Gunn v. Bergh
Filing
16
OPINION and ORDER (1) Denying 1 Petition for Writ of Habeas Corpus, (2) Denying a Certificate of Appealability, and (3) Granting Permission to Appeal In Forma Pauperis. Signed by District Judge Matthew F. Leitman. (HMon)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JAMES GUNN,
Petitioner,
Case No. 15-cv-13776
Hon. Matthew F. Leitman
v.
DAVID BERGH,
Respondent.
___________________________________/
OPINION AND ORDER (1) DENYING PETITION FOR WRIT OF HABEAS
CORPUS (ECF #1), (2) DENYING A CERTIFICATE OF APPEALABILITY,
AND (3) GRANTING PERMISSION TO APPEAL IN FORMA PAUPERIS
Petitioner James Gunn is a state prisoner in the custody of the Michigan
Department of Corrections. On October 23, 2015, Gunn filed a petition for a writ of
habeas corpus in this Court pursuant to 28 U.S.C. § 2254. (See ECF #1.) In the petition,
Gunn challenges his state-court conviction for first-degree criminal sexual conduct,
Mich. Comp. Laws § 750.520b (“CSC I”). The state trial court sentenced Gunn to 225
months to 30 years imprisonment.
The Court has reviewed Gunn’s claims and concludes that he is not entitled to
federal habeas relief. Accordingly, for the reasons set forth below, the Court will
DENY his petition.
The Court will also decline to issue Gunn a certificate of
appealability. However, it will grant him permission to appeal in forma pauperis.
1
I
Gunn’s conviction arises from an August 1, 2008, encounter with a woman he
met at a party store. The Michigan Court of Appeals described the underlying facts as
follows:
The complainant testified that on the evening of August 1,
2008, her friend and her boyfriend asked her to purchase
alcohol. She drove to a party store, where she arrived at
about midnight. When she began to exit her vehicle, she was
grabbed by the neck. A male voice told her to “[g]et in the
car,” and pushed her back into the car.
The complainant testified Gunn sat down in the passenger
seat and again grabbed her neck, telling her to drive. The
complainant testified that she drove where she was told, that
Gunn’s hand was on her neck the entire time she was driving,
and that he jerked her head around. The complainant testified
that when her cell phone kept ringing, Gunn picked it up with
his other hand and beat her in the face with it.
The complainant testified that Gunn told her to park near a
school, where he forced her to perform fellatio. At some
point afterward, a red SUV arrived; Gunn left her vehicle,
and went into the SUV. She called her friend to ask how to
get back to her house, but that she did not call 911 because
she thought they would instruct her to stay at the scene and
she was concerned that Gunn would come back.
Gunn testified that he was at the party store at about 11:15
p.m. with his friends, including James Donald and Mark
White. Donald testified that White drove them to the store in
a red SUV. Gunn testified that after he made purchases, the
complainant approached him in the parking lot and asked if
he knew where she could purchase crack cocaine. Gunn
testified that he gave the complainant directions to a “crack
house,” but she asked him to drive her there in her vehicle.
2
Donald testified that Gunn told him that he was going to ride
with the complainant; Gunn drove her car, following
White’s SUV. Donald and White stopped by the school, and
White dropped Donald off. Donald testified that a short
while later, the complainant dropped Gunn off and asked
how to get to the highway. The complainant did not appear
injured.
Gunn testified that he drove the complainant’s vehicle to his
cousin’s house near a school and called his drug dealer a few
times, but that his drug dealer did not respond. Gunn testified
that he did touch and kiss the complainant while they were
in the car, but that he did not strike her. He testified that he
did not force the complainant to engage in fellatio, but that
she chose to do so. Gunn testified that when his drug dealer
did not arrive, the complainant said that she had to leave
because it was late and her boyfriend would be upset.
The complainant’s boyfriend took her to the emergency
room at Covenant Hospital, where she was treated and given
stitches. Sue Gatza, who was working at Covenant Hospital
that evening as a sexual assault response nurse, testified that
she treated the complainant for bruises, areas of tenderness
on her head, and a laceration on her lip that required stitches.
Gatza also testified that the complainant was very upset and
crying.
