Reign v. Gidley
OPINION AND ORDER (1) DENYING THE PETITION FOR WRIT OF HABEAS CORPUS,(2) DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY, AND (3) GRANTING LEAVE TO APPEAL IN FORMA PAUPERIS. Signed by District Judge Gershwin A. Drain. (TBan)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
MARCUS MAGNUM REIGN,
Case No. 2:17-cv-11692
Hon. Gershwin A. Drain
OPINION AND ORDER (1) DENYING THE PETITION FOR WRIT OF
HABEAS CORPUS,(2) DECLINING TO ISSUE A CERTIFICATE OF
APPEALABILITY, AND (3) GRANTING LEAVE TO APPEAL IN FORMA
Marcus Magnum Reign, (“Petitioner”), filed a petition for writ of habeas
corpus. Petitioner pled guilty in the Kent Circuit Court to armed robbery.
Petitioner was sentenced to a term of 9 to 30 years. Petitioner challenges his
sentence on two grounds: (1) the trial court relied on inaccurate information in
scoring the sentencing guidelines, and (2) the sentencing judge relied on facts
not admitted by Petitioner or determined beyond a reasonable doubt in
determining Petitioner’s sentence. The petition will be denied because
Petitioner’s claims are without merit. The Court will deny a certificate of
appealability, but it will grant leave to appeal in forma pauperis.
Petitioner was charged with armed robbery after he demanded money
from a person while pretending to possess a gun. Rather than stand trial,
Petitioner pled guilt to one count of armed robbery, and in exchange, the
prosecutor dismissed a habitual felony offender charge. Dkt. 6-3. Petitioner
was initially sentenced to 12 to 30 years. Dkt. 6-4.
Petitioner was appointed appellate counsel who filed a motion for
resentencing. The motion alleged that there were inaccuracies in the
presentencing information report, causing an incorrect scoring of the
sentencing guidelines. See Dkt. 6-5; Dkt. 6-6, at 6.
The trial court granted the motion in part, making the following pertinent
OV 13 is scored based on a continuing pattern of criminal
behavior. Twenty-five points are scored if “the offense was part of
a pattern of felonious criminal activity involving 3 or more crimes
against a person. MCL 777.43(1 )(c). Ten points are scored if [t]he
offense was part of a pattern of felonious criminal activity involving
a combination of 3 or more crimes against a person or property or
a violation of section 740l(2)(a)(i) to (iii) or section 7403(2)(a)(i) to
(iii) of the public health code.. . . MCL 777.43(l)(d). For determining
the appropriate points under this variable, all crimes within a
5-year period, including the sentencing offense, shall be counted
regardless of whether the offense resulted in a conviction. MCL
This variable was scored at 25 points. This was because of
the present offense and statements made by the prosecution
regarding two other robberies recently committed by defendant.
According to the prosecution, in one of the robberies defendant left
an item of clothing behind that contained his DNA, and in the other
robbery defendant can be seen on video stealing a purse. In the
present motion, defendant claims there was not evidence of the
crimes presented to the Court other than the prosecution’s
statements. Thus, defendant believes this should be scored at 0.
The prosecution acknowledges that there was an error in
scoring this variable. The robbery of the purse appears to have
been larceny from a building, which is a crime against property.
The prosecution has also provided police reports describing this
and the other robbery. Thus, there is documentation of a pattern
of felonious activity involving a combination of two crimes against
a person and one crime against property, which would support a
score of 10 points for OV 13.
Based on the foregoing, the current record only supports
scoring of OV 13 at 10 points, rather than 25.
OV 19 was scored at 10 points because it was determined
that defendant interfered with or attempted to interfere with the
administration of justice. MCL 777.49(c). This was based on
statements in the PSI regarding defendant giving investigators a
false name of Marcus Magnumreign, repeatedly stating he does
not have a middle name, claiming this was his true name, and
denying using the name Marcus Magnum Reign.
Defendant claims he legally changed his name from Marcus
Draper to Marcus Magnum Reign when he was in California and
he gave his correct name to law enforcement when he was
arrested. However, the statements in the PSI discuss defendants
use of the false name Marcus Magnumreign, without a middle
name, during the investigation prior to his arrest. Case law is clear
that “[p]roviding a false name to the police constitutes interference
with the administration of justice, and OV 19 may be scored, when
applicable, for this conduct. People v. Barbee, 470 Mich. 283, 288
(2004). OV 19 is properly scored.
Dkt. 6-7, Opinion and Order Dated May 18, 2015, at 3-4 (emphasis in original).
At the resentencing hearing, Petitioner’s counsel indicated that she had
an opportunity to review the revised presentencing information report. Dkt. 6-6,
at 8. She indicated that she filed written objections to the scoring of the
sentencing guidelines. Id. Based on the written objections, the trial court noted
that it lowered the scoring of Offense Variable 9 from ten points to zero points.
