Scarberry #629567 v. Jackson
Filing
5
OPINION; Order and 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
SOUTHERN DIVISION
PATRICK EUGENE SCARBERRY,
Petitioner,
v.
Case No. 1:16-cv-1162
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 Patrick Eugene Scarberry is incarcerated with the Michigan Department
of Corrrections (MDOC) at the West Shoreline Correctional Facility in Muskegon Heights,
Michigan. On March 27, 2013, a St. Joseph County Circuit Court jury convicted Petitioner on one
count of first-degree home invasion, MICH. COMP. LAWS § 750.110(A)(2) and one count of domestic
violence, MICH. COMP. LAWS § 750.81(2). On May 3, 2013, the Court sentenced Petitioner to a term
of imprisonment of 10 years to 20 years for home invasion and a sentence of seventy-five days for
domestic violence.
Petitioner, with the assistance of counsel, filed a direct appeal of his convictions and
sentences in the Michigan Court of Appeals raising three issues:
I.
Petitioner was denied a fair trial by the admission of unduly prejudicial
evidence of other acts of domestic violence, as well as by the gratuitous
repetition of the allegations by several witnesses.
II.
Petitioner must be resentenced where his sentence is based on incorrectly
scored sentencing guidelines and inaccurate information.
III.
Petitioner’s Sixth and Fourteenth Amendment rights were violated by
judicial factfinding, which increased the floor of the permissible sentence, in
violation of Alleyne v. United States.
(Pet. Attach. A, ECF No. 1-2, PageID.22.)
The Michigan Court of Appeals affirmed Petitioner’s convictions and sentences in an
unpublished opinion. People v. Scarberry, No. 317183, 2014 WL 6602530 (Mich. Ct. App. Nov.
20, 2014).
Petitioner proceeded to file an application for leave to appeal in the Michigan
Supreme Court. The Michigan Supreme Court held the application in abeyance pending its decision
in People v. Lockridge, 870 N.W.2d 502 (Mich. 2015). People v. Scarberry, 836 N.W.2d 316
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(Mich. 2015). On October 28, 2015, in lieu of granting leave to appeal, the supreme court reversed
the decision of the court of appeals with respect to issue III and remanded to the St. Joseph County
Circuit Court to determine whether the trial court would have imposed a materially different
sentence under the sentencing procedure described in Lockridge, 870 N.W.2d at 502. People v.
Scarberry, 870 N.W.2d 896 (Mich. 2015). In all other respects, however, the supreme court denied
the application for leave to appeal. Id.
On remand, the trial court considered and denied Petitioner’s request for resentencing
in light of Lockridge, 870 N.W. 2d at 502. The trial court stated:
[P]ursuant to part VI of the Lockridge decision, the Court reviewed the file and the
Presentence Report. The Court being now aware that the guidelines are advisory
only, has determined that the original sentence was just and reasonable and would
not have changed it knowing the guidelines are advisory.
(Nov. 24, 2015 St. Joseph Cty. Circuit Ct. Order, Attach. C, ECF No. 1-2, PageID.60.)
Petitioner did not pursue any appeal of the trial court’s order on remand.
On September 19, 2016, Petitioner filed his habeas corpus petition in this Court.1 He
raises the same issues he raised in the Michigan Court of Appeals and Supreme Court, except that
he has restated Issue I to expressly reference his constitutional rights and the Sixth and Fourteenth
Amendments. (Grounds Raised, Pet. Attach. C, ECF No. 1-2, PageID.59.)
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 September
19, 2016, and it was received by the Court on September 22, 2016. September 19, 2016, is 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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Discussion
I.
Factual Allegations
Petitioner concisely recounted the underlying facts and trial testimony in his
application for leave to appeal filed in the Michigan Supreme Court:
The charges arose out of an alleged home invasion at the home of Mr.
Scarberry’s exwife, Tammy Scarberry, in Stu[r]gis, Michigan. Mr. Scarberry denied
committing the offense, and had an alibi to verify his whereabouts at the time of the
alleged incident.
*
*
*
Trial Testimony
Tammy Scarberry was formerly married to Mr. Scarberry, and they had an
11-year-old daughter, Ashlie. [Trial 3/26/13, 97-98] There were disputes because
Mr. Scarberry did not have visitation rights. [Trial 3/26113, 122-123]
Ms. Scarberry said she and Ashlie were asleep at about 4:30 a.m. on July 23,
2012, when a man she identified as Mr. Scarberry entered through the bedroom
window. [Trial 3/26/13, 98] The window was open; the intruder broke through the
screen. [Trial 3/26/13, 99] She further claimed that Mr. Scarberry slapped her one
time on the right cheek. [Trial 3/26/13, 99-101, 126-127] Then Mr. Scarberry left
through the front door. [Trial 3/26/13, 123] She called her brother, who then called
police. [Trial 3/26/13, 100]
Ashlie Scarberry likewise claimed that she was asleep with her mother when
Mr. Scarberry broke into the screen and entered through the bedroom window. [Trial
3/26/13, 140] She added that Mr. Scarberry slapped her mother on the face, once.
