Raisbeck v. Stewart

Filing 13

OPINION and ORDER Denying the Petition for a Writ of Habeas Corpus 1 , Denying A Certificate of Appealability, and Denying Leave to Proceed In Forma Pauperis on Appeal. Signed by District Judge Denise Page Hood. (LSau)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

TONYA RAISBECK,
Petitioner,
CASE NO. 2:16-CV-13754
HONORABLE DENISE PAGE HOOD

v.
ANTHONY STEWART,
Respondent.
____________________________/

OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF
HABEAS CORPUS, DENYING A CERTIFICATE OF APPEALABILITY,
AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
I.

Introduction
This is a pro se habeas action brought pursuant to 28 U.S.C. § 2254. Tonya

Raisbeck (“Petitioner”) was convicted of one count of conducting a criminal
enterprise/racketeering following a jury trial in the Allegan County Circuit Court and
was sentenced to three to 20 years imprisonment in 2013. In her petition, she
challenges the sufficiency of the evidence to support her conviction. At the time
she instituted this action, Petitioner was confined at the Huron Valley Women’s
Correctional Facility in Ypsilanti, Michigan. She was released on parole in October,
2016 and discharged from state custody in October, 2017. See Offender Profile,
Michigan Department of Corrections Offender Tracking Information System

(“OTIS”), http://mdocweb.state.mi.us/otis2profile.aspx?mdocNumber=815316. For
the reasons set forth, the Court denies habeas relief. The Court also denies a
certificate of appealability and denies leave to proceed in forma pauperis on
appeal.
II.

Facts and Procedural History
Petitioner’s conviction arises from her actions in forming a mortgage-related

business in 2008, soliciting clients and promising to obtain mortgage modifications
for them, taking money from those clients in 2009 and 2010, and then not providing
the promised services. The Michigan Court of Appeals described the underlying
facts, which are presumed correct on habeas review, 28 U.S.C. § 2254(e)(1);
Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009), as follows:
In the summer of 2010, Special Agent John C. Mulvaney headed an
investigation into Mobile Modification, Inc. (MMI), a business
incorporated by Raisbeck in 2008. MMI operated from a location in
Fennville. For a fee, MMI promised to obtain mortgage modifications
for its customers. Mulvaney's investigation began after several
complaints were received that MMI would collect its fees, but provide
nothing to its customers. On July 27, 2010, Raisbeck was arrested on
misdemeanor charges and presented with a search warrant for the
premises on which the business operated. Raisbeck allowed agents
to search the premises. Through this search, agents discovered 195
customer files. After reviewing these files, it did not appear that a
single modification had been successfully completed.
Raisbeck was initially prosecuted in Allegan County in case numbers
10–017019–FH and 10–017020–FH. These cases concerned six
victims. Ultimately, Raisbeck was convicted of two counts of false
2

pretenses more than $1,000 but less than $20,000. She was also
convicted of one count of conspiracy to commit false pretenses. While
preparing for this first trial, Mulvaney became aware of additional
victims of MMI. After these initial cases concluded, Special Agent Pete
Ackerly took over the investigation. Ackerly identified several additional
victims. In January 2012, Raisbeck was charged with racketeering in
case number 12–017853–FH, the case from which the instant appeal
arises. On September 6, 2013, after a lengthy trial, a jury convicted
Raisbeck of one count of racketeering. Through a special verdict form,
the jury concluded that Raisbeck defrauded nine individual victims of
a total of $7,752.4
4

Specifically, the jury found that Raisbeck defrauded three victims of
$994 each, and six victims of $795 each. The jury found that Raisbeck
had not defrauded three additional victims.

People v. Raisbeck, 312 Mich. App. 759, 760-62, 882 N.W.2d 161 (2015)
(irrelevant footnotes omitted).
Following her conviction and sentencing, Petitioner filed an appeal of right
with the Michigan Court of Appeals raising claims concerning the sufficiency of the
evidence, sentencing credit, and restitution.

The court denied relief on the

sufficiency of the evidence and sentencing credit claims, but granted relief on the
restitution claim. The court vacated the judgment of sentence with respect to
restitution, remanded the case for entry of an order containing the proper
restitution amount, and affirmed Petitioner’s conviction in all other respects. Id. at
763-73. Petitioner filed an application for leave to appeal with the Michigan
Supreme Court, which was denied in a standard order. People v. Raisbeck, 499

3

Mich. 871, 875 N.W.2d 224 (2016).

