Busby v. Stoddard

Filing 6

OPINION and ORDER Summarily Dismissing 1 Petition for Writ of Habeas Corpus, Declining to Issue Certificate of Appealability and Granting Leave to Proceed In Forma Pauperis on Appeal. Signed by District Judge Sean F. Cox. (JMcC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MICHAEL RANDOLPH BUSBY, JR.,
Petitioner,
CASE NO. 15-10102
HONORABLE SEAN F. COX

v.
CATHLEEN STODDARD,
Respondent.
_________________________________/

OPINION AND ORDER SUMMARILY DISMISSING THE PETITION,
DECLINING TO GRANT A CERTIFICATE OF APPEALABILITY,
BUT GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
Petitioner Michael Randolph Busby, Jr., is a state prisoner currently confined at
the Carson City Correctional Facility in Carson City, Michigan. He recently filed a pro se
habeas corpus petition challenging his state convictions for: carjacking, Mich. Comp.
Laws § 750.529a; first-degree home invasion, Mich. Comp. Laws § 750.110a(2);
unarmed robbery, Mich. Comp. Laws § 750.530; unlawful imprisonment, Mich. Comp.
Laws § 750.349b; and stealing a financial transaction device, Mich. Comp. Laws §
750.157n. He alleges that a police officer illegally searched his cellular phone and that
the state trial court relied on inaccurate information when scoring the sentencing
guidelines. Neither one of these claims is cognizable on habeas corpus review. The
Court therefore will summarily dismiss the petition.
I. Background
Petitioner was convicted of the crimes listed above in 2011, following a jury trial
in Oakland County Circuit Court. The state trial court sentenced Petitioner as a habitual