Saginaw Police Officer Roger Pate testified that he arrived
at the hospital at around 9:00 a.m. on August 2 to interview
the complainant and collect evidence. An evidence
technician recovered a partial hand print from the outside of
the complainant’s car, above the driver’s side door. The
evidence also included a facial swab, and blood from the
complainant’s cell phone.
The complainant testified that in 2010, she saw a picture of
Gunn in the paper, and recognized him as the man who
assaulted her in 2008. Detective Oberle testified that he
interviewed Gunn and showed Gunn the complainant’s
picture. Detective Oberle testified that Gunn denied leaving
the party store with the complainant, or going anywhere with
3
her in her vehicle, or having any kind of sexual contact with
her. Gunn testified that he did not think that Detective Oberle
was asking about fellatio.
Michigan State Police forensic scientist Gary Ginther
testified that he compared the palm print with a copy of
Gunn’s palm print that was available in the Automated
Finger Identification System, and determined that it was a
match. Michigan State Police forensic scientist Lauren Lu
testified that there was more than one person’s blood on the
cell phone, and that the complainant was the blood’s primary
donor. Lu testified that the complainant’s facial swab
contained sperm matching Gunn’s DNA.
People v. Gunn, 2013 WL 466289, at ** 1–2 (Mich. Ct. App. Feb. 7, 2013).
Following a three-day trial in the Saginaw County Circuit Court, a jury convicted
Gunn of CSC I. Gunn then filed an appeal of right in the Michigan Court of Appeals,
raising the following claims:
I.
The trial court violated his due process rights by requiring
him to appear in shackles at trial, and his trial counsel was
ineffective for failing to object to the shackling;
II.
Trial counsel was ineffective for failing to object to a state
police fingerprint expert’s testimony that Gunn’s palm print
was “in the system,”;
III.
The trial court violated his due process right to present a
defense by preventing defense counsel from impeaching the
complainant with a prior inconsistent statement;
IV.
Due process requires resentencing where the trial court
improperly scored the offense; and
V.
The trial court violated the ex post facto clause of the
Michigan and United States Constitutions by imposing a
$130 crime victim rights fund assessment where the statute
4
in effect at the time of commission of the offense provided
for only a $60 assessment.
The Michigan Court of Appeals affirmed Gunn’s conviction. See Gunn, 2013 WL
466289. Gunn filed an application for leave to appeal in the Michigan Supreme Court,
and that Court denied leave. See People v. Gunn, 846 N.W.2d 389 (Mich. 2014).
Gunn next filed a motion for relief from judgment in the state trial court. (See
ECF #9-15.) In that motion, Gunn raised three claims:
I.
Ineffective assistance of appellate counsel;
II.
Trial counsel failed to interview and subpoena witnesses,
denying Gunn an opportunity to present a defense; and
III.
Trial counsel was ineffective for failing to request complete
medical records and the complaint filed by the victim and
was ineffective for failing to challenge the validity of the
DNA search warrant.
(See id.)
The state trial court denied Gunn’s motion. Gunn then filed an application for
leave to appeal in the Michigan Court of Appeals. (See ECF #9-18.) That court denied
leave on the ground that Gunn failed to establish entitlement to relief under Michigan
Court Rule 6.508(D). (See id.)
Gunn thereafter filed the instant petition for habeas relief in this Court. (See ECF
#1.) He raises the same claims here that he brought before the Michigan Court of
Appeals in his initial appeal.
5
II
The majority of Gunn’s claims are reviewed under the standards established in
the Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2254(d)
(“AEDPA”). AEDPA provides that:
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 proceedings.
28 U.S.C. § 2254(d).
“The question under AEDPA is not whether a federal court believes the state
court’s determination was incorrect but whether that determination was unreasonable –
a substantially higher threshold.” Schriro v. Landrigan, 550 U.S. 465, 473 (2007).
III
A
Gunn first asserts that the state trial court’s decision to put him in shackles during
his trial violated his due process rights. The Michigan Court of Appeals considered this
6
claim on direct review in the context of resolving a related claim for the infective
assistance of counsel and rejected it:
Gunn first argues that he was deprived of the effective
assistance of counsel because he was improperly shackled
and trial counsel failed to move the trial court to remove his
shackles. We disagree.
