Opinion
Case Number 01-10175-BC
January 7, 2004
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
Before the Court is the pro se application of petitioner Frederick W. Grosinsky for the writ of habeas corpus under 28 U.S.C. § 2254. The petitioner currently is incarcerated at the Earnest C. Brooks Correctional Facility in Muskegon Heights, Michigan. The application alleges that the petitioner's plea of guilt lacked a satisfactory factual basis and that his sentence was both tainted by false information and unconstitutional as imposed. The Court disagrees, and will deny the petition.
I.
On October 26, 1998, the petitioner pleaded guilty in Genesee County Circuit Court to first-degree home invasion, Mich. Comp. Laws § 750.110a(2), and to being a habitual offender, second offense, Mich. Comp. Laws § 769.10, pursuant to a plea agreement. The prosecutor had agreed to reduce the habitual offender charge from fourth felony offense to second felony offense and refrain from arguing that the petitioner's sentence should run consecutively to another sentence that the petitioner was serving.
The trial court sentenced the petitioner to a minimum of 15 years and a maximum of 30 years in prison. The petitioner subsequently filed a motion to vacate his conviction by withdrawing his guilty plea and for resentencing. The trial court conducted a hearing on the motion and then denied it.
The petitioner applied for leave to appeal in the Michigan Court of Appeals, but the court of appeals denied his application due to "lack of merit in the grounds presented." People v. Grosinsky, No. 223386 (Mich.Ct.App. Feb. 7, 2000). On September 26, 2000, the Michigan Supreme Court likewise denied leave to appeal. See People v. Grosinsky, 463 Mich. 876, 618 N.W.2d 594 (2000).
The petitioner filed the present petition on April 23, 2001. He alleges that:
I. [his] plea of [guilt to] first-degree home invasion was invalid because there was [an] insufficient factual basis to establish [that] anyone was "lawfully present;"
II. [t]he trial court erred in denying resentencing where petitioner[']s involvement in at least 6 other break-ins was disputed and not supported by a preponderance of the evidence; and
III. [t]he 15[-]year minimum sentence imposed in this case was an abuse of discretion and disproportionate to this offense.
The respondent argues in an answer to the habeas petition that the petitioner's first and third claims are not cognizable on habeas review, and that there is no factual basis for the petitioner's second claim.
II.
The standard on habeas review of a petitioner's substantive claims is whether the state court's decision was contrary to, or an unreasonable application of clearly established Supreme Court precedent, or an unreasonable determination of the facts. 28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362, 412-13 (2000) (O'Connor, J., concurring). This standard applies to habeas petitions challenging guilty-plea-based convictions. See McAdoo v. Elo, 346 F.3d 159, 165-66 (6th Cir. 2003) (observing that "[t]rial court errors in state [guilty plea] procedure and/or evidentiary law do not rise to the level of federal constitutional claims warranting relief in a habeas action unless the error renders the proceeding so fundamentally unfair as to deprive the petitioner of due process under the Fourteenth Amendment").
The review standard was established by the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (AEDPA). This Act "circumscribe[d]" the standard of review federal courts must apply when considering applications for a writ of habeas corpus raising constitutional claims. See Wiggins v. Smith, 123 S.Ct. 2527, 2534 (2003). The AEDPA applies to all habeas petitions filed after the effective date of the Act, April 24, 1996. Lindh v. Murphy, 521 U.S. 320, 335 (1997). Because the petitioner's application was filed after that date, the provisions of the AEDPA, including the amended standard of review, apply to this case.
The petitioner contends that his guilty plea was not supported by an adequate factual basis, the trial court sentenced him based on inaccurate information, and his sentence was disproportionate to the crime and the offender. The petitioner presented these claims in his applications for leave to appeal in both the Michigan Court of Appeals and Michigan Supreme Court. Both state courts denied leave to appeal in one sentence orders that did not address the merits of the claims. Where a state court declines to address the merits of a properly raised issue, this Court conducts an independent review of the issue. See Harris v. Stovall, 212 F.3d 940, 943 (6th Cir. 2000) (holding that where a state court, although deciding a claim, does not offer some explanation of its decision, a federal court must conduct an independent review of the state court's decision).