Petitioner also filed a motion for

reconsideration, which was denied. People v. Raisbeck, 499 Mich. 973, 880
N.W.2d 538 (2016).
Petitioner dated her federal habeas petition on October 20, 2016. She
challenges the sufficiency of the evidence to support her conviction. Specifically,
she asserts:
I.

The state appellate court unreasonably applied the proof beyond
a reasonable doubt constitutional standard where the state court
applied the standard to the facts and then relied upon an
unsupported prosecutorial theory to affirm a racketeering
conviction.

II.

The state appellate court unreasonably determined that an
unsupported prosecutorial theory of aggregation was fact,
despite there being no record evidence to support such a finding,
and it being in complete opposition to the factual findings made
by the jury on the special verdict form.

Respondent has filed an answer to the petition contending that it should be denied
for lack of merit. Petitioner has filed a reply to that answer.
III.

Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),

codified at 28 U.S.C. § 2241 et seq., sets forth the standard of review that federal
courts must use when considering habeas petitions brought by prisoners
challenging their state court convictions. The AEDPA provides, in relevant part:

4

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.

28 U.S.C. §2254(d) (1996).
“A state court’s decision is ‘contrary to’ . . . clearly established law if it
‘applies a rule that contradicts the governing law set forth in [Supreme Court
cases]’ or if it ‘confronts a set of facts that are materially indistinguishable from a
decision of [the Supreme] Court and nevertheless arrives at a result different from
[that] precedent.’” Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003) (per curiam)
(quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000)); see also Bell v. Cone,
535 U.S. 685, 694 (2002).
“[T]he ‘unreasonable application’ prong of § 2254(d)(1) permits a federal
habeas court to ‘grant the writ if the state court identifies the correct governing
legal principle from [the Supreme] Court but unreasonably applies that principle
to the facts of petitioner’s case.” Wiggins v. Smith, 539 U.S. 510, 520 (2003)
5

(quoting Williams, 529 U.S. at 413); see also Bell, 535 U.S. at 694. However, “[i]n
order for a federal court to find a state court’s application of [Supreme Court]
precedent ‘unreasonable,’ the state court’s decision must have been more than
incorrect or erroneous. The state court’s application must have been ‘objectively
unreasonable.’”

Wiggins, 539 U.S. at 520-21 (citations omitted); see also

Williams, 529 U.S. at 409. “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, 559 U.S. 766, 773 (2010) (quoting
Lindh, 521 U.S. at 333, n. 7; Woodford v. Viscotti, 537 U.S. 19, 24 (2002) (per
curiam)).
The United States Supreme Court has held that “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, 562 U.S. 86, 101 (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)). 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

6

fairminded jurists could disagree that those arguments or theories are inconsistent
with the holding in a prior decision” of the Supreme Court. Id. In order to obtain
federal habeas relief, a state prisoner must show that the state court’s rejection
of a 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.; see also White v. Woodall, _ U.S. _, 134 S. Ct. 1697, 1702
(2014). Federal judges “are required to afford state courts due respect by
overturning their decisions only when there could be no reasonable dispute that
they were wrong.” Woods v. Donald, _ U.S. _, 135 S. Ct. 1372, 1376 (2015). A
habeas petitioner cannot prevail as long as it is within the “realm of possibility” that
fairminded jurists could find the state court decision to be reasonable. Woods v.
Etherton, _ U.S. _, 136 S. Ct. 1149, 1152 (2016).
Section 2254(d)(1) limits a federal court’s review to a determination of
whether the state court’s decision comports with clearly established federal law
as determined by the Supreme Court at the time the state court renders its
decision. Williams, 529 U.S. at 412; see also Knowles v. Mirzayance, 556 U.S.
111, 122 (2009) (noting that the Supreme Court “has held on numerous occasions
that it is not ‘an unreasonable application of clearly established Federal law’ for
a state court to decline to apply a specific legal rule that has not been squarely

7

established by this Court”) (quoting Wright v. Van Patten, 552 U.S. 120, 125-26
(2008) (per curiam)); Lockyer, 538 U.S. at 71-72. Section 2254(d) “does not
require a state court to give reasons before its decision can be deemed to have
been ‘adjudicated on the merits.’” Harrington, 562 U.S. at 100. Furthermore, it
“does not require citation of [Supreme Court] cases–indeed, it does not even
require awareness of [Supreme Court] cases, so long as neither the reasoning nor
the result of the state-court decision contradicts them.” Early v. Packer, 537 U.S.
3, 8 (2002); see also Mitchell, 540 U.S. at 16.
The requirements of “clearly established law” are to be determined solely by
Supreme Court precedent.

