Lucaj v. Stewart
Filing
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MEMORANDUM OPINION and ORDER Summarily Denying the re 1 Petition for Writ of Habeas Corpus, Granting a Certificate of Appealability on the Issue, and Granting Leave to Appeal in Forma Pauperis - Signed by District Judge Judith E. Levy. (FMos)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Valona Lucaj,
Petitioner,
v.
Case No. 16-cv-13742
Judith E. Levy
United States District Judge
Anthony Stewart,
Mag. Judge Mona K. Majzoub
Respondent.
________________________________/
OPINION AND ORDER SUMMARILY DENYING THE PETITION
FOR WRIT OF HABEAS CORPUS [1], GRANTING A
CERTIFICATE OF APPEALABILITY ON ONE ISSUE, AND
GRANTING LEAVE TO APPEAL IN FORMA PAUPERIS
Petitioner Valona Lucaj, confined at the Huron Valley Women’s
Complex in Ypsilanti, Michigan, filed a pro se petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges her
sentence for her conviction of involuntary manslaughter (keeping a
dangerous animal causing death). MICH. COMP. LAWS § 287.323(1). For
the reasons set forth below, the petition is summarily denied, a
certificate of appealability is granted as to one issue, and leave to
appeal in forma pauperis is granted.
I.
Background
Petitioner and her husband were charged with second-degree
murder and involuntary manslaughter (keeping a dangerous animal
causing death) after two of their dogs escaped their property in
Metamora Township, Michigan, and killed a man who was jogging.
Petitioner pled nolo contendere in the Lapeer County Circuit
Court to the involuntary manslaughter charge and the second-degree
murder charge was dropped. The parties agreed that the judge could
exceed the sentencing guidelines at the highest point by six months and
that doing so would not be an appealable issue.
Petitioner was
sentenced to four years, nine months to fifteen years in prison and was
fined $7500.
Her conviction and sentence were affirmed on appeal.
People v. Lucaj, No. 331129 (Mich. Ct. App. Feb. 22, 2016), leave to
appeal denied People v. Lucaj, 499 Mich. 987 (2016).
Petitioner seeks a writ of habeas corpus on the following grounds:
(1) the trial court erred by incorrectly scoring certain variables under
Michigan’s sentencing guidelines, resulting in a violation of her due
process and statutory rights at sentencing; and (2) the trial court erred
by imposing the fine at sentencing because the fine was imposed outside
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the plea agreement. (Dkt. 1) On the second claim, Petitioner seeks only
that the Court vacate the fine. (Id.)
II.
Analysis
A petition for a writ of habeas corpus must set forth facts that give
rise to a cause of action under federal law or it may be summarily
dismissed. See Perez v. Hemingway, 157 F. Supp. 2d 790, 796 (E.D.
Mich. 2001). Any habeas petition that appears legally insufficient on its
face may be dismissed. McFarland v. Scott, 512 U.S. 849, 856 (1994);
see Carson v. Burke, 178 F.3d 434, 436 (6th Cir. 1999) (a habeas corpus
petition may be summarily dismissed if it plainly appears from the face
of the petition or the exhibits that are attached to it that the petitioner
is not entitled to federal habeas relief).
Thus, “a show cause order [to the respondent]” should not issue
“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). The
district court must screen any habeas petition, and a response is
unnecessary when the petition is frivolous, obviously lacks merit, or the
necessary facts can be determined from the petition itself without
consideration of a return by the state. Id. at 141. For the reasons set
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forth below, Petitioner is not entitled to habeas relief on her sentencing
claims, and the petition is summarily denied. See McIntosh v. Booker,
300 F. Supp. 2d 498, 499 (E.D. Mich. 2004).
State courts are the final arbiters of state law. See Bradshaw v.
Richey, 546 U.S. 74, 76 (2005); Sanford v. Yukins, 288 F.3d 855, 860
(6th Cir. 2002). Claims that arise out of a state trial court’s sentencing
decision are not normally cognizable on federal habeas review, unless
the petitioner can show that the sentence exceeded the statutory limits
or is wholly unauthorized by law. See Vliet v. Renico, 193 F. Supp. 2d
1010, 1014 (E.D. Mich. 2002). Thus, a sentence within the statutory
limits or otherwise authorized by law is not subject to habeas review.
Townsend v. Burke, 334 U.S. 736, 741 (1948); Cook v. Stegall, 56 F.
Supp. 2d 788, 797 (E.D. Mich. 1999).
Petitioner’s claim that the state trial court incorrectly scored or
miscalculated her sentencing guidelines range under the Michigan
Sentencing Guidelines (Dkt. 1 at 14-20) is not a cognizable claim on
federal habeas review. 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); McPhail
v. Renico, 412 F. Supp. 2d 647, 656 (E.D. Mich. 2006). Errors in the
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application of state sentencing guidelines cannot independently support
habeas relief. See Kissner v. Palmer, 826 F.3d 898, 904 (6th Cir. 2016).
Such errors, alone, do not violate federal due process rights. Austin v.
Jackson, 213 F.3d 298, 301 (6th Cir. 2000).
However, read in the light most favorable to her, Petitioner also
seems to argue that the trial court judge violated her Sixth Amendment
right to a trial by jury by using factors during sentencing that had not
been submitted to a jury and proven beyond a reasonable doubt or
admitted to by petitioner.
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.
States, 133 S. Ct. 2151, 2155 (2013).
