Sims #415732 v. Smith
Filing
10
OPINION ; signed by Judge Robert J. Jonker (Judge Robert J. Jonker, ymc)
UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JOHN ALBERT SIMS,
Petitioner,
v.
Case No. 1:12-cv-223
Honorable Robert J. Jonker
WILLIAM SMITH,
Respondent.
_______________________________/
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
Petitioner John Albert Sims is incarcerated with the Michigan Department of
Corrections at the Carson City Correctional Facility where he is serving sentences issued by the Kent
County Circuit Court. In May 2007, Petitioner pleaded nolo contendere to obtaining money by false
pretenses in an amount of at least $1,000 but less than $20,000, Mich. Comp. Laws § 50.218(4)(a),
and the trial court sentenced him to 387 days in jail and restitution in the amount of $601,248.33.
See People v. Sims, No. 286738, slip op. at 1 (Mich. Ct. App. Mar. 16, 2010). In two related cases,
Petitioner pleaded nolo contendere to uttering and publishing, Mich. Comp. Laws § 750.249, and
forgery, Mich. Comp. Laws § 750.248. Id. The trial court sentenced Petitioner in both cases as a
second habitual offender, Mich. Comp. Laws § 769.10, to concurrent terms of 10 to 21 years’
imprisonment for each of his convictions. Id. The court also ordered Petitioner to pay restitution
of $28,310.24. Id. The trial court departed upward from the sentencing guidelines when setting
Petitioner’s term of incarceration, in part, because the total amount owed in restitution far exceeded
the amount contemplated by the guidelines. See id at 2-4.
Petitioner appealed the criminal judgment to the Michigan Court of Appeals, which
affirmed the convictions but remanded for resentencing because the restitution award was not
supported by the record and, thus, that award did not justify an upward departure from the sentencing
guidelines. Id. at 5. In September 2010, the trial court issued a new judgment of sentence, reducing
the restitution award slightly and reducing the term of Petitioner’s sentences for forgery and for
uttering and publishing to 8 to 21 years. Petitioner appealed the new sentence to the Michigan Court
of Appeals and the Michigan Supreme Court, which denied leave to appeal on April 14, 2011, and
November 23, 2011, respectively.
-2-
In his habeas petition, Petitioner asserts the following grounds for relief:
I.
The trial court “used dismissed charges and unproven disputed restitution
amount” to enhance the sentence beyond the guidelines range, which is
disproportionate to Petitioner’s conduct and criminal history, and “no
evidence has been verified or not disputed to support a substantial and
compelling reason for departure.”
II.
The trial court “did not seek nor use legally filed agreements between
[Petitioner] and victim Jean Morin to validate . . . proof of claim [regarding
amounts owed to the victim].”
III.
The trial court sentenced Petitioner beyond the guidelines range without an
“objective and verifiable reason in support of the upward departure.”
IV.
At resentencing, the trial court disregarded evidence of a dispute regarding
the amount of money owed in restitution to the victim.
(Am. Pet. 6, 7, 9, 10, docket #9.) The foregoing claims can be summarized as follows: (1) the
restitution award was not supported by the evidence in the record, and (2) because of claim 1, the
trial court lacked a sufficient reason to depart from the sentencing guidelines in setting Petitioner’s
term of incarceration.
Standard of Review
This action is governed by the Antiterrorism and Effective Death Penalty Act, PUB.
L. 104-132, 110 STAT. 1214 (AEDPA). See Penry v. Johnson, 532 U.S. 782, 792 (2001). The
AEDPA “prevents federal habeas ‘retrials’” and ensures that state court convictions are given effect
to the extent possible under the law. Bell v. Cone, 535 U.S. 685, 693-94 (2002). 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
-3-
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).
The AEDPA limits the source of law to cases decided by the United States Supreme
Court. 28 U.S.C. § 2254(d). This Court may consider only the “clearly established” holdings, and
not the dicta, of the Supreme Court. Williams v. Taylor, 529 U.S. 362, 412 (2000); Bailey v.
Mitchell, 271 F.3d 652, 655 (6th Cir. 2001). In determining whether federal law is clearly
established, the Court may not consider the decisions of lower federal courts. Bailey, 271 F.3d at
655; Harris v. Stovall, 212 F.3d 940, 943 (6th Cir. 2000). The inquiry is “limited to an examination
of the legal landscape as it would have appeared to the Michigan state courts in light of Supreme
Court precedent at the time [the petitioner’s] conviction became final.” Onifer v. Tyszkiewicz, 255
F.3d 313, 318 (6th Cir. 2001); see also Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003).