[Trial 3/26/13, 141, 143] He told her, “come on, Ashlie,” and she said, “no.” [Trial
3/26/13, 140] Then he left through the front door. [Trial 3/26/13, 143] She was not
wearing her glasses when the incident occurred. [Trial 3/26/13, 142]
The defense objected when the prosecutor elicited testimony that Tammy
Scarberry had obtained a Personal Protection Order against Mr. Scarberry. [Trial
3/26/13, 106] The court held a hearing away from the jury, at which it admonished
counsel for failing to file a motion in limine to exclude the evidence, stating that “the
prejudice is already attached because it was already offered that he had a PPO.”
[Trial 3/26/13, 107] Counsel argued, inter alia, that introduction of the conduct
underlying the PPO would be substantially more probative. [Trial 3/26/13, 109-110]
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Nevertheless, the court decided to admit the evidence, “to determine a pattern of
behavior,” pursuant to MCL 768.27b. [Trial 3/26/13, 113]
The PPO was admitted into evidence [Trial 3/26/13, 118] and the
complainant proceeded to testify that she had obtained it in September or October
2011 because Mr. Scarberry had “slapped [her] and put [her] in a headlock.” [Trial
3/26/13, 116] The court instructed the jury that the PPO was being offered to show
“history between the parties” and to show “their prior relationship and behavior.”
[Trial 3/26/13, 118]
The defense objected when the prosecutor elicited testimony from Tammy
Scarberry’s brother, Kent Schmucker, repeating what she told him when she called
him on the phone. [Trial 3/26/13, 146-147] Treating it as a hearsay objection, the
court admitted the testimony. [Trial 3/26/13, 148] Mr. Schmucker recounted that
Ms. Scarberry called a few minutes after 4:00 a.m., bawling, hysterical, almost
hyperventilating, and asserted that Mr. Scarberry had broken in and slapped her.
[Trial 3/26/13, 146, 148]
The story was repeated, again over defense objection [Trial 3/26/13, 151 ],
by Officer Matt Boerman, who was dispatched for a burglary at 4:26 a.m. [Trial
3/26/13, 150] Officer Boerman reiterated Ms. Scarberry’s report that Mr. Scarberry
had broken into her home and slapped her. [Trial 3/26/13, 151] Ms. Scarberry
complained of pain to her face; her face was red, but he couldn’t tell if it was from
injury or from crying. [Trial 3/26/13, 152] He located the window screen outside.
[Trial 3/26/13, 152]
Mr. Scarberry’s daughter, Kellie Scarberry, arrived at 4:30 a.m., while police
were there. [Trial 3/26/13, 171] There were no visible injuries to Tammy
Scarberry’s face. [Trial 3/26113, 173]
Mr. Scarberry’s alibi
Mr. Scarberry lived with his daughter Malinda and her fiance, Chris Bohne
in Colon, which was about a 30 to 35 minute drive from Stu[r]gis. [Trial 3/26/13,
177, 179] Mr. Scarberry denied going to the complainant’s house on the night in
question. [Trial 3/26/13, 195] He recalled that he and the complainant were having
disagreement because she would not allow him to visit Ashlie, even though they
shared joint custody. [Trial 3/26/13, 191] He injured his shoulder playing
horseshoes on July 22nd, so he started walking to Sturgis hospital around 11:00 p.m.
[Trial 3/26113, 193] He arrived around 3:00 a.m. [on July 23rd], was given a shot,
and left at about 4:00 a.m. [Trial 3/26/13, 193-194] He caught a ride, and arrived
home between 4:00 a.m. and 4:20 a.m. [Trial 3/26/13, 194] He went to sleep on the
couch, leaving the paperwork from the hospital on the coffee table. [Trial 3/26/13,
195] He slept until about 11:00 a.m. or noon. [Trial 3/26/13, 195]
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Hospital records indicated that Mr. Scarberry was in the emergency room 2
or 3 miles away from the complainant’s home, on July 23, 2010 from 3:10 a.m. until
3:50 a.m. [Trial 3/26/13, 161-162]
Mr. Scarberry’s alibi was corroborated by Chris Bohne, who recalled waking
up at 4:00 a.m., and finding Mr. Scarberry asleep on the couch on the morning in
question. [Trial 3/26/13, 177] He saw the documents indicating that Mr. Scarberry
had gone to the hospital that morning. [Trial 3/26/13, 177] Mr. Scarberry had
injured himself playing horseshoes the previous day. [Trial 3/26/13, 178]
Malinda Scarberry similarly recalled seeing her father asleep on the couch
between 4:15 and 4:30 that morning, and she remembered seeing the paperwork from
his hospital visit. [Trial 3/26/13, 183]
Notwithstanding Mr. Scarberry’s alibi, the jury convicted him, as charged,
of first degree home invasion and domestic assault.
