Warsaw v. Palmer

Filing 7

OPINION and ORDER Denying the Petition to Compel Production of Transcripts 3 , Denying the Petition for a Stay 4 , and Summarily Dismissing the Habeas Corpus Petition 1 . Signed by District Judge Denise Page Hood. (LSau)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

CALVIN DARNELL WARSAW,
Petitioner,
CASE NO. 16-12786
HONORABLE DENISE PAGE HOOD

v.
CARMEN PALMER,
Respondent.
_______________________________/

OPINION AND ORDER
DENYING THE PETITION TO COMPEL
PRODUCTION OF TRANSCRIPTS [3],
DENYING THE PETITION FOR A STAY [4], AND
SUMMARILY DISMISSING THE HABEAS CORPUS PETITION [1]
On July 27, 2016, petitioner Calvin Darnell Warsaw (Warsaw) filed a pro se
habeas corpus petition, challenging his state convictions for second-degree murder,
Mich. Comp. Laws § 750.317, and possession of a firearm during the commission
of a felony (felony firearm), Mich. Comp. Laws § 750.227b. Warsaw asserts as
grounds for relief that: (1) the trial court abused its discretion when it failed to
correct information in his pre-sentence report; (2) he should have been given an
opportunity to contest enforcement of a court order to pay attorney fees; and (3) he
was sentenced on the basis of incorrect sentencing guidelines. Also pending before

the Court are Warsaw’s petitions to compel production of transcripts and to stay
these proceedings while he exhausts state remedies for his third claim.
The Court has determined that none of Warsaw’s habeas claims are
cognizable on habeas corpus review. Accordingly, the habeas petition will be
summarily dismissed, and the petitions for transcripts and a stay will be denied.
I. Background
Warsaw alleges that, in 2014, he pleaded guilty to two counts of seconddegree murder and one count of felony firearm and that, on July 1, 2014, the trial
court sentenced him to prison for thirty-three to fifty years. Warsaw states that he
raised his first two habeas claims in the Michigan Court of Appeals, which denied
his appeal for lack of merit in the grounds presented, and that he raised the same
two claims in the Michigan Supreme Court. On June 30, 2015, the Michigan
Supreme Court denied leave to appeal because it was not persuaded to review the
issues. See People v. Warsaw, 498 Mich. 854; 864 N.W.2d 573 (2015). On July
27, 2016, Warsaw filed his habeas corpus petition, his petition for transcripts, and
his petition to stay these proceedings.
II. Analysis
As a preliminary matter, the Court notes that Warsaw apparently failed to
raise his third claim regarding the sentencing guidelines in the Michigan Court of

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Appeals and in the Michigan Supreme Court. The doctrine of exhaustion of state
remedies requires state prisoners to invoke one complete round of a state’s
established appellate review process before presenting their claims to a federal
court in a habeas corpus petition. O’Sullivan v. Boerckel, 526 U.S. 838, 845
(1999). The exhaustion requirement, however, is not jurisdictional, Castille v.
Peoples, 489 U.S. 346, 349 (1989), and none of Warsaw’s claims are cognizable
on habeas review. Consequently, it would be a waste of judicial resources to
require Warsaw to exhaust state remedies for his third claim. The Court therefore
denies Warsaw’s petition for a stay and proceeds to analyze the merits of his
claims.
A. The Pre-Sentence Report
The first habeas claim alleges that the trial court abused its discretion and
violated state law when it failed to correct information in Warsaw’s pre-sentence
report.

Warsaw states that his sentencing guidelines were reduced before

sentencing, but the changes were not reflected in his pre-sentence report. Warsaw
seeks to have his case remanded to the state trial court for correction of the presentence report.
Although Warsaw argues that he has a due process right to have his presentence report corrected, the primary basis for his claim is Mich. Comp. Laws §

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771.14(6) and Michigan Court Rule 6.425(E)(2), which require a pre-sentence
report to be amended before the report is transmitted to the Michigan Department
of Corrections. Even if the trial court violated § 771.14(6) and Rule 6.425(E)(2),
“[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). “In
conducting habeas review, a federal court is limited to deciding whether a
conviction violated the Constitution, laws, or treaties of the United States.” Estelle
v. McGuire, 502 U.S. 62, 68 (1991).
Furthermore, “the mere presence of . . . inaccurate information in a [presentence report] does not constitute a denial of due process.” Hili v. Sciarrotta,
140 F.3d 210, 216 (2nd Cir. 1998). The Court therefore declines to grant relief on
Warsaw’s first claim, as his claim is a state-law issue, which does not entitle him to
relief. Rodriguez v. Jones, 625 F. Supp. 2d 552, 569 (E.D. Mich. 2009).
B. The Assessment of Court Costs
Warsaw alleges next that the trial court ordered him to pay a fee of $400.00
for his court-appointed attorney. Warsaw states that the fee is currently being
deducted from his prison account and that he had a constitutional right to notice
that the trial court was enforcing its order. Warsaw also claims that he had a right
to contest the court’s action on the basis of his inability to pay the fees. He wants