A.
The petitioner pleaded guilty to first-degree home invasion. That crime is committed when a person breaks and enters a dwelling with the intent to commit a felony while armed with a dangerous weapon or when another person is lawfully present in the dwelling. See Mich. Comp. Laws § 750.110a. The petitioner does not dispute that he broke and entered a dwelling, and the State does not allege that the petitioner was armed at the time. The petitioner argues that his guilty plea is defective because there were no facts establishing that someone else was lawfully present in the home when he entered it. He does not identify a specific constitutional right that allegedly was violated by the acceptance of a guilty plea with an inadequate factual basis, and this Court does not believe that any constitutional violation occurred even if the petitioner's contention here is accurate.
The Supreme Court has made clear that, as a matter of federal constitutional law, a factual basis for a guilty plea need not be established for a state court to accept it. See North Carolina v. Alford, 400 U.S. 25, 37 (1970) ("An individual accused of crime may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime."). As the Supreme Court explained in Alford, although the federal courts are required by Rule 11 of the Federal Rules of Criminal Procedure to establish a factual basis for any guilty plea, the Constitution imposes no such requirement upon the States. Id. at 38 n. 11.
Moreover, the Supreme Court has stated that
[a] plea of guilty and the ensuing conviction comprehend all of the factual and legal elements necessary to sustain a binding, final judgment of guilt and a lawful sentence. Accordingly, when the judgment of conviction upon a guilty plea has become final and the offender seeks to reopen the proceeding, the inquiry is ordinarily confined to whether the underlying plea was both counseled and voluntary. If the answer is in the affirmative then the conviction and the plea, as a general rule, foreclose the collateral attack. There are exceptions where on the face of the record the court had no power to enter the conviction or impose the sentence.United States v. Broce, 488 U.S. 563, 569 (1989). The petitioner was represented by counsel at his plea, and he does not allege that his guilty plea was involuntary. Nor does this case fall within the exception for cases in which the trial court had no jurisdiction to accept the guilty plea or to impose the sentence. Therefore, the petitioner's claim that there was an insufficient factual basis for his plea is not cognizable on habeas review.
B.
The petitioner's second claim alleges that the trial court should have resolved a factual dispute concerning his involvement in at least six other break-ins. The petitioner argues that he is entitled to resentencing because three break-ins did not result in convictions and two break-ins did not even result in arrests.
The argument that the trial court should have resolved a factual dispute is based on state law. See Mich. Ct. R. 6.425(D)(3) (requiring that "[i]f any information in the presentence report is challenged, the court must make a finding with respect to the challenge or determine that a finding is unnecessary because it will not take the challenged information into account in sentencing"). The Court, however, may not grant the writ of habeas corpus on the basis of a perceived error of state law. Pulley v. Harris, 465 U.S. 37, 41 (1984); see 28 U.S.C. § 2241(c)(3) and 2254(a).
To the extent that the petitioner is asserting a violation of his federal constitutional right not to be sentenced on "misinformation of constitutional magnitude," Roberts v. United States, 445 U.S. 552, 556 (1980) (quoting United States v. Tucker, 404 U.S. 443, 446 (1972)); see also Townsendy, Burke, 334 U.S. 736, 741 (1948) (stating that reliance on "extensively and materially false" information, which the prisoner had no opportunity to correct violates due process of law), the petitioner must demonstrate that the disputed information was materially false and that the trial court relied on the information. Collins v. Buchkoe, 493 F.2d 343, 345-46 (6th Cir. 1974).
At the sentence proceeding, defense counsel raised no objections to the criminal history section of the presentence report. In fact, defense counsel stated that the petitioner realized he had an extensive criminal history. The prosecutor commented, without objection, that the petitioner had been arrested eight times for breaking and entering or home invasion. The trial court noted that the petitioner had committed three prior felonies and that, according to the presentence report, the petitioner had admitted to committing at least six other burglaries in the Flint area. Sentence Tr. at 3-4, 10, 12.
