Porter #718206 v. Bauman

Filing 2

OPINION; Judgment and Order to issue; signed by Judge Janet T. Neff (Judge Janet T. Neff, rmw)

UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

TODD MICHAEL PORTER,
Petitioner,
v.

Case No. 1:11-cv-632
Honorable Janet T. Neff

CATHERINE S. BAUMAN,
Respondent.
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OPINION
This is a habeas corpus action brought by a state prisoner pursuant to 28 U.S.C.
§ 2254. Promptly after the filing of a petition for habeas corpus, the Court must undertake a
preliminary review of the petition to determine whether “it plainly appears from the face of the
petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court.”
Rule 4, RULES GOVERNING § 2254 CASES; see 28 U.S.C. § 2243. If so, the petition must be
summarily dismissed. Rule 4; see Allen v. Perini, 424 F.2d 134, 141 (6th Cir. 1970) (district court
has the duty to “screen out” petitions that lack merit on their face). A dismissal under Rule 4
includes those petitions which raise legally frivolous claims, as well as those containing factual
allegations that are palpably incredible or false. Carson v. Burke, 178 F.3d 434, 436-37 (6th Cir.
1999). After undertaking the review required by Rule 4, the Court concludes that the petition must
be dismissed because it fails to raise a meritorious federal claim.

Factual Allegations
On January 23, 2009, Petitioner pled guilty to attempted assault with a dangerous
weapon, MICH. COMP. LAWS § 750.82. Petitioner’s sentencing guidelines range was 2 to 17 months.
At the sentencing hearing before the Grand Traverse Circuit Court on February 20, 2009, the court
told Petitioner:
Mr. Porter, in fairness, I would have a different emotional reaction to
this case 19 years ago as a new judge than I do now. I look at you
and all I can do is feel sad. I think 19 years ago I would be angry,
whose this guy he’s selling explosives, he’s involved in drugs,
distributing to minors. I’m looking at you today, 19 years later,
having watched this play out before me all these years. You seem
intelligent, you are articulate, 45 years old, you’re middle aged. You
should have gone to college or developed a trade. You look to me
like a guy who could have run a business, who could have been
married and run a family. And, a combination of drugs and the
inability to perhaps control your temper or lack of understanding
about how to engage in constructive dialog in a relationships, you’ve
done just years in prison, you’ve lost from that and quite frankly I
think society has. . . . I think in your case you could have
accomplished something, you could have. Look what you said, you
get dumped out of a halfway house and you made your way, you
know how many people can’t get that done, they can’t figure out a
way to get that done. It’s a great sense of frustration. It’s a sense of
loss.
. . . I would be shocked if the government gave you a pass on this.
They are not going to do it, not with your history. But, it’s your 20th
felony, I don’t know how that worked out or what plea agreement or
what trial you went through years and years and years ago. It’s
unusual to see someone here on their 20th felony that’s for sure.
You did get . . . an exceedingly fair offer from Mr. Schneider. This
could have been a four year habitualized, which would have made it
15, I think, in your circumstance. So you’re looking at worst case
here is a two year maximum, and it is an assaultive crime. You’re
chasing your wife – girlfriend, with a car, it’s a bad thing.

