Opinion
Case No. 1:08-cv-1064.
January 5, 2009
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 Frank Leonard Butz presently is incarcerated with the Michigan Department of Corrections and housed at the Earnest C. Brooks Correctional Facility. He currently is serving a term of imprisonment of 80 to 120 months, imposed by the St. Joseph County Circuit Court after Petitioner pleaded guilty to operating a motor vehicle while intoxicated, third offense, MICH. COMP. LAWS § 257.625, and being a third felony offender, MICH. COMP. LAWS § 769.11.Petitioner sought leave to appeal his conviction to the Michigan Court of Appeals. The court denied leave on the grounds that Petitioner had failed to persuade the court of the need for immediate review. (3/20/07 Mich. Ct. App. (MCOA) Ord., Mem. in Supp. of Pet., Ex. A, docket #2-2 at 2.) Petitioner sought leave to appeal to the Michigan Supreme Court, which vacated the court of appeals order and remanded the case for reconsideration under the standard applicable to delayed applications for leave to appeal rather than the standard for interlocutory appeals. (9/26/07 Mich. Ord., Mem. in Supp. of Pet., Ex. B, docket #2-3 at 2.) On remand, the court of appeals denied leave to appeal for lack of merit in the grounds presented. (10/23/07 MCOA Ord., Mem. in Supp. of Pet., Ex. A, docket #2-2 at 3.) On February 19, 2008, the supreme court denied leave to appeal on the same grounds. (2/19/08 Mich. Ord., Mem. in Supp. of Pet., Ex. B, docket #2-3 at 3.)
In both the Michigan Court of Appeals and the Michigan Supreme Court, Petitioner raised the same two arguments raised in his petition:
I. DEFENDANT IS ENTITLED TO RESENTENCING BECAUSE THE STATUTORY SENTENCING GUIDELINES WERE SCORED AS TO OV 19 IN VIOLATION OF DUE PROCESS OF LAW AND THE SIXTH AMENDMENT AND SOME OF THE REASONS GIVEN IN SUPPORT OF THE SENTENCE (WHICH IS A DEPARTURE ABOVE THE SCORED RANGE) ALSO VIOLATE DUE PROCESS OF LAW AND THE SIXTH AMENDMENT.
II. THE TRIAL COURT CLEARLY ERRED IN IMPOSING A SENTENCE OF IMPRISONMENT THAT EXCEEDED THE SENTENCING GUIDELINES RANGE OF 14 TO 43 MONTHS WITHOUT SUBSTANTIAL AND COMPELLING REASONS TO DO SO, AND IMPOSITION OF THE MAXIMUM POSSIBLE MINIMUM SENTENCE IS A DISPROPORTIONATE RESULT.
(Mem. in Supp. of Pet. at 4, docket #2 at 4.)
Discussion
This action is governed by the Antiterrorism and Effective Death Penalty Act, 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).
I. Blakely Claim
In his first ground for habeas relief, Petitioner contends that he was deprived of his Fourteenth Amendment right to due process and his Sixth Amendment right to a trial by jury when the state court sentenced him based on facts found by the judge and neither proved to a jury beyond a reasonable doubt nor admitted by Petitioner at the plea hearing. Petitioner bases his argument largely on the United States Supreme Court holding in Blakely v. Washington, 542 U.S. 296 (2004). Blakely concerned the State of Washington's determinate sentencing system, which allowed a trial judge to elevate the maximum sentence permitted by law on the basis of facts not found by the jury but by the judge. Applying the Washington mandatory sentencing guidelines, the trial judge found facts that increased the maximum sentence faced by the defendant. The Supreme Court held that this scheme offended the Sixth Amendment, because any fact that increases or enhances a penalty for the crime beyond the prescribed statutory maximum for the offense must be submitted to the jury and proved beyond a reasonable doubt. Blakely, 542 U.S. at 301 (citing Apprendi v. New Jersey, 530 U.S. 466, 490 (2000)).
Unlike the State of Washington's determinate sentencing system, 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, 789-92 (Mich. 2006) (citing MICH. COMP. LAWS § 769.8). Only the minimum sentence is based on the applicable sentencing guideline range. Id.; and see People v. Babcock, 666 N.W.2d 231, 237 n. 7 (Mich. 2003) (citing MICH. COMP. LAWS § 769.34(2)). Therefore, under Michigan law, the trial judge sets the minimum sentence (within a certain range), but can never exceed the maximum sentence. Drohan, 715 N.W.2d at 789.
