Wynn #803944 v. Palmer

Filing 3

OPINION; signed by District Judge Paul L. Maloney (Judge Paul L. Maloney, cmc)

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

AUSTIN MICHAEL WYNN,
Petitioner,
v.

Case No. 1:15-cv-1198
Honorable Paul L. Maloney

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 Austin Michael Wynn presently is incarcerated at the Michigan Reformatory.
Following a jury trial in the Branch County Circuit Court, Petitioner was convicted of both armed robbery
and conspiracy to commit armed robbery, in violation of MICH. COMP. LAWS § 750.529, in each of two
separate cases. On June 22, 2011, he was sentenced in both cases to prison terms of 210 to 600 months
on each count in the first case and 225 to 600 months on each count in the second case.
Petitioner appealed his convictions and sentences in both cases to the Michigan Court of
Appeals, and the appeals were consolidated. Petitioner challenged the scoring of Offense Variables (OVs)
1, 13, 14 and 19 and alleged that he was denied of due process when the prosecutor withheld Defendant’s
statement to the police until the second day of trial. Petitioner filed a supplemental brief on appeal,
objecting to the scoring of OV 4 and alleging that trial counsel was ineffective in failing to object to the
scoring of that variable. In an unpublished opinion issued on September 20, 2012, the court of appeals
affirmed the convictions but remanded for resentencing. Petitioner sought leave to appeal to the Michigan
Supreme Court, which denied leave to appeal on December 26, 2012.
Petitioner was resentenced on February 27, 2013. He appealed to the Michigan Court
of Appeals, again objecting to the scoring of OV 4 and OV 19. In an unpublished opinion issued on June
10, 2014, the court rejected all appellate arguments and affirmed the convictions in both cases. Petitioner
sought leave to appeal to the Michigan Supreme Court, which denied leave to appeal on November 25,
2014.

-2-

In his habeas application, filed on or about November 16, 2015,1 Petitioner raises only the
two grounds for relief raised in his second appeal, contending that the trial court erred in the scoring of OV
4 and OV 19.
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 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).

1

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 November 16,
2015, and it was received by the Court on November 25, 2015. Thus, it must have been handed to prison officials for
mailing at some time between November 16 and 25, 2015. 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).

-3-

“[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).
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) (quoting Pulley v. Harris, 465 U.S. 37, 50 (1984)). 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)); 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
-4-

F.2d 356, 358 (6th Cir. 1984). 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 447.
Petitioner fails even to argue that the facts found by the court at sentencing were either
materially false or based on false information. Tucker, 404 U.S. at 447. Instead, Petitioner argues only
that the facts supporting the findings were limited and that, under Petitioner’s interpretation of the facts, the
sentencing court should have reached a different determination. Such claims clearly fall far short of the sort
of egregious circumstances implicating due process. Moreover, the Michigan Court of Appeals expressly
found that sufficient evidence supported the scoring of OV 4 and OV 19 and detailed the facts supporting
that determination. (See 9/20/12 Mich. Ct. App. Op., Attach. 1 to Pet., ECF No. 1-1, PageID.56-57.)
The Sixth Circuit repeatedly has recognized “‘that a state court’s interpretation of state law, including one
announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus.’”
Stumpf v. Robinson, 722 F.3d 739, 746 n.6 (6th Cir. 2013) (quoting Bradshaw, 546 U.S. at 76). The
state-court’s rejection of Petitioner’s claim therefore 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.

-5-

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
-6-

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: January 20, 2016

/s/ Paul L. Maloney
Paul L. Maloney
United States District Judge

-7-