At the subsequent hearing on the petitioner's post-conviction motion for resentencing, both defense counsel and the trial court read the presentence report to state that the petitioner admitted to the officer investigating this case that he had committed six other burglaries. The petitioner allegedly admitted to committing these prior burglaries in order to gain favorable consideration from the officer. However, the petitioner adamantly denied any involvement in the other burglaries when he was interviewed by the probation officer who drafted the pre-sentence report. Motion Tr. at IT-20.
The trial court observed at the hearing that it had not been required to resolve any disputed facts at the time of sentencing because no one alerted the court that the contents of the report were disputed. The trial court concluded that it had been entitled to rely on the information in the presentence report because the petitioner did not object to the information when he was sentenced. Motion Tr. at 20-22.
The petitioner presently does not deny his involvement in six prior burglaries. He merely alleges that some of the burglaries did not result in arrests or convictions. The trial court did not find at sentencing that the petitioner had been arrested and convicted of six other burglaries. The court simply noted that, according to the presentence report, the petitioner had admitted to committing six other burglaries. Sentence Tr. at 12. Furthermore, the presentence report stated that the petitioner denied or recanted the information he gave to a police officer.
The petitioner has failed to show that the trial court relied on materially false information. Accordingly, the state appellate court's conclusion that the petitioner's claim had no merit was not contrary to or an unreasonable application of either Roberts, Tucker, or Townsend.
C.
The petitioner's third and final claim is that the 15-year minimum sentence imposed was an abuse of discretion and disproportionate to his offense. In support of this claim, the petitioner alleges that he entered a home but he left without taking anything. The petitioner also alleges that he was referred to the Center for Forensic Psychiatry six times and diagnosed with bipolar affective disorder.
A habeas petitioner who seeks to challenge the severity of a prison sentence on Eighth Amendment grounds faces a formidable challenge. He may obtain relief only by demonstrating that a state court decision contravened or misapplied "clearly established" Supreme Court precedent. See Wiggins, 123 S.Ct. at 2535 (holding that mere error by the state court will not justify issuance of the writ; rather, the state court's application of federal law "must have been objectively unreasonable"). However, the Supreme Court recently acknowledged "that our precedents in this area have not been a model of clarity." Lockyer v. Andrade, 538 U.S. 63, 123 S.Ct. 1166, 1173 (2003). "Indeed, in determining whether a particular sentence for a term of years can violate the Eighth Amendment, we have not established a clear or consistent path for courts to follow." Ibid. The Supreme Court in Lockyer declared that the general applicability of the proportionality standard to term-of-years sentences was clearly established, but confessed a lack of clarity as to the factors lower courts should consider in making that determination. Ibid. The Court thus concluded that "the only relevant clearly established law amenable to the `contrary to' or `unreasonable application of framework is the gross disproportionality principle, the precise contours of which are unclear, applicable only in the `exceedingly rare' and `extreme' case." Ibid.
In Lockyer, the Supreme Court reversed the Ninth Circuit's grant of a writ of habeas corpus on the ground that two 25-year-to-life sentences imposed under California's "three strikes" law, where the triggering felony was the theft of $150 worth of video tapes, violated the Cruel and Unusual Punishment Clause of the Eighth Amendment. The Court noted that the "thicket" created by its jurisprudence consisted primarily of its decisions in Solem v. Helm, 463 U.S. 277 (1983), Harmelin v, Michigan, 501 U.S. 957 (1991), and Rummel v. Estelle, 445 U.S. 263 (1980). The California state court observed that the proportionality rule set forth in Solem was cast into doubt by Harmelin, and proceeded to analyze Andrade's sentence under the approach taken in Rummel, where the Supreme Court rejected a claim that a life sentence imposed under Texas' recidivist statute was grossly disproportionate to the theft felonies that formed the predicate for the sentence. The California court concluded that Andrade's sentence was not disproportionate. The Supreme Court held that this decision was not contrary to or an objectively unreasonable application of federal law that was clearly established by the Supreme Court. Lockyer, 123 S.Ct. at 1174-75.