(Appl. for Leave to Appeal, ECF No. 1-2, PageID.26-29.)
II.
Standard
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
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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 habeas court may issue the writ under the “contrary to” clause if the state
court applies a rule different from the governing law set forth in the Supreme Court’s cases, or if it
decides a case differently than the Supreme Court has done on a set of materially indistinguishable
facts. Bell, 535 U.S. at 694 (citing Williams, 529 U.S. at 405-06). “To satisfy this high bar, a habeas
petitioner is required to ‘show that the state court’s ruling on the claim being presented in federal
court was so lacking in justification that there was an error well understood and comprehended in
existing law beyond any possibility for fairminded disagreement.’” Woods, 135 S. Ct. at 1376
(quoting Harrington v. Richter, 562 U.S. 83, 103 (2011)). In other words, “[w]here the precise
contours of the right remain unclear, state courts enjoy broad discretion in their adjudication of a
prisoner’s claims.” White v. Woodall, 572 U.S. ___, 134 S. Ct. 1697, 1705 (2014) (quotations marks
omitted). The court may grant relief under the “unreasonable application” clause “if the state court
correctly identifies the governing legal principle from our decisions but unreasonably applies it to
the facts of the particular . . . case.” Williams, 529 U.S. at 407. A federal habeas court may not find
a state adjudication to be “unreasonable” “simply because that court concludes in its independent
judgment that the relevant state-court decision applied clearly established federal law erroneously
or incorrectly.” Id. at 411; accord Bell, 535 U.S. at 699. Rather, the issue is whether the state
court’s application of clearly established federal law is “objectively unreasonable.” Williams, 529
U.S. at 410. “[R]elief is available under § 2254(d)(1)’s unreasonable-application clause if, and only
if, it is so obvious that a clearly established rule applies to a given set of facts that there could be no
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‘fairminded disagreement’ on the question.” White, 134 S. Ct. at 1706-07 (quoting Harrington, 562
U.S. at 103).
Where the state appellate court has issued a summary affirmance, it is strongly
presumed to have been made on the merits, and a federal court cannot grant relief unless the state
court’s result is not in keeping with the strictures of the AEDPA. See Harrington, 562 U.S. at 99;
see also Johnson v. Williams, 133 S. Ct. 1088, 1094 (2013); Werth v. Bell, 692 F.3d 486, 494 (6th
Cir. 2012) (applying Harrington and holding that a summary denial of leave to appeal by a Michigan
appellate court is considered a decision on the merits entitled to AEDPA deference). The
presumption, however, is not irrebuttable. Johnson, 133 S. Ct. at 1096. Where other circumstances
indicate that the state court has not addressed the merits of a claim, the court conducts de novo
review. See id. (recognizing that, among other things, if the state court only decided the issue based
on a state standard different from the federal standard, the presumption arguably might be
overcome); see also Harrington, 562 U.S. at 99-100 (noting that the presumption that the statecourt’s decision was on the merits “may be overcome when there is reason to think some other
explanation for the state court’s decision is more likely”); Wiggins v. Smith, 539 U.S. 510, 534
(2003) (reviewing habeas issue de novo where state courts had not reached the question).
The AEDPA requires heightened respect for state factual findings. Herbert v. Billy,
160 F.3d 1131, 1134 (6th Cir. 1998). A determination of a factual issue made by a state court is
presumed to be correct, and the petitioner has the burden of rebutting the presumption by clear and
convincing evidence. 28 U.S.C. § 2254(e)(1); Lancaster v. Adams, 324 F.3d 423, 429 (6th Cir.
2003); Bailey, 271 F.3d at 656. This presumption of correctness is accorded to findings of state
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appellate courts, as well as the trial court. See Sumner v. Mata, 449 U.S. 539, 546 (1981); Smith v.
Jago, 888 F.2d 399, 407 n.4 (6th Cir. 1989).
III.
Other acts evidence
Petitioner complains that his trial was rendered fundamentally unfair by the
admission of “other acts” evidence in the form of testimony from his ex-wife regarding her Personal
Protection Order against him and the underlying violence that resulted in the entry of the order. The
trial court admitted the evidence “‘to determine a pattern of behavior . . . .’” (Appl. for Leave to
Appeal, ECF No. 1-2, PageID.27.) The trial court instructed the jury that evidence regarding the
Personal Protection Order and the violence upon which it was based was offered to show “‘history
between the parties’”as well as “‘their prior relationship and behavior.’” (Id.)