We conclude that Gunn has not demonstrated that his
counsel’s performance prejudiced him. A shackling error
does not prejudice the defendant as a matter of law if there
is no indication that the jury saw the defendant’s restraints.
The only indication in the lower court record that Gunn was
even wearing shackles is in the trial court’s statement of
precautions it intended to take to make certain that the jury
was out of the courtroom while Gunn moved between the
defense table and the witness stand. There are no indications
that the jury saw Gunn in restraints. We conclude that Gunn
has not shown that, but for his counsel’s failure to request
that the trial court remove his shackles, the results of his
proceeding would have been different.
Gunn, 2013 WL 466289, at *4.
Gunn has not shown that the Michigan Court of Appeals’ ruling was contrary to,
or an unreasonable application of, clearly established federal law. The Constitution
prohibits the use of visible shackles during the guilt or penalty phases of a trial “unless
that use is ‘justified by an essential state interest’—such as the interest in courtroom
security—specific to the defendant on trial.” Deck v. Missouri, 544 U.S. 622, 624
(2005) (quoting Holbrook v. Flynn, 475 U.S. 560, 568-569 (1986)). In this case, Gunn
has not presented any evidence that the jury ever saw him, or could have seen him, in
7
restraints or shackles.1 Indeed, as noted by the Court of Appeals, “[t]he only indication
in the lower court record that Gunn was even wearing shackles is in the trial court’s
statement of precautions it intended to take to make certain that the jury was out of the
courtroom while Gunn moved between the defense table and the witness stand.” Gunn,
2013 WL 466289, at *4. Accordingly, because Gunn has not shown that his shackles
were visible, or could have been visible, to the jury, he is not entitled to federal habeas
relief on this claim. See Mendoza v. Berghuis, 544 F.3d 650, 654 (6th Cir. 2008).
B
Gunn next asserts that his trial counsel provided ineffective assistance. Federal
claims of ineffective assistance of counsel are subject to the deferential two-prong
standard of Strickland v. Washington, 466 U.S. 668 (1984). Strickland asks: (1)
whether counsel was deficient in representing the defendant; and (2) whether counsel’s
alleged deficiency prejudiced the defense so as to deprive the defendant of a fair trial.
See id. at 687. To meet the first prong, a petitioner must establish that his attorney’s
representation “fell below an objective standard of reasonableness,” and must overcome
1
In the Michigan Court of Appeals, Gunn submitted statements from five witnesses
in support of his shackling claim. But these statements fall short of establishing that
the jury ever saw, or could have seen, Gunn in shackles. Four of the witnesses did
not recall whether Gunn’s shackles were visible to the jury at trial (and one did not
remember Gunn at all). (See ECF #9-16 at Pg. ID 562, 564.) And while the fifth
witness stated that “it’s always a possibility that the jury saw the shackles,” the
witness did not say that the jury actually saw Gunn’s shackles, and the witness said
that “every attempt was made so that [the jury] wouldn’t see [the shackles].” (Id. at
Pg. ID 564.)
8
the “strong presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance; that is, the defendant must overcome the presumption that . . .
the challenged action ‘might be considered sound trial strategy.’” Id. at 688, 689. The
“prejudice” component of a Strickland claim “focuses on the question of whether
counsel’s deficient performance renders the result of the trial unreliable or the
proceeding fundamentally unfair.” Lockhart v. Fretwell, 506 U.S. 364, 372 (1993).
Prejudice, under Strickland, requires showing 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 Court will examine each of Gunn’s claims of ineffective assistance in turn.
1
Gunn first argues that his trial counsel was ineffective for failing to object to
Gunn’s shackling at trial. As quoted in Section III(A) above, the Michigan Court of
Appeals considered this claim on direct review and rejected it. See Gunn, 2013 WL
466289, at *4.