“[C]ircuit precedent does not constitute ‘clearly

established Federal law, as determined by the Supreme Court,’” and “[i]t therefore
cannot form the basis for habeas relief under AEDPA.” Parker v. Matthews, 567
U.S. 37, 48-49 (2012) (per curiam); see also Lopez v. Smith, _ U.S. _, 135 S. Ct.
1, 2 (2014) (per curiam). The decisions of lower federal courts may be useful in
assessing the reasonableness of the state court’s decision. Stewart v. Erwin, 503
F.3d 488, 493 (6th Cir. 2007) (citing Williams v. Bowersox, 340 F.3d 667, 671 (8th
Cir. 2003)); Dickens v. Jones, 203 F. Supp. 2d 354, 359 (E.D. Mich. 2002).
Lastly, a state court’s factual determinations are presumed correct on
federal habeas review. 28 U.S.C. § 2254(e)(1). A petitioner may rebut this

8

presumption with clear and convincing evidence. Warren v. Smith, 161 F.3d 358,
360-61 (6th Cir. 1998). Habeas review is also “limited to the record that was
before the state court.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011).
IV.

Discussion
Petitioner challenges the sufficiency of the evidence to support her

racketeering conviction. The Due Process Clause “protects the accused against
conviction except upon proof beyond a reasonable doubt of every fact necessary
to constitute the crime with which he is charged.” In re Winship, 397 U.S. 358,
364 (1970). The question on a sufficiency of the evidence claim is “whether, after
viewing the evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). The Jackson
standard must be applied “with explicit reference to the substantive elements of
the criminal offense as defined by state law.” Brown v. Palmer, 441 F.3d 347, 351
(6th Cir. 2006) (quoting Jackson, 443 U.S. at 324 n. 16).
A federal court views this standard through the framework of 28 U.S.C.
§ 2254(d). Martin v. Mitchell, 280 F.3d 594, 617 (6th Cir. 2002). Under the
AEDPA, challenges to the sufficiency of the evidence “must survive two layers of
deference to groups who might view facts differently” than a reviewing court on

9

habeas review – the factfinder at trial and the state court on appellate review – as
long as those determinations are reasonable. Brown v. Konteh, 567 F.3d 191,
205 (6th Cir. 2009). “[I]t is the responsibility of the jury – not the court – to decide
what conclusions should be drawn from the evidence admitted at trial.” Cavazos
v. Smith, 565 U.S. 1, 2 (2011) (per curiam). “A reviewing court does not re-weigh
the evidence or re-determine the credibility of the witnesses whose demeanor has
been observed by the trial court.” Matthews v. Abramajtys, 319 F.3d 780, 788 (6th
Cir. 2003) (citing Marshall v. Lonberger, 459 U.S. 422, 434 (1983)). Accordingly,
the “mere existence of sufficient evidence to convict . . . defeats a petitioner’s
claim.” Matthews, 319 F.3d at 788-89.
Applying the Jackson standard, the Michigan Court of Appeals denied relief
on this claim, stating as follows:
‘A challenge to the sufficiency of the evidence in a jury trial is
reviewed de novo, viewing the evidence in the light most favorable to
the prosecution, to determine whether the trier of fact could have
found that the essential elements of the crime were proved beyond a
reasonable doubt.’5
As this Court has explained:
[I]n order to find defendant guilty of racketeering, the jury
needed to find beyond a reasonable doubt that: (1) an
enterprise existed, (2) defendant was employed by or
associated with the enterprise, (3) defendant knowingly
conducted or participated, directly or indirectly, in the
affairs of the enterprise, (4) through a pattern of
10