The Michigan Court of Appeals concluded admission of the evidence was proper:
Defendant first argues that the trial court erred in admitting his ex-wife’s testimony
that she had obtained a PPO against him in September or October 2011,
approximately nine to ten months before the events giving rise to the instant charges,
because “he slapped [her] and put [her] in a headlock.” Defendant concedes that,
under MCL 768.27b(1), “in a criminal action in which the defendant is accused of
an offense involving domestic violence, evidence of the defendant’s commission of
other acts of domestic violence is admissible for any purpose which is relevant, if it
is not otherwise excluded under Michigan rule of evidence 403.” Defendant’s
ex-wife’s testimony regarding the PPO was relevant because it contained allegations
that defendant had exhibited the same violent behavior, i.e., slapping, toward her as
he was alleged to have exhibited in the instant case. Nonetheless, under MRE 403,
“[a]lthough relevant, evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice[ .]” In addition to its aforementioned
relevance, the PPO testimony illustrated the nature of defendant’s relationship with
his ex-wife and assisted the jury in assessing his ex-wife’s credibility. People v.
Meissner, 294 Mich. App. 438, 452; 812 N.W.2d 37 (2011). Moreover, any
prejudicial effect of the trial court’s decision to allow testimony regarding the PPO
did not substantially outweigh its probative value. People v. Cameron, 291 Mich.
App. 599, 612; 806 N.W.2d 371 (2011). The testimony was brief, see People v.
Railer, 288 Mich. App. 213, 220; 792 N.W.2d 776 (2010), and the trial court
minimized the prejudicial effect of the evidence by instructing the jury that defendant
was “not on trial for what happened as alleged in the PPO or anything related to the
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PPO[,]” see Cameron, 291 Mich. App. at 612. Accordingly, the trial court did not
abuse its discretion in admitting testimony regarding the PPO obtained against
defendant by his ex-wife.
Scarberry, 2014 WL 6602530, at *1 (footnote omitted).
In the state courts, Petitioner raised his challenges to the admission of evidence
principally as violations of state law. Petitioner first argued that there was no purpose for which the
evidence was relevant; thus, under Michigan Rule of Evidence 401 and MICH. COMP. LAWS
§ 768.27b(1), the evidence should not be admitted. (Appl. for Leave to Appeal, ECF No. 1-2,
PageID.31.) Alternatively, Petitioner argued that the evidence was inadmissible because it was more
prejudicial than probative under Michigan Rule of Evidence 403 and MICH. COMP. LAWS
§ 768.27b(1). (Id.). The admission of all of the irrelevant and/or prejudicial “other acts” evidence,
Petitioner then argued, rendered his trial unfair.
The admissibility of the evidence under MICH. COMP. LAWS § 768.27b or Michigan
Rules of Evidence 401and 403, are purely issues of state law. It is not the province of a federal
habeas court to re-examine state-law determinations on state-law questions. Bradshaw v. Richey,
546 U.S. 74, 76 (2005); Estelle, 502 U.S. at 68. The decision of the state courts on a state-law issue
is binding on a federal court. See Wainwright v. Goode, 464 U.S. 78, 84 (1983). 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).
Thus, the Michigan Court of Appeals’s determinations that the “other acts” evidence was admissible
under MICH. COMP. LAWS § 768.27b, relevant under Michigan Rule of Evidence 401, and more
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probative than prejudicial under Michigan Rule of Evidence 403, conclusively resolves those state
law issues.
That leaves Petitioner to the very limited review afforded to state-court evidentiary
rulings under the Due Process Clause. State-court evidentiary rulings cannot rise to the level of due
process violations unless they offend some principle of justice so rooted in the traditions and
conscience of our people as to be ranked as fundamental. Seymour v. Walker, 224 F.3d 542, 552
(6th Cir. 2000) (quotation omitted); accord Coleman v. Mitchell, 268 F.3d 417, 439 (6th Cir. 2001);
Bugh v. Mitchell, 329 F.3d 496, 512 (6th Cir. 2003). This approach accords the state courts wide
latitude in ruling on evidentiary matters. Seymour, 224 F.3d at 552. Further, under the AEDPA, the
court may not grant relief if it would have decided the evidentiary question differently. The court
may only grant relief if Petitioner is able to show that the state court's evidentiary ruling was in
conflict with a decision reached by the Supreme Court on a question of law or if the state court
decided the evidentiary issue differently than the Supreme Court did on a set of materially
indistinguishable facts. Sanders v. Freeman, 221 F.3d 846, 860 (6th Cir.2000).
Petitioner has not met this difficult standard. There is no clearly established Supreme
Court precedent that holds that a state court violates the Due Process Clause by permitting
propensity evidence in the form of other bad acts evidence. In Estelle, the Supreme Court declined
to hold that the admission of prior acts evidence violated due process. Estelle, 502 U.S. at 75. The
Court stated in a footnote that, because it need not reach the issue, it expressed no opinion as to
whether a state law would violate due process if it permitted the use of prior “bad acts” evidence to
show propensity to commit a charged crime. Id. at 75 n. 5. While the Supreme Court has addressed
whether prior acts testimony is permissible under the Federal Rules of Evidence, see Old Chief v.
