Page v. Warren

Filing 3

OPINION and ORDER SUMMARILY DISMISSING re 1 Petition for Writ of Habeas Corpus & DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY Signed by District Judge Patrick J. Duggan. (MOre)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DEVON PAGE,
Petitioner,
Case Number: 2:12-CV-11157
Honorable Patrick J. Duggan

v.
MILLICENT WARREN,
Respondent.
/

OPINION AND ORDER SUMMARILY DISMISSING THE PETITION
FOR WRIT OF HABEAS CORPUS AND DECLINING TO ISSUE
A CERTIFICATE OF APPEALABILITY
On March 5, 2012, Devon Page, a state prisoner currently confined at the
Women’s Huron Valley Correctional Facility in Ypsilanti, Michigan, filed a pro se
petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. In 2010, Petitioner
pleaded guilty to uttering and publishing (two counts), larceny in a building (six counts),
identity theft (five counts), and illegal sale or use of a financial transaction device (four
counts) in the Circuit Court for Wayne County, Michigan. Petitioner asks for habeas
corpus relief claiming the sentencing judge’s departure from the sentencing guidelines
was unfounded and excessive and her sentences were based on facts neither admitted by
Petitioner nor proven to a jury beyond a reasonable doubt. For the reasons set forth
below, the Court dismisses the petition.
I. Procedural Background
On March 31, 2010, after Petitioner pleaded guilty, the state court sentenced her to

imprisonment for nine to fourteen years on each of the uttering and publishing counts,
one to four years on all larceny counts and the illegal sale or use of a financial transaction
device counts, and one to five years on each count of identity theft. Following her
sentencing, Petitioner filed a delayed application for leave to appeal in the Michigan
Court of Appeals. The Court of Appeals denied the application “for lack of merit in the
grounds presented.” People v. Page, No. 302759 (Mich. Ct. App. Mar. 30, 2011). On
July 25, 2011, the Michigan Supreme Court denied Petitioner leave to appeal. People v.
Page, 489 Mich. 993, 800 N.W.2d 85 (2011). Petitioner filed her petition for a writ of
habeas corpus with this Court on March 15, 2012, claiming that she is entitled to resentencing based on the arguments set forth earlier.
II. Standard of Review
Upon the filing of a habeas corpus petition, the court must promptly examine the
petition to determine “if it plainly appears from the face of the petition and any exhibits
annexed to it that the petitioner is not entitled to relief.” Rule 4, Rules Governing Section
2254 Cases.
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) sets forth
the standard of review for federal habeas proceedings:
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
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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 proceedings.
28 U.S.C. 2254(d). In short, under §2254(d), Petitioner must show that the state court’s
decision “was either contrary to, or an unreasonable application of, [the Supreme] Court’s
clearly established precedents, or was based upon an unreasonable determination of the
facts.” Price v. Vincent, 538 U.S. 634, 639, 123 S. Ct. 1848, 1852-53 (2003).
The Supreme Court has provided that under the “contrary to” clause “a federal
habeas court may grant the writ 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, 364-65, 120 S. Ct. 1495, 1498 (2000). A federal
habeas court may grant the claim under the “unreasonable application” clause “if the state
court identifies the correct governing legal principle from [the Supreme] Court’s
decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Id.
“[A] federal habeas court making the ‘unreasonable application’ inquiry should ask
whether the state court’s application of clearly established federal law was objectively
reasonable.” Id. at 409, 120 S. Ct. at 1521. The court may not issue a writ “simply
because the court concludes in its independent judgment that the relevant state-court
decision applied clearly established federal law erroneously or incorrectly.” Id. at 411,
120 S. Ct. at 1522.

