BEASLEY v. LUDWICK, Case No. 10-cv-11911

CourtUnited States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
Writing for the CourtArthur J. Tarnow
PartiesLAWRENCE ALEXANDER BEASLEY, #396740, Petitioner, v. NICK LUDWICK, Respondent.
Decision Date31 March 2011
Docket NumberCase No. 10-cv-11911

NICK LUDWICK, Respondent.

Case No. 10-cv-11911


Filed: March 31, 2011

Honorable Arthur J. Tarnow


This is a habeas case filed under 28 U.S.C. § 2254. Petitioner Lawrence Alexander Beasley is a state inmate currently confined at the Michigan Reformatory in Ionia, Michigan.1He filed this habeas petition, through counsel, challenging his plea-based convictions for two counts of armed robbery, Mich. Comp. Laws § 750.529, one count of assault with intent to rob, Mich. Comp. Laws § 750.89, and one count of larceny from a motor vehicle, Mich. Comp. Laws § 750.356(a)(1). Petitioner pleaded guilty on February 12, 2007, in the St. Clair County Circuit Court. On March 5, 2007, he was sentenced to three concurrent terms of fifteen to thirty years in prison for the armed-robbery and assault convictions, and 133 days in jail, credit for

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time served, for the larceny conviction. In exchange for his guilty pleas, the prosecutor dismissed two counts of felony firearm and a habitual offender, second offense, enhancement.

In his habeas petition, Petitioner alleges the following two claims: (1) the appellate courts erred in upholding his sentence because he was sentenced on inaccurate information, and (2) Michigan's sentencing scheme violates the Sixth Amendment.

For the reasons stated, the Court denies the petition. The Court also declines to issue Petitioner a certificate of appealability.


This case arises out of events that occurred in Port Huron, Michigan, in October 2006. Testimony from the preliminary-examination hearing and from Petitioner's guilty-plea hearing revealed the following.

On October 21, 2006, Petitioner, along with co-defendant Fernando Clark, attempted to enter a bar in Port Huron. They were denied entry because Clark did not have the proper identification. As they were leaving, Clark approached a group of individuals standing in the parking lot and started talking to them. He then pulled out a gun and instructed the individuals to give him their money, cell phones, and jewelry. The victims complied. Petitioner helped Clark collect the items. Clark fired three shots in the air as he and Petitioner left the area.

Two days later, on October 23, 2006, Petitioner and Clark were walking the streets, trying to find Tenth Street in Port Huron, when Clark approached three young men, who had just gotten out of their vehicle, and asked them for directions. Clark pulled out a gun and told the three men to sit on the ground and empty their pockets. While they were sitting on the ground, Clark hit two of the men with his gun. Petitioner went through their pockets.

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Clark then instructed the three men to walk toward the boardwalk next to the river. Petitioner remained at the vehicle. The three men walked down to the boardwalk, with Clark following them. Once on the boardwalk, Clark told them to undress. He then threw their clothes into the river.

While Clark was down by the river, Petitioner was rummaging through the vehicle. Aubrey Aviles, one of the victims, testified that once he got down to the boardwalk, as Clark was throwing his clothes into the river, he looked back toward the truck and saw Petitioner looking around and "keeping an eye out."

Clark took their cell phones, watches, keys, and money.

At the time of his arrest, Petitioner had property from both robberies.

The police searched the house where Petitioner and Clark had been staying. They found a sawed-off shotgun and a small caliber revolver. Petitioner admitted that the revolver was the one used in the robberies. Preliminary Examination Hr'g Tr. Nov. 7, 2006; Plea Hr'g Tr. Feb. 12, 2007.

Petitioner admitted to the above-stated facts. At the time of the offenses, Petitioner was on probation for attempting to carry a concealed weapon charge.