A decision of the state court may only be overturned if (1) it applies a rule that
contradicts the governing law set forth by the Supreme Court, (2) it confronts a set of facts that are
materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at a
different result; (3) it identifies the correct governing legal rule from the Supreme Court precedent
but unreasonably applies it to the facts of the case; or (4) it either unreasonably extends a legal
principle from Supreme Court precedent to a new context where it should not apply or unreasonably
refuses to extend a principle to a context where it should apply. Bailey, 271 F.3d at 655 (citing
Williams, 529 U.S. at 413); see also Bell, 535 U.S. at 694; Lancaster v. Adams, 324 F.3d 423, 429
(6th Cir. 2003).
A federal habeas court may not find a state adjudication to be “unreasonable” “simply
because that court concludes in its independent judgment that the relevant state-court decision
-4-
applied clearly established federal law erroneously or incorrectly.” Williams, 529 U.S. at 411;
accord Bell, 535 U.S. at 699. Rather, the issue is whether the state court’s application of clearly
established federal law is “objectively unreasonable.” Id. at 410.
Discussion
To the extent Petitioner merely challenges the amount that he should be required to
pay in restitution, he does not state a cognizable habeas claim. The habeas statute provides that a
federal court may entertain a habeas application by a state prisoner “only on the ground that he is in
custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C.
§ 2254(a). The essential purpose of the writ of habeas corpus is to free individuals from wrongful
restraints upon their liberty. Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). Where a habeas
petitioner is not claiming the right to be released from custody but is challenging the imposition of
a fine or other costs, he may not bring a petition for writ of habeas corpus. United States v. Watroba,
56 F.3d 28, 29 (6th Cir.1995). Liability under a restitution order is like a fine-only conviction and
is not a sufficient restraint on liberty to warrant habeas relief. See Barnickel v. United States, 113
F.3d 704, 706 (7th Cir. 1997); Tinder v. Paula, 725 F.2d 801, 805 (1st Cir. 1984); see also Mullins
v. Birkett, No. 2:09-cv-12515, 2010 WL 764386, at *3 (E.D. Mich. Mar. 4, 2010) (citing Flores v.
Hickman, 533 F. Supp. 2d 1068, 1085 (C.D. Cal. 2008) (holding that imposition of a restitution order
as part of a California state sentence could not be challenged under the habeas statute because
restitution did not affect the duration of habeas petitioner’s state custody)). If the appropriate relief
for the alleged error would be an amendment to the court’s order of restitution, rather than earlier
release from custody, a writ of habeas corpus would be inappropriate. Mullins, 2010 WL 764386,
at *2 (citing United States v. Zaragoza, 16 F. Supp. 2d 1111, 1112 (N.D. Ind. 1998)); see also United
-5-
States v. Gianelli, 543 F.3d 1178, 1184 n.7 (9th Cir. 2008) (stating that a federal prisoner “cannot
present his claim for relief from [a] restitution order as a habeas petition because he is not seeking
release from custody, and because review of restitution orders is not properly brought in a habeas
petition”).
In Petitioner’s case, it appears that the trial court relied, in part, on the amount of the
restitution award to set Petitioner’s term of incarceration; thus, Petitioner can arguably challenge the
restitution award on that basis because it is effectively a challenge to the term of his sentence.
Nevertheless, Petitioner’s challenges are without merit. First, Petitioner contends that the sentencing
court’s departure from its sentencing guidelines was not supported by objective and verifiable
reasons. The Court of Appeals summarized Michigan law on this issue as follows:
A court may depart from a sentencing guidelines range if it has “a substantial and
compelling reason for that departure and states on the record the reasons for
departure.” MCL 769.34(3). But a court may not depart from the guidelines range on
the basis of “an offense characteristic or offender characteristic already taken into
account in” scoring the guidelines, “unless the court finds from the facts contained
in the court record, including the presentence investigation report, that the
characteristic has been given inadequate or disproportionate weight.” MCL
769.34(3)(b). For a factor to qualify as substantial and compelling, it “must be
objective and verifiable, meaning that it is external to the minds of the trial court, the
defendant, and others involved in making the decision, and is capable of being
confirmed.” People v Kahley, 277 Mich App 182, 186; 744 NW2d 194 (2007). To
qualify as substantial and compelling, the reason also must “keenly” or “irresistibly”
grab a court’s attention and be “of considerable worth” in deciding the length of a
sentence. People v Babcock, 469 Mich 247, 257; 666 NW2d 231 (2003) (internal
quotation omitted). “For a departure to be justified, the minimum sentence imposed
must be proportionate to the defendant’s conduct and prior criminal history.” People
v Smith, 482 Mich 292, 300; 754 NW2d 284 (2008); see also Babcock, 469 Mich at
262 n 20, 264.
