Harris #586446 v. Palmer
Filing
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OPINION; Judgment to issue; signed by Judge Janet T. Neff (Judge Janet T. Neff, clb)
UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
RAYMOND HARRIS, JR.,
Petitioner,
v.
Case No. 1:13-cv-1079
Honorable Janet T. Neff
CARMEN PALMER,
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 Raymond Harris, Jr., is a state prisoner incarcerated with the Michigan
Department of Corrections at the Michigan Reformatory. In 2010, he pleaded guilty to several
charges in two separate cases before the Wayne County Circuit Court that were consolidated for
purposes of his appeal. The court accepted his pleas and convicted him of the following:
second-degree murder, Mich. Comp. Laws § 750.317; two counts of armed robbery, Mich. Comp.
Laws § 750.529; felon in possession of a firearm, Mich. Comp. Laws § 750.224f; carjacking, Mich.
Comp. Laws § 750.529a; and two counts possession of a firearm during the commission of a felony
(felony-firearm) (second offense), Mich. Comp. Laws § 750.227b. On May 4, 2010, the court
sentenced him as a third habitual offender to 27 to 50 years’ imprisonment for each of the murder,
armed robbery and carjacking convictions, two to five years’ imprisonment for the
felon-in-possession conviction, and five years’ imprisonment for each of the felony-firearm
convictions.
Petitioner appealed his convictions to the Michigan Court of Appeals, raising the
following two issues:
[I.]
THE TRIAL COURT VIOLATED THE RULE OF PEOPLE V. FLEMING
AND CALVIN, 428 MICH 408 (1987), BY PRECLUDING EARLY
RELEASE.
[II.]
[PETITIONER] WAS DEPRIVED OF HIS AMENDS. V AND XIV
RIGHTS OF DUE PROCESS WHEN HE WAS NOT GRANTED HIS
FULL BARGAIN.
(Ex. 3 to Pet., Def.’s Application for Leave to Appeal, docket #1-1, Page ID#17.)
In an unpublished opinion dated September 20, 2012, the court of appeals rejected
Petitioner’s arguments and affirmed his convictions and sentences. Petitioner subsequently sought
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leave to appeal to the Michigan Supreme Court, which denied leave on March 4, 2013, because it
was not persuaded that the questions presented should be reviewed by that court. See People v.
Harris, No. 146150 (Mich.2013).
Petitioner filed the instant action on or about September 30, 2013, raising the same
claims presented on appeal.
Discussion
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
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).
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
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refuses to extend a principle to a context where it should apply. Bailey v. Mitchell, 271 F.3d 652,
655 (6th Cir. 2001) (citing Williams v. Taylor, 529 U.S. 362, 413 (2000)); 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
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.
In addition, the AEDPA requires heightened respect for state factual findings.
Herbert v. Billy, 160 F.3d 1131, 1134 (6th Cir. 1998). A determination of a factual issue made by
a state court is presumed to be correct, and the petitioner has the burden of rebutting the presumption
by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Lancaster, 324 F.3d at 429; Bailey, 271
F.3d at 656. This presumption of correctness is accorded to findings of state appellate courts, as
well as the trial court. See Sumner v. Mata, 449 U.S. 539, 546 (1981); Smith v. Jago, 888 F.2d 399,
407 n.4 (6th Cir. 1989).
Under the foregoing standards, Petitioner is not entitled to relief.
Claim I: Sentences preclude early release
Petitioner claims that his sentences preclude the possibility of early release, in
violation of People v. Fleming, 410 N.W.2d 266 (Mich. 1987). The sentencing court allegedly
stated that Petitioner would not be allowed to have early release. (See Ex. 3 to Pet., Def.’s Br. on
Appeal, docket #1-1, Page ID#25.) In addition, Petitioner’s criminal judgment in case no. 09-
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029990-03-FC, which is attached to the petition,1 states “NO EARLY RELEASE.” (Ex. 3 to Pet.,
docket #1-1, Page ID#22.) In Fleming, the Michigan Supreme Court examined several state statutes
that create a potential for a prisoner to obtain early release from his minimum sentence. See
Fleming, 410 N.W.2d at 270-74. It held that a sentencing court may not attempt to circumvent these
statutes by enhancing a sentence to account for the possibility for early release. See id. at 275.
(“The possibility of earlier release by virtue of the OEPA and good-time credits or disciplinary
credits may not be used to enhance a defendant’s sentence.”).
The Michigan Court of Appeals rejected Petitioner’s argument, stating, in relevant
part:
Sentencing issues that concern questions of law are reviewed de novo on
appeal. People v Huston, 489 Mich 451, 457; 802 NW2d 261 (2011). In Fleming,
428 Mich at 428, our Supreme Court held that “[t]he possibility of earlier release by
virtue of the [Prison Overcrowding Emergency Powers Act, MCL 800.71 et seq.,]
OEPA and good-time credits or disciplinary credits may not be used to enhance a
defendant’s sentence.” The Court further indicated that sentencing judges are not
permitted to nullify or circumvent the OEPA “by taking away good-time credits in
advance.” Id. at 427. As acknowledged in Fleming, the OEPA “was repealed by
amendment in June, 1987.” Id. at 419-420. Here, under Michigan’s truth-insentencing laws, defendant is required to serve his minimum sentences prior to any
possibility of parole; early release is currently not an available option. See MCL
791.233; MCL 791.233b; MCL 791.234; MCL 800.34.1 Given that the crimes were
committed by defendant in August 2009, the court’s statement precluding early
release was consistent with the law. It is abundantly evident that the trial court was
merely communicating that which the law demanded, i.e., that defendant fully serve
his minimum sentences. The judgment of sentence also contains a notation
prohibiting early release, but, once again, such a restriction exists in this case by
operation of law.
n.1 . . . The truth-in-sentencing statutory amendments preclude a
prisoner from earning disciplinary credits that allowed for parole
eligibility prior to the service of a minimum sentence, and instead
provide that a prisoner serve his or her entire minimum sentence. In
1
The judgment in Petitioner’s other case is not attached to the petition.