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(02/20/2009 Hr’g Tr. 13-15, Ex. A to Petition, docket #1-1, Page ID##39-41.) The court departed
from the guidelines range and sentenced Petitioner to sixteen to twenty-four months of incarceration.
Petitioner filed a motion for re-sentencing and to withdraw his plea, arguing that the
court did not make a finding of substantial and compelling reasons for departure from the guidelines
range. The trial court granted the motion for re-sentencing. At the re-sentencing hearing, the court
told Petitioner:
This was your 20th felony. And, as you indicated, you were on
federal parole and the federal government apparently isn’t happy with
this conviction and wants you back. The Department of Corrections
recommended prison, and for what it’s worth as I reviewed the report
and your version of it, it appears that you were not as forthcoming as
you could have been about what actually happened that evening and
there was evidence of witness tampering and perhaps most
importantly, what you actually pled to was less serious than what you
actually did. You got a deal to plead to the attempt and you weren’t
habitualized fourth and convicted of the felonious assault. So all of
those things taken together were the basis by which the Court sent
you to prison, which is a departure from the guidelines in the sense
that the guidelines are a jail range and you went to prison. . . . What
I’ll do for you in view of the fact that the federal people are waiting
for you, is I’ll give you a couple months break, still departing for all
the same reasons I believe are objective, substantial and compelling.
(08/07/2009 Hr’g Tr. 9-11, Ex. A to Petition, docket #1-1, Page ID##22-24.) The court re-sentenced
Petitioner to fourteen to twenty-four months of incarceration. Petitioner appealed the new sentence
to the Michigan Court of Appeals and the Michigan Supreme Court. Those courts denied leave to
appeal on January 28, 2010, and June 18, 2010, respectively. Petitioner filed the instant petition on
June 16, 2011.
In his petition, Petitioner contends that the trial court’s departure from the sentencing
guidelines violated Michigan state law, denied him his Fourteenth Amendment right to due process,
and violated his Eighth Amendment right to avoid cruel and unusual punishment.
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Discussion
An application for writ of habeas corpus on behalf of a person who is incarcerated
pursuant to a state conviction cannot be granted with respect to any claim that was adjudicated on
the merits in state court unless the adjudication: “(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 upon an
unreasonable determination of the facts in light of the evidence presented in the state court
proceeding.” 28 U.S.C. § 2254(d).
Before the court may grant habeas relief to a state prisoner, the prisoner must exhaust
remedies available in the state courts. 28 U.S.C. § 2254(b)(1); O’Sullivan v. Boerckel, 526 U.S. 838,
842 (1999). Exhaustion requires a petitioner to “fairly present” federal claims so that state courts
have a “fair opportunity” to apply controlling legal principles to the facts bearing upon a petitioner’s
constitutional claim. See O’Sullivan, 526 U.S. at 842; Picard v. Connor, 404 U.S. 270, 275-77
(1971) (cited by Duncan v. Henry, 513 U.S. 364, 365 (1995) and Anderson v. Harless, 459 U.S. 4,
6 (1982)). To fulfill the exhaustion requirement, a petitioner must have fairly presented his federal
claims to all levels of the state appellate system, including the state’s highest court. Duncan, 513
U.S. at 365-66; Wagner v. Smith, 581 F.3d 410, 414 (6th Cir. 2009); Hafley v. Sowders, 902 F.2d
480, 483 (6th Cir. 1990). The district court can and must raise the exhaustion issue sua sponte,
when it clearly appears that habeas claims have not been presented to the state courts. See Prather
v. Rees, 822 F.2d 1418, 1422 (6th Cir. 1987); Allen, 424 F.2d at 138-39.
It appears that Petitioner failed to “fairly present” these federal claims in the state
courts. The appellate brief provided by Petitioner (Ex. to Petition, Application for Leave to App.,

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docket #1-1, Page ID#27-36), does not mention any constitutional claims; rather, it argues that the
sentencing court did not follow Michigan law. Because Petitioner failed to present his constitutional
claims to the Michigan appellate courts, the exhaustion requirement is not satisfied. Nevertheless,
the Court may address Petitioner’s claims notwithstanding his failure to exhaust his state court
remedies. See 28 U.S.C. § 2254(b)(2) (“An application for a writ of habeas corpus may be denied
on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the
courts of the State.”).
1.

Michigan law

Petitioner contends that the state court did not provide substantial and compelling
reasons for departure from the Michigan sentencing guidelines, citing: People v. Claypool, 684
N.W.2d 278 (Mich. 2004); People v. Babcock, 666 N.W.2d 231 (Mich. 2003); People v. Havens,
706 N.W.2d 210 (Mich. Ct. App. 2005); and, People v. Geno, 683 N.W.2d 624 (Mich. Ct. App.
2004). MICH. COMP. LAWS § 769.34(3) provides:
A court may depart from the appropriate sentence range established
under the sentencing guidelines set forth in chapter XVII if the court
has a substantial and compelling reason for that departure and states
on the record the reasons for departure.
Id. (emphasis added).
Petitioner’s claim that the trial court violated Michigan law is not cognizable on
habeas review. “In conducting habeas review, a federal court is limited to deciding whether a
conviction violated the Constitution, laws, or treaties of the United States.” Estelle v. McGuire, 502
U.S. 62, 68 (1991). Thus, “it is not the province of a federal habeas court to reexamine state-court
determinations on state-law questions.” Id. at 67–68; see also Pulley v. Harris, 465 U.S. 37, 41 (“A
federal court may not issue the writ on the basis of a perceived error of state law.”); Koras v.
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Robinson, 123 F. App’x 207, 214 (6th Cir. 2005) (trial court’s failure to articulate reasons for the
sentence imposed “is not itself a basis for federal habeas corpus relief.”).
2.

