Dusseau #814641 v. Curtin
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
DANIEL DALE DUSSEAU,
Case No. 1:13-cv-1150
Honorable Janet T. Neff
CINDI S. CURTIN,
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.
Petitioner Daniel Dale Dusseau presently is incarcerated at the Oaks Correctional
Facility. Following his plea of guilty to first degree criminal sexual conduct, MICH. COMP. LAWS
§750.520b(1)(b), on September 16, 2011, Petitioner was sentenced to a prison term of 28 to 50
On February 13, 2012, Petitioner, through his counsel, filed a motion to correct
invalid sentence, MICH. CT. R. 6.429. Petitioner raised the following issues: (1) Offense Variable
(OV) 12 was misscored; (2) the trial court relied on inaccurate information with respect to the
potential scoring of OV 5; and (3) lifetime electronic monitoring was not authorized for the
conviction offense. Petitioner’s motion was denied on February 13, 2012.
Petitioner sought leave to appeal the denial of his motion to correct an invalid
sentence to both the Michigan Court of Appeals and the Michigan Supreme Court. By way of a
brief filed by counsel, Petitioner raised all of the issues presented in this habeas petition: (1)
Defendant is entitled to resentencing because OV 12 of the Sentencing Guidelines was clearly
misscored; (2) Defendant is entitled to resentencing because the sentence was clearly premised on
inaccurate information and a misapprehension of the law; (3) Defendant is entitled to resentencing
because the sentence was a departure above the correct guidelines range and is disproportionate to
this offense and this offender; and (4) the trial court was without statutory authority to order that
Defendant be subject to lifetime electronic monitoring. On June 11, 2012, the court of appeals
denied leave to appeal for lack of merit on the grounds presented. The supreme court denied leave
to appeal on October 22, 2012.
In his habeas application, Petitioner raises the four issues presented and rejected by
the Michigan courts on collateral review.
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
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).
Claims concerning the improper scoring of sentencing guidelines are state-law claims
that typically are not cognizable in habeas corpus proceedings. See Hutto v. Davis, 454 U.S. 370,
373-74 (1982) (federal courts normally do not review a sentence for a term of years that falls within
the limits prescribed by the state legislature); Austin v. Jackson, 213 F.3d 298, 301-02 (6th Cir.
2000) (alleged violation of state law with respect to sentencing is not subject to federal habeas
relief); Cook v. Stegall, 56 F. Supp. 2d 788, 797 (E.D. Mich. 1999) (the sentencing guidelines
establish only rules of state law). There is no constitutional right to individualized sentencing.
Harmelin v. Michigan, 501 U.S. 957, 995 (1991); United States v. Thomas, 49 F.3d 253, 261 (6th
Cir. 1995); see also Lockett v. Ohio, 438 U.S. 586, 604-05 (1978). Moreover, a criminal defendant
has “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); accord Lovely v.
Jackson, 337 F. Supp. 2d 969, 977 (E.D. Mich. 2004).
Although state law errors generally are not reviewable in a federal habeas proceeding,
an alleged violation of state law “could, potentially, ‘be sufficiently egregious to amount to a denial
of equal protection or of due process of law guaranteed by the Fourteenth Amendment.’” Bowling
v. Parker, 344 F.3d 487, 521 (6th Cir. 2003); see also Doyle, 347 F. Supp. 2d at 485 (a habeas court
“will not set aside, on allegations of unfairness or an abuse of discretion, terms of a sentence that
is within state statutory limits unless the sentence is so disproportionate to the crime as to be
completely arbitrary and shocking.”) (citation omitted). A sentence may violate due process if it is
based upon material “misinformation of constitutional magnitude.” Koras v. Robinson, 123 F.
App’x 207, 213 (6th Cir. 2005) (quoting Roberts v. United States, 445 U.S. 552, 556 (1980)); see
also United States v. Tucker, 404 U.S. 443, 447 (1972); Townsend v. Burke, 334 U.S. 736, 741
(1948). To prevail on such a claim, the petitioner must show (1) that the information before the
sentencing court was materially false, and (2) that the court relied on the false information in
imposing the sentence. Tucker, 404 U.S. at 447;United States v. Polselli, 747 F.2d 356, 358 (6th
Cir. 1984); Koras, 123 F. App’x at 213 (quoting United States v. Stevens, 851 F.2d 140, 143 (6th
Petitioner was convicted under MICH. COMP. LAWS § 750.520b(1)(b)(2) based on his
relationship to the victim. (Pet., docket #1-1, Page ID#22.) Nevertheless, it was admitted that the
victim was nine years old. (Id. at Page ID#27.) MICH. COMP. LAWS §750.520b(2) provides, in
pertinent part, that
Criminal sexual conduct in the first degree is a felony punishable as follows:
(a) Except as provided in subdivisions (b) and (c), by imprisonment for life
or for any term of years.
