Kosik v. Perry
Filing
11
OPINION and ORDER Denying 1 Petition for Writ of Habeas Corpus; Declining to Issue a Certificate of Appealability or Leave to Appeal in forma pauperis. Signed by District Judge John Corbett O'Meara. (WBar)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DUSTIN JOHN KOSIK,
Petitioner,
v.
Civil No. 5:15-CV-11508
HONORABLE JOHN CORBETT O’MEARA
UNITED STATES DISTRICT JUDGE
MITCH PERRY,
Respondent,
____________________________________/
OPINION AND ORDER DENYING THE PETITION FOR WRIT OF HABEAS
CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY
OR LEAVE TO APPEAL IN FORMA PAUPERIS
Dustin John Kosik, (“Petitioner”), confined at the Newberry Correctional Facility
in Newberry, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. In
his pro se application, petitioner challenges his convictions for unlawful imprisonment,
M.C.L.A. 750.349b; assault and battery, M.C.L.A. 750.81; and being a third felony
habitual offender, M.C.L.A. 769.11. For the reasons stated below, the petition for writ of
habeas corpus is DENIED.
I. Background
Petitioner was convicted of the above offenses following a jury trial in the Bay
County Circuit Court. This Court recites verbatim the relevant facts relied upon by the
Michigan Court of Appeals, which are presumed correct on habeas review pursuant to 28
U.S.C. § 2254(e)(1). See Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009):
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On February 2, 2012, defendant entered the shoe store where the victim
worked. The victim was present with another coworker. Defendant was
ostensibly looking for dress shoes, but the store did not have defendant’s size
in the style of shoe he wanted. The victim “print[ed] off a little slip that said
all the different stores that had that select shoe on it, and then [she] handed that
to” defendant. The victim’s coworker was preparing to take her break at the
time and had her jacket and purse with her. Defendant left the store. Shortly
thereafter, the coworker left to take her break.
Defendant returned to the store after “[m]aybe five minutes.” The victim
testified that defendant “asked [her] if [she] could call over to the store that the
shoes were located at. And he asked [her] to go over to the actual shoes to
double-check to make sure that they were the right shoes that he was looking
for.” The victim went over to the shoes, knelt down, pulled out the box of the
particular shoe defendant wanted, and called another store on a cordless phone
to verify that it had the shoe in stock. The victim testified that once she stood
up, defendant “lunged towards [her] and grabbed [her], and turned [her]
around....” “[H]e was standing a little bit behind me,” she testified, “and he had
to come at me and grab me, and put his arm all the way around me, so it’d be
all the way around my far right side, and my left arm would be up against
him.”
The victim further testified that defendant took the phone from her and “told
[her] to keep walking” as he led her into “the conference room.” The victim
testified that as defendant led her into the conference room, he asked whether
there were any security cameras in the store. She told him that she did not
know. The victim testified that defendant closed the door after he led her into
the room. She further testified that a person in the main area of the store
would not be able to see into the conference room if the door was shut, and
that the conference room had no windows. When asked whether there were
any doors leading out of the conference room, the victim responded, “Not into
the conference room. Once you go into the very back room, there’s an
emergency exit there.” The victim testified that defendant was “[p]robably
about an arm’s distance away” while they were in the conference room.
The victim testified that once they were in the conference room, defendant
attempted to convince her that he was “joking.” He asked the victim not to tell
anyone about the incident and said he was “just kidding.” Defendant then left
the store and the victim called 911. Defendant was apprehended by police
shortly thereafter.
People v. Kosik, 303 Mich. App. 146, 148-51; 841 N.W. 2d 906 (2013).
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Petitioner’s conviction was affirmed on appeal. Id., lv. den. 497 Mich. 862 (2014).
Petitioner seeks a writ of habeas corpus on the following grounds:
I. The prosecutor failed to submit sufficient evidence to support the conviction
for unlawful imprisonment. In particular, the prosecutor did not prove that Mr.
Kosik confined, or secretly confined, the complainant. The conviction should
be vacated.
II. The guilty verdict is against the great weight of the evidence. Mr. Kosik is
entitled to a new trial.
