Opinion
Case No.: 01-CV-71633-DT
August 6, 2002
OPINION AND ORDER DENYING HABEAS CORPUS PETITION AND GRANTING IN PART A CERTIFICATE OF APPEALABILITY
Petitioner Anthony Arthur Fex ("Petitioner") has filed a pro se application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging that he is imprisoned in violation of his constitutional rights. For the reasons set forth below, the habeas petition shall be denied.
I. Background
Petitioner's Conviction and Sentence
In 1997, Petitioner was charged in Jackson County, Michigan with one count of criminal sexual conduct in the first-degree. On February 6, 1998, Petitioner pleaded guilty to an added count of criminal sexual conduct in the third degree. See MICH. COMP. LAWS § 750.520d(1)(a) (sexual penetration with a person thirteen to sixteen years of age). In return, the prosecutor dismissed the first-degree criminal sexual conduct count.
The conviction arose from Petitioner's admission that he engaged in oral sex with his teenage stepdaughter. On March 19, 1998, the trial court sentenced Petitioner to imprisonment for ten to fifteen years.
Petitioner's Habeas Petition
Petitioner filed his habeas corpus petition in this Court on May 21, 2001, and an amended petition on September 7, 2001. The grounds for relief, as stated in the amended petition, read as follows:
I. Petitioner was denied his due process rights under the U.S. Constitution (Const), Amendments (AMS) V, VI, XIV, where the state failed to assure his sentence was individualized to the particular circumstances of the offense and offender.
II. Petitioner was denied his constitutional rights under U.S. Const, AMS VI, XIV; Michigan Const, 1963, Art 1, §§ 17, 20; when the trial court waited in excess of 180-days to rule on the motion under Michigan Rules of Court (MCR) 6.500 without due cause, with the intentions of deterring appeal.
III. The state courts erred constitutionally when it (sic) failed to correct an invalid sentence imposed on Petitioner when that sentence was based on non-factual information contained in the presentence information report, though obligated pursuant to MCLA §§ 769.1(1), 789.8; U.S. Const, Ams VI, XIV.
IV. The state courts erred when they found that Petitioner was not denied the effective assistance of counsel guaranteed under the Sixth Amendment to the U.S. Const. when it (sic) failed to find that appellate counsel was ineffective for failing to include a `dead bang winner' during Petitioner's direct appeal; though same was brought to the attention of appellate counsel and Petitioner made a prima facie showing to the court of the error; concurred to by the trial court and the People; establishing good cause under MCR 6.508 (D)(3)(a).
V. The trial court erred when it found that Petitioner was not denied the effective assistance of counsel guaranteed under the Sixth Amendment to the U.S. Const.; when it failed to find that trial counsel was ineffective for failing to investigate and object to invalid information contained in a PSIR which caused the Defendant's sentence to be imposed outside of the applicable guidelines, establishing `prejudice' under MCR 6.508(D)(3)(b)(iv).
VI. The state courts denied Petitioner his Fourteenth Amendment Const. right to due process when it refused to hold an evidentiary hearing to establish an appellate record, although Prosecution concurred that same was appropriate.
VII. The trial court's belated statement that it would impose the same sentence upon correction of an error at sentencing violates Petitioner's due process rights and fails to satisfy the prongs of MCR 6.425(D)(1) (3) where the court fails to give reasons for a then four-year departure from the guidelines as well as failing to correct the then successfully challenged information contained in the presentence information report.
VIII. The bias demonstrated by the comments and conduct of the trial court judge when ruling on the proffered 6.500 motion establishes a basis for resentencing before a different judge.
Procedural History
Petitioner raised his first habeas claim in an application for leave to appeal in the Michigan Court of Appeals. He argued, through counsel, that the trial court abused its discretion by imposing a sentence that was disproportionate to the offense and the offender. In response, the prosecutor pointed out for the first time that the sentencing guidelines were scored incorrectly. Petitioner did not amend his appellate brief to include a claim about the inaccurate sentencing guidelines, and on August 5, 1998, the Michigan Court of Appeals denied leave to appeal "for lack of merit in the grounds presented." People v. Fex, No. 212554 (Mich.Ct.App. Aug. 5, 1998).
Petitioner apparently did not seek reconsideration of the state court's decision. Instead, he filed a pro se application for leave to appeal in the Michigan Supreme Court, raising the same proportionality issue that he asserted in the Michigan Court of Appeals. He also raised the following new issues:
I. The defendant was sentenced based on false information contained in the PSIR which falsely states that the defendant was convicted within a ten-year period, and his due process rights were violated when his trial counsel, trial court, and his appellate counsel failed to raise these issues.