Id., at 9. The court also indicated that Offense Variable 13 was lowered from
twenty-five points to ten points. Id. The Court indicated that the prosecutor had
failed to provide any information to justify scoring points for Offense Variable
9. Id. Petitioner’s challenge to Offense Variable 19, regarding Petitioner’s
alleged use of a false name, was rejected in the court’s order. The court noted
that the new scoring of the guidelines called for a minimum sentence between
81 and 135 months. Id.
Defense counsel then asserted that she was still challenging the scoring
of points for Offense Variable 13, regarding prior criminal conduct, because the
prior armed robbery offense was never charged. Id., at 10. Defense counsel
noted that the description of the perpetrator in that case did not match
Petitioner. Id. Petitioner was given an opportunity to personally address the
court. Id., at 12-13. The court then sentenced Petitioner to 10 to 30 years. Id.,
New appellate counsel was subsequently appointed to represent
Petitioner, and counsel filed another motion for resentencing, asserting that
former appellate counsel had misstated the recalculated guideline range. The
motion was granted in part, and the trial court resentenced Petitioner to a term
of 9 to 30 years. Dkt. 6-7, Delayed Application for Leave to Appeal, Appendix
A. The trial court noted in its order with respect to Petitioner’s claim that the
court should not have considered a California charge against Petitioner: “the
Court already amended the section of the PSI referencing the alleged assault
in California, and the PSI now includes defendants claim that he did not
assault anyone and the case was dismissed. Defendant has not provided any
additional documentation or argument that would justify removing this charge
that appears on his record.” Dkt. 6-7, Opinion and Order Granting in Part
Defendant’s Motion for Resentencing, at 2-3.
Petitioner’s appellate counsel then filed an application for leave to appeal
in the Michigan Court of Appeals, raising the following claim:
I. The trial court used inaccurate information in scoring offense
variables 13 and 19.
Petitioner also filed a pro se supplemental brief, raising the following
I. The trial court abused its discretion when it denied his motion to
resentence based on People v. Lockridge, 870 N.W.2d 502 (Mich.
2015) because the judge used judicially found facts.
II. Resentencing before a different judge is warranted.
III. Inaccuracies in Reign’s PSIR including with regard to his name
should be corrected.
The Michigan Court of Appeals affirmed Petitioner’s conviction for “lack
of merit in the grounds presented.” People v. Reign, No. 332031, at *1 (Mich.
Ct. App. May 24, 2016).
Petitioner subsequently filed an application for leave to appeal in the
Michigan Supreme Court, raising the following claims:
I. The trial court used inaccurate information in scoring offense
variables 13 and 19.
II. The trial court abused its discretion when it denied his motion to
resentence based on People v. Lockridge, 870 N.W.2d 502 (Mich.
2015) because the judge used judicially found facts.
III. Resentencing before a different judge is warranted.
IV. Inaccuracies in Reign’s PSIR including with regard to his name
should be corrected.
V. Ineffective assistance of appellate counsel for not arguing
against OV4 as well as not raising the issue of errors in the PSIR.
The Michigan Supreme Court denied the application because it was not
persuaded that the questions presented should be reviewed by the Court.
People v. Reign, 887 N.W.2d 422 (Mich. 2016) (Table).
II. Standard of Review
Title 28 U.S.C. § 2254(d)(1) curtails a federal court’s review of
constitutional claims raised by a state prisoner in a habeas action. Relief is
barred under this section unless the state court adjudication was “contrary to”
or resulted in an “unreasonable application of” clearly established Supreme
“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 [this] precedent.’” Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003) (per
curiam) (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000)).
“[T]he ‘unreasonable application’ prong of the statute 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) (quoting Williams, 529 U.S. at 413.). “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) (quoting Yarborough v.
Alvarado, 541 U.S. 652, 664 (2004)); see also Woods v. Etherton, 136 S. Ct.
1149, 1152-53, 194 L. Ed.2d 333, 2016 WL 1278478 (2016) (per curiam)
(habeas relief precluded if state court decision is “not beyond the realm of
possibility [from what] a fairminded jurist could conclude.”)
“Section 2254(d) reflects the view that habeas corpus is a guard against
extreme malfunctions in the state criminal justice systems, not a substitute for
ordinary error correction through appeal.” Richter, 562 U.S. at 103. “As a
condition for obtaining habeas corpus from a federal court, a state prisoner
must show that the state court’s ruling on the claim being presented in federal
court was so lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fairminded
1. Inaccurate Sentencing Information
Petitioner first asserts that the trial court relied on inaccurate information
in scoring the sentencing guidelines. Specifically, he asserts that the trial court
relied on uncharged crimes in scoring points for the offense variable
concerning a continuing pattern of criminal behavior. He claims that he did not
commit those prior uncharged offenses, and the information relied on by the
prosecution to assert that he was responsible for the prior offenses was wrong.