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this Court to order the state court to amend or revoke its order for payment of
attorney fees.
State prisoners are entitled to the writ of habeas corpus only if they are “in
custody in violation of the Constitution or laws or treaties of the United States.”
28 U.S.C. § 2254(a). And the traditional purpose of the writ of habeas corpus is to
challenge the fact or length of confinement and to obtain release from unlawful
confinement. Preiser v. Rodriguez, 411 U.S. 475, 499-500 (1973).
Warsaw’s challenge to the assessment of court-appointed attorney fees does
not challenge his confinement in prison. Therefore, his claim is not cognizable on
federal habeas review. Fisher v. Booker, No. 08-10029, 2006 WL 2420229, at *9
(E.D. Mich. Aug. 22, 2006) (unpublished). The Supreme Court, moreover, has
said that states may require a convicted person to repay the State for the costs of
providing him with counsel if he acquires the means to pay for his legal defense.
See Fuller v. Oregon, 417 U.S. 40 (1974); see also United States v. Wilson, 597
F.3d 353, 358 (6th Cir. 2010) (interpreting 18 U.S.C. § 3006A and stating “that a
court has authority . . . to order ‘financially able’ defendants to pay for legal
services already provided on a backward-looking basis”).
Furthermore, the trial court’s action in this case appears to be consistent with
Michigan statutes, which “give Michigan trial courts the power to both impose a

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fee for a court-appointed attorney as part of a defendant’s sentence and to enforce
that imposition against an imprisoned defendant.” People v. Jackson, 483 Mich.
271, 283; 769 N.W.2d 630, 637 (2009). The statutes allow trial courts to recoup
the costs of court-appointed counsel by authorizing the Michigan Department of
Corrections to take funds from an inmate’s prison account, irrespective of a
defendant’s ability to pay.

Id., 483 Mich. at 284; 769 N.W.2d at 638.

A

preliminary assessment of the prisoner’s ability to pay is made before the
Department of Corrections takes funds from the prisoner, id., 483 Mich. at 295;
769 N.W.2d at 643, and a prisoner may petition the trial court to reduce or
eliminate the amount that the remittance order requires him to pay. Id., 483 Mich.
at 296; 769 N.W.2d at 644.
The Court concludes that Warsaw’s claim is not cognizable here and that his
remedy is with the state court. The Court therefore declines to grant relief on the
basis of Warsaw’s second claim.
C. The Sentencing Guidelines
In this third and final claim, Warsaw alleges that his sentencing guidelines
were modified at sentencing, but the trial court simply put lines through the
incorrect scores of three offense variables and left the incorrect scores legible.
Warsaw also contends that the minimum sentencing range was never adjusted to

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reflect the correct guidelines and that his sentence exceeded the correct sentencing
guidelines. He seeks to be re-sentenced under the correct sentencing guidelines.
The state court’s application of its sentencing laws and guidelines “is a
matter of state concern only,” Howard v. White, 76 F. App’x 52, 53 (6th Cir.
2003), and “federal habeas corpus relief does not lie for errors of state law.” Lewis
v. Jeffers, 497 U.S. 764, 780 (1990).

Therefore, Warsaw’s challenge to the

sentencing guidelines range and the state court’s application of the sentencing
guidelines does not raise a cognizable claim on habeas review.
III. Conclusion
Warsaw has not demonstrated that he is “in custody in violation of the
Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). The
Court therefore dismisses Warsaw’s habeas petition pursuant to Rule 4 of the
Rules Governing Section 2254 Cases in the United States District Courts, which
“provides that district courts ‘must promptly examine’ state prisoner habeas
petitions and must dismiss the petition ‘[i]f it plainly appears . . . that the petitioner
is not entitled to relief.’ ” Day v. McDonough, 547 U.S. 198, 207 (2006); see also
Martin v. Overton, 391 F.3d 710, 714 (6th Cir. 2004) (stating that Rule 4 “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’ ”).

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The Court denies as moot the petition to compel transcripts (ECF No. 3) and
the petition for a stay (ECF No. 4). Finally, the Court declines to issue a certificate
of appealability because reasonable jurists would not disagree with the Court’s
resolution of Warsaw’s claims, nor conclude that the issues presented deserve
encouragement to proceed further. Miller-El v. Cockrell, 537 U.S. 322, 327 (2003)
(citing Slack v. McDaniel, 529 U.S. 473, 484 (2000)). Warsaw nevertheless may
proceed in forma pauperis on appeal if he appeals this Court’s decision, because he
was permitted to proceed in forma pauperis in this Court.

Fed. R. App. P.

24(a)(3).
Dated: October 12, 2016
s/Denise Page Hood
CHIEF UNITED STATES DISTRICT JUDGE

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