(b) For a violation that is committed by an individual 17 years of age or older
against an individual less than 13 years of age by imprisonment for life or
any term of years, but not less than 25 years.
* * *
(d) In addition to any other penalty imposed under subdivision (a) or (b), the
court shall sentence the defendant to lifetime electronic monitoring under
Petitioner’s sentence of 28 to 50 years for first-degree criminal sexual conduct and
lifetime electronic monitoring is not so disproportionate to the crime as to be arbitrary or shocking.
Doyle, 347 F. Supp. 2d at 485. Moreover, for the reasons set forth below, the Court finds that the
state court’s rejection of Petitioner’s sentence scoring claims was not based on an unreasonable
determination of the facts and was neither contrary to nor an unreasonable application of established
Supreme Court precedent. 28 U.S.C. § 2254(d).
A. Offense Variable 12
Petitioner claims that the state court improperly scored his sentence guidelines range
under the Michigan sentencing guidelines by incorrectly counting multiple criminal sexual
penetrations more than once when it scored OV 12. Specifically, Petitioner claims that
The information charged Petitioner with four counts of first-degree criminal
sexual conduct, and Petitioner pled guilty to an additional count of firstdegree criminal sexual conduct in exchange for the original four to be
dismissed. At most there were five penetrations, one of which Petitioner was
sentenced for, OV 11 provides for the scoring of multiple criminal sexual
penetrations was correctly scored at 50 points for two penetrations. Those
two penetrations cannot again be used to score OV 12. The instructions for
Section 520n provides, in pertinent part, that “[a] person convicted under section 520b for criminal sexual
conduct committed by an individual 17 years or older against an individual less than 13 years of age shall be sentenced
to lifetime electronic monitoring . . . .”
scoring OV 12 also preclude the use of the offense that resulted in
conviction. Because there were, at most, five penetrations, and two of those
penetrations were used to score OV 11, and one penetration was the
sentencing offense, the trial court erred in scoring OV 12 at 25 points for
three penetrations. Rather, OV 12 should have been scored at 10- points.
(Pet., docket #1, Page ID#5.) The circuit court rejected this claim stating
I sentenced Mr. Dusseau on September 16th. As to OV 12, there
were essentially five separate criminal sexual penetrations of this nine-yearold. The Second Degree Criminal Sexual Conduct Offense was committed
during the underlying multiple penetrations, which is the supporting benefit
to the OV 12, number of contemporaneous felonious criminal acts.
OV 12 talks of 25 points being scored for three or more
contemporaneous felonious acts involving crimes against a person. Those
acts having been committed within a 24-hour period of the sentencing
offense, and not separate convictions as might be addressed in OV 11.
Defendant did commit at least four additional contemporaneous
felonious acts involving crimes against a person that were not counted in
OV 11 and not resulting in any separate conviction.
I find that OV 12 was properly scored at 25 points.
(Pet., docket #1-1, Page ID#25.)
Petitioner does not identify any facts found by the court at sentencing that were either
materially false or based on false information. Indeed, Petitioner does not argue that the court’s
decision was based on false information. Tucker, 404 U.S. at 447. Petitioner and the state court
agree on the underlying predicate fact: there were five separate criminal sexual penetrations. The
disagreement lies in how the multiple penetrations were used when scoring OV 12. In the absence
of any factual errors, Petitioner cannot demonstrate that his sentence violated due process. See
United States v. Lanning, 633 F.3d 469, 477 (6th Cir. 2011) (rejecting due process claim where the
petitioner failed to point to specific inaccurate information relied upon by the court); Yates v.
Romanowski, No. 5:12-CV-10731, 2013 WL 1664562, at *5 (E.D. Mich. Apr. 17, 2013) (concluding
that when a petitioner fails to demonstrate that the sentencing court relied upon materially false
information in imposing the sentence, the due process claim is without merit. (citing Thomas v.
Foltz, 654 F. Supp. 105, 108 (E.D. Mich. 1987)).