Gunn has not shown that that ruling was contrary to, or an unreasonable
application of, clearly established federal law. Gunn has not shown that the jury ever
saw, or could have seen, the shackles, and Gunn has therefore not shown that his
counsel had any basis to object. Counsel is not ineffective for failing to make a futile
objection. See United States v. Sanders, 404 F.3d 980, 986 (6th Cir. 2005); Harris v.
9
United States, 204 F. 3d 681, 683 (6th Cir. 2000). Gunn is therefore not entitled to
federal habeas relief on this claim.
2
Gunn next asserts that his trial counsel was ineffective when counsel did not
object to the following testimony of Gary Ginther, the state’s fingerprint expert:
Q. And what did you compare that latent print against to
identify it to a James Gunn?
A. My comparison occurred when I obtained a copy of a
palm print that was in our system in Lansing. I had this sent
to me via computer with the name up at the top of – I’m
assuming that’s his signature – James Gunn, and that’s the
piece of paper I would have used for comparison of known
impressions to the latent fingerprint.
(ECF #9-8 at Pg. ID 263.) On cross-examination by Gunn’s counsel about the copy of
the palm print, Ginther testified that he received the copy from “the AFIS, Automated
Finger Identification System, where we have access to obtaining the known impressions
of an individual in the system.” (Id. at Pg. ID 264.)
Gunn asserts that his trial counsel was ineffective for failing to object to the
admission of this testimony. Gunn insists that his trial counsel should have objected
because when the jury was told that Gunn’s palm print was in the “system,” that
necessarily revealed to the jury that he had a prior criminal history. The Michigan Court
of Appeals considered this claim on direct appeal and rejected it:
The defendant must overcome the strong presumption that
defense counsel’s performance constituted sound trial
strategy. Because defense counsel re-raised the issue in
10
cross-examination, it seems clear to this Court that counsel’s
decision not to challenge Ginther’s direct examination
testimony about source of the comparative fingerprint was
the result of a calculated risk. We do not agree that Ginther’s
reference to “the known impressions of an individual in the
system” implied by its very nature that Gunn had a criminal
history. Fingerprints obtained in several other contexts are
stored in AFIS. We conclude that Gunn has not overcome
the presumption that defense counsel’s decision to attack the
reliability of the source of Gunn’s photocopied palm print on
cross-examination was sound trial strategy.
Because Gunn has not shown that defense counsel’s decision
not to challenge Ginther’s testimony was objectively
unreasonable, his ineffective assistance of counsel claim
fails.
Gunn, 2013 WL 466289, at ** 4-5.
Gunn has not established that the Michigan Court of Appeals’ ruling was
contrary to, or an unreasonable application of, clearly established federal law. That
court did not unreasonably conclude that the reference to Gunn’s palm print being in
the “system” did not materially impact Gunn’s trial.
As the Court of Appeals
recognized, that testimony did not “imply by its very nature that Gunn had a criminal
history.” Id. Moreover, as the Court of Appeals noted, there are other reasons that a
person’s print could be in a state database. Accordingly, the Michigan Court of Appeals
did not unreasonably reject this claim of ineffective assistance. Gunn is therefore not
entitled to federal habeas relief on this claim.
11
3
Gunn further claims that his trial counsel was ineffective for failing to investigate
the drug Lexapro, which Gunn alleges was taken by the complainant. Gunn did not
raise this issue in the state courts. However, because the underlying merits of this claim
are easily resolved, the Court will consider this claim. See 28 U.S.C. § 2254(b)(2) (“An
application for a writ of habeas corpus may be denied on the merits, notwithstanding
the failure of the applicant to exhaust the remedies available in the courts of the State”).
See also Hudson v. Jones, 351 F.3d 212, 216 (6th Cir. 2003).
Gunn has failed to show an entitlement to federal habeas relief on this claim. In
Gunn’s petition, he suggests that the complainant was suffering from certain “possible
side effects” of taking the drug Lexapro while drinking alcohol, such as “memory loss.”