Because the trial court can never exceed the maximum sentence set by statute, Michigan's indeterminate sentencing scheme, unlike the determinate sentencing scheme at issue in Blakely, does not infringe on the province of the finder of fact, and, thus, does not run afoul of Blakely. See Blakely, 542 U.S. at 304-05, 308-09. Because the trial court in the present case sentenced Petitioner well within the parameters of Michigan's indeterminate sentencing scheme, it did not violate his Sixth Amendment rights. See Tironi v. Birkett, 252 F. App'x 724, 725 (6th Cir. 2007) (affirming district court's dismissal of prisoner's claim under Blakely v. Washington because it does not apply to Michigan's indeterminate sentencing scheme); see also Gray v. Bell, No. 1:06-cv-611, 2007 WL 172519, at *3 (W.D. Mich. Jan. 19, 2007); Pettiway v. Palmer, No. 1:06-cv-132, 2006 WL 1430062, at *1 (W.D. Mich. May 23, 2006); Stanley v. Jones, No. 1:06-cv-49, 2006 WL 1459832, at *2 (W.D. Mich. May 23, 2006); Jones v. Trombley, No. 2:07-cv-10139, 2007 WL 405835, at *3 (E.D. Mich. Jan. 31, 2007); Mays v. Trombley, No. 2:06-cv-14043, 2006 WL 3104656, at *3 (E.D. Mich. Oct. 31, 2006); Worley v. Palmer, No. 2:06-cv-13467, 2006 WL 2347615, * 2 (E.D. Mich. Aug. 11, 2006); George v. Burt, No. 2:04-cv-74968, 2006 WL 156396, at *5 (E.D. Mich. Jan. 20, 2006); Walton v. McKee, No. 2:04-cv-73695, 2005 WL 1343060, at *3 (E.D. Mich. June 1, 2005).
II. Sentencing Guidelines Claim
In his second ground for habeas relief, Petitioner argues that the sentencing court erred in departing from the sentencing guideline range without substantial and compelling reasons to do so. He also argues that the resulting sentence was disproportionate to his offense.
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); Cheatham v. Hosey, No. 93-1319, 1993 WL 478854, at *2 (6th Cir. Nov. 19, 1993) (departure from sentencing guidelines is an issue of state law, and, thus, not cognizable in federal habeas review); 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. United States v. Thomas, 49 F.3d 253, 261 (6th Cir. 1995). Moreover, a criminal defendant 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 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).
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.'" Koras v. Robinson, 123 F. App'x 207, 213 (6th Cir. Feb. 15, 2005) (citing Bowling v. Parker, 344 F.3d 487, 521 (6th Cir. 2003)). See also Doyle, 347 F. Supp. 2d at 485 (a habeas court "will not set aside, on allegations of unfairness or an abuse of discretion, terms of a sentence that is within state statutory limits unless the sentence is so disproportionate to the crime as to be completely arbitrary and shocking.") (citation omitted). A sentence may violate due process if it is based upon material "misinformation of constitutional magnitude." Koras, 123 F. App'x at 213 (quoting 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 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's sentence clearly is not so arbitrary or shocking as to amount to a violation of equal protection or due process. Doyle, 347 F. Supp. 2d at 485. Further, Petitioner does not even 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 court's sentencing findings were not sufficiently supported. Such claims clearly fall far short of the sort of egregious circumstances implicating due process. The state-court's rejection of Petitioner's claim was not based on an unreasonable determination of the facts and was neither contrary to nor an unreasonable application of established Supreme Court precedent. 28 U.S.C. § 2254(d).
Petitioner also argues that his sentence was grossly disproportionate to the offense in violation of People v. Milbourn, 461 N.W.2d. 1 (Mich. 1990). Under Milbourn, 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). In addressing a claim that a sentence violated Milbourn, the Sixth Circuit has recognized that the Milbourn proportionality principle is a matter of state law and does not involve a "violation of a constitutional right because the United States Constitution contains no strict proportionality guarantee." Lunsford, 1995 WL 236677, at *2 (citing Harmelin v. Michigan, 501 U.S. 957, 965 (1991), and United States v. Hopper, 941 F.2d 419, 422 (6th Cir. 1991)); Terry v. Trippett, No. 94-2077, 1995 WL 469424, at *1 (6th Cir. Aug. 7, 1995) (same). Thus, Petitioner's Milbourn claim is solely an issue of state law that is not cognizable in a habeas corpus action.
To the extent Petitioner intends to argue that his sentence violates the Eighth Amendment, he fails to present a meritorious claim. The United States Constitution does not require strict proportionality between a crime and its punishment. Harmelin, 501 U.S. at 965; 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)). Ordinarily, "[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 does not present the extraordinary case that runs afoul of the Eighth Amendment's ban of cruel and unusual punishment.
It is not clear whether Petitioner raised an Eighth Amendment claim in the state courts. Arguably, therefore, he has not properly exhausted his claims in the state courts. Nevertheless, because the claim is without merit, the Court may address Petitioner's Eighth Amendment claim notwithstanding his failure to exhaust his state court remedies. See 28 U.S.C. § 2254(b)(2) (providing that a habeas petition may be denied notwithstanding the failure to exhaust state-court remedies).
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 the State 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 consistent with this Opinion will be entered.