III. Over Defendant’s objection, the trial court instructed the jury that the
complainant need not resist. The court lessened the prosecution’s burden of
proof and made it easier to convict Mr. Kosik. The Defendant is entitled to a
reversal of the conviction.
IV. The trial court erroneously scored points for two sentencing variables. The
trial court violated Mr. Kosik’s due process rights by imposing sentence based
on inaccurate information. Mr. Kosik is entitled to remand for resentencing.
II. Standard of Review
28 U.S.C. § 2254(d), as amended by The Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA), imposes the following standard of review for habeas
cases:
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.
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A decision of a state court is “contrary to” clearly established federal law if the
state court arrives at a conclusion opposite to that reached by the Supreme Court on a
question of law or if the state court decides a case differently than the Supreme Court has
on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06
(2000). An “unreasonable application” occurs when “a state court decision unreasonably
applies the law of [the Supreme Court] to the facts of a prisoner’s case.” Id. at 409. A
federal habeas court may not “issue the writ simply because that court concludes in its
independent judgment that the relevant state-court decision applied clearly established
federal law erroneously or incorrectly.” Id. at 410-11.
The Supreme Court has explained that “[A] federal court’s collateral review of a
state-court decision must be consistent with the respect due state courts in our federal
system.” Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). The “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 v. Murphy, 521 U.S. 320, 333, n. 7 (1997); Woodford v.
Viscotti, 537 U.S. 19, 24 (2002)(per curiam)). “[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)).
Therefore, in order to obtain habeas relief in federal court, a state prisoner is required to
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show that the state court’s rejection of his claim “was so lacking in justification that
there was an error well understood and comprehended in existing law beyond any
possibility for fairminded disagreement.” Harrington, 562 U.S. at 103.
III. Discussion
A. Claims # 1 and # 2. The sufficiency and great weight of the evidence
claims.
In his first claim, petitioner contends that there was insufficient evidence to
establish the element of secret confinement to support his unlawful imprisonment
conviction. In his related second claim, petitioner contends that the verdict went against
the great weight of the evidence.
Taking petitioner’s second claim first, a federal habeas court has no power to
grant habeas relief on the ground that a state conviction is against the great weight of the
evidence. Cukaj v. Warren, 305 F. Supp. 2d 789, 796 (E.D. Mich. 2004); Dell v. Straub,
194 F. Supp. 2d 629, 648 (E.D. Mich. 2002); See also Artis v. Collins, 14 Fed. Appx.
387 (6th Cir. 2001)(declining to grant certificate of appealability to habeas petitioner on
claim that jury’s verdict was against the manifest weight of the evidence). A claim that a
verdict went against the great weight of the evidence is not of constitutional dimension,
for habeas corpus purposes, unless the record is so devoid of evidentiary support that a
due process issue is raised. Cukaj, 305 F. Supp. 2d at 796; See also Crenshaw v. Renico,
261 F. Supp. 2d 826, 834 (E.D. Mich. 2003). The test for habeas relief is not whether
the verdict was against the great weight of the evidence, but whether there was any
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evidence to support it. Dell, 194 F. Supp. 2d at 648. As long as there is sufficient
evidence to convict petitioner of these crimes, the fact that the verdict may have gone
against the great weight of the evidence would not entitle him to habeas relief. Id.
Petitioner is not entitled to relief on either of his claims because the evidence was
sufficient to convict him of unlawful imprisonment.
It is beyond question that “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).
But the critical inquiry on review of the sufficiency of the evidence to support a criminal
conviction is, “whether the record evidence could reasonably support a finding of guilt
beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 318 (1979). This
inquiry, however, does not require a court to “ask itself whether it believes that the
evidence at the trial established guilt beyond a reasonable doubt.” Instead, the relevant
question 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. Id. at 318-19 (internal citation and footnote
omitted)(emphasis in the original). Circumstantial evidence alone is sufficient to support
a conviction, and it is not necessary for the evidence at trial to exclude every reasonable
hypothesis except that of guilt. Johnson v. Coyle, 200 F. 3d 987, 992 (6th Cir.
2000)(internal quotations omitted).