(Pet., ECF #1 at Pg. ID 16.) But Gunn has not provided any evidence that Lexapro
could have impaired the complainant in the way Gunn claims or that Lexapro materially
affected the complainant.2 Gunn’s speculative and conclusory allegations do not
sufficiently establish that he suffered prejudice from trial counsel’s alleged failure to
investigate Lexapro. See, e.g., Cross v. Stovall, 238 F. App’x 32, 39-40 (6th Cir. 2007)
(“Cross’s ineffective assistance claim is doomed by the fact she makes nothing more
than conclusory assertions about actual prejudice”); Prince v. Straub, 78 F. App’x 440,
2
Moreover, Gunn has not provided any evidence that his trial counsel in fact failed
to investigate the complainant’s use of Lexapro. Gunn appears to assume that such
an investigation never took place, but Gunn has not provided an affidavit or other
offer of proof that could provide competent evidence to support this theory.
12
442 (6th Cir. 2003) (“Conclusory allegations, without evidentiary support, do not
provide a basis for habeas relief”).
Gunn is therefore not entitled to federal habeas
relief on this claim.
C
Gunn next argues that the state trial court violated his due process rights when it
prohibited trial counsel from asking Officer Roger Pate about a prior inconsistent
statement made by the complainant related to why she went to the party store. On direct
review, the Michigan Court of Appeals considered whether this limitation on crossexamination violated state evidentiary rules, and it concluded that it did not:
The trial court ruled that Gunn could not question Officer
Pate about the complainant’s reasons for going to the party
store because the matter was a collateral matter. A collateral
matter is “[a]ny matter on which evidence could not have
been introduced for a relevant purpose.” Evidence that
affects the credibility of the victim is relevant.
Here, Gunn’s counsel asked the complainant if she told
police that she went to the party store to flirt with the clerk.
The complainant testified that she did not remember.
Counsel asked to recall Officer Pate, to question him about
several inconsistencies between the complainant’s trial
testimony and her statements to him in August 2008. The
prosecution argued that the reason the complainant went to
the party store was a collateral matter. Counsel argued that
the complainant’s inability to remember the event’s details
affected her credibility, and thus was not a collateral matter.
The trial court allowed counsel to recall Officer Pate and
question her about the inconsistencies concerning
complainant’s actions at the store, but not her reasons for
going there.
13
We conclude that the prior inconsistent statement evidence
did not concern a collateral matter because counsel sought to
introduce it for the relevant purpose of attacking the
complainant’s credibility with respect to the factual
circumstances of this case.
However, we conclude that this error was harmless. If we
conclude that a trial court erred by excluding evidence, we
must consider whether the error resulted in a miscarriage of
justice. When the evidentiary error is preserved,
nonconstitutional error, we presume that the error is
harmless unless it appears from an examination of the entire
record that it is more probable than not that the error affected
the outcome.
Despite the trial court’s erroneous ruling on this single
statement, the trial court allowed Gunn to recall Officer Pate
to question him about several other inconsistencies between
the complainant’s statement in August 2008 and her
testimony at trial. Gunn argued in closing that complainant’s
testimony was too inconsistent to be believed, and that she
would not have confused the details if her testimony was
true. The single detail, although it was part of the factual
circumstances of the case, did not pertain directly to the
sexual assault. Since Gunn presented other evidence that the
complainant was not credible for the same reason that he
sought to introduce the excluded evidence, and the single
improperly excluded detail was minor, we do not think that
it is likely that this error affected the outcome of Gunn’s
case.
Gunn, 2013 WL 466289, at ** 2-3.
It does not appear that the Michigan Court of Appeals adjudicated the federal
constitutional aspect of this claim. Indeed, the court said that it was reviewing a
“nonconstitutional error.” Id. This Court therefore reviews Gunn’s claim de novo. Even
under this standard of review, Gunn is not entitled to federal habeas relief because to
14
the extent that the trial court erred when it limited the cross-examination of Officer Pate,
that error was harmless. For purposes of federal habeas review, a constitutional error
that implicates trial procedures is considered harmless if it did not have a “substantial
and injurious effect or influence in determining the jury's verdict.” Brecht v.