Fourteenth Amendment

Petitioner also claims that the trial court’s failure to provide substantial and
compelling reasons for departing from the sentencing guidelines violated his right to due process.
“It is undisputed that convicted defendants . . . have a due process right to a fair sentencing
procedure.” United States v. Anders, 899 F.2d 570, 575 (6th Cir. 1990). The record provided by
Petitioner indicates, however, that he received the process to which he claims he was entitled. The
trial court gave Petitioner reasons for departure from the guidelines. The court noted that the instant
offense was Petitioner’s twentieth felony, that it involved an attack on his girlfriend, and that
Petitioner could have received a four-year sentence as a habitual offender in the absence of the guilty
plea. Petitioner does not challenge these findings. To the extent Petitioner claims that the court’s
reasons were not “substantial and compelling,” he raises an issue of state law that is not cognizable
in these proceedings. See Pulley, 465 U.S. at 41.
In addition, it is clear from Austin v. Jackson, 213 F.3d 298 (6th Cir. 2000), that
sentencing above the guideline range, even significantly above the guideline range, is not a due
process violation. “As long as the sentence remains within the statutory limits, trial courts have
historically been given wide discretion in determining ‘the type and extent of punishment for
convicted defendants.’” Id. at 301 (quoting Williams v. New York, 337 U.S. 241, 245 (1949)). In
Petitioner’s case, the statutory maximum penalty for attempted felonious assault is twenty-four
months. MICH. COMP. LAWS §§ 750.82, 750.92. Although Petitioner’s sentence of fourteen to
twenty-four months may have exceeded the recommended guideline range, it did not exceed the

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statutory limit. Accordingly, the sentence did not violate Petitioner’s right to due process under the
Fourteenth Amendment.
Finally, Petitioner appears to argue that the appellate courts violated his right to due
process by not ruling on the merits of his case. For purposes of this action, the Court assumes that
this due-process claim challenges the validity of the ruling on Petitioner’s sentence. Contrary to
Petitioner’s assertion, however, the Michigan Court of Appeals did rule on the merits of his case.
The court’s order stated that Petitioner’s application for leave to appeal was denied “for lack of merit
in the grounds presented.” See People of Michigan v. Porter, No. 294883, Order (Mich. Ct. App.
Jan. 28, 2010). Moreover, the Supreme Court has recognized that Michigan’s process for denying
applications for leave to appeal “necessarily entails some evaluation of the merits of the applicant’s
claims.” Halbert v. Michigan, 545 U.S. 605, 618 (2005). To the extent Petitioner argues that he is
entitled to a written decision detailing the reasons for the court’s denial of his application, the
Supreme Court has never held that criminal defendants are constitutionally entitled to such decisions
on appeal. Accordingly, the standard form denial issued by the Michigan Court of Appeals neither
deprived Petitioner of a decision on the merits, nor violated his right to due process under law
clearly established by the Supreme Court.
3.

Eighth Amendment

Petitioner also contends that the length of his sentence violates the Eighth
Amendment’s prohibition on cruel and unusual punishment. The Eighth Amendment does not
require strict proportionality between a crime and its punishment. Harmelin v. Michigan, 501 U.S.
957, 965 (1991); United States v. Marks, 209 F.3d 577, 583 (6th Cir. 2000). “Consequently, only
an extreme disparity between crime and sentence offends the Eighth Amendment.” Marks, 209 F.3d
at 583; see also Lockyer v. Andrade, 538 U.S. 63, 77 (2003) (gross disproportionality principle
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applies only in the extraordinary case); Ewing v. California, 538 U.S. 11, 36 (2003) (principle
applies only in “‘the rare case in which a threshold comparison of the crime committed and the
sentence imposed leads to an inference of gross disproportionality’”) (quoting Rummel v. Estelle,
445 U.S. 263, 285 (1980)). A sentence that falls within the maximum penalty authorized by statute
“generally does not constitute ‘cruel and unusual punishment.’” Austin v. Jackson, 213 F.3d 298,
302 (6th Cir. 2000) (quoting United States v. Organek, 65 F.3d 60, 62 (6th Cir. 1995)). Ordinarily,
“[f]ederal courts will not engage in a proportionality analysis except in cases where the penalty
imposed is death or life in prison without possibility of parole.” United States v. Thomas, 49 F.3d
253, 261 (6th Cir. 1995). Petitioner was not sentenced to death or life in prison without the
possibility of parole, and his sentence falls within the two-year maximum penalty allowed by state
law. Thus, Petitioner’s sentence does not present the extraordinary case that runs afoul of the Eighth
Amendment’s ban of cruel and unusual punishment.
4.