Instead, Petitioner’s argument that the state court erred in scoring his sentencing
guidelines is based solely on the state court’s interpretation of state law. See Bradshaw v. Richey,
546 U.S. 74, 76 (2005) (“[A] state court’s interpretation of state law, including one announced on
direct appeal of the challenged conviction, binds a federal court sitting on habeas review.”);
Mullaney v. Wilbur, 421 U.S. 684, 691 (1975) (“[S]tate courts are the ultimate expositors of state
law.”). “[A] claim that the trial court mis-scored offense variables in determining the state
sentencing guidelines is not cognizable on habeas corpus review.” Adams v. Burt, 471 F. Supp. 2d
835, 844 (E.D. Mich. 2007); see also Pugh v. Klee, No. 2:11-CV-10904, 2013 WL 4718340, at *2
(E.D. Mich. Sept. 3, 2013); Cook v. Stegall, 56 F. Supp. 2d 788, 797 (E.D. Mich.1999); Thomas v.
Foltz, 654 F. Supp. 105, 106-07 (E.D. Mich. 1987). Consequently, habeas corpus relief is not
available for this claim.
B. Disproportionate Sentence
Petitioner claims that his due process rights were violated because the trial court
premised Petitioner’s sentence on inaccurate information and a misapprehension of the law.
Additionally, Petitioner contends that his due process rights were violated because the trial court’s
sentence was a substantial departure above the guidelines range and was disproportionate to his
With respect to his claim that the trial court used inaccurate information and
misapprehended the law, Petitioner claims that
The prosecutor filed a Sentencing Memorandum and argued for a departure
from the guidelines, in part because OV 5 was statutorily inapplicable, but
if scored on the basis of the three family members who suffered
psychological harm necessitating professional treatment, it would add 45
points to the offense variable total, and an extrapolated guidelines range
would be 202 to 337 months. The prosecution argued orally that if OV 5
could have been scored, a score of 45 points would have been appropriate.
The trial court adopted the reasoning of the prosecutor’s position and
sentenced Petitioner to 28 years (336 months) to 50 years . . . OV 5 provides
for the scoring of psychological harm requiring professional treatment that
occurred to a victim’s family member and may only be scored in cases of
homicide, attempted homicide, conspiracy or solicitation to commit homicide
or assault with intent to commit murder. MCL 777.35. In cases where it is
applicable, a maximum of 15 points is all that may be scored. MCL 777.35.
There is no instruction allowing the scoring of more than 15 points for OV
5 even where applicable. What the trial court failed to identify was that the
maximum possible score for the OV 5 was 15 points, but rather, the trial
court reiterated that she used OV 5 to justify and explain her sentence. The
trial court was materially misled by the argument that 45 points was
appropriate if OV 5 would have been scored, and the trial court clearly relied
on inaccurate information and misapprehension of the law.
(Pet., docket #1, Page ID#7-8.) Additionally, Petitioner claims that the addition of 45 points to the
offense variable total which resulted in a sentence of 28 to 50 years was “extremely disproportionate
for this particular offense.” The circuit court rejected these claims stating
I find that . . . I cannot adequately cover the element or the essence
of the profound psychological effect this crime had on this child, nor all the
people surrounding her, including other members of the defendant’s family.
Forty-five points, had I measured them all up, probably would have stood
shy. OV 5 was not allowed because we weren’t dealing with a homicide
offense. I think we’re all very clear about that. It’s my use of OV 5 to justify
and explain my sense of injustice and to describe how my attention had been
irresistibly grabbed by probably every person . . . The variable could not be
scored and was really used to explain to any that might question the effect
that it had on the Court, and the effect I believe it had on this child and the
whole community. And, therefore, I continue to resort to OV 5 for the
purpose of describing how the Offense Variables do not, in and of themselves
take into consideration all the factors that I found necessary for review when
sentencing in this case.
(Pet., docket #1-1, Page ID#26.)
Once again, Petitioner does not identify any facts found by the court at sentencing
that were either materially false or based on false information. Petitioner claims that the court relied
on inaccurate information and misapprehended the law when it adopted the prosecutors argument
that 45 points would have been an appropriate score if OV 5 were allowed to be considered in this
case. In ruling on Plaintiff’s motion to correct invalid sentence, the judge made clear however, that
she looked to OV 5 “for the purpose of describing how the Offense Variables do not . . . take into
consideration all the factors that [she] found necessary for review when sentencing in this case.”
(Id.) It is entirely irrelevant that OV 5 allows a maximum of 15 points. The court could not, and
did not, use OV 5 to enhance Petitioner’s sentence because OV 5 was not applicable in this case.
