Quinn #777532 v. Palmer
Filing
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OPINION; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt)
UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
GREGORY JEROME QUINN, JR.,
Petitioner,
Case No. 1:15-cv-705
v.
Honorable Gordon J. Quist
CARMEN D. 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 Gregory Jerome Quinn, Jr., presently is incarcerated at the Michigan
Reformatory. Petitioner pleaded guilty in the Kent County Circuit Court to first-degree criminal
sexual conduct (CSC I), MICH . COMP . LAWS § 750.520b(1)(f), and armed robbery, MICH . COMP .
LAWS § 750.529. On May 12, 2012, he was sentenced to prison terms of 23 to 60 years on both the
CSC-I and armed-robbery convictions.
Petitioner, through appellate counsel, filed a motion for resentencing, arguing that
the court had erred in scoring his prior record variables and that the court had failed to rule on
Petitioner’s unopposed objection to the scoring of Offense Variable (OV) 7. Following a hearing
held on April 12, 2013, the court determined that the minimum sentencing range was 171 to 285 on
both offenses. The court nevertheless again sentenced petitioner to 276 months (23 years) to 60
years on each conviction.
Petitioner sought leave to appeal to both the Michigan Court of Appeals and the
Michigan Supreme Court, raising a single claim:
I.
THE TRIAL COURT ERRONEOUSLY SCORED 50 POINTS FOR OV 7
OF THE SENTENCE GUIDELINES, RESULTING IN A SENTENCE
THAT IS NOT PROPORTIONAL.
(Pet., docket #1, Page ID#5.) The courts denied leave to appeal on December 26, 2013 and May 27,
2014, respectively.
Petitioner filed his habeas petition on or about June 26, 2015.1
Discussion
This action is governed by the Antiterrorism and Effective Death Penalty Act of
1996, 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
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Under Sixth Circuit precedent, the application is deemed filed when handed to prison authorities for mailing
to the federal court. Cook v. Stegall, 295 F.3d 517, 521 (6th Cir. 2002). Petitioner dated his application on June 26,
2015, and it was received by the Court on July 6, 2015. Thus, it must have been handed to prison officials for mailing
at some time between June 26 and July 6, 2015. For purposes of this opinion, the Court has given Petitioner the benefit
of the earliest possible filing date. See Brand v. Motley, 526 F.3d 921, 925 (6th Cir. 2008) (holding that the date the
prisoner signs the document is deemed under Sixth Circuit law to be the date of handing to officials) (citing Goins v.
Saunders, 206 F. App’x 497, 498 n.1 (6th Cir. 2006)).
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effect to the extent possible under the law. Bell v. Cone, 535 U.S. 685, 693-94 (2002). The AEDPA
has “drastically changed” the nature of habeas review. Bailey v. Mitchell, 271 F.3d 652, 655 (6th
Cir. 2001). 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). This standard is “intentionally difficult to meet.” Woods v.
Donald, 575 U.S. __, 135 S. Ct. 1372, 1376 (2015) (internal quotation marks omitted).
“[A] federal court may issue the writ to 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.’” Wilson v.
Corcoran, 131 S. Ct. 13, 16 (2010) (quoting 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, 131 S. Ct. at 14; Bradshaw v. Richey, 546 U.S. 74, 76 (2005); Estelle v. McGuire, 502 U.S.
67-68 (1991); Pulley v. Harris, 465 U.S. 37, 41 (1984). Claims concerning the improper application
of sentencing guidelines are state-law claims and 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). The statutory maximum prison term for CSC I
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and armed robbery are life imprisonment. See MICH . COMP . LAWS §§ 750.520b(2)(a), 750.529.
Petitioner’s sentences of 23 to 60 years therefore are within the Michigan statutory limits.
To the extent Petitioner intends to suggest that his sentence was disproportionate
under People v. Milbourn, 461 N.W.2d 1 (Mich. 1990), he fails to raise a cognizable habeas claim.
In Milbourn, 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, 465 U.S. at 41. Thus, any claim based on Milbourn is not cognizable in a habeas corpus
action.
Moreover, any claim that Petitioner’s sentence was disproportionate under the Eighth
Amendment 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
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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)). 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 punishment.
Petitioner also fails to demonstrate a due process violation. A sentence may violate
due process if it is based upon material “misinformation of constitutional magnitude.” Roberts v.
United States, 445 U.S. 552, 556 (1980), quoted in Koras v. Robinson, 123 F. App’x 207, 213 (6th
Cir. 2005); 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
Cir. 1988)). A sentencing court demonstrates actual reliance on misinformation when the court
gives “explicit attention” to it, “found[s]” its sentence “at least in part” on it, or gives “specific
consideration” to the information before imposing sentence. Tucker, 404 U.S. at 444, 447.
Petitioner does not claim that he was sentenced based on materially false information.
He therefore fails to demonstrate that his sentence violated due process. Tucker, 404 U.S. at 447;
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).
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For all these reasons, the state court’s rejection of Petitioner’s claim 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).
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: July 15, 2015
/s/ Gordon J. Quist
GORDON J. QUIST
UNITED STATES DISTRICT JUDGE
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