Sixth Amendment

Though the petition does not expressly reference the Sixth Amendment, it arguably
presents a Sixth Amendment claim under Blakely v. Washington, 542 U.S. 296 (2004), because
Petitioner challenges a court’s upward departure from sentencing guidelines. According to the court
in Blakely, any fact that increases or enhances a penalty for the crime beyond the prescribed
statutory maximum for the offense must be submitted to the jury and proven beyond a reasonable
doubt. Id. at 301 (citing Apprendi v. New Jersey, 530 U.S. 466, 490 (2000)).
Blakely does not apply to Petitioner’s case, however. Unlike the determinate
sentencing system considered in Blakely, the State of Michigan has an indeterminate sentencing
system in which the defendant is given a sentence with a minimum and a maximum term. The
maximum sentence is not determined by the trial judge, but is set by law. See People v. Drohan, 715
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N.W.2d 778, 789-91 (Mich. 2006) (citing MICH. COMP. LAWS § 769.8). The Sixth Circuit
authoritatively has held that the Michigan indeterminate sentencing system does not run afoul of the
holding in Blakely. See Chontos v. Berghuis, 585 F.3d 1000, 1002 (6th Cir. 2009) (affirming district
court’s dismissal of prisoner’s claim under Blakely v. Washington because it does not apply to
Michigan’s indeterminate sentencing scheme); Tironi v. Birkett, 252 F. App’x 724, 725 (6th Cir.
2007). Therefore, a Sixth Amendment claim based on Blakely would be without merit. The state
court’s determination of Petitioner’s sentence was not contrary to federal law clearly established by
the United States Supreme Court in Blakely.
Conclusion
In light of the foregoing, the Court will summarily dismiss Petitioner’s application
pursuant to Rule 4 because it fails to raise a meritorious claim.
Certificate of Appealability
Under 28 U.S.C. § 2253(c)(2), the Court must determine whether a certificate of
appealability should be granted. A certificate should issue if Petitioner has demonstrated a
“substantial showing of a denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This Court’s
dismissal of Petitioner’s action under Rule 4 of the Rules Governing § 2254 Cases is a determination
that the habeas action, on its face, lacks sufficient merit to warrant service. It would be highly
unlikely for this Court to grant a certificate, thus indicating to the Sixth Circuit Court of Appeals that
an issue merits review, when the Court has already determined that the action is so lacking in merit
that service is not warranted. See Love v. Butler, 952 F.2d 10 (1st Cir. 1991) (it is “somewhat
anomalous” for the court to summarily dismiss under Rule 4 and grant a certificate); Hendricks v.
Vasquez, 908 F.2d 490 (9th Cir. 1990) (requiring reversal where court summarily dismissed under
Rule 4 but granted certificate); Dory v. Comm’r of Corr. of the State of New York, 865 F.2d 44, 46
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(2d Cir. 1989) (it was “intrinsically contradictory” to grant a certificate when habeas action does not
warrant service under Rule 4); Williams v. Kullman, 722 F.2d 1048, 1050 n.1 (2d Cir. 1983) (issuing
certificate would be inconsistent with a summary dismissal).
The Sixth Circuit Court of Appeals has disapproved issuance of blanket denials of
a certificate of appealability. Murphy v. Ohio, 263 F.3d 466 (6th Cir. 2001). Rather, the district
court must “engage in a reasoned assessment of each claim” to determine whether a certificate is
warranted. Id. at 467. Each issue must be considered under the standards set forth by the Supreme
Court in Slack v. McDaniel, 529 U.S. 473 (2000). Murphy, 263 F.3d at 467. Consequently, this
Court has examined each of Petitioner’s claims under the Slack standard. Under Slack, 529 U.S. at
484, to warrant a grant of the certificate, “[t]he petitioner must demonstrate that reasonable jurists
would find the district court’s assessment of the constitutional claims debatable or wrong.” Id. “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). In applying this standard, the Court may not conduct a full merits review, but must limit
its examination to a threshold inquiry into the underlying merit of Petitioner’s claims. Id.
The Court finds that reasonable jurists could not conclude that this Court’s dismissal
of Petitioner’s claims was debatable or wrong. Therefore, the Court will deny Petitioner a certificate
of appealability.

A Judgment and Order consistent with this Opinion will be entered.

Dated: August 10, 2011

/s/ Janet T. Neff
Janet T. Neff
United States District Judge
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