II. Defendants rights are denied when the trial court utilizes a combination of unfounded accusations and statements to score his guidelines and this conduct is an abuse of discretion; intertwined with the ineffectiveness of trial counsel; and, assisted by an erroneous PSIR.
III. An individual has a statutory and constitutional right to be sentenced using only verified and accurate information. When that right is violated, the individual has a due process right to be re-sentenced using valid and verified information in the PSIR supplied to the Court.
IV. Defendant has a due process right to the effective assistance of counsel at sentencing and during his appeal, protected under state and federal laws.
On March 30, 1999, the Michigan Supreme Court denied leave to appeal because it was "not persuaded that the questions presented should be reviewed. . . ." People v. Fex, 459 Mich. 969 (1999).
On July 21, 1999, Petitioner filed a motion for relief from judgment, alleging ineffective assistance of counsel. The trial court denied the motion on the ground that Petitioner had not shown "good cause for not raising the issue of ineffective assistance of trial counsel in his appeal" and "actual prejudice." People v. Fex, No. 97-82475-FC (Jackson County Cir. Ct. Feb. 11, 2000). The trial court added that it would have imposed the same sentence even if Petitioner had pointed out the incorrect scoring of the sentencing guidelines at the sentencing. See id.
Petitioner presented habeas claims II through VIII in an application for leave to appeal the trial court's decision. The Michigan Court of Appeals denied leave to appeal "for lack of merit in the grounds presented." People v. Fex, No. 228897 (Mich.Ct.App. Nov. 16, 2000). Petitioner raised the same issues in the Michigan Supreme Court, which denied leave to appeal on the ground that Petitioner "failed to meet the burden of establishing entitlement to relief under MCR 6.508(D)." People v. Fex, No. 118157 (Mich.Sup.Ct. March 27, 2001).
Respondent argues in his answer to the amended petition that: 1) Petitioner's sentence does not violate the Eighth Amendment; 2) errors in state post-conviction proceedings are not cognizable on habeas review; and 3) Petitioner is not entitled to re-sentencing for mis-scored guidelines. Petitioner filed a reply to Respondent's answer, along with a renewed request for appointment of counsel.
Standard of Review
Petitioner is entitled to a writ of habeas corpus only if he can show that the state court's adjudication of his claims on the merits —
(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 on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C. § 2254 (d). A state court's decision is "contrary to" clearly established federal law "if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 413, 120 S.Ct. 1495, 1523, 146 L.Ed.2d 389 (2000). A state court's decision is an "unreasonable application of clearly established federal law "if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id.
Discussion
Claim I: Individualized Sentence
Petitioner's first claim is that he was deprived of his constitutional right to due process because the state court failed to tailor his sentence to the offense and the offender. Petitioner raised this claim on direct review of his conviction. The Michigan Court of Appeals found no merit in the claim, and the Michigan Supreme Court denied leave to appeal.
A plurality of the Supreme Court has held that the Eighth Amendment does not require strict proportionality between the crime and sentence. See Harmelin v. Michigan, 501 U.S. 957, 965, 111 S.Ct. 2680, 2686, 115 L.Ed.2d 836 (1991). The Cruel and Unusual Punishment Clause of the Eighth Amendment forbids only an extreme disparity between crime and sentence or sentences that are grossly disproportionate to the crime. Id., 501 U.S. at 1001, 111 S.Ct. at 2705 (Kennedy, J., concurring); Coleman v. Mitchell, 268 F.3d 417, 453 (6th Cir. 2001) (citing Coker v. Georgia, 433 U.S. 584, 592, 97 S.Ct. 2861, 2866, 53 L.Ed.2d 982 (1977)), petition for cert. filed, (U.S. Apr. 4, 2002) (No. 01-9463); 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 v. Estelle, 445 U.S. 263, 272, 100 S.Ct. 1133, 1138, 63 L.Ed.2d 382 (1980).
In Harmelin, the Supreme Court upheld a life sentence without the possibility of parole for possession of more than 650 grams of cocaine. In Hutto v. Davis, 454 U.S. 370, 102 S.Ct. 703, 70 L.Ed.2d 556 (1982), the Supreme Court upheld a sentence of forty years in prison for possession and distribution of less than nine ounces of marihuana. And in Rummel, the Supreme Court held that a mandatory life sentence under a state recidivist statute did not constitute cruel and unusual punishment. 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. His two prior felonies consisted of: (1) fraudulent use of a credit card to obtain $80.00 worth of goods and services, a felony punishable by two to ten years in prison; and (2) passing a forged check for $28.36, a crime punishable by two to five years in prison.