See Alleyne v. United
But facts influencing judicial
discretion in sentencing need not meet the same threshold. Id. at 2163.
Under
Michigan
law,
only
the
minimum
sentence
must
presumptively be set within the appropriate sentencing guidelines
range. See People v. Babcock, 469 Mich. 247, 255 n.7 (2003) (citing
Mich. Comp. Laws § 769.34(2)).
The maximum sentence is not
determined by the trial judge; rather, it is set by law. See People v.
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Claypool, 470 Mich. 715, 730 n.14 (2004) (citing Mich. Comp. Laws
§ 769.8).
Here, the sentencing judge made findings as to facts that
increased Petitioner’s state guidelines range, not “facts that raised [her]
mandatory minimum sentence under a statute.” 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) (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) (“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 . . . .”). According to
the Sixth Circuit, it is not clearly established law that judicial factfinding under Michigan’s indeterminate sentencing scheme violates the
Sixth Amendment. See Kittka v. Franks, 539 F. App’x 668, 673 (6th Cir.
2013). Thus, the habeas petition cannot be granted on this basis under
the Anti-Terrorism and Effective Death Penalty Act of 1996. Id.
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This is so even considering the Michigan Supreme Court’s more
recent decision to the contrary, holding that Michigan’s Sentencing
Guidelines scheme violates the Sixth Amendment right to a jury trial
under the Supreme Court’s decision in Alleyne. See People v. Lockridge,
498 Mich. 358, 399 (2015). “The Michigan Supreme Court’s decision in
Lockridge does not render the result ‘clearly established’ for purposes of
habeas review” under the AEDPA. Haller v. Campbell, No. 1:16-cv-206,
2016 U.S. Dist. LEXIS 35151, at *14 (W.D. Mich. Mar. 18, 2016). Given
that the Sixth Circuit has already considered the issue, it is not clearly
established that Michigan’s sentencing scheme is unconstitutional, and
this argument cannot form the basis for habeas corpus relief under
AEDPA. Id.
In her second claim, Petitioner seeks to have this Court vacate the
$7500 fine that was imposed on her at sentencing, arguing that the
parties had not agreed in the plea agreement that Petitioner would
receive a fine as part of her sentence. (Dkt. 1 at 20-22.)
Petitioner cannot challenge the imposition of fines and costs by
the sentencing court in a petition for writ of habeas corpus here. When
a habeas petitioner is not claiming the right to be released, but is
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challenging the imposition of a fine or other costs, 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 United States 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; defendant was not in custody, as required
in a motion to vacate sentence or a petition for a writ of habeas corpus).
Petitioner does not challenge the voluntariness of her plea as a result of
the fine. Rather, she seeks that the fine be vacated. This Court lacks
subject matter jurisdiction to vacate Petitioner’s fine, so her second
claim must be denied.
III.
Conclusion
For the reasons set forth above, the petition for the writ of habeas
corpus (Dkt. 1) is DENIED WITH PREJUDICE.
However, the Court grants a certificate of appealability on the
issue of whether Petitioner’s Sixth Amendment right to a trial by jury
was violated under the Supreme Court’s decision in Alleyne v. United
States, 133 S. Ct. 2151 (2013), when the trial court made factual
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findings that increased her guideline range under the state’s sentencing
scheme.
In order to obtain a certificate of appealability, Petitioner must
make “a substantial showing of the denial of a constitutional right.” See
28 U.S.C. § 2253(c)(2).
Under this standard, a petitioner must
demonstrate that “reasonable jurists could debate whether (or, for that
matter, 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 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)).
This determination “requires an overview of the claims in the habeas
petition and a general assessment of their merit,” but “does not require
a showing that the appeal will succeed.” Miller-El v. Cockrell, 537 U.S.
322, 337 (2003).
As set forth above, the Sixth Circuit seems to have previously
distinguished the Supreme Court’s decision in Alleyne from the facts
underlying Petitioner’s first claim. 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).
On the other hand, the Michigan
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Supreme Court held even more recently that Michigan’s Sentencing
Guidelines scheme violates the Sixth Amendment right to a jury trial
under Alleyne. See People v. Lockridge, 498 Mich. 358, 399 (2015). This
Court is bound by the Sixth Circuit, but “reasonable jurists” could
certainly “debate . . . that the issues presented [a]re ‘adequate to
deserve encouragement to proceed further.’” McDaniel, 529 U.S. at 483
(quoting Barefoot, 463 U.S. at 893 n.4).
Finally, because the Court finds that a certificate of appealability
should issue on one issue, leave to appeal in forma pauperis is also
granted. 28 U.S.C. § 1915(a)(3) (a court may grant in forma pauperis
status if the court finds that an appeal would be taken in good faith);
Foster v. Ludwick, 208 F. Supp. 2d 750, 764 (E.D. Mich. 2002) (“The
standard for issuing a certificate of appealability has a higher threshold
than the standard for granting in forma pauperis status, which requires
showing that the appeal is not frivolous.”) (citing United States v.
Youngblood, 116 F.3d 1113, 1115 (5th Cir. 1997)).
IT IS SO ORDERED.
Dated: December 13, 2016
Ann Arbor, Michigan
s/Judith E. Levy
JUDITH E. LEVY
United States District Judge
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CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served
upon counsel of record and any unrepresented parties via the Court’s
ECF System to their respective email or First Class U.S. mail addresses
disclosed on the Notice of Electronic Filing on December 13, 2016.
s/Felicia M. Moses
FELICIA M. MOSES
Case Manager
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