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United States, 519 U.S. 172 (1997); Huddleston v. United States, 485 U.S. 681 (1988), it has not
explicitly addressed the issue in constitutional terms. The Sixth Circuit has also found that “[t]here
is no clearly established Supreme Court precedent which holds that a state violates due process by
permitting propensity evidence in the form of other bad acts evidence.” Bugh, 329 F.3d at 512.
Petitioner’s habeas challenge to the admissibility of the “other acts” evidence– whether that
evidence was admitted in the form of the victim’s testimony, testimony from her daughter, testimony
from her brother, or testimony from the investigating officer– is without merit.
IV.
Testimony regarding the victim’s out-of-court statements
A.
Due process
On his direct appeal, Petitioner challenged the testimony of the victim’s brother and
the investigating police officer regarding statements the victim made shortly after the incident. The
trial court permitted the “hearsay” evidence under the excited utterance exception, Michigan Rule
of Evidence 803(2). Scarberry, 2014 WL 6602530, at *1. Petitioner contended the “excited
utterance” testimony was needlessly cumulative and, thus, should not be admitted under Michigan
Rule of Evidence 403. The court of appeals rejected this challenge as well: “We find that the
evidence was not needlessly cumulative because it was probative of defendant’s guilt, occurred close
in time to the commission of the charged crimes, and was relevant to the jury’s assessment of
defendant’s ex-wife’s credibility.” Id. (citation omitted). The court of appeals conclusion on this
state law issue binds this Court. See Section III, infra.
Even though the admission of this evidence does not violate state law, it is possible
the evidence might render Petitioner’s trial fundamentally unfair nonetheless. Petitioner, however,
has failed to demonstrate that the admission of this evidence violated his due process rights. He has
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not shown the state court’s determination is contrary to, or inconsistent with clearly established
federal law. He has also failed to demonstrate with any evidence, much less clear and convincing
evidence, that the state court’s presumptively correct determinations of fact regarding the probative
value and relevance of the evidence are unreasonable. Petitioner’s due process challenge to the
admission of this evidence has no merit.
B.
Confrontation Clause
In “federalizing” his claim for habeas review, in addition to the Fourteenth
Amendment, Petitioner references the Sixth Amendment. Because the testimony at issue presented
out-of-court statements, it is possible Petitioner intends to challenge the testimony on Confrontation
Clause grounds. The Confrontation Clause of the Sixth Amendment gives the accused the right “to
be confronted with the witnesses against him.” U.S. CONST. amend. VI. The Supreme Court has
long read this right as securing an adequate opportunity to cross-examine adverse witnesses. United
States v. Owens, 484 U.S. 554, 557 (1988) (citing Mattox v. United States, 156 U.S. 237, 242-43
(1895) and Douglas v. Alabama, 380 U.S. 415, 418 (1965)). As stated by the Court:
Our own decisions seem to have recognized at an early date that it is this literal right
to ‘confront’ the witness at the time of trial that forms the core of the values
furthered by the Confrontation Clause:
“The primary object of the constitutional provision in question was
to prevent depositions or ex parte affidavits, such as were sometimes
admitted in civil cases, being used against the prisoner in lieu of a
personal examination and cross-examination of the witness, in which
the accused has an opportunity, not only of testing the recollection
and sifting the conscience of the witness, but of compelling him to
stand face to face with the jury in order that they may look at him,
and judge by his demeanor upon the stand and the manner in which
he gives his testimony whether he is worthy of belief.” Mattox v.
United States, 156 U.S. 237, 242-43 (1895).
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Viewed historically, then, there is good reason to conclude that the Confrontation
Clause is not violated by admitting a declarant’s out-of-court statements, as long as
the declarant is testifying as a witness and subject to full and effective
cross-examination.
California v. Green, 399 U.S. 149, 157-58 (1970).
In Green, the Court compared the purposes of confrontation with the dangers in
admitting an out-of-court statement. Confrontation “(1) insures that the witness will give his
statements under oath – thus impressing the witness with the seriousness of the matter and guarding
against the lie by the possibility of a penalty for perjury; (2) forces the witness to submit to
cross-examination, the ‘greatest legal engine ever invented for discovery of truth’; and (3) permits
the jury that is to decide the defendant’s fate to observe the demeanor of the witness in making his
statement, thus aiding the jury in assessing his credibility.” Green, 399 U.S. at 158. Although an
out-of-court statement may not have been subject to any of these protections, it regains the lost
protections if the declarant is present and testifying at trial.
Id.
Further, an inability to
cross-examine the witness at the time the out-of-court statement is made is not of crucial
significance as long as the witness is subject to full and effective cross-examination at trial. Id. at
159. Similarly, the jury’s inability to view the declarant’s demeanor when the statement was made
is not important when the jury may view that witness at trial either affirming or disavowing the
statement. Id. at 160. In other words, contemporaneous cross-examination before the jury is not so
much more effective than subsequent examination at trial that it must be made the touchstone of the
Confrontation Clause. Id. at 161. Thus, where the declarant testifies and is cross-examined, “our
cases, if anything, support the conclusion that the admission of his [or her] out-of-court statements
does not create a confrontation problem.” Green, 399 U.S. at 162; see also Owens, 484 U.S. at 560
(inquiry into the “indicia of reliability” or the “particularized guarantees of trustworthiness” of the
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out-of-court statements is not called for when the declarant is available at trial and subjected to
unrestricted cross-examination, because “the traditional protections of the oath, cross-examination,
and opportunity for the jury to observe the witness’ demeanor satisfy the constitutional
requirements”).