More importantly, a federal habeas court may not overturn a state court decision
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that rejects a sufficiency of the evidence claim simply because the federal court disagrees
with the state court’s resolution of that claim. Instead, a federal court may grant habeas
relief only if the state court decision was an objectively unreasonable application of the
Jackson standard. See Cavazos v. Smith, 132 S. Ct. 2, 4 (2011). “Because rational
people can sometimes disagree, the inevitable consequence of this settled law is that
judges will sometimes encounter convictions that they believe to be mistaken, but that
they must nonetheless uphold.” Id. For a federal habeas court reviewing the sufficiency
of evidence for a state court conviction, “the only question under Jackson is whether that
finding was so insupportable as to fall below the threshold of bare rationality.” Coleman
v. Johnson, 132 S.Ct. 2060, 2065 (2012).
Under Michigan law, a person is guilty of the crime of unlawful imprisonment if
he or she knowingly restrains another person under any of the following circumstances:
(a) The person is restrained by means of a weapon or dangerous
instrument.
(b) The restrained person was secretly confined.
(c) The person was restrained to facilitate the commission of another
felony or to facilitate flight after commission of another felony.
United States v. Anderson, 608 Fed. Appx. 369, 373 (6th Cir. 2015); cert. denied, 136 S.
Ct. 264 (2015)(citing M.C.L.A. 750.349b).
Petitioner was convicted of unlawful imprisonment under a theory that he secretly
confined the victim. For purposes of the unlawful imprisonment statute, “secretly
confined” means either of the following:
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(i ) To keep the confinement of the restrained person a secret.
(ii ) To keep the location of the restrained person a secret.
M.C.L.A. 750.349b(3)(b).
Petitioner contends that there was insufficient evidence that he secretly confined
the victim to support his conviction for unlawful imprisonment.
The Michigan Court of Appeals rejected petitioner’s claim. The Michigan Court
of Appeals first noted that although the unlawful imprisonment statute does not define
the word “confine,” the Michigan Supreme Court had defined “secret confinement” as
meaning the “deprivation of the assistance of others by virtue of the victim’s inability to
communicate his predicament.” People v. Kosik, 303 Mich. App. at 152 (quoting People
v. Jaffray, 445 Mich. 287, 309; 519 N.W.2d 108 (1994)). The Michigan Court of
Appeals further noted that they had held in a prior case that there was sufficient evidence
of confinement, even though the victim in that case had been moved to several different
locations by car, because “the victim ‘dared not leave while in defendant’s presence....’”.
Id. (quoting People v. Railer, 288 Mich.App. 213, 218; 792 N.W.2d 776 (2010)). The
Michigan Court of Appeals held that based on these definitions, the prosecutor presented
sufficient evidence to sustain petitioner’s conviction for unlawful imprisonment:
In this case, there was sufficient evidence presented for a rational jury to find
both that defendant confined the victim and that the confinement was secret.
The victim was taken against her will into a conference room. She was held
there in an enclosed area that was not visible to anyone who may have been
passing by or in the store. Defendant was standing in front of the door to the
conference room. If the victim had tried to escape, defendant was within
arm’s reach of her and could have prevented her from doing so. The victim
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testified that she was frightened by defendant. Viewing the evidence in the
light most favorable to the prosecution, there was sufficient evidence that
defendant restricted the victim’s movement within the bounds of the
conference room.
People v. Kosik, 303 Mich. App. at 152.
The Michigan Court of Appeals further rejected petitioner’s claim that the
incident happened too quickly for there to be a secret confinement:
Defendant also argues that the victim was not secretly confined because the
incident was too brief in duration. This argument miscomprehends the
meaning of confinement, as well as what is required for a confinement to be
secret. The determination whether a person has been secretly confined is
generally not dependent on the duration of the confinement. See Jaffray, 445
Mich. at 308, 519 N.W.2d 108. Further, the record shows that the victim was
moved to a location outside the view of others, and was confined and
restricted within the bounds of the conference room for a significant period.
Whether and when defendant chose to release the victim is immaterial to
whether there was secret confinement. Defendant’s argument that he did not
“keep” the victim’s confinement or the location of her confinement secret
because of the brief duration of the confinement fails for the same reason.
