Sanders #643214 v. Trierweiler
Filing
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OPINION; Judgment and Order 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
DAVID DWAYNE SANDERS,
Petitioner,
v.
Case No. 1:16-cv-317
Honorable Janet T. Neff
TONY TRIERWEILER,
Respondent.
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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 David Dwayne Sanders presently is incarcerated at the Bellamy Creek
Correctional Facility. Petitioner pleaded guilty in the Barry County Circuit Court to two counts of
second-degree criminal sexual conduct involving a person under 13 years, MICH. COMP. LAWS
§ 750.520c. In accordance with the terms of the plea agreement, Petitioner was sentenced on May
23, 2013 to 12 months in the county jail, with credit for 186 days served.
After completing his jail term, Petitioner was placed on probation with special
conditions. On September 3, 2013, the probation department filed a motion and affidavit, alleging
that Petitioner had violated a number of the conditions of his probation: (1) having contact with
minors; (2) using a computer or other device connected to the internet; (3) using photographic
equipment; (4) failing to register his Facebook account; (5) failing to make court-ordered payments;
(6) failing to comply with registration; and (7) use of alcohol. Following a probation-violation
hearing, Petitioner was found guilty of five of the seven violations.
On September 26, 2013, the court resentenced Petitioner as a third-offense felony
offender, MICH. COMP. LAWS § 769.11, to two prison terms of 20 to 30 years. At the sentencing
hearing, the court rejected the guideline recommendation of 58 to 171 months. The trial court found
that Offense Variables (OVs) 7, 10 and 11 should have been scored differently, and it substantially
departed upward, ostensibly because it did not approve of the plea agreement in the first instance.
Petitioner sought leave to appeal his sentence to the Michigan Court of Appeals and
the Michigan Supreme Court, arguing that the trial judge had abused her discretion by exceeding
the sentencing guidelines of 58 to 171 months and imposing a minimum sentence of 240 months.
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The state appellate courts denied leave to appeal on May 27, 2014 and December 30, 2015,
respectively.
Petitioner, through counsel, filed his initial habeas application on March 27, 2016.
He filed an amended petition on May 25, 2016. In his amended petition, Petitioner raises two
grounds for relief:
I.
WHETHER THE STATE TRIAL COURT ERRED IN IMPOSING A 20 TO
30 YEAR SENTENCE FOR A PROBATION VIOLATION WHICH WAS
AN UNREASONABLE APPLICATION OF CLEARLY ESTABLISHED
FEDERAL LAW AS IT RELATES TO A VIOLATION OF FEDERAL
DUE PROCESS AND RESULTED IN A DECISION THAT WAS BASED
ON AN UNREASONABLE DETERMINATION [OF THE] FACTS
BECAUSE THE TRIAL COURT ALREADY TOOK INTO
CONSIDERATION THE SENTENCING FACTORS WHEN IT
ORIGINALLY SENTENCED THE PETITIONER TO 12 MONTHS?
II.
WHETHER THE STATE TRIAL COURT’S SENTENCE OF 20 TO 30
YEARS FROM THE ORIGINAL 12 MONTH SENTENCE CONSTITUTES
CRUEL AND UNUSUAL PUNISHMENT IN VIOLATION OF THE
EIGHTH AMENDMENT OF THE US CONSTITUTION BECAUSE IT
WAS WHOLLY DISPROPORTIONATE?
(Br. in Supp. of Pet., ECF No. 3, PageID.6.)
Discussion
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
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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) (quotation marks omitted).
Before the court may grant habeas relief to a state prisoner, the prisoner must exhaust
remedies available in the state courts. 28 U.S.C. § 2254(b)(1); O’Sullivan v. Boerckel, 526 U.S. 838,
842 (1999). Exhaustion requires a petitioner to “fairly present” federal claims so that state courts
have a “fair opportunity” to apply controlling legal principles to the facts bearing upon a petitioner’s
constitutional claim. See O’Sullivan, 526 U.S. at 842; Picard v. Connor, 404 U.S. 270, 275-77
(1971) (cited by Duncan v. Henry, 513 U.S. 364, 365 (1995) and Anderson v. Harless, 459 U.S. 4,
6 (1982)). To fulfill the exhaustion requirement, a petitioner must have fairly presented his federal
claims to all levels of the state appellate system, including the state’s highest court. Duncan, 513
U.S. at 365-66; Wagner v. Smith, 581 F.3d 410, 414 (6th Cir. 2009); Hafley v. Sowders, 902 F.2d
480, 483 (6th Cir. 1990).
Petitioner did not raise either a federal due process claim or an Eighth Amendment
claim in the state courts. Instead, he argued the trial court had abused its discretion under state law.
His constitutional claims therefore have not been fairly presented and are not exhausted. However,
notwithstanding the lack of exhaustion, this Court is authorized to deny an application for habeas
relief. See 28 U.S.C. § 2254(b)(2).
“[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
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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).
To the extent Petitioner suggests 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;
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Pulley, 465 U.S. at 41. Thus, Petitioner’s claim based on Milbourn is not cognizable in a habeas
corpus action.
Moreover, Petitioner’s claim that his 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
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 on 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.
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United States, 445 U.S. 552, 556 (1980), quoted in Koras v. Robinson, 123 F. App’x 207, 213 (6th
Cir. Feb. 15, 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 identify any facts found by the court at sentencing that were either
materially false or based on 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)
Finally, Petitioner’s sentence is not unconstitutional simply because the state sentence
might have been different had the federal sentencing guidelines been applied. See Cowherd v.
Million, 260 F. App’x 781, 787 (6th Cir. 2008). As the Sixth Circuit has recognized, “[t]he Supreme
Court has not . . . ever held or suggested that state sentences and federal sentences must approximate
each other in order to pass constitutional muster.” Id.
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).
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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
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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: June 7, 2016
/s/ Janet T. Neff
Janet T. Neff
United States District Judge
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