The declarant, the victim, testified at trial, and Petitioner’s counsel subjected her to
unrestricted cross-examination. Petitioner’s Confrontation Clause argument, therefore, has no merit.
V.
Petitioner’s sentence
Petitioner raises several challenges to his sentence on the home invasion count.
Petitioner was sentenced to a minimum term of 10 years for the home invasion offense.
The
Sentencing Information Report (Appl. for Leave to Appeal App. A, ECF No. 1-2, PageID.47),
initially scored Petitioner’s variables as follows: Prior Record Variable (PRV) 2–30 points; Offense
Variable (OV) 3–5 points; OV 4–10 points; OV 10–15 points; OV 12–5 points; OV 13–0 points; and
OV 19–15 points.2 That yielded a Total PRV of 30, a PRV level of D, and a Total OV of 50, an OV
level of V. Under the Michigan sentencing guidelines, as a fourth habitual offender, Petitioner’s
minimum sentence would fall in a range of 78 months to 260 months. Michigan Judicial Institute,
State of Michigan Sentencing Guidelines Manual (2012), p. 99, https://mjieducation.mi.gov/felonysentencing-online-resources (hereinafter “SGM”).
At sentencing, the trial court changed the scoring slightly. OV 19 was changed from
15 points to 0 points. OV 13 was changed from 0 points to 25 points. That changed Petitioner’s
Total OV to 60 points, but it did not change his OV level so his minimum sentence range remained
the same. Petitioner contends that the court erred in scoring OV 3 regarding level of bodily injury,
2
The remaining variables were all scored 0 points. (Appl. for Leave to Appeal App. A, ECF No. 1-2,
PageID.47.)
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OV 4 regarding serious psychological injury, OV 10 regarding predatory conduct, and OV 12
regarding contemporaneous felonious criminal acts.3
Petitioner further contends that the trial court based its sentence on inaccurate
information. Petitioner states that the court’s sentence is premised on the invalid assumption that
Petitioner slapped the victim twice, but the trial testimony of the victim and her daughter, Petitioner
claims, shows only a single slap. (Appl. for Leave to Appeal, ECF No. 1-2, PageID.40.)
Finally, Petitioner contends that the trial court engaged in judicial fact-finding that
increased the floor of the range of permissible sentences in violation of the rule set forth in Alleyne
v. United States, 570 U.S. ___, 133 S. Ct. 2151 (2013), and the Sixth and Fourteenth Amendments.
A.
Improper scoring of offense variables
Claims concerning the improper scoring 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); 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
3
The court of appeals concluded that the trial court’s scoring of OV 3, OV 4, and OV 10 was appropriate.
Scarberry, 2014 WL 6602530, at *2. The court of appeals agreed that the trial court’s scoring of 5 points for OV 12 was
wrong. Id. It should have been scored as 0 points. Id. That change, however, had no impact on Petitioner’s guidelines
minimum range. Id. The court of appeals’ determinations with respect to the scoring are binding on this Court. See
Wainwright, 464 U.S. at 84; Stumpf, 722 F.3d at746 n.6.
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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 Austin v.
Jackson, 213 F.3d 298, 300 (6th Cir. 2000); Lovely v. Jackson, 337 F. Supp. 2d 969, 977 (E.D. Mich.
2004); Thomas v. Foltz, 654 F. Supp. 105, 106-07 (E.D. Mich. 1987). Accordingly, improper
scoring, standing alone, is not cognizable on habeas review.
B.
Inaccurate information
Although state law guidelines scoring 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)). It will be difficult to conclude that the scoring errors were sufficiently
egregious here. If the offense variables were scored in accordance with Petitioner’s argument, his
OV Total would be 30 points rather than 60 points. His minimum sentence range would change
from 78-260 months to 57-190 months. (Appl. for Leave to Appeal, ECF No. 1-2, PageID.40.)
Thus his minimum sentence of ten years would still fall in the lower half of the range.
Perhaps in recognition of the minimal effect of the scoring errors, Petitioner turns to
another basis for challenging the constitutionality of his sentence. He claims it is based on
inaccurate information: two slaps instead of one slap.
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
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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). 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.