Prior to his sentencing, a Presentence Investigation Report (PSI) was prepared by the St. Clair County Probation Department. Petitioner's Prior Record Variables (PRV) was scored at forty-five points, placing him in a Level D. Petitioner's Offense Variables (OVs) for the armed-robbery convictions were scored as follows: OV1, fifteen points; OV2, five points; OV4, ten points; OV9 twenty-five points; OV13 twenty-five points, for a total score of eighty points, placing him in a Level V, with a minimum guidelines range of 135 to 225 months.

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For the assault conviction, stemming from the second robbery, Petitioner's OVs were scored as follows: OV1, fifteen points; OV2, five points; OV3, five points; OV4, ten points; OV7, fifty points; OV9, ten points; and OV13, twenty-five points, for a total score of 120 points, placing him in a Level VI with a minimum sentencing guidelines range of 171 to 285 months.

At the sentencing hearing, Petitioner's attorney stated that he had shared a copy of the PSI with Petitioner and had reviewed it as well. Petitioner said he had no additions, deletions, or corrections to the report. He apologized to the victims and the trial court, stating that his grandfather and mother, who worked for the Department of Corrections, did not raise him to engage in criminal activity.

No objections were made to the scoring of Petitioner's sentencing guidelines range and the trial judge sentenced him as stated.

Following, Petitioner filed a motion to correct the PSI and for a resentencing hearing, arguing that his sentencing guidelines were incorrectly scored. Petitioner contested the scoring of OV 7 at fifty points for the incident which occurred on October 23, 2006, the date of the second robbery; fifty points were scored for aggravated physical abuse. Petitioner also objected to the scoring of OV 13 on all of the felony convictions. Additionally, he objected to the erroneous statement that he had prior gang involvement.

On September 17, 2007, the trial court conducted oral arguments on the issues raised as to the incorrect scoring of Petitioner's sentencing guidelines. At that hearing, the trial court stated:

THE COURT: The information about the gang activity would have appeared to be based upon the Defendant's own statements to his probation officer that were included in the PSI.

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The allegation that he did not recall the conviction in Livonia for the retail fraud charge, prompted the Court to have verified -- the probation department was able to verify that via direct contact with that court.

With regard to the scoring on OV13, I certainly understand the arguments that have been advanced. Thea argument presented by the prosecution is equally valid, that the legislature was opposed to or I should say the legislature was as concerned about crimes as it was a pattern or patterns of criminal activity over an extended period of time. The last matter is a little more troubling. But in the absence of any clear law that states this was improperly scored, I'm going to let it stand and the appellate court can obviously take a look at it and if they think that's not a proper matter for scoring, so be it. We will make that necessary adjustment to the sentence. I'll defer to them on that issue first.

Motion Hr'g Tr. 11, Sept. 17, 2007. The trial court rejected Petitioner's motion and upheld the sentences in an order dated September 25, 2007. People v. Beasley, No 06-002884-FC (St. Clair County Circuit Court, Sept. 25, 2007).

Petitioner filed a delayed application for leave to appeal the trial court's decision with the Michigan Court of Appeals, raising the same claims raised in this habeas petition. The Court of Appeals denied the delayed application. People v. Beasley, No. 283970 (Mich.Ct.App. Apr. 30, 2008). His motion for reconsideration was denied on June 11, 2008. People v. Beasley, No. 283970 (Mich.Ct.App. June 11, 2008).

Petitioner then filed an application for leave to appeal the Court of Appeals's decision with the Michigan Supreme Court, again raising the same claims. On November 24, 2009, the Supreme Court denied the application. People v. Beasley, 482 Mich. 1066, 760 N.W.2d 461 (2008). His motion for reconsideration was denied on February 24, 2009. People v. Beasley, 483 Mich. 897, 760 N.W.2d 492 (2009).

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Petitioner neither filed a post-conviction motion with the state trial court nor a writ of certiorari with the United States Supreme Court. Rather, on May 12, 2010, he filed the pending habeas petition.


28 U.S.C. § 2254(d) imposes the following standard of review for habeas cases:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim -

(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 proceedings.

28 U.S.C. § 2254(d).

A decision of a state court is "contrary to" clearly...

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