racketeering activity that consisted of the commission of
at least two racketeering offenses that (a) had the same
or substantially similar purpose, result, participant, victim,
or method of commission, or were otherwise interrelated
by distinguishing characteristics and are not isolated acts,
(b) amounted to or posed a threat of continued criminal
activity, and (c) were committed for financial gain.[6]
Raisbeck challenges whether there was sufficient evidence to
demonstrate that she engaged in a pattern of racketeering activity. As
is provided by statute:
(c) “Pattern of racketeering activity” means not less than
2 incidents of racketeering to which all of the following
characteristics apply:
(i ) The incidents have the same or a substantially similar
purpose, result, participant, victim, or method of
commission, or are otherwise interrelated by
distinguishing characteristics and are not isolated acts.
(ii ) The incidents amount to or pose a threat of continued
criminal activity.
(iii ) At least 1 of the incidents occurred within this state on
or after the effective date of the amendatory act that
added this section, and the last of the incidents occurred
within 10 years after the commission of any prior incident,
excluding any period of imprisonment served by a person
engaging in the racketeering activity.[7]
To establish a pattern of racketeering activity, the prosecutor relied,
in part, on Raisbeck's previous false pretenses convictions. Raisbeck
argues that because the prosecutor only presented a single judgment
of sentence, which did not establish the precise dates on which she
committed the previous offenses, the prosecutor failed to establish the
third statutory element of racketeering. The essence of her argument
is that to satisfy this element, the crimes must have been committed
on separate dates, and without evidence of these specific dates, her
11

conviction cannot stand. Raisbeck is incorrect. Nothing in the statutory
definition of a “pattern of racketeering activity” requires that the
predicate criminal acts forming the basis of a racketeering conviction
occur on different dates. The statute simply requires that the last
criminal act occur within ten years of the previous criminal act,
excluding the time during which a defendant is imprisoned.8 The
criminal acts at issue in this case all occurred within a period of less
than ten years. Moreover, even excluding her previous false
pretenses convictions, Raisbeck's racketeering conviction would be
supported by the jury's conclusion that she defrauded nine additional
victims.9 Raisbeck's argument lacks merit.
Raisbeck also argues that the prosecutor did not present sufficient
evidence to establish that she engaged in “racketeering” as that term
is defined. “Racketeering” is defined, in relevant part, as committing
or conspiring to commit “[a] felony violation of [MCL 750.218],
concerning false pretenses.”10 Raisbeck argues that because no
single transaction exceeded the $1,000 threshold stated in MCL
750.218(4)(a), there exists no evidence that she committed a felony
violation of MCL 750.218. She argues that a prosecutor cannot
aggregate separate incidents to satisfy the monetary threshold of MCL
750.218(4)(a). Raisbeck is incorrect. To satisfy the monetary
threshold stated in MCL 750.218(4)(a), a prosecutor may aggregate
separate, but related, incidents that occur within any twelve-month
period.11 The prosecutor did so, aggregating 18 separate acts into five
violations of MCL 750.218(4)(a). Raisbeck does not dispute that the
separate incidents occurred within a period of twelve months, or that,
as aggregated, those violations satisfied the $1,000 threshold.12
Accordingly, Raisbeck's argument lacks merit.
5

People v. Gaines, 306 Mich. App. 289, 296, 856 N.W.2d 222 (2014).

6

People v. Martin, 271 Mich. App. 280, 321, 721 N.W.2d 815 (2006),
aff'd 482 Mich. 851, 752 N.W.2d 457 (2008).
7

MCL 750.159f(c).

8

MCL 750.159f(c)(iii).
12

9

The prosecutor aggregated these victims into three violations of MCL
750.218(4)(a) (false pretenses).
10

MCL 750.159g(w).

11

As is provided by Michigan's false pretenses statute, “The values of
land, interest in land, money, personal property, use of the instrument,
facility, article, or valuable thing, service, larger amount obtained, or
smaller amount sold or disposed of in separate incidents pursuant to
a scheme or course of conduct within any 12–month period may be
aggregated to determine the total value involved in the violation of this
section.” MCL 750.218(8).
12

Regardless, we note that the record reflects that the individual
incidents occurred in a period of nine months, from June 2008 to
February 2009. The record also demonstrates that, through a special
verdict form, the jury concluded that Raisbeck committed no less than
three violations of MCL 750.218(4)(a). These violations do not include
Raisbeck's previous convictions of false pretenses, which also formed
part of the basis for her racketeering conviction.