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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, 123 S. Ct. 1029, 1041 (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,
– U.S. – , 130 S. Ct. 1855, 1862 (2010) (quoting Lindh v. Murphy, 521 U.S. 320, 333 n.7,
117 S. Ct. 2059, 2067 n.7 (1997); Woodford v. Viscotti, 537 U.S. 19, 24, 123 S. Ct. 357,
360 (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, – U.S. – , 131 S. Ct.
770, 786 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S. Ct. 2140,
2149 (2004)). Therefore, in order to obtain federal habeas relief, a state prisoner must
show that the state court’s denial of her 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. at 786-87.
III. Analysis
First, Petitioner argues that the trial court departed from the sentencing guidelines
without substantial and compelling reasons for doing so. “The habeas statute
unambiguously provides that a federal court may issue the writ to a state prisoner ‘only
on the ground that he [or she] is in custody in violation of the Constitution or laws or
treaties of the United States.’” Wilson v. Corcoran, – U.S. – , 131 S. Ct. 13, 16 (2010)
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(quoting 28 U.S.C. § 2254(a)). 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, 112 S. Ct. 475,
480 (1991) (quoting Lewis v. Jeffers, 497 U.S. 764, 780, 110 S. Ct. 3092, 3102 (1990)).
The requirement that the sentencing court articulate a “substantial and compelling
reason” for departure from the sentencing guidelines is found in Michigan, not federal,
law. See Mich. Comp. Laws § 769.34(3). Whether a state court judge articulates
substantial and compelling reasons for departing from the sentencing guidelines therefore
is a matter of state law. 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.”); see also Lunsford v. Hofbauer, No. 94-2128, 1995
WL 236677, at *2 (6th Cir. April 21, 1995) (holding that the petitioner was not entitled to
habeas relief based on his claim that the trial court failed to articulate the reasons for
departing from the sentencing guidelines, as such a claim alleges an error of state and not
federal law). “[A] mere error of state law is not a denial of due process.” Swarthout v.
Cooke, – U.S. – , 131 S. Ct. 859, 863 (2011) (internal quotations omitted). Thus, this
claim is not cognizable on federal habeas review.
To the extent that Petitioner also is claiming that the state court’s departure from
the sentencing guidelines constituted cruel and unusual punishment, this claim also is
meritless. There exists no constitutional right to strict proportionality in sentencing.
Harmelin v. Michigan, 501 U.S. 957, 965, 111 S. Ct. 2680, 2686 (1991). However, the
Eighth Amendment prohibits “extreme sentences that are ‘grossly disproportionate’ to the
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crime.” Id. at 1001, 111 S. Ct. at 2705 (Kennedy, J. concurring) (quoting Solem v. Helm,
463 U.S. 277, 288, 303, 103 S. Ct. 3001, 3008, 3016 (1983)). Nevertheless, the Sixth
Circuit has held that “a sentence within the statutory maximum set by statute generally
does not constitute ‘cruel and unusual punishment.’” United States v. Organek, 65 F.3d
60, 62-63 (6th Cir. 1995); see also Hutto v. Davis, 454 U.S. 370, 374, 102 S. Ct. 703, 705
(1982) (internal citations and quotation marks omitted) (“[F]ederal courts should be
reluctant to review legislatively mandated terms of imprisonment . . . successful
challenges to the proportionality of particular sentences should be exceedingly rare.”)
Petitioner’s sentences did not exceed the statutory maximum for her offenses.
Petitioner’s sentences were not grossly disproportionate to the crime or the offender.
Accordingly, Petitioner fails to assert a viable Eighth Amendment violation with respect
to her sentences.
Finally, Petitioner argues that her sentences were improperly based upon facts not
admitted by her or determined by the jury. In Blakely v. Washington, 543 U.S. 296, 124
S. Ct. 2531 (2004), the Supreme Court held that, other than the fact of a defendant’s prior
conviction, any fact that increases or enhances a penalty for the crime beyond the
prescribed statutory maximum for the offense must be submitted to the jury and proven
beyond a reasonable doubt. Id. at 301, 124 S. Ct. at 2536 (citing Apprendi v. New Jersey,
530 U.S. 466, 490, 120 S. Ct. 2348, 2362–63 (2000)). Blakely involved a trial court’s
departure from Washington’s determinate sentencing structure. Michigan, in contrast,
has an indeterminate sentencing system. The maximum term of imprisonment is set by
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law. See People v. Drohan, 475 Mich. 140, 160-61, 715 N.W.2d 778 (2006).
Indeterminate sentencing schemes do not violate the Sixth Amendment by invading the
province of the jury, so long as the defendant is sentenced within the statutory maximum.
Blakely, 542 U.S. at 304–05, 308–09, 124 S. Ct. at 2538, 2540–41.
In this case, the sentencing court did not exceed the statutory maximum for
Petitioner’s crimes. Therefore, the sentencing scheme did not run afoul of the Sixth
Amendment. Montes v. Trombley, 599 F.3d 490, 497 (6th Cir. 2010); see also Chontos v.
Berghuis, 585 F.3d 1000, 1002 (6th Cir. 2009).
IV. Certificate of Appealability
Federal Rule of Appellate Procedure 22 provides that an appeal may not proceed
unless a certificate of appealability is issued under 28 U.S.C. § 2253. Rule 11 of the
Rules Governing Section 2254 Proceedings requires that a district court “must issue or
deny a certificate of appealability when it enters a final order adverse to the applicant.” A
certificate of appealability may be issued “only if the applicant has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The substantial
showing threshold is satisfied when a petitioner demonstrates “that reasonable jurists
would find the district court’s assessment of the constitutional claims debatable or
wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S. Ct. 1595 (2000). The Court
concludes that reasonable jurists would not debate the conclusion that the petition fails to
state a claim upon which habeas relief may be warranted. Therefore, the Court declines
to issue a certificate of appealability.
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V. Conclusion
For the reasons stated, the Court concludes that Petitioner is not entitled to federal
habeas relief on the claims contained in her petition or a certificate of appealability.
Accordingly,
IT IS ORDERED that the petition for a writ of habeas corpus is DENIED;
IT IS FURTHER ORDERED that the Court DECLINES to issue Petitioner a
certificate of appealability.
Date: April 11, 2012

s/PATRICK J. DUGGAN
UNITED STATES DISTRICT JUDGE

Copy to:
Devon Page, #763289
Women’s Huron Valley Correctional Facility
3201 Bemis Road
Ypsilanti, MI 48197-0911

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