Nichols v. Christiansen

Filing 7

OPINION AND ORDER DISMISSING CASE Signed by District Judge Paul D. Borman. (DTof)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DOMINICK TERRON NICHOLS,
Petitioner,

Civil No. 2:23-cv-10020
Honorable Paul D. Borman

v.
JOHN CHRISTIANSEN,
Respondent.
____________________________________________/
OPINION AND ORDER SUMMARILY DENYING THE PETITION FOR A
WRIT OF HABEAS CORPUS (ECF NO. 1), DECLINING TO ISSUE A
CERTIFICATE OF APPEALABILITY, AND DECLINING LEAVE TO
APPEAL IN FORMA PAUPERIS
Michigan prisoner Dominick Terron Nichols, confined at the St. Louis
Correctional Facility in St. Louis, Michigan, has filed a pro se petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254. (ECF No. 1.) Petitioner challenges
his sentence for his plea-based conviction for armed robbery, Mich. Comp. Laws §
750.529. For the reasons stated below, the petition for a writ of habeas corpus is
summarily denied with prejudice.
I.

BACKGROUND

On July 11, 2019, Petitioner pleaded guilty to one count armed robbery in
the Berrien County Circuit Court. On October 14, 2019, the state trial court
sentenced him to fourteen to fifty years’ imprisonment. Petitioner filed an

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application for leave to appeal in the Michigan Court of Appeals. In his
application, Petitioner argued that the trial court erred in scoring Offense Variables
(OV) 4, 12, 13, and 19 when computing his sentence. Petitioner requested that the
Michigan Court of Appeals remand his case for rescoring of his sentencing
guidelines.
On June 23, 2022, the Michigan Court of Appeals entered an order
remanding the case to the trial court for “the ministerial task of correcting
defendant’s Presentence Investigation Report and Sentencing Information Report
to reflect a five-point score for Offense Variable (OV) 12, MCL 777.42(1)(d), and
a zero-point score for OV 13, MCL 777.43(1)(g).” People v. Nichols, No. 361484
(Mich. Ct. App. June 23, 2022). (ECF No. 1, PageID.18.) In all other respects, the
Michigan Court of Appeals denied the application for lack of merit on the grounds
presented and concluded that Petitioner was not entitled to re-sentencing because
the scoring change did not alter his sentencing guidelines. Id. Petitioner attempted
to file a delayed application for leave to appeal in the Michigan Supreme Court,
which was denied as untimely. (ECF No. 1, PageID.22.)
Petitioner seeks a writ of habeas corpus on the ground that the Michigan
Court of Appeals failed to consider whether the trial court properly scored OV 4
and OV 19 and whether the trial court’s order to pay restitution for charges in a
dismissed criminal case was proper. (ECF No. 1, PageID.5.)
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II.

DISCUSSION

A. Standard of Review
A federal district court may summarily dismiss a habeas petition if it plainly
appears from its face or its exhibits that the petitioner is not entitled to federal
habeas relief. See Carson v. Burke, 178 F.3d 434, 436 (6th Cir. 1999); Rules
Governing § 2254 Cases, Rule 4, 28 U.S.C. foll. § 2254. The Sixth Circuit held
long ago that it “disapprove[s] the practice of issuing a show cause order [to the
respondent] until after the District Court first has made a careful examination of
the petition.” Allen v. Perini, 424 F.2d 134, 140 (6th Cir. 1970). A district court,
therefore, has the duty to screen out any habeas petition that lacks merit on its face.
Id. at 141. After undertaking the review required by Rule 4, this Court concludes
that Petitioner’s sentencing claim does not entitle him to habeas relief, such that
the petition for writ of habeas corpus must be summarily dismissed. See McIntosh
v. Booker, 300 F. Supp. 2d 498, 499 (E.D. Mich. 2004).
B. Petitioner’s Sentencing Claim
Petitioner alleges that the state trial court incorrectly scored the Michigan
Sentencing Guidelines by assessing points based upon a finding that the victim
suffered serious psychological injury requiring professional treatment (OV 4) and
on Petitioner’s interference with the administration of justice (OV 19). Petitioner

