Ayers #937170 v. Jackson

Filing 2

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

TRACY HENRY AYERS,
Petitioner,
v.

Case No. 1:16-cv-878
Honorable Janet T. Neff

SHANE JACKSON,
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 Tracy Henry Ayers presently is incarcerated at the Earnest C. Brooks
Correctional Facility. He pleaded guilty in the Antrim County Circuit Court to two counts of thirddegree criminal sexual conduct (CSC III), MICH. COMP. LAWS § 750.520d, and one count of
producing sexually abusive material, MICH. COMP. LAWS § 750.145c(2). On July 21, 2014, he was
sentenced to two prison terms of 10 to 15 years on the CSC III convictions and one term of 7 years
and 1 month to 20 years on the conviction for child sexually abusive material.
Petitioner sought leave to appeal his sentences to the Michigan Court of Appeals,
raising a single claim of error:
THE TRIAL COURT ERRED IN UPWARDLY DEPARTING FROM THE
SENTENCING GUIDELINES RANGES OF 51-85 MONTHS TO IMPOSE A
SENTENCE OF 120 MONTHS, WHERE THE JUDGE STATED REASONS
ALREADY ACCOUNTED FOR IN THE SENTENCING GUIDELINES; AND
THIS FURTHER VIOLATE[D] [PETITIONER’S] DUE PROCESS RIGHTS
UNDER THE FOURTEENTH AMENDMENT TO THE UNITED STATES[]
CONSTITUTION.
(Attach. to Pet., ECF No. 1-1, PageID.18.) The court of appeals denied leave to appeal on March
18, 2015. Petitioner sought leave to appeal to the Michigan Supreme Court, raising the same issue.
The supreme court denied leave to appeal on September 29, 2015.
Petitioner timely filed the instant habeas petition, raising the same ground presented
to and rejected by the state appellate courts.
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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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

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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 that Petitioner argues that his sentence violated due process, he fails
to to state a federal claim. 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. 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 even attempt to 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)
To the extent Petitioner intends to suggest that his sentence was disproportionate, he
also fails to state a cognizable federal 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

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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, 546 U.S. at 76; 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

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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.
For all these reasons, the state-court rejection of Petitioner’s claims 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

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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
of appealability.
A Judgment and Order consistent with this Opinion will be entered.

Dated:

July 27, 2016

/s/ Janet T. Neff
Janet T. Neff
United States District Judge
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