The trial court considered a number of factors in sentencing Petitioner: punishment, rehabilitation, deterrence, and protection of society. The trial court said that it had carefully weighed these factors in trying to individualize a sentence for Petitioner. The sentence often to fifteen years fell within the maximum sentence of fifteen years for third-degree criminal sexual conduct, see MICH. COMP. LAWS § 750.520d(2), 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)). So "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, 69 S.Ct. 1079, 1082, 93 L.Ed. 1337 (1949)).
Accordingly, Petitioner is not entitled to habeas relief on this claim.
Claim II: Delay in Deciding the Motion for Relief from Judgment
Petitioner's second claim is that the trial court deprived him of his constitutional rights by waiting more than 180 days to rule on his motion for relief from judgment. Petitioner had no constitutional right to post-conviction proceedings, Pennsylvania v. Finley, 481 U.S. 551, 557, 107 S.Ct. 1990, 1994, 95 L.Ed.2d 539 (1987), and a habeas corpus petition is not the proper means to challenge a state's scheme for post-conviction relief. Greer v. Mitchell, 264 F.3d 663, 681 (6th Cir. 2001) (citing Kirby v. Dutton, 794 F.2d 245, 246 (6th Cir. 1986)), cert. denied ___ U.S. ___ 122 S.Ct. 1323 (2002). Thus, the Court concludes that the trial court did not violate any constitutional right by waiting over six months to rule on Petitioner's motion for relief from judgment. Accordingly, Petitioner is not entitled to habeas relief on his second claim.
Claims III-V: The Sentence and Assistance of Counsel
Claims III through V attack Petitioner's sentence and the assistance provided by his attorneys at sentencing and in the first appeal to the Michigan Court of Appeals. Specifically, Petitioner contends that his sentence was based on inaccurate information in the pre-sentence report (Claim III), that his appellate attorney was ineffective for failing to include a "dead bang winner" during Petitioner's direct appeal (Claim IV), and that trial counsel was ineffective for failing to investigate and object to the inaccurate information in the pre-sentence report (Claim V).
1. Procedural Default
The last state court to review these claims was the Michigan Supreme Court, which denied leave to appeal because Petitioner had failed to establish entitlement to relief under Michigan Court Rule 6.508(D). The doctrine of procedural default provides that,
[w]hen a habeas petitioner fails to obtain consideration of a claim by a state court . . . due to a state procedural rule that prevents the state courts from reaching the merits of the petitioner's claim, that claim is procedurally defaulted and may not be considered by the federal court on habeas review.
Seymour v. Walker, 224 F.3d 542, 549-50 (6th Cir. 2000) (citations omitted), cert. denied, 532 U.S. 989, 121 S.Ct. 1643, 149 L.Ed.2d 502 (2001). In Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986), the Sixth Circuit set forth a four-part test for determining whether a prisoner's constitutional claim is procedurally defaulted and barred from habeas review:
First, the federal court must determine whether there is a state procedural rule that is applicable to the petitioner's claim and whether the petitioner failed to comply with that rule. Second, the federal court must determine whether the state courts actually enforced the state procedural sanction — that is, whether the state courts actually based their decisions on the procedural rule. Third, the federal court must consider whether the procedural rule is an adequate and independent state ground on which the state can rely to foreclose federal review of a federal constitutional claim. See id. A procedural rule is adequate only when it is firmly established and regularly followed at the time it was applied. See Rogers v. Howes, 144 F.3d 990, 992 (6th Cir. 1998). The rule would be an independent basis for disposition of a case if the state courts actually relied on the procedural bar. See Harris v. Reed, 489 U.S. 255, 261-62 (1989). Fourth, if the federal court answers the first three questions in the affirmative, it would not review the petitioner's procedurally defaulted claim unless the petitioner can show cause for not following the procedural rule and that failure to review the claim would result in prejudice or a miscarriage of justice. See Maupin, 785 F.2d at 138.
Williams v. Coyle, 260 F.3d 684, 693 (6th Cir. 2001).