People v. Kosik, 303 Mich. App. at 153.
Petitioner further argues that nature of the confinement was not sufficiently
egregious to satisfy the elements of unlawful imprisonment. Petitioner argues that the
victim could have been discovered if a co-worker or customer had come in and walked
into the conference room. Petitioner further contends that the victim could have escaped
from the conference room. Petitioner also notes that he did not tie up the victim, gag her,
lock the doors, or threaten her.
The Michigan Court of Appeals rejected this claim, ruling that “Nothing in the
[unlawful imprisonment] statute requires a certain level of difficulty of discovery or
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escape.” Kosik, 303 Mich. App. at 153. The Michigan Court of Appeals concluded:
Viewing the evidence in the light most favorable to the prosecution, the
victim was unable to communicate her predicament. Defendant waited until
the victim’s coworker left on her break to return to the store. There were no
customers in the store when defendant came back. Defendant forcefully
grabbed the victim, led her into a conference room, and closed the door
behind him. The room had no windows. The victim was in an enclosed area
not visible to anyone who may have walked by or come into the store.
Defendant was standing in front of the door to the conference room.
Defendant took the phone away from the victim so that she could not call for
help. Given these circumstances, a rational jury could find that the victim
was deprived of the assistance of others by virtue of her inability to
communicate her predicament.
People v. Kosik, 303 Mich. App. at 153-54.
In the present case, there was sufficient evidence for a rational trier of fact to
conclude that petitioner secretly confined the victim, so as to support his conviction for
unlawful imprisonment. The victim was taken against her consent into a conference
room and held in an enclosed area without windows that was not visible to any persons
who were passing by or in the store. Petitioner stood in front of the conference room
door and was within arm’s reach of the victim so as to prevent her from attempting to
escape. Petitioner took the telephone away from the victim. The victim testified that she
was frightened by petitioner. Based on this evidence, a rational trier of fact could have
found the petitioner guilty beyond a reasonable doubt of unlawful imprisonment under a
secret confinement theory.
To the extent that petitioner challenges the Michigan Court of Appeals’
determination that his actions under Michigan law qualified as a form of secret
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confinement, he would not be entitled to relief. State courts are the “ultimate expositors
of state law.” Mullaney v. Wilbur, 421 U.S. 684, 691 (1975). What is essential to
establish the elements of a crime is a matter of state law. See Sanford v. Yukins, 288 F.
3d 855, 862 (6th Cir. 2002). Thus, “[s]tates are allowed to define the elements of, and
defenses to, state crimes.” See Lakin v. Stine, 80 Fed. Appx. 368, 373 (6th Cir.
2003)(citing Apprendi v. New Jersey, 530 U.S. 466, 484-87 (2000); McMillan v.
Pennsylvania, 477 U.S. 79, 84-86, (1986)). A federal habeas court must therefore defer
to a state appellate court’s construction of the elements of state crimes. See Coe v. Bell,
161 F. 3d 320, 347 (6th Cir. 1998). The Michigan Court of Appeals concluded that
petitioner’s action qualified under Michigan law to support a secret confinement theory
and this Court must defer to that court’s determination on this matter. Petitioner is not
entitled to relief on his first or second claims.
B. Claim # 3. The jury instruction claim.
Petitioner argues that the trial court erred by instructing the jury that the victim
did not have to resist for petitioner to be guilty of unlawful imprisonment.
The burden of demonstrating that an erroneous instruction was so prejudicial that
it will support a collateral attack upon the constitutional validity of a state court
conviction is even greater than the showing required in a direct appeal. The question in
such a collateral proceeding is whether the ailing instruction so infected the entire trial
that the resulting conviction violates due process, not merely whether the instruction is
undesirable, erroneous, or even “universally condemned,” and an omission or incomplete
11
instruction is less likely to be prejudicial than a misstatement of the law. Henderson v.
Kibbee, 431 U.S. 145, 154-155 (1977). The challenged instruction must not judged in
isolation but must be considered in the context of the entire jury charge. Jones v. United
States, 527 U.S. 373, 391 (1999). Further, any ambiguity, inconsistency or deficiency in
a jury instruction does not by itself necessarily constitute a due process violation.