A plurality of the Supreme Court has held that the Eighth Amendment does not require strict proportionality between the crime and sentence. See Harmelin, 501 U.S. at 965. As the Supreme Court observed in Lockyer, it is generally recognized after Harmelin that the Cruel and Unusual Punishment Clause of the Eighth Amendment forbids only an extreme disparity between crime and sentence, that is, sentences that are grossly disproportionate to the crime. Lockyer, 123 So. Ct. at 1173; Coleman v. Mitchell, 268 F.3d 417, 453 (6th Cir. 2001) (citing Coker v. Georgia, 433 U.S. 584, 592 (1977)); United States v. Hopper, 941 F.2d 419, 422 (6th Cir. 1991).
"Outside the context of capital punishment, successful challenges to the proportionality of particular sentences have been exceedingly rare." Rummel, 445 U.S. at 272. Rummel was convicted of obtaining $120.75 by false pretenses, a crime punishable by at least two years, but not more than ten years in prison. He was sentenced as a recidivist to life imprisonment with the possibility of parole. His two prior felonies consisted of fraudulent use of a credit card to obtain $80 worth of goods and services, a felony punishable by two to ten years in prison; and passing a forged check for $28.36, a crime punishable by two to five years in prison. The Supreme Court held that Rummel's life sentence under the state recidivist statute did not constitute cruel and unusual punishment. In Harmelin, the Supreme Court upheld a life sentence without the possibility of parole for possession of more than 650 grams of cocaine for an offender with no prior felony convictions.
The Supreme Court overturned a life sentence in Solem on the ground that it was significantly disproportionate to Helm's crime and therefore prohibited by the Eighth Amendment. However, Helm had been sentenced to life imprisonment without the possibility of parole for uttering a "no account" check for $100, and his prior felonies also were minor, nonviolent crimes. By contrast, the Supreme Court recently reaffirmed Rummel and found constitutionally sufficient a sentence of 25 years to life imposed upon a fifth felony conviction. See Ewing v. California, 123 S.Ct. 1179, 1189-90(2003).
The state courts did not reach the merits of the petitioner's proportionality claim. Nonetheless, this Court concludes that the sentence does not violate the rule of proportionality, which has been clearly established.
The petitioner was 40 years of age at sentencing, and he had an extensive criminal record, including three prior felony convictions. The trial court opined that the petitioner was a significant threat to the community. Furthermore, the petitioner's sentence of 15 to 30 years fell within the maximum sentence of 30 years, and "a sentence within the statutory maximum set by statute generally does not constitute `cruel and unusual punishment.'" United States v. Organek, 65 F.3d 60, 62 (6th Cir. 1995) (quoted with approval in Austin v, Jackson, 213 F.3d 298, 302 (6th Cir. 2000)). "As long as the sentence remains within the statutory limits, trial courts have historically been given wide discretion in determining `the type and extent of punishment for convicted defendants.'" Austin, 213 F.3d at 301 (quoting Williams v. New York, 337 U.S. 241, 245 (1949)). Furthermore, given the petitioner's lengthy criminal history, the State "was entitled to place upon [the petitioner] the onus of one who is simply unable to bring his conduct within the social norms prescribed by the criminal law of the State." Ewing, 123 S.Ct. at 1190 (quoting Rummel, 445 U.S. at 284).
The Michigan Court of Appeals concluded that the petitioner's claim lacked merit. This conclusion was not objectively unreasonable in light of the petitioner's criminal history. Therefore, the petitioner is not entitled to the writ of habeas corpus on the basis of his third and final claim. 28 U.S.C. § 2254(d).
III.
The petitioner has not shown that he is in custody in violation of the Constitution or laws of the United States.
Accordingly, it is ORDERED that the petition for writ of habeas corpus [dkt #3] is DENIED.