The Michigan Court of Appeals rejected Petitioner’s claim. It concluded the number
of slaps was not material. Scarberry, 2014 WL 6602530, at *2 (“[T]here is no indication in the
record that the presence of an alleged second slap in defendant’s [presentence investigation report]
altered the trial court’s sentence . . . .”). Petitioner’s slapping of the victim found expression in
sentencing through OV 4 regarding bodily injury. The trial court found the injury caused by
Petitioner was sufficient to score 10 points. That scoring was upheld by the Michigan Court of
Appeals. Petitioner has failed to show that the state court’s determination–that the “injury caused”
did not depend on the presence of a second slap–is unreasonable.
Moreover, when one looks beyond the guidelines scoring to the trial court’s
discretionary selection of a minimum sentence from within the guidelines range, Petitioner has not
shown, and cannot show, that the information regarding “two slaps” was false or material to his
sentence. Tucker, 404 U.S. at 447. Petitioner’s statement of the facts acknowledges that the victim
testified regarding the one slap on July 23, 2012, and a second slap that prompted the issuance of
the personal protection order. (Appl. for Leave to Appeal, ECF No. 1-2, PageID.27-28.) Thus,
Petitioner has failed to demonstrate that the state court’s determinations with regard to the fairness
of his sentence were contrary to or inconsistent with clearly established federal law, or that the
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decisions were based on an unreasonable determination of the facts. His habeas claims regarding
scoring errors or sentencing based on false information, therefore, are without merit.
C.
Judicial fact-finding
Petitioner argues that his sentence was contrary to clearly established federal law
because the sentencing judge violated his Sixth Amendment right to a trial by jury by using, to
enhance his sentence, facts that had not been admitted by Petitioner or found by a jury beyond a
reasonable doubt. Petitioner bases his argument on a line of cases beginning with Apprendi v. New
Jersey, 530 U.S. 466 (2000), and ending with Alleyne v. United States, 570 U.S. ___, 133 S. Ct.
2151 (2013). In Apprendi, the Supreme Court held that “[o]ther than the fact of a prior conviction,
any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490. Apprendi enunciated
a new rule of Sixth Amendment jurisprudence. In the subsequent case of Blakely, the Court applied
the rule of Apprendi to a state sentencing guideline scheme, under which the maximum penalty
could be increased by judicial fact-finding. The Blakely Court held that the state guideline scheme
violated Sixth Amendment rights, and reiterated the rule that any fact that increased the maximum
sentence must be “admitted by the defendant or proved to a jury beyond a reasonable doubt.” See
Booker, 543 U.S. at 232 (citing Blakely, 542 U.S. at 303).
Unlike the State of Washington’s determinate sentencing system at issue in Blakely,
the State of Michigan has an indeterminate sentencing system in which the defendant is given a
sentence with a minimum and a maximum term. The maximum sentence is not determined by the
trial judge, but is set by law. See People v. Drohan, 715 N.W.2d 778, 789-91 (Mich. 2006) (citing
MICH. COMP. LAWS § 769.8). Only the minimum sentence is based on the applicable sentencing
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guideline range. Id.; see People v. Babcock, 666 N.W.2d 231, 236 n.7 (Mich. 2003) (citing MICH.
COMP. LAWS § 769.34(2)).
The Sixth Circuit authoritatively has held that the Michigan
indeterminate sentencing system does not run afoul of Blakely. See Chontos v. Berghuis, 585 F.3d
1000, 1002 (6th Cir. 2009) (affirming district court’s dismissal of prisoner’s claim under Blakely v.
Washington because it does not apply to Michigan’s indeterminate sentencing scheme); Tironi v.
Birkett, 252 F. App’x 724, 725 (6th Cir. 2007).
The Supreme Court expanded the Blakely reasoning to mandatory minimum
sentences in Alleyne v. United States, 570 U.S. ___, 133 S. Ct. 2151 (2013), decided less than three
months after Petitioner was sentenced. Shortly thereafter, while Petitioner’s application for leave
to appeal was still pending in the Michigan Court of Appeals, that court concluded that Alleyne only
prohibited judicial factfinding used to determine a mandatory minimum sentence, but had no impact
on judicial factfinding in scoring the sentencing guidelines producing a minimum range for an
indeterminate sentence, the maximum of which is set by law. See People v. Herron, 845 N.W.2d
533, 539 (Mich. App. 2013), rev’d 870 N.W.2d 561 (2015).4 The Michigan Court of Appeals relied
on Herron when it rejected Petitioner’s Alleyne argument. Scarberry, 2014 WL 6602530, at *3.
The Sixth Circuit also concluded that Alleyne did not decide the question whether
judicial factfinding under Michigan’s indeterminate sentencing scheme violated the Sixth
Amendment. See Kittka v. Franks, 539 F. App’x 668, 673 (6th Cir. 2013). As a consequence, the
Sixth Circuit held, the question is not a matter of clearly established Supreme Court precedent. Id.
(citing Montes v. Trombley, 599 F.3d 490, 498 (6th Cir. 2010)); see also Saccoccia v. Farley, 573
F. App’x 483, 485 6th Cir. 2014) (“But Alleyne held only that ‘facts that increase a mandatory
4
Herron was reversed following the decision in People v. Lockridge, 870 N.W.2d 502 (Mich. 2015). Lockridge
is discussed in detail below.
