reasoned
state court opinion to determine the basis for the state court’s rejection” of petitioner’s claims.
Id.
In the present case, the St. Clair County Circuit Court judge, in rejecting petitioner’s
motion for relief from judgment, mentioned that M.C.R. 6.508(D)(3)(ii) requires a defendant
who pleaded guilty but mentally ill to show that his “plea was involuntary to a degree that it
would be manifestly unjust to allow his conviction to stand.” The judge concluded that:
“After examining Defendant’s motion along with all the files, records, and correspondence
relating to Defendant’s sentencing, it is plain that Defendant’s conviction is not manifestly unjust
and therefore he is not entitled to relief.” People v. Gurnsey, No. 08-000104-FC, p. 2 (St. Clair
County Circuit Court, August 2, 2010).
Because the trial court judge denied petitioner post-conviction relief based on the
procedural grounds stated in M.C.R. 6.508(D)(3), petitioner’s post-conviction claims are clearly
procedurally defaulted pursuant to M.C.R. 6.508(D)(3). See Ivory v. Jackson, 509 F. 3d 284,
292-93 (6th Cir. 2007); See also Howard v. Bouchard, 405 F. 3d 459, 477 (6th Cir. 2005).

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Petitioner has failed to offer any reasons to excuse the procedural default. Because
petitioner has not demonstrated any cause for his procedural default, it is unnecessary for the
court to reach the prejudice issue. Smith, 477 U.S. at 533; See also Alexander v. Smith, 342 F.
Supp. 2d 677, 685 (E.D. Mich. 2004). Additionally, petitioner has not presented any new
reliable evidence to support any assertion of innocence which would allow this court to consider
this claim as a ground for a writ of habeas corpus in spite of the procedural default. Being that
petitioner has not presented any new reliable evidence that he is innocent of this crime, a
miscarriage of justice will not occur if the Court declined to review the procedurally defaulted
claims on the merits. See Alexander, 342 F. Supp. 2d at 685. Petitioner is not entitled to habeas
relief on his remaining claims.
IV. Conclusion
The Court will 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, or agree that, 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 wrong. Id. at
484. 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

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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
constitutional right, and that jurists of reason would find it debatable whether the district court
was correct in its procedural ruling. 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. See also Millender v. Adams, 187 F. Supp. 2d 852, 880 (E.D. Mich. 2002).
The Court will also deny petitioner leave to appeal in forma pauperis, because the appeal would
be frivolous. See Allen v. Stovall, 156 F. Supp. 2d 791, 798 (E.D. Mich. 2001).
V. ORDER
Based upon the foregoing, IT IS ORDERED that the petition for a writ of habeas corpus
is DENIED WITH PREJUDICE.
IT IS FURTHER ORDERED That a certificate of appealability is DENIED.
IT IS FURTHER ORDERED that leave to appeal in forma pauperis is DENIED.

s/Gerald E. Rosen
Chief Judge, United States District Court
Dated: May 15, 2014
I hereby certify that a copy of the foregoing document was served upon the parties and/or
counsel of record on May 15, 2014, by electronic and/or ordinary mail.
s/Julie Owens
Case Manager, [phone]
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