Raisbeck, 312 Mich. App. at 762-65.1
The state court’s decision is neither contrary to Supreme Court precedent
nor an unreasonable application of federal law or the facts. The evidence at trial,
including business and bank records, and the testimony of law enforcement
officers, bank officials, Petitioner’s secretary, and several victims showed that
Petitioner started a business, MMI, that she operated that business, that as part
of that business she solicited clients who had home mortgage difficulties and

1

The Court notes that the dates in footnote 12 appear to be incorrect as the
incidents occurred in 2009 and 2010.
13

promised them that she would seek modifications to their mortgages to prevent
foreclosures and reduce payments, that she took money from those clients for
financial gain, and that she did not provide the promised services. Those dealings
took place in Allegan County, Michigan primarily from March, 2009 through July,
2010 and involved nine clients who were defrauded of $7,752 (three at $994 each
and six at $795 each). The record also indicates that Petitioner was previously
convicted of two felony counts of false pretenses of $1,000 or more but less than
$20,000 (and one conspiracy count for the same) in the Allegan County Circuit
Court for similar actions that occurred with respect to six other clients in 2009.
Such testimony, and reasonable inferences therefrom, provided sufficient
evidence of Petitioner’s guilt of the racketeering offense. Petitioner challenges the
inferences the jury drew from the testimony presented at trial. However, it is the
job of the fact-finder at trial, not a federal habeas court, to resolve evidentiary
conflicts. Jackson, 443 U.S. at 326; Martin v. Mitchell, 280 F.3d 594, 618 (6th Cir.
2002); Walker v. Engle, 703 F.2d 959, 969-70 (6th Cir. 1983) (“A federal habeas
corpus court faced with a record of historical facts that supports conflicting
inferences must presume – even if it does not affirmatively appear in the record that the trier of fact resolved any such conflicts in favor of the prosecution, and
must defer to that resolution.”). The jury’s verdict was reasonable. The evidence
presented at trial, viewed in a light favorable to the prosecution, established
14

beyond a reasonable doubt that Petitioner formed a business enterprise, that she
operated and knowingly conducted its business, that she engaged in a pattern of
racketeering activity of two or more incidents of defrauding people as to mortgage
relief, with similar purposes, methods, and results, in a pattern of continuing
criminal activity, and that the incidents occurred in Michigan after the 1996
effective date of the statute, within 10 years of each other, and within a 12-month
period for the purpose of aggregating dollar amounts.
Petitioner also challenges the state court’s interpretation of the racketeering
statutes, such as the validity of aggregating the amounts defrauded from victims
and the use of the false pretense convictions as predicate acts. To the extent that
Petitioner contests the state court’s decision under state law or challenges its
statutory interpretation, however, she is not entitled to relief. It is well-settled that
“a state court’s interpretation of state law, including one announced on direct
appeal of the challenged conviction, binds a federal court sitting on habeas
review.” Bradshaw v. Richey, 546 U.S. 74, 76 (2005); see also Stumpf v.
Robinson, 722 F.3d 739, 746 n. 6 (6th Cir. 2013); Sanford v. Yukins, 288 F.3d
855, 860 (6th Cir. 2002). State courts are the final arbiters of state law and federal
courts will not intervene in such matters. Lewis v. Jeffers, 497 U.S. 764, 780
(1990); Oviedo v. Jago, 809 F.2d 326, 328 (6th Cir. 1987). Habeas relief does not
lie for perceived errors of state law. Estelle, 502 U.S. at 67-68. Habeas relief is
15

not warranted on such a basis.
V.

Conclusion
For the reasons stated, the Court concludes that Petitioner is not entitled to

federal habeas relief. Accordingly, the Court DENIES and DISMISSES WITH
PREJUDICE the petition for a writ of habeas corpus.
Before Petitioner may appeal this decision, a certificate of appealability
(“COA”) must issue. 28 U.S.C. § 2253(c)(1)(a); FED. R. APP. P. 22(b). A federal
court may issue a COA “only if the applicant has made a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). When a court denies
relief on the merits, the substantial showing threshold is met if the petitioner
demonstrates that reasonable jurists would find the court’s assessment of the
constitutional claim debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484-85
(2000). “A petitioner satisfies this standard by demonstrating that . . . jurists could
conclude the issues presented are adequate to deserve encouragement to
proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). When a court
denies relief on procedural grounds, a COA should issue if it is shown 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. Slack, 529 U.S. at

16

484-85.
Having considered the matter, the Court concludes that Petitioner fails to
make a substantial showing of the denial of a constitutional right as to her habeas
claim(s). Accordingly, the Court DENIES a COA. The Court also DENIES
Petitioner leave to proceed in forma pauperis on appeal as an appeal cannot be
taken in good faith. FED. R. APP. P. 24(a).
IT IS SO ORDERED.

S/Denise Page Hood
Denise Page Hood
Chief Judge, United States District Court
Dated: January 31, 2018
I hereby certify that a copy of the foregoing document was served upon counsel
of record on January 31, 2018, by electronic and/or ordinary mail.
S/LaShawn R. Saulsberry
Case Manager

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