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also argues that trial court’s order to pay restitution for charges in a dismissed
criminal case was improper.
Petitioner’s claim that state trial court incorrectly scored or calculated his
sentencing guidelines range under the Michigan Sentencing Guidelines is not a
cognizable claim for federal habeas review because it is essentially a state law
claim. See Tironi v. Birkett, 252 F. App’x 724, 725 (6th Cir. 2007); Howard v.
White, 76 F. App’x 52, 53 (6th Cir. 2003). Errors in the application of state
sentencing guidelines cannot independently support habeas corpus relief. See
Kissner v. Palmer, 826 F.3d 898, 904 (6th Cir. 2016). Habeas petitioners have “no
state-created interest in having the Michigan Sentencing Guidelines applied rigidly
in determining his sentence.” See Mitchell v. Vasbinder, 644 F. Supp. 2d 846, 867
(E.D. Mich. 2009). And petitioners have “no federal constitutional right to be
sentenced within Michigan’s guideline minimum sentence recommendations.”
Doyle v. Scutt, 347 F. Supp. 2d 474, 485 (E.D. Mich. 2004). Therefore, habeas
relief is generally not warranted for this claim unless Petitioner can show that the
sentence imposed exceeded the statutory limits or is wholly unauthorized by law.
Lucey v. Lavigne, 185 F. Supp. 2d 741, 745 (E.D. Mich. 2001).
First, to the extent that Petitioner asserts that the state trial court violated his
Sixth and Fourteenth Amendment rights by relying upon facts neither admitted by
him nor proven beyond a reasonable doubt in imposing his sentence, he is not
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entitled to habeas corpus relief. Such a claim arises from the United States
Supreme Court’s decisions in Apprendi v. New Jersey, 530 U.S. 466 (2000),
Blakely v. Washington, 542 U.S. 296 (2004), and Alleyne v. United States, 570
U.S. 99 (2013). In Apprendi, the Supreme Court held that, “[o]ther than the fact of
a prior conviction, any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury, and proved beyond a
reasonable doubt.” Apprendi, 530 U.S. at 490. In Blakely, the Supreme Court
clarified “that the ‘statutory maximum’ for Apprendi purposes is the maximum
sentence a judge may impose solely on the basis of the facts reflected in the jury
verdict or admitted by the defendant.” Blakely, 542 U.S. at 303. In Alleyne, the
Supreme Court extended Apprendi to mandatory minimum sentences, ruling that
any fact that increases a mandatory minimum sentence is an “element” of the
offense that must be submitted to the jury and proven beyond a reasonable doubt.
Alleyne, 570 U.S. at 111-112.
In People v. Lockridge, 498 Mich. 358 (2015), the Michigan Supreme Court
held that, under Alleyne, the Michigan sentencing guidelines violate the Sixth
Amendment because the guidelines “require judicial fact-finding beyond facts
admitted by the defendant or found by the jury to score offense variables that
mandatorily increase the floor of the guidelines minimum sentence range.”