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statutory minimum [are] part of the substantive offense.’. . . It said nothing about guidelines
sentencing factors . . . .”) (emphasis added) (quoting Alleyne, 133 S. Ct. at 2161).
The Michigan Supreme Court held Petitioner’s application for leave to appeal in
abeyance pending the court’s decision in People v. Lockridge, 870 N.W.2d 502 (Mich. 2015). In
Lockridge, in a 5-2 decision, the Michigan Supreme Court considered the question the Michigan
Court of Appeals had faced in Herron and reached the opposite conclusion. The Lockridge court
reasoned that, because the “guidelines require judicial fact-finding beyond facts admitted by the
defendant or found by the jury to score offense variables (OVs) that mandatorily increase the floor
of the guidelines minimum sentence range,” they increase the “mandatory minimum” sentence under
Alleyne. Lockridge, 870 N.W.2d at 506. As a consequence, the Lockridge court held that the
mandatory application of Michigan’s sentencing guidelines was unconstitutional, and the remedy
was to make them advisory only. Id. at 520-521.5
The Michigan Supreme Court’s decision in Lockridge did not render the result
“clearly established” for purposes of habeas review. This Court may consider only the “clearly
established” holdings of the United States Supreme Court. Williams v. Taylor, 529 U.S. 362, 412
(2000); Bailey, 271 F.3d at 655. In determining whether federal law is clearly established, the Court
may not consider the decisions of lower federal courts. Lopez v. Smith, 135 S. Ct. 1, 3 (2014);
Bailey, 271 F.3d at 655. For the same reasons, it may not consider the holdings of state courts.
Instead, this Court may only grant relief on habeas review if the state court’s application of clearly
5
In Lockridge, the Michigan Supreme Court determined it could eliminate the Sixth Amendment problem by
making the guideline minimum range advisory and the minimum sentence a matter for the court’s discretion. That was
the same remedy the United States Supreme Court had adopted previously in Booker, 543 U.S. at 245. The Booker court
reasoned that if the sentencing rules were not mandatory and did not impose binding requirements on sentencing judges
“the statute falls outside the scope of Apprendi’s requirement.” Booker, 543 U.S. at 259.
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established federal law is “objectively unreasonable.” Id. at 410. “[R]elief is available under
§ 2254(d)(1)’s unreasonable-application clause if, and only if, it is so obvious that a clearly
established rule applies to a given set of facts that there could be no ‘fairminded disagreement’ on
the question.” White v. Woodall, 572 U.S. ___, 134 S. Ct. 1697, 1706-07 (2014) (quoting
Harrington v. Richter, 562 U.S. 86, 103 (2011)).
As is apparent from the reasoned decisions of the Michigan Court of Appeals in
Herron, 845 N.W.2d at 539, and the Sixth Circuit in Kittka, 539 F. App’x at 673, and Saccoccia, 573
F. App’x at 485, as well as the decision of the dissenting justices in Lockridge itself, reasonable
jurists could and did disagree about whether Alleyne applied to the calculation of Michigan’s
minimum sentencing guidelines. Alleyne therefore did not clearly establish the unconstitutionality
of the Michigan sentencing scheme and cannot form the basis for habeas corpus relief.
Even if it could be said that the decision in Alleyne, as applied to the Michigan
sentencing scheme, and as that scheme was interpreted by the Lockridge court, represented “clearly
established” federal authority for purposes of collateral habeas corpus review, Petitioner could not
prevail. The Michigan Supreme Court sent Petitioner back to the trial court for sentencing that was
entirely discretionary. The trial court imposed the same sentence, this time in the free exercise of
his discretion with the sentencing guidelines serving a purely advisory function.
The judicial fact-finding to which Petitioner now objects had no bearing on the
determination of Petitioner’s guidelines minimum range. Thus, Alleyne does not apply here. From
the inception of this line of authority in Apprendi to its most recent refinement in Alleyne, the United
States Supreme Court has never suggested that judicial fact-finding in support of the court’s exercise
of discretion, as happened here on remand, violates the Sixth Amendment.
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Whether considered before or after Lockridge, the trial court’s determination of
Petitioner’s sentence on remand represents an exercise of the court’s discretion. The facts found to
support the exercise of that discretion do not “increase[ ] the penalty for the crime beyond the
prescribed statutory maximum[,]” Apprendi, 530 U.S. at 490, or “increas[e] the mandatory
minimum[,]” Alleyne, 133 S.Ct. at 1260, and therefore need not “be submitted to a jury, [or be]
proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490. Petitioner has failed to demonstrate
that his sentence is contrary to clearly established federal law because it violates his Sixth
Amendment rights.
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.
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A Judgment and Order consistent with this Opinion will be entered.
Dated:
November 4, 2016
/s/ Janet T. Neff
Janet T. Neff
United States District Judge
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