Abrahamson. See also Fry v. Pliler, 551 U.S. 112, 117-18 (confirming that the Brecht
standard applies in “virtually all” habeas cases); Ruelas v. Wolfenbarger, 580 F.3d 403,
412 (6th Cir. 2009) (“The answer in this Circuit is that Brecht is always the test, and
there is no reason to ask both whether the state court “unreasonably” applied [clearlyestablished federal law] under the AEDPA and, further, whether the constitutional error
had a ‘substantial and injurious’ effect on the jury's verdict”). Here, as the Michigan
Court of Appeals aptly noted when it resolved the state claim, Gunn’s counsel
questioned Officer Pate about a number of other inconsistent statements that the
complainant made, and Gunn’s counsel highlighted those inconsistencies during
closing arguments. Gunn has not demonstrated that the exclusion of this one additional
inconsistent statement had a “substantial and injurious effect … [on] the jury’s verdict.”
Brecht, 507 U.S. at 622. Gunn is therefore not entitled to federal habeas relief on this
claim.
D
Gunn next argues that the state trial court erred when it sentenced him because
the trial court improperly assessed 50 points for offense variable 7 (“OV 7”), aggravated
physical abuse. He also contends that his trial counsel was ineffective for failing to
15
object to the allegedly-wrongful scoring. The Michigan Court of Appeals reviewed
these claims on direct review and rejected them:
We do not think that trial court clearly erred when it scored
50 points for OV 7 under the facts in this case, because they
are not substantially similar. In Glenn, there was no evidence
that the robbery took place over a prolonged period. Here,
there was evidence that Gunn placed his hand on the
complainant’s neck and kept it there for a prolonged period,
while instructing her to drive. In Glenn, the defendant struck
each victim once and they did not suffer any injuries. Here,
Gunn jerked the complainant’s head around and battered the
complainant repeatedly, including with her cell phone. The
complainant’s injuries included extensive bruising,
tenderness, and a laceration on her face that required
stitches. The complainant testified that when she recognized
Gunn’s photograph nearly two years after the incident, she
began to cry. From the facts in this case, we conclude that it
was not clear error for the trial court to find that (1) Gunn
subjected the complainant to prolonged pain or humiliation
for his gratification, or (2) Gunn intended his conduct to
substantially increase the complainant’s fear and anxiety.
Under either of these circumstances, the trial court properly
scored 50 points for OV 7.
Gunn also argues that counsel was ineffective for failing to
challenge the trial court’s score for OV 7. Counsel is not
ineffective for making futile challenges. We have concluded
that the trial court did not err when it scored 50 points for
OV 7. Thus, Gunn’s ineffective assistance claim based on
OV 7 must fail.
Gunn, 2013 WL 466289, at ** 5-6.
To the extent that Gunn challenges the guidelines calculation on the merits, that
claim is not cognizable on federal habeas review because it is based solely on state law,
and “a federal court may not issue the writ on the basis of a perceived error of state
16
law.” Pulley v. Harris, 465 U.S. 37, 41 (1984). Therefore, Gunn’s claim that the state
trial court mis-scored OV7 when it determined the state sentencing guidelines is noncognizable on federal habeas review. See Howard v. White, 76 F. App’x 52, 53 (6th Cir.
20103).
Gunn’s ineffective assistance claim related to the alleged mis-scoring of OV7
also does not entitle him to federal habeas relief. Gunn has not shown that the state
court’s guidelines calculation was incorrect, and thus he has not and cannot show that
he suffered any prejudice from his counsel’s failure to object to that calculation. As
noted above, counsel does not render ineffective assistance when counsel fails to lodge
a futile objection. See Sanders, 404 F.at 986. Accordingly, Gunn is not entitled to
federal habeas relief on these claims.
E
Gunn next contends that the state trial court violated the ex post facto clauses of
the Michigan and United States constitutions when it imposed a $130 assessment versus
a $60 assessment.3 This claim fails because the imposition of a monetary fine is not
cognizable on federal habeas review. See Michaels v. Hackel, 491 F. App’x 670, 671
(6th Cir. 2012) (“reject[ing]” argument that petitioners could challenge fines imposed
by the state courts under Section 2254); Washington v. McQuiggin, 529 F. App’x 766,
3
Respondent argues that this claim is procedurally defaulted. However, because the
underlying merits of this claim are easily resolved, the Court will consider this claim.
See 28 U.S.C. § 2254(b)(2); Hudson, 351 F.3d at 216.