2. The Rule
The procedural rule in question is Michigan Court Rule 6.508(D). Subsection three of the rule prohibits granting relief if the motion "alleges grounds for relief, other than jurisdictional defects, which could have been raised on appeal from the conviction and sentence. . . ." Mich. Ct. R. 6.508(D)(3). An exception may be made for defendants who "demonstrate (a) good cause for failure to raise such grounds on appeal . . . and (b) actual prejudice from the alleged irregularities that support the claim for relief." Id. Petitioner violated Rule 6.508(D)(3) by not raising claims III through V in the Michigan Court of Appeals on direct appeal of his conviction.
The Michigan Supreme Court denied relief, citing Rule 6.508(D). The state court's reliance on Rule 6.508(D) was an adequate and independent state ground for denying relief because the rule was firmly established and regularly following by the time Petitioner pleaded guilty. Luberda v. Trippett, 211 F.3d 1004, 1008 (6th Cir. 2000). Rule 6.508(D) also serves as an adequate basis for this Court to conclude that the state court's decision rested on a procedural default. Burroughs v. Makowski, 282 F.3d 410, 414 (6th Cir. 2002); Simpson v. Jones, 238 F.3d 399, 407 (6th Cir. 2000). Therefore, in order to obtain habeas review of his claims, Petitioner must show cause for not raising his claims in the Michigan Court of Appeals on direct appeal from his conviction and actual prejudice or a miscarriage of justice.
3. Cause and Prejudice
"The cause and prejudice standard is a two-part test in which the petitioner must: (1) present a substantial reason to excuse the default, Coleman, 501 U.S. at 754, 111 S.Ct. 2546; and (2) show that he was actually prejudiced as a result of the claimed constitutional error, United States v. Frady, 456 U.S. 152, 167-69, 102 S.Ct. 1584, 1594-95, 71 L.Ed.2d 816 (1982)." Martin v. Mitchell, 280 F.3d 594, 603 (6th Cir. 2002). "Cause" is some objective factor external to the defense that impeded efforts to comply with the procedural rule. Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986).
Petitioner alleges that appellate counsel should have raised his claims in the Michigan Court of Appeals on direct review. Constitutionally ineffective assistance of counsel can be "cause" for a procedural default. Id. However, for ineffective assistance of appellate counsel to rise to the level of a Sixth Amendment violation, counsel's performance must be deficient and the deficient performance must have prejudiced the appeal. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); Carpenter v. Mohr, 163 F.3d 938, 946 (6th Cir. 1998), reversed on other grounds sub nom Edwards v. Carpenter, 529 U.S. 446, 120 S.Ct. 1587, 146 L.Ed.2d 518 (2000). To establish prejudice, Petitioner "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694, 104 S.Ct. at 2068.
Petitioner claims that appellate counsel's performance was deficient, in that appellate counsel failed to raise an ineffective assistance of trial counsel claim based on trial counsel's failure to object to the error in the pre-sentence report. However, the trial court stated in its order denying Petitioner's motion for relief from judgment that it would have imposed the same sentence even if Petitioner had pointed out the incorrect scoring of the prior-record variable. Thus, even assuming that appellate counsel's performance was deficient, Petitioner has failed to show that the attorney's failure to attack either the scoring of the sentencing guidelines or trial counsel's performance prejudiced the outcome of the sentence proceeding. Therefore, petitioner has failed to establish constitutionally ineffective assistance of counsel as the "cause" to excuse his procedural default of claims fill through V. See Martin, 280 F.3d at 605 (indicating that only ineffective assistance of appellate counsel that rises to the level of a violation of Sixth Amendment rights excuses a procedural default).
The Court need not determine whether Petitioner was prejudiced by the alleged constitutional violations, because he has not shown "cause" for his noncompliance with a state procedural rule. Smith v. Murray, 477 U.S. 527, 533, 106 S.Ct. 2661, 2666, 91 L.Ed. 434 (1986).
4. Miscarriage of Justice
A federal court may reach the merits of a habeas claim, despite the failure to show cause for a state procedural default and actual prejudice, if the petitioner can demonstrate "that refusal to consider his claim would result in a fundamental miscarriage of justice." Coleman v. Mitchell, 244 F.3d at 540. The exception for miscarriages of justice requires showing that a constitutional violation probably resulted in the conviction of one who is actually innocent. Schlup v. Delo, 513 U.S. 298, 326-27, 115 S.Ct. 851, 867, 130 L.Ed.2d 808 (1995); Carrier, 477 U.S. at 496, 106 S.Ct. at 2649. "To be credible, [a claim of actual innocence] requires petitioner to support his allegations of constitutional error with new reliable evidence. . . ." Schlup, 513 U.S. at 324, 115 S.Ct. at 865.