Similarly, Petitioner asserts that the variable concerning interfering with the
administration of justice by using a false name was incorrect. He asserts that
he changed his legal name while living in California to “Marcus Magnum
Reign,” that “Magnum Reign” is his last name, and that he does not have a
middle name. He therefore concludes that when he told police he did not have
a middle name, it was a true statement.
First, with respect to the propriety of the scoring of the sentencing
guidelines under Michigan law, Petitioner’s claim is not cognizable. Claims
concerning the improper application of sentencing guidelines are state-law
claims and typically are not cognizable in habeas corpus proceedings. See
Hutto v. Davis, 454 U.S. 370, 373-74 (1982) (federal courts normally do not
review a sentence for a term of years that falls within the limits prescribed by
the state legislature); Austin v. Jackson, 213 F.3d 298, 301-02 (6th Cir. 2000)
(alleged violation of state law with respect to sentencing is not subject to
federal habeas relief).
With respect to the alleged use of false or incorrect information in
imposing sentence, to warrant federal habeas relief based on a claim that a
defendant was sentenced based on inaccurate information, the defendant
must show that he was sentenced “based on extensively and materially false
information” that he had no opportunity to correct. Potter v. Yukins, 6 F. App’x
295, 296 (6th Cir. 2001) (citing Roberts v. United States, 445 U.S. 552, 556
(1980)); see United States v. Tucker, 404 U.S. 443, 447-49 (1972); Townsend
v. Burke, 334 U.S. 736, 741 (1948).
Here, the trial court heard all of Petitioner’s challenges when it decided
his motion for resentencing and at the two resentencing hearings. The trial
court found that sufficient evidence existed regarding the prior crimes after the
prosecution provided police reports describing two of the crimes. The trial court
also found that Petitioner used the incorrect name “Marcus Magnumreign”
during the investigation prior to his arrest. Petitioner continues to dispute these
conclusions, but the trial court stated that it had information before it sufficient
to support the allegations.
The prosecutor outlined the evidence in the state courts as follows:
[The prior offense variable] was scored due to the present
conviction from defendant’s actions on June 23, 2014, along with
evidence from two other offenses occurring in May and June.
Specifically, just four days after the present offense, a CVS
Pharmacy was robbed in much the same way as the Walgreen’s
Pharmacy– an individual wearing a black hooded sweatshirt and
matching defendant’s general description (black male in his 30’s,
light skinned, around 5’8”) went up to the cashier and demanded
all of the cash from the register. The robber fled from the store
heading north. Within hours of the robbery, a citizen found a black
hooded sweatshirt a block north of the pharmacy and called police;
defendant’s DNA was located on that hooded sweatshirt. Contrary
to defendant’s assertion, the police report concerning this crime
notes references [sic] DNA evidence being obtained and submitted
from the sweatshirt. A month earlier, defendant was caught on a
surveillance tape stealing money from a woman’s purse at a local
After receiving a description of Reign following the robbery,
the PSIR Agent’s Description continues:
A K-9 track led GRPD to a nearby apartment complex
where residents identified a possible suspect as
“Marcus in Apt. #327.” On 03/24/14, GRPD contacted
Reign at his residence and he provided a false name
of Marcus Magnumreign. He repeatedly stated he
does not have a middle name, claimed this was his
true name, and denied using the name Marcus
Magnum Reign. He was later identified properly as the
defendant and found to have multiple warrants in
California under his legal name of Marcus Draper.
Dkt. 6-7, Answer in Opposition to Application for Leave to Appeal, at 3-4.
Accordingly, at the resentencing hearing as well as in the proceedings
held on Petitioner’s motion for resentencing, Petitioner was afforded a full and
fair opportunity to raise his challenges to the accuracy of the information in the
presentence report regarding his prior charges and the use of an incorrect
name. The trial court discussed the challenges and considered the
prosecutor’s response and the information it had supporting the scoring of the
challenged offense variables. The trial court’s consideration of “ evidence of
crimes for which the defendant was not tried, does not amount to a
constitutional violation.” McPhail v. Renico, 412 F. Supp.2d 647, 653
(E.D.Mich. 2006) (citing Collins v. Buchkoe, 493 F.2d 343, 345 (6th Cir.1974)).
The findings of the trial court were not based on speculation or
conjecture but found support in the police reports proffered by the prosecutor.
Petitioner disputed the information, but nevertheless the court found the
information reliable enough to consider when imposing sentence.
“[S]entencing courts have traditionally heard evidence and found facts [at
sentencing] without any prescribed burden at all.” McMillan v. Pennsylvania,
477 U.S. 79, 91 (1986)(citing Williams v. New York, 337 U.S. 241 (1949) and
declining to establish a constitutional burden of proof at sentencing).