People v. Sims, No. 286738, slip op. at 3. As is clear from the foregoing summary, the requirement
that a departure from the sentencing guidelines be supported by objective and verifiable evidence
-6-
derives from Michigan law. Habeas relief is not available for errors of state law, however; the
extraordinary remedy of habeas corpus lies only for a violation of the Constitution. 28 U.S.C.
§ 2254(a). A habeas petition must “state facts that point to a ‘real possibility of constitutional
error.’” Blackledge v. Allison, 431 U.S. 63, 75 n.7 (1977) (quoting Advisory Committee Notes on
Rule 4, RULES GOVERNING HABEAS CORPUS CASES). The federal courts have no power to intervene
on the basis of a perceived error of state law. Wilson v. Corcoran, 131 S. Ct. 13, 14 (2010);
Bradshaw v. Richey, 546 U.S. 74, 76 (2005); Pulley v. Harris, 465 U.S. 37, 41 (1984). Accordingly,
Petitioner’s assertion that his sentence violates the requirements of state law does not raise a
cognizable habeas claim.
To the extent Petitioner asserts that the trial court’s departure from the sentencing
guidelines violates his right under the Sixth Amendment, per Blakely v. Washington, 542 U.S. 296
(2004), he states a cognizable claim, albeit one that is without merit. The Michigan Court of
Appeals rightly rejected this claim as follows:
Defendant lastly suggests that the trial court improperly departed from the sentencing
guidelines range based on unproven allegations. We initially observe that defendant
has abandoned this issue by supplying less than cursory treatment of the issue in his
appellate brief. People v McPherson, 263 Mich App 124, 136; 687 NW2d 370
(2004). More importantly, defendant’s suggestion lacks merit. While facts supporting
a departure from a maximum sentence term must be admitted by the defendant or
found by a jury beyond a reasonable doubt, Blakely v Washington, 542 US 296, 301;
124 S Ct 2531; 159 L Ed 2d 403 (2004), this rule does not apply to the minimum
sentence of an indeterminate sentence under Michigan’s sentencing scheme. See
People v Claypool, 470 Mich 715, 730 n 14; 684 NW2d 278 (2004).
People v. Sims, No. 286738, slip op. at 5. Blakely concerned the State of Washington’s determinate
sentencing system, which allowed a trial judge to elevate the maximum sentence permitted by law
on the basis of facts not found by the jury but by the judge. Applying the Washington mandatory
-7-
sentencing guidelines, the trial judge found facts that increased the maximum sentence faced by the
defendant. The Supreme Court found that this scheme offended the Sixth Amendment, because 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. Blakely, 542 U.S.
at 301 (citing Apprendi v. New Jersey, 530 U.S. 466, 490 (2000)).
Unlike the State of Washington’s determinate sentencing system, 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 N.W.2d 778, 789-91 (Mich. 2006) (citing MICH. COMP.
LAWS § 769.8). Only the minimum sentence is based on the applicable sentencing guideline range.
Id.; and see People v. Babcock, 666 N.W.2d 231, 236 n.7 (Mich. 2003) (citing MICH. COMP. LAWS
§ 769.34(2)). The Sixth Circuit authoritatively has held that the Michigan indeterminate sentencing
system does not run afoul of 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).
As indicated, Petitioner’s Sixth Amendment claim was considered and rejected by
the Michigan Court of Appeals, and it correctly determined that Blakely does not apply to
Michigan’s indeterminate sentencing scheme; thus, its decision was not contrary to federal law
clearly established by the United States Supreme Court. Accordingly, Petitioner’s Sixth Amendment
claim is without merit.
-8-
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 federal 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 New York, 865 F.2d 44, 46 (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
-9-
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:
May 22, 2012
/s/ Robert J. Jonker
ROBERT J. JONKER
UNITED STATES DISTRICT JUDGE
-10-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?