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addition, prisoners may accumulate disciplinary time for institutional
misconduct that is submitted to the parole board as part of the parole
decision-making process. Truth-in-sentencing (TIS) took effect for
enumerated assaultive offenses committed on or after 12-15-98, and
will take effect for all offenses committed on or after 12-15-00.
People v. Harris, No. 303745, slip op. at 2 (Mich. Ct. App. Sept. 20, 2012) (citations in footnote
omitted).
As the foregoing discussion indicates, the issue of whether Petitioner’s sentence
violated the rule in Fleming is purely a question of state law. As such, it is not cognizable in these
proceedings.
The extraordinary remedy of habeas corpus lies only for a violation of the
Constitution. 28 U.S.C. § 2254(a). “It is not the province of a federal habeas court to reexamine
state-court determinations on state-law questions. 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, 67-68 (1991).
Petitioner also claims that the Fleming-related error in his sentence violates his right
to due process under the Constitution, but this claim is entirely dependent upon the state-law issue.
Petitioner argued on appeal that the state court violated his right to due process because it violated
state law. This argument merely attempts to assert a state-law claim as a violation of due process.
The Court must defer to the state court’s disposition of this issue. Thus, Claim I is not cognizable
in these proceedings.
Claim II: Sentence violates the plea agreement (due process)
Next, Petitioner argues that in connection with his plea, he agreed to a sentence of
2 years for each of the felony-firearm charges, 2 to 5 years for the felon-in-possession charge, and
30 to 50 years for each of the murder, armed robbery, and carjacking charges. (See Def.’s Br. on
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Appeal, docket #1-1, Page ID#24.) However, Petitioner did not agree to be sentenced as a third
habitual offender, which increased the sentencing guidelines and removed the possibility that he
would be sentenced within a lower range. He asserts that he was not made aware of the habitual
offender enhancement until his sentencing hearing, by which time he could not withdraw his plea.
Also, Petitioner did not agree to be sentenced without a possibility for early release. See Claim I,
supra. Based on the foregoing, Petitioner claims that his sentence violates his right to due process
because he did not receive the benefit of his plea bargain, citing Santobello v. New York, 404 U.S.
257 (1971).
In Santobello, the Supreme Court held that “when a plea rests in any significant
degree on a promise or agreement of the prosecutor, so that it can be said to be part of the
inducement or consideration, such promise must be fulfilled.” Id. at 262. Where the prosecutor’s
performance under a plea bargain consists of an agreement to a specific sentence, the judge must
either accept the agreed-upon sentence or allow withdrawal of the plea. Id. at 262-63. The Court
has subsequently clarified this language, holding that Santobello does not apply to every rescinded
government promise. Rather, it applies only to those promises that induce a defendant to plead
guilty. See Mabry v. Johnson, 467 U.S. 504, 507-08 (1984).
The Michigan Court of Appeals rejected Petitioner’s claim, finding no violation of
the plea agreement. Regarding the sentencing court’s statement that Petitioner would not be entitled
to early release, the court of appeals relied on the same reasons it gave with respect to Petitioner’s
other claim, i.e., the sentencing court did not enhance Petitioner’s agreed-upon sentence, it merely
announced what was required under the law.
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Regarding the habitual-offender component of the sentence, the appellate court noted
that, even if it increased the guidelines range for Petitioner’s sentence, that range was irrelevant
because Petitioner agreed to specific sentences, and the sentences he received were consistent with
that agreement, with a couple of exceptions that are not specifically challenged by Petitioner. For
the felony-firearm convictions, for instance, Petitioner initially agreed to 2-year sentences, but the
applicable statute mandated 5-year sentences because of Petitioner’s prior record. See Harris, slip
op. at 3 n.3. According to the court of appeals, the sentencing court noted the discrepancy between
the plea agreement and the statutory mandate at an initial sentencing hearing, and then adjourned
the hearing to give Petitioner an opportunity to withdraw his plea agreement. Id. Petitioner did not
do so. Also, according to the court of appeals, by the time of Petitioner’s final sentencing hearing,
the plea agreement was changed to provide for 27 to 50 year terms instead of 30 to 50 year terms
for the murder, armed robbery, and carjacking convictions. Id. Petitioner then received a sentence
in accordance with those terms. In addition, at both sentencing hearings, Petitioner’s counsel agreed
that Petitioner should be sentenced as an habitual offender. Id. at 3 & n.3.
Petitioner does not specifically challenge any of the foregoing facts determined by
the state court, which are presumed to be correct absent clear and convincing evidence to the
contrary. See 28 U.S.C. § 2254(e)(1). While Petitioner claims that the sentencing court augmented
his sentencing guidelines, he does not claim that the term of years he received was more than he
bargained for. Furthermore, even if Petitioner did not realize that he would not be entitled to early
release, he does not claim that the plea agreement specifically provided that he would be eligible for
such release, or that he pleaded guilty with the expectation that he would be eligible for such release.
Thus, his Santobello claim is without merit. He has not shown that the state court’s decision was
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an unreasonable determination of the facts or an unreasonable application of clearly established law.
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
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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: October 30, 2013
/s/ Janet T. Neff
Janet T. Neff
United States District Judge
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