Because Petitioner was afforded an opportunity to challenge the
information relied upon by the trial court to determine his sentence, his federal
constitutional right to be sentenced based on accurate information was not
violated. Petitioner was afforded the opportunity to address and correct the
alleged inaccuracies, satisfying his due process rights. See Thomas v.
Berghuis, 2015 U.S. App. LEXIS 16497, *12, 2015 WL 53136362 (6th Cir. Sep.
10, 2015). Petitioner’s first claim is therefore without merit.
2. Right to Jury Trial on Facts Used to Determine Sentence
Petitioner also claims that his Sixth Amendment right to a jury trial was
violated because there was no jury finding beyond a reasonable doubt that he
committed the disputed prior offenses or used a false name.
The United States Supreme Court ruled that any fact that increases the
mandatory minimum sentence for a crime is an element of the criminal offense
that must be proven beyond a reasonable doubt. See Alleyne v. United States,
133 S. Ct. 2151, 2155, 186 L. Ed. 2d 314 (2013). Alleyne is an extension of the
Supreme Court’s holdings in Apprendi v. New Jersey, 530 U.S. 466 (2000) and
Blakely v. Washington, 542 U.S. 296 (2004), in which the Supreme Court held
that any fact that increases or enhances a penalty for a crime beyond the
prescribed statutory maximum for the offense must be submitted to the jury
and proven beyond a reasonable doubt.
Alleyne, however, is inapplicable to Petitioner’s case because Alleyne
“dealt with judge-found facts that raised the mandatory minimum sentence
under a statute, not judge-found facts that trigger an increased guidelines
range.” See United States v. Cooper, 739 F.3d 873, 884 (6th Cir. 2014); see
also United States v. James, 575 F. App'x 588, 595 (6th Cir. 2014)
(unpublished) (collecting cases and noting that at least four post-Alleyne
unanimous panels of the Sixth Circuit have “taken for granted that the rule of
Alleyne applies only to mandatory minimum sentences.”); Saccoccia v. Farley,
573 F. App'x 483, 485 (6th Cir. 2014) (unpublished) (“But Alleyne held only
that ‘facts that increase a mandatory statutory minimum [are] part of the
substantive offense.’ . . . It said nothing about guidelines sentencing factors .
. . .”). Petitioner’s claim concerns judicial findings that set the guideline range
for his minimum sentence. The Sixth Circuit has ruled that Alleyne did not
decide the question whether judicial fact-finding under Michigan’s
indeterminate sentencing scheme violates the Sixth Amendment. See Kittka
v. Franks, 539 F. App'x 668, 673 (6th Cir. 2013) (unpublished).
Petitioner points to the fact that the Michigan Supreme Court relied on
the Alleyne decision in holding that Michigan’s Sentencing Guidelines scheme
violates the Sixth Amendment right to a jury trial. See People v. Lockridge, 498
Mich. 358 (July 29, 2015). Petitioner cannot rely on a state court decision,
however, to obtain federal habeas corpus relief. The section 2254(d) standard
of review prohibits the use of lower court decisions in determining whether a
habeas petitioner’s federal constitutional rights were violated. See Miller v.
Straub, 299 F. 3d 570, 578-579 (6th Cir. 2002). “The Michigan Supreme
Court’s decision in Lockridge does not render the result ‘clearly established’
for purposes of habeas review.” Haller v. Campbell, No. 1:16-CV-206, 2016
U.S. Dist. LEXIS 35151, 2016 WL 1068744, at *5 (W.D. Mich. Mar. 18, 2016).
Accordingly, Petitioner’s second claim is likewise without merit.
As both of Petitioner’s claims are meritless, the petition will be denied.
IV. Certificate of Appealability
Federal Rule of Appellate Procedure 22 provides that an appeal may not
proceed unless a certificate of appealability (“COA”) is issued under 28 U.S.C.
§ 2253. A COA 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). When
a district court denies a habeas petition on the merits of the claims presented,
a certificate may issue if the 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 (2000). In this case, the Court
concludes that reasonable jurists would not debate the Court’s conclusion that
the petition should be denied because the claims it raises are devoid of merit.
Therefore, the Court denies a certificate of appealability.
Leave to appeal in forma pauperis will be granted because an appeal of
this order could be taken in good faith. 28 U.S.C. § 1915(a)(3).
Accordingly, for the foregoing reasons,
IT IS ORDERED that the petition for a writ of habeas corpus is DENIED.
IT IS FURTHER ORDERED that a certificate of appealability shall not
issue in this matter.
IT IS FURTHER ORDERED that permission to proceed on appeal in
forma pauperis is GRANTED.
Dated: October 31, 2017
/s/Gershwin A. Drain
GERSHWIN A. DRAIN
United States District Judge
CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
October 31, 2017, by electronic and/or ordinary mail.
/s/ Tanya Bankston
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