Petitioner does not claim to be innocent of the crime for which he was convicted, and he has not presented the Court with any new evidence of actual innocence. Therefore, the miscarriage-of justice exception does not apply, and Petitioner's state procedural default bars substantive review of claims III through V.
Petitioner's remaining claims, as well as claim II, could not have been raised on direct appeal because they concern events that occurred after the direct appeal. Consequently, the Court has not applied the procedural default doctrine to those claims.
Claim VI: The State Court's failure to provide an Evidentiary Hearing
Petitioner's sixth claim alleges that the trial court should have held an evidentiary hearing on his claims of ineffective assistance of counsel. This claim has no merit, because Petitioner has failed to show that he had a federal constitutional right to an evidentiary hearing in state court.
The writ of habeas corpus may be granted only if the petitioner "is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241 (c)(3) and 2254(a). Federal courts 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, 104 S.Ct. 871, 875, 79 L.Ed.2d 29 (1984); see also Austin, 213 F.3d at 300 (noting that an alleged violation of Michigan law fails to state a claim on which habeas relief may be granted). Accordingly, Petitioner's sixth claim is a non-cognizable state law claim, which does not entitle him to habeas relief.
Claim VII: Departure from the Sentencing Guidelines
Petitioner contends that imposition of the same sentence, in light of corrected sentencing guidelines, would result in a significant departure from the sentencing guidelines. He argues that the trial court should have given reasons for departing from the sentencing guidelines when it stated that it would impose the same sentence if the pre-sentence report had been accurate. Petitioner also maintains that the trial court should have corrected the pre-sentence report.
Petitioner's claims are based on state court rules and state decisions. As previously explained, the Court may not grant the writ on the basis of a perceived error of state law. Harris, 465 U.S. at 41, 104 S.Ct. at 875. The writ of habeas corpus may be granted only if the petitioner "is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241 (c)(3) and 2254 (a). The Court concludes that Petitioner's seventh claim is not cognizable on habeas review.
Claim VIII: Bias
The eighth and final habeas claim alleges that the trial court was biased when it ruled on Petitioner's motion for relief from judgment. A trial judge's conduct is not a proper subject for collateral attack of a conviction unless it amounts to a constitutional violation. McBee v. Grant, 763 F.2d 811, 818 (6th Cir. 1985) (quoting Brinlee v. Crisp, 608 F.2d 839, 853 (10th Cir. 1979)).
Judicial conduct may support a bias or partiality challenge if it "reveal[s] an opinion that derives from an extrajudicial source." Liteky v. United States, 510 U.S. 540, 555, 114 S.Ct. 1147, 1157, 127 L.Ed.2d 474 (1994). Judicial conduct will support a bias or partiality challenge if it "reveal[s] such a high degree of favoritism or antagonism as to make fair judgment impossible." Id., 510 U.S. at 555, 114 S.Ct. at 1157.
Petitioner apparently believes that the trial court was biased because it denied his motion for relief from judgment and stated that it would impose the same sentence if the sentencing guidelines had been calculated correctly. Nothing in the record, however, suggests that the trial court's decision was based on an extrajudicial source. Nor does the trial court's decision reveal favoritism or antagonism, such that the court's judgment was unfair. In fact, the order denying relief from judgment was based on Petitioner's procedural default of failing to raise his claim either at the sentencing or on appeal.
The Court concludes that the subsequent state appellate court decisions denying relief did not result in decisions that were contrary to, or an unreasonable application of, Liteky. Petitioner has no right to the writ of habeas corpus on the basis of his final claim.
III. Conclusion
Accordingly, for the reasons stated above,
IT IS ORDERED that the petition for a writ of habeas corpus is DISMISSED, and the renewed request for appointment of counsel is DENIED.
IT IS FURTHER ORDERED that a certificate of appealability is GRANTED as to claims III through V because reasonable jurists could debate whether the petition states a valid claim of the denial of a constitutional right and whether the Court's procedural ruling was correct. Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 1604, 146 L.Ed.2d 542 (2000).
The Court DECLINES to grant a certificate of appealability as to Petitioner's remaining claims because reasonable jurists could not conclude that the Court's assessment of those claims, which lack substantive merit or are not cognizable here, was debatable or wrong. Id.