Waddington v. Sarausad, 555 U.S. 179, 190 (2009). It is not enough that there might be
some “slight possibility” that the jury misapplied the instruction. Id. at 191. Federal
habeas courts do not grant relief, as might a state appellate court, simply because a jury
instruction may have been deficient in comparison to a model state instruction. Estelle v.
McGuire, 502 U.S. 62, 72 (1991).
The Michigan Court of Appeals rejected petitioner’s claim:
The trial court read CJI2d 20.26 to the jury, which is located in the chapter
concerning “Sex Crimes.” It provides, “To prove this charge, the prosecutor
does not have to show that [name complainant] resisted the defendant.”
Defendant objected, arguing that the instruction minimized or eliminated the
requirement that the prosecution prove the victim was restrained or confined.
The trial court found that the instruction was “a clarifying instruction” that
did not alter the prosecution’s burden, but simply indicated that the victim had
no duty to resist defendant.
Defendant’s argument that this instruction diminished the prosecution’s
burden of proof is without merit. The instruction merely informed the jury
that the victim did not need to resist in order for defendant to be convicted of
unlawful imprisonment. The instruction did not state or imply that defendant
could be convicted even if the prosecution failed to prove an element of the
crime beyond a reasonable doubt. Indeed, the trial court instructed the jury
that it had to find that the prosecution proved each element of unlawful
imprisonment beyond a reasonable doubt. “It is well established that jurors
are presumed to follow their instructions.” People v. Graves, 458 Mich. 476,
486, 581 N.W.2d 229 (1998).
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Further, defense counsel’s use, in his opening and closing arguments, of the
words “led,” “escort[ed],” and “took” in reference to defendant’s conduct
toward the victim arguably implied that the victim consented to going into the
conference room with defendant. It was not unreasonable for the trial court
to interpret this phrasing as suggesting a lack of resistance and, therefore,
conclude that it was necessary to instruct the jury that the victim did not have
to resist in order for defendant to be convicted of unlawful imprisonment.
The instruction clarified an issue that the trial court felt the jurors might have
questioned, and the court did not abuse its discretion by giving the instruction
because doing so fell within the range of principled outcomes.
Finally, it is irrelevant that the instruction was adapted from one found within
the “Sex Crimes” chapter of the second edition of the Michigan Criminal Jury
Instructions. The instruction did not refer to sex crimes and the trial court did
not in any way suggest that this was a sex crime.
People v. Kosik, 303 Mich. App. at 155-57 (emphasis original).
Petitioner is not entitled to habeas relief for several reasons.
First, the instruction did not shift the burden of proof because it did not relieve the
prosecutor of his burden of proving the elements of unlawful imprisonment beyond a
reasonable doubt. There is no requirement under the unlawful imprisonment statute that
a victim is required to resist her assailant. Because this is not an element of the offense,
the judge did not shift the burden of proof by instructing the jurors that the victim did not
have to resist. See e.g. Barco v. Tilton, 694 F. Supp. 2d 1122, 1138-39 (C.D. Cal.
2010)(state trial court’s instruction that motive was not element of crime charged did not
reduce People’s burden of proof or otherwise infect entire trial so that defendant’s
conviction violated his due process rights; trial court instructed jury on elements of crime
charged and need for concurrence of act and specific intent, as well as on proper burden
of proof and to consider instructions as whole).
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Secondly, the Michigan Court of Appeals concluded that it was appropriate under
Michigan law to give this instruction, after defense counsel gave the impression that the
victim consented to go with petitioner. Federal courts are bound by the state courts’
interpretation of their own laws. See Mullaney v. Wilbur, 421 U.S. at 690-91. The nature
of a particular jury instruction that is given is a matter of state law, and a federal court is
not at liberty to grant a writ of habeas corpus simply because the federal court finds the
state court’s decision was incorrect under state law. Newton v. Million, 349 F.3d 873,
879 (6th Cir. 2003). Because the Michigan Court of Appeals found that it was
appropriate under Michigan law to give this instruction, this Court must defer to that
determination and cannot question it. See Seymour v. Walker, 224 F. 3d 542, 558 (6th Cir.