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Lockridge, 498 Mich. at 364. The court’s remedy was to make the guidelines
advisory only. Id. at 391-92.
Here, Petitioner was sentenced on October 14, 2019, nearly four years after
Lockridge. At that point, the Michigan sentencing guidelines were advisory, not
mandatory. Purely advisory applications of the guidelines do not run afoul of the
Sixth Amendment. See U.S. v. Booker, 543 U.S. 220, 232 (2005) (“If the
Guidelines as currently written could be read as merely advisory provisions that
recommended, rather than required, the selection of particular sentences in
response to differing sets of facts, their use would not implicate the Sixth
Amendment. We have never doubted the authority of a judge to exercise broad
discretion in imposing a sentence within a statutory range.”). Thus, Petitioner is not
entitled to relief based upon his argument that he was sentenced in violation of the
Sixth Amendment.
Second, to the extent that Petitioner asserts that his sentence violates his
right to due process because the state trial court relied on “inaccurate information,”
he is not entitled to habeas corpus relief. A sentence imposed within the statutory
limits is not generally subject to habeas review. Townsend v. Burke, 334 U.S. 736,
741 (1948). However, habeas corpus relief is potentially available where
“[v]iolations of state law and procedure . . . infringe specific federal constitutional
protections[.]” Cook v. Stegall, 56 F. Supp. 2d 788, 797 (E.D. Mich. 1999) (citing
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28 U.S.C. § 2254; Estelle v. McGuire, 502 U.S. 62 (1991)); see also Bowling v.
Parker, 344 F.3d 487, 521 (6th Cir. 2003) (stating that an alleged violation of state
law “could, potentially, ‘be sufficiently egregious to amount to a denial of equal
protection or of due process of law guaranteed by the Fourteenth Amendment.’”).
For instance, a criminal sentence may violate due process if it is based upon
“material ‘misinformation of constitutional magnitude.’” Koras v. Robinson, 123
F. App’x 207, 213 (6th Cir. 2005) (quoting Roberts v. United States, 445 U.S. 552,
556 (1980)); see also United States v. Tucker, 404 U.S. 443, 447 (1972);
Townsend, 334 U.S. at 741. Such a claim requires a petitioner show that the
information relied upon by the court in imposing the sentence was materially false.
Koras, 123 F. App’x at 213 (quoting United States v. Stevens, 851 F.2d 140, 143
(6th Cir. 1988)).
Here, Petitioner makes no such showing. Although Petitioner asserts that his
sentence was based on inaccurate information, the crux of his argument appears to
take issue with the trial court’s application of the sentencing guidelines, which is
insufficient to establish a due process violation. Therefore, habeas corpus relief is
not warranted on this claim.
Lastly, Petitioner’s challenge that the state trial court improperly imposed
restitution fees fails to state a claim on habeas corpus review. Petitioner cannot
challenge the imposition of fines and costs by the sentencing court in a petition for
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writ of habeas corpus. Where a habeas petitioner is not claiming the right to be
released but is challenging the imposition of a fine or other costs, he or she may
not bring a petition for writ of habeas corpus. See United States v. Watroba, 56
F.3d 28, 29 (6th Cir. 1995); see also U.S. v. Mays, 67 F. App’x 868, 869 (6th Cir.
2003) (District Court lacked subject matter jurisdiction over defendant’s § 2255
post-judgment motion to reduce or rescind fine levied in criminal judgment).
Likewise, continuing liability under a restitution order is akin to a fine-only
conviction and is not a sufficient enough restraint on his liberty to warrant habeas
corpus relief. Barnickel v. United States, 113 F.3d 704, 706 (7th Cir. 1997); see
also Flores v. Hickman, 533 F. Supp. 2d 1068, 1085 (C.D. Cal. 2008) (finding that
imposition of restitution order as part of California state sentence could not be
challenged under habeas statute because restitution did not affect duration of
habeas Petitioner’s state custody). Petitioner fails to state a claim for relief on this
basis.
Accordingly, the Court concludes that Petitioner’s sentencing claim does not
entitle him to habeas relief and his petition for writ of habeas corpus must be
summarily dismissed.
III.

CERTIFICATE OF APPEALABILITY

Before Petitioner may appeal this decision, a certificate of appealability must
issue. 28 U.S.C. § 2253(c)(1)(a); Fed. R. App. P. 22(b). A certificate of
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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). To demonstrate this
denial, the applicant is required to show that reasonable jurists could debate
whether, or agree that, the petition should have been resolved in a different
manner, or that the issues presented were adequate to deserve encouragement to
proceed further. Slack v. McDaniel, 529 U.S. 473, 483-84 (2000).
When a federal court rejects a habeas corpus petitioner’s constitutional
claims on the merits, the petitioner must demonstrate that reasonable jurists would
find the court’s assessment of the constitutional claims to be debatable or wrong.
Id. at 484. “The District Court must issue or deny a certificate of appealability
when it enters a final order adverse to the applicant.” Rules Governing § 2254
Cases, Rule 11(a), 28 U.S.C. foll. § 2254.
Petitioner has not made a substantial showing of the denial of a
constitutional right. Accordingly, a certificate of appealability is not warranted.
Petitioner should not be granted leave to proceed in forma pauperis on appeal, as
any appeal would be frivolous. See Fed. R. App. P. 24(a).
IV.

CONCLUSION

Accordingly, it is ORDERED that the petition for writ of habeas corpus,
ECF No. 1, is DISMISSED with prejudice.

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It is further ORDERED that a certificate of appealability and leave to
appeal in forma pauperis are DENIED.
IT IS SO ORDERED.
s/Paul D. Borman
PAUL D. BORMAN
United States District Judge
Dated: May 18, 2023

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