offender to: thirty to sixty years in prison for the carjacking; ten to thirty years in prison
for the home invasion, unarmed robbery, and unlawful imprisonment; and two to fifteen
years in prison for stealing a financial transaction device. The Michigan Court of
Appeals affirmed Petitioner’s convictions in an unpublished decision, see People v.
Busby, No. 305055, 2012 WL 6720592 (Mich. Ct. App. Dec. 27, 2012), and on October
28, 2013, the Michigan Supreme Court denied leave to appeal because it was not
persuaded the review the issues. See People v. Busby, 495 Mich. 880; 838 N.W.2d
698 (2013). On January 8, 2015, Petitioner filed his habeas corpus petition in this
Court.
II. Analysis
A. The Search of Petitioner’s Cell Phone
Petitioner alleges that the police illegally searched his cellular telephone without
a warrant. Petitioner asserts that the illegal search led to his arrest and that the fruits of
the search should have been suppressed rather than used at trial to persuade the jury
to convict him.
Petitioner brings his claim under the Fourth Amendment to the United States
Constitution. The Supreme Court, however, has held that, “where the State has
provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state
prisoner may not be granted federal habeas corpus relief on the ground that evidence
obtained in an unconstitutional search or seizure was introduced at his trial.” Stone v.
Powell, 428 U.S. 465, 494 (1976) (internal footnote omitted). “This prohibition on
federal habeas review of exclusionary rule claims applies . . . to prisoners who received
‘the opportunity for full and fair consideration’ of their claims in state court.” Good v.
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Berghuis, 729 F.3d 636, 637-38 (6th Cir. 2013), cert. denied, No. 14-6114, 2015 WL
303260 (U.S. Jan. 26, 2015). “[T]he Powell ‘opportunity for full and fair consideration’
means an available avenue for the prisoner to present his claim to the state courts, not
an inquiry into the adequacy of the procedure actually used to resolve that particular
claim.” Id. at 639.
In Michigan, defendants in criminal cases may challenge the legality of searches
and seizures in a motion to suppress evidence, which may be brought before or during
trial. People v. Ferguson, 376 Mich. 90, 93-95; 135 N.W.2d 357, 358-59 (1965).
Petitioner raised his Fourth Amendment claim in a pretrial motion to suppress evidence.
The state trial court held an evidentiary hearing on the motion and denied it. Petitioner
also raised his Fourth Amendment claim in the Michigan Court of Appeals, which
thoroughly addressed the issue on direct appeal. “That suffices to preclude review of
the claim through a habeas corpus petition under Stone v. Powell.” Good, 729 F.3d at
640; see also Rashad v. Lafler, 675 F.3d 564, 570 (6th Cir. 2012) (stating that, because
the petitioner had ample opportunities to present his Fourth Amendment claims in state
court, and because the state trial court and the Michigan Court of Appeals rejected the
claims, he was precluded from obtaining habeas relief.
In this case, moreover, the Michigan Court of Appeals determined that the
disputed search was proper because it was incident to a lawful arrest and because it fell
within the scope of Petitioner’s initial consent to be searched by an officer. The Court of
Appeals also determined that, even if constitutional error occurred, the error was
harmless because a rational jury would have found Petitioner guilty without the disputed
evidence. In reaching this conclusion, the Court of Appeals pointed out that
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[Petitioner’s] fingerprints were found on a chair propped up against an
open window on the outside of the victim’s house, [he] was stopped near
the victim’s stolen car, [he] made incredible statements to the police, and
[he] was wearing clothing that was consistent with the clothing worn by the
suspect captured on an automated teller machine surveillance recording
withdrawing funds from the victim’s bank account.
Busby, 2012 WL 6720592, at *3.
Petitioner had an opportunity for full and fair consideration of his claim in state
court. This Court therefore declines to address the merits of his Fourth Amendment
claim. The claim is barred from substantive review in federal court by the Stone v.
Powell doctrine.
B. The Sentence
In his second and final claim, Petitioner alleges that he was sentenced on the
basis of inaccurate information, which significantly increased his sentence. The basis
for this claim is the trial court’s assessment of fifty points for offense variable seven (OV
7) of the Michigan sentencing guidelines. OV 7 is “aggravated physical abuse. Mich.
Comp. Laws § 777.37(1). A score of fifty points is appropriate when “[a] victim was
treated with sadism, torture, or excessive brutality or conduct designed to substantially
increase the fear and anxiety a victim suffered during the offense.” Mich. Comp. Laws §
777.37(1)(a). If no victim was treated that way, the correct score is zero. Mich. Comp.
Laws § 777.37(1)(b).
Petitioner contends that there was no evidence his conduct was designed to
substantially increase the victim’s fear beyond the already heightened fear involved in
being a robbery victim. The Court finds no merit in this claim because the state court’s
interpretation and application of state sentencing laws and guidelines is a matter of
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state concern only, Howard v. White, 76 F. App’x 52, 53 (6th Cir. 2003), and “[a] federal
court may not issue the writ [of habeas corpus] on the basis of a perceived error of state
law.” Pulley v. Harris, 465 U.S. 37, 41 (1984). Federal courts must “defer to a state’s
judgment on issues of state law” and “accept a state court’s interpretation of its
statutes.” Israfil v. Russell, 276 F.3d 768, 771 (6th Cir. 2001). Consequently, the
contention that the trial court incorrectly calculated the state sentencing guidelines is not
cognizable on federal habeas corpus review. Tironi v. Birkett, 252 F. App’x 724, 725
(6th Cir. 2007); 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).
Petitioner attempts to couch his claim in constitutional terms. But to prevail on a
claim that the trial court relied on inaccurate information in violation of the constitutional
right to due process, Petitioner must show that his sentence was founded on
“misinformation of constitutional magnitude,” United States v. Tucker, 404 U.S. 443, 447
(1972), or on “extensively and materially false” information that he had no opportunity to
correct through counsel, Townsend v. Burke, 334 U.S. 736, 741 (1948).
The evidence in this case established that Petitioner broke into the home of an
elderly woman who was dependent on oxygen intubation. He blindfolded the woman,
tied her hands and feet, and threatened to harm her if she did not follow his directions.
Although Petitioner was convicted of unlawful imprisonment, the Michigan Court of
Appeals determined that blindfolding and threatening the victim while she was
restrained were not necessary elements of unlawful imprisonment. The Court of
Appeals also determined that the record evidence was sufficient to support the trial
court’s finding that Petitioner’s conduct was designed to substantially increase the
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victim’s fear and anxiety. The Court of Appeals therefore concluded that the trial court
did not err when it scored fifty points for OV 7.
This Court concludes from the facts summarized in the state appellate court’s
decision that the state trial court did not rely on extensively or materially false
information which Petitioner had no opportunity to correct through counsel. Thus, to the
extent Petitioner has raised a federal constitutional issue, his claim fails.
III. Conclusion
Petitioner’s claims are not cognizable on habeas review, and even assuming that
his sentencing claim raises an issue of constitutional law, the state appellate court’s
adjudication of the claim on the merits was not “contrary to” or “an unreasonable
application of, clearly established Federal law, as determined by the Supreme Court of
the United States.” 28 U.S.C. § 2254(d)(1). The state court’s decision also was not
“based on an unreasonable determination of the facts.” 28 U.S.C. § 2254(d)(2).
Accordingly, the habeas petition is summarily dismissed pursuant to Rule 4 of the Rules
Governing Section 2254 Cases, “which allows the summary dismissal of a petition if ‘it
plainly appears from the face of the petition . . . that the petitioner is not entitled to relief
in the district court.’ ” Martin v. Overton, 391 F.3d 710, 714 (6th Cir. 2004) (quoting
Rule 4).

IV. Denying a Certificate of Appealability
“[A] prisoner seeking postconviction relief under 28 U.S.C. § 2254 has no
automatic right to appeal a district court’s denial or dismissal of the petition. Instead,
[the] petitioner must first seek and obtain a [certificate of appealability.]” Miller-El v.
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Cockrell, 537 U.S. 322, 327 (2003). 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). “A petitioner satisfies this standard by demonstrating that jurists of
reason could disagree with the district court’s resolution of his constitutional claims or
that jurists could conclude the issues presented are adequate to deserve
encouragement to proceed further.” Miller-El, 537 U.S. at 327.
Reasonable jurists would not find the Court’s assessment of Petitioner’s
constitutional claims debatable or wrong, nor conclude that the issues are adequate to
deserve encouragement to proceed further. The Court therefore declines to grant a
certificate of appealability. Nevertheless, if Petitioner chooses to appeal this decision,
he may proceed in forma pauperis on appeal without further authorization because he
was granted leave to proceed in forma pauperis in this Court, and an appeal could be
taken in good faith. Fed. R. App. P. 24(a)(3).

Dated: February 27, 2015

S/ Sean F. Cox
Sean F. Cox
U. S. District Judge

I hereby certify that on February 27, 2015, the foregoing document was served on
counsel of record via electronic means and upon Michael Busby, Jr., via First Class mail
at the address below:
Michael Randolph Busby, Jr.
258823
CARSON CITY CORRECTIONAL FACILITY
10274 BOYER ROAD
CARSON CITY, MI 48811

S/ J. McCoy
Case Manager
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