17
(6th Cir. 2013) (citing cases and noting that “[i]n general, fines or restitution orders fall
outside the scope of the federal habeas statute because they do not satisfy the ‘in
custody’ requirement of a cognizable habeas claim”). Gunn therefore is not entitled to
federal habeas relief on this claim.
F
Finally, Gunn contends that the state trial court mis-scored a second offense
variable, OV 8, related to victim asportation or captivity. The Michigan Court of
Appeals considered this claim on direct review and rejected it:
The jury acquitted Gunn of kidnapping, but this does not
mean that Gunn did not asport the victim for the purposes of
his sentencing guidelines score. A jury must find the
elements of a crime beyond a reasonable doubt, but the
sentencing court must find only that a preponderance of the
evidence supports a sentencing guideline score. The trial
court is not bound by the jury’s determination, as long as the
record evidence adequately supports its score.
We conclude that the record adequately supported the
court’s determination that Gunn asported the victim.
Asportation only requires that the defendant move the
victim, with or without force. A victim is asported to a
situation of greater danger if the victim is asported to a place
that a person is less likely to see the defendant commit the
crime. The complainant testified that Gunn forced her to
drive from the party store to a location near a school where
busses would pick up or drop off students. Donald also
testified that Gunn drove the complainant to the same
location. It is much more likely that a witness will observe a
crime occurring in a liquor store parking lot at midnight than
in a school bus lane at midnight. Thus, the record supported
the trial court’s determination that Gunn moved the
complainant to a location of greater danger, since there was
18
evidence that Gunn either moved the victim or forced the
victim to move to a location that was more secluded.
Gunn, 2013 WL 466289, at *6.
As addressed above, this state sentencing claim is not cognizable on federal
habeas review because it is based solely on state law. See Pulley, 465 U.S. 37. Gunn
is therefore not entitled to federal habeas relief on this claim.
As Gunn has failed to demonstrate entitlement to federal habeas relief with
respect to any of his claims, the Court will DENY his habeas petition (ECF #1).
IV
In order to appeal the Court’s decision, Gunn must obtain a certificate of
appealability. To obtain a certificate of appealability, a prisoner must make a substantial
showing of the denial of a constitutional right. See 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. See Slack
v. McDaniel, 529 U.S. 473, 483-84 (2000). A federal district court may grant or deny a
certificate of appealability when the court issues a ruling on the habeas petition. See
Castro v. United States, 310 F.3d 900, 901 (6th Cir. 2002).
Here, jurists of reason would not debate the Court’s conclusion that Gunn has
failed to demonstrate entitlement to habeas relief with respect to any of his claims
19
because they are all devoid of merit. Therefore, the Court will DENY Gunn a certificate
of appealability.
Finally, although this Court declines to issue Gunn a certificate of appealability,
the standard for granting an application for leave to proceed in forma pauperis on appeal
is not as strict as the standard for certificates of appealability. See Foster v. Ludwick,
208 F.Supp.2d 750, 764 (E.D. Mich. 2002). While a certificate of appealability may
only be granted if a petitioner makes a substantial showing of the denial of a
constitutional right, a court may grant in forma pauperis status if it finds that an appeal
is being taken in good faith. See id. at 764-65; 28 U.S.C. § 1915(a)(3); Fed. R.App.24
(a). Although jurists of reason would not debate this Court’s resolution of Gunn’s
claims, an appeal could be taken in good faith. Accordingly, the Court GRANTS Gunn
permission to proceed in forma pauperis on appeal.
V
Accordingly, for the reasons stated above, the Court 1) DENIES WITH
PREJUDICE Gunn’s petition for a writ of habeas corpus (ECF #1), 2) DENIES Gunn
a certificate of appealability, and (3) GRANTS Gunn permission to proceed in forma
pauperis on appeal.
IT IS SO ORDERED.
s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE
Dated: October 18, 2018
20
I hereby certify that a copy of the foregoing document was served upon the
parties and/or counsel of record on October 18, 2018, by electronic means and/or
ordinary mail.
s/Holly A. Monda
Case Manager
(810) 341-9764
21
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