2000).
Finally, even if the instruction was erroneous, it was harmless error at most
because it did not invalidate the defense theory.
The U.S. Supreme Court has long held that jury instruction claims are subject to a
harmless error analysis. Hedgpeth v. Pulido, 555 U.S. 57, 61-62 (2008)(instructing a jury
on multiple theories of guilt, one of which is invalid, is subject to harmless error review);
Neder v. U.S., 527 U.S. 1, 9-11 (1999)(erroneous jury instruction that omits element of
offense is subject to harmless-error analysis); Johnson v. U.S., 520 U.S. 461, 469
(1997)(“improperly instructing the jury on an element of the offense...is subject to
harmless-error analysis”); California v. Roy, 519 U.S. 2, 5 (1996)(error in jury
instruction that defined crime without including statement that jury was required to find
14
that defendant had intent to commit or facilitate crime had to be reviewed by habeas
court under harmless error standard); Yates v. Evatt, 500 U.S. 391, 402-03
(1991)(instruction creating mandatory rebuttable presumption subject to harmless error
test); Carella v. California, 491 U.S. 263, 266 (1989)(per curiam) (instruction creating
mandatory conclusive presumption subject to harmless error); Pope v. Illinois, 481 U.S.
497, 501 (1987)(misstatement of element can be harmless error); Rose v. Clark, 478 U.S.
570, 579-80 (1986)(burden shifting instruction subject to harmless error review).
Petitioner’s defense was that he did not intend to knowingly restrain the victim
but was merely taking her to the back room in search of shoes. Had the jury believed
petitioner’s theory, it was irrelevant whether the victim was required to resist his actions
or not. Petitioner is not entitled to relief on his third claim.
C. Claim # 4. The sentencing guidelines claim.
Petitioner claims his sentencing guidelines were improperly scored.
It is well-established that “federal habeas corpus relief does not lie for errors of
state law.” Estelle v. McGuire, 502 U.S. 62, 67 (1991). Petitioner’s claim that the 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 basically a state law claim. See Tironi v. Birkett, 252 Fed. Appx. 724, 725
(6th Cir. 2007); Howard v. White, 76 Fed. Appx. 52, 53 (6th Cir. 2003). Petitioner has no
state-created interest in having the Michigan Sentencing Guidelines applied rigidly in
determining his sentence. Payne v. Smith, 207 F. Supp. 2d 627, 640 (E.D. Mich. 2002).
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“[I]n short, petitioner had 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). Any error by the trial court in calculating his
guideline score would not merit habeas relief. Id. Petitioner’s claim that the state trial
court improperly departed above the correct sentencing guidelines range would thus not
entitle him to habeas relief, because such a departure does not violate any of petitioner’s
federal due process rights. Austin v. Jackson, 213 F. 3d 298, 301 (6th Cir. 2000). The
petitioner is not entitled to habeas relief on his third claim.
IV. Conclusion
The Court will deny the petition for writ of habeas corpus. The Court will also
deny a certificate of appealability to petitioner. In order to obtain a certificate of
appealability, a prisoner must make 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 district court rejects a habeas petitioner’s constitutional claims
on the merits, the petitioner must demonstrate that reasonable jurists would find the
district 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
16
U.S.C. foll. § 2254.
For the reasons stated in this opinion, the Court will deny petitioner a certificate
of appealability because he has failed to make a substantial showing of the denial of a
federal constitutional right with respect to any of the claims. The Court will also deny
petitioner leave to appeal in forma pauperis, because the appeal would be frivolous. See
Allen v. Stovall, 156 F. Supp. 2d 791, 798 (E.D. Mich. 2001).
V. ORDER
Based upon the foregoing, IT IS ORDERED that the petition for a writ of habeas
corpus is DENIED WITH PREJUDICE.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED.
IT IS FURTHER ORDERED that Petitioner will be DENIED leave to appeal in
forma pauperis.
s/John Corbett O’Meara
United States District Judge
Date: December 10, 2015
I hereby certify that a copy of the foregoing document was served upon the parties
of record on this date, December 10, 2015, using the ECF system and/or ordinary mail.
s/William Barkholz
Case Manager
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