The court mentioned OV 5 merely to explain that, unlike in homicide-type cases, when sentencing
in first degree criminal sexual conduct cases, the court cannot look to a specific offense variable that
allows it to consider the psychological impact of the crime on the victim and others close to the
victim. Nevertheless, when considering the psychological impact of Petitioner’s offense on the
victim, the victim’s family and even the Petitioner’s family, the court determined that adding 45
points to the offense variable total was appropriate.
The maximum penalty for first-degree criminal sexual conduct is life imprisonment.
See MICH. COMP. LAWS § 750.520b(2).
Although Petitioner’s sentence may exceed the
recommended guideline range, it neither exceeds the statutory limit, nor is it wholly unauthorized
by law. 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.” Austin v. Jackson, 213 F.3d 298, 301 (6th Cir. 2000) (quoting Williams v. New York,
337 U.S. 241, 245 (1949)).
Additionally, to the extent Petitioner argues that his sentence was disproportionate,
he fails to raise a cognizable habeas claim. In People v. Milbourn, 461 N.W.2d. 1 (Mich. 1990), the
Michigan Supreme Court held that a sentencing court must exercise its discretion within the bounds
of Michigan’s legislatively prescribed sentence range and pursuant to the intent of Michigan’s
legislative scheme of dispensing punishment according to the nature of the offense and the
background of the offender. Milbourn, 461 N.W.2d at 9-10; People v. Babcock, 666 N.W.2d 231,
236 (Mich. 2003). It is plain that Milbourn was decided under state, not federal, principles. See
Lunsford v. Hofbauer, No. 94-2128, 1995 WL 236677, at *2 (6th Cir. Apr. 21, 1995); Atkins v.
Overton, 843 F. Supp. 258, 260 (E.D. Mich. 1994). As previously discussed, a federal court may
grant habeas relief solely on the basis of federal law and has no power to intervene on the basis of
a perceived error of state law. See Wilson, 131 S. Ct. at 14; Bradshaw v. Richey, 546 U.S. at 76;
Pulley v. Harris, 465 U.S. 37, 41 (1984). Thus, Petitioner’s claim that the circuit court’s addition
of 45 points to his offense variable total resulted in a disproportionate sentence is not cognizable in
a habeas corpus action.
Moreover, to the extent Petitioner claims that his sentence was disproportionate
under the Eighth Amendment, such a claim is without merit. The United States Constitution 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
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 at 302
(quoting United States v. Organek, 65 F.3d 60, 62 (6th Cir. 1995)). Further, “[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 maximum penalty under state law. Petitioner’s sentence therefore does not
present the extraordinary case that runs afoul of the Eighth Amendment’s ban of cruel and unusual
C. Lifetime Electronic Monitoring
Petitioner claims that his due process rights were violated because the trial court did
not have statutory authority to require that he be subjected to lifetime electronic monitoring.
Specifically, Petitioner claims that
Because lifetime electronic monitoring is a penalty and part of the sentence,
it can only be imposed when it is authorized for the offense of conviction.
Petitioner was not convicted of first degree criminal sexual conduct, person
under 13, but rather, Petitioner was convicted of first degree criminal sexual
conduct (relationship), and as such the trial court did not have the statutory
authority to sentence Petitioner to lifetime electronic monitoring.
(Pet., docket #1, Page ID#13). The circuit court rejected this claim stating
The litany of cases that I found and a review of the statute provide for
the implementation of lifetime electronic monitoring of persons as described
and the defendant in this particular case. I looked at them very closely, but
find that the statute does call for the implementation of a system monitoring
Mr. Dusseau’s release from parole, prison, or both parole and prison, and
continue my sentence to lifetime electronic monitoring.
This victim was nine years old. I believe that the statute calls for
(Id. at Page ID#27). Petitioner again fails to state a due process violation. He does not identify any
facts found by the court at sentencing that were either materially false or based on false information.
Rather, Petitioner claims that the state court misapplied a state statute. Such a claim is not
cognizable in a habeas corpus action. See Bradshaw v. Richey, 546 U.S. at 76 (“[A] state court’s
interpretation of state law, including one announced on direct appeal of the challenged conviction,
binds a federal court sitting on habeas review.”); Mullaney v. Wilbur, 421 U.S. at 691 (“[S]tate
courts are the ultimate expositors of state law.”).
For all these reasons, the state court’s rejection of Petitioner’s claims was not based
on an unreasonable determination of the facts and was neither contrary to nor an unreasonable
application of established Supreme Court precedent. 28 U.S.C. § 2254(d).
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
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
A Judgment and Order consistent with this Opinion will be entered.
December 6, 2013
/s/ Janet T. Neff
Janet T. Neff
United States District Judge
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