Washington v. McQuiggin
| Decision Date | 23 June 2011 |
| Docket Number | Case No. 2:11-cv-212 |
| Parties | SYLVESTER WASHINGTON, Petitioner, v. GREG McQUIGGIN, Respondent. |
| Court | U.S. District Court — Western District of Michigan |
Honorable Robert Holmes Bell
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) (). 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.
Petitioner Sylvester Washington presently is incarcerated at the Chippewa Correctional Facility. Petitioner pleaded guilty in the Jackson County Circuit Court to one count of armed robbery, MICH. COMP. LAWS § 750.529, and one count of third-offense domestic violence, MICH. COMP. LAWS § 750.814. On March 21, 2007, he was sentenced to respective prison terms of 23 years and 9 months to 30 years and 1 year and 4 months to 2 years.
Petitioner sought leave to appeal his sentences to both the Michigan Court of Appeals and the Michigan Supreme Court, raising two issues: (1) the trial court erred in scoring Offense Variable (OV) 7; and (2) the trial court erred in assessing of attorney fees as part of the judgment. The court of appeals denied leave to appeal on May 8, 2008, for lack of merit in the grounds presented. On February 4, 2009, the supreme court ordered Petitioner's application for leave to appeal held in abeyance pending issuance of a decision in People v. Jackson, 769 N.W.2d 630 (Mich. 2009). After issuance of the Jackson decision, the supreme court denied leave to appeal on September 28, 2009.
Petitioner filed a motion for relief from judgment in the Jackson County Circuit Court in November 2009. In that motion, Petitioner raised three new arguments: (1) whether he was entitled to resentencing based on the improper scoring of Prior Record Variable (PRV) 1; (2) whether appellate counsel was ineffective with regard to post-sentencing issues; and (3) whether the trial court abused its discretion by violating the two-thirds rule of People v. Tanner, 199 N.W.2d 202 (Mich. 1972). On May 17, 2010, the circuit court denied the motion on the merits. Petitioner sought leave to appeal to both the Michigan Court of Appeals and the Michigan Supreme Court. The courts denied leave to appeal on September 21, 2010 and April 8, 2011, respectively.
In his habeas application, Petitioner raises all five issues presented to and rejected by the Michigan courts on direct and collateral review.
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). 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).
Petitioner raises a series of state-law sentencing claims. In Ground I of his habeas application, Petitioner asserts that the state court improperly scored PRV 1, MICH. COMP. LAWS § 777.50, at 50 points by considering convictions that were more than 10 years old. In Ground III, Petitioner contends that the state court abused its discretion by violating Tanner, 199 N.W.2d 202, which held that the minimum sentence could not exceed two-thirds of the maximum sentence. In Ground IV, Petitioner argues that the trial court improperly scored OV 7, MICH. COMP. LAWS § 777.37(1)(a), at 50 points by concluding that the victim was subjected to sadism, torture or excessivebrutality or that Petitioner's conduct was designed to substantially increase the fear and anxiety of a victim of the offense.
Petitioner's sentencing claims are not cognizable on habeas review. There is no constitutional right to individualized sentencing in non-capital cases. 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) (). Since Petitioner has no federal right to an individualized sentence, this ground presents an issue of state law only. Petitioner has not alleged grounds for the Court to conclude that this is one of those rare instances where an alleged state-law sentencing error was so egregious that it led to a fundamentally unfair outcome. See Koras v. Robinson, 123 F. App'x 207, 213 (6th Cir. 2005) (citing Bowling v. Parker, 344 F.3d 487, 521 (6th Cir. 2003)). Grounds I, III, and IV of the petition therefore fail to present a meritorious federal claim.
In his fifth habeas ground, Plaintiff contends that the judgment of sentence improperly assessed attorney fees against him, in violation of People v. Dunbar, 690 N.W.2d 476 (Mich. Ct. App. 2004). In Dunbar, the Michigan Court of Appeals held that a sentencing court must determine a defendant's foreseeable ability to pay presentencing, that is, before imposing a fee to recoup fees for court-appointed attorneys. Id. at 486. The Michigan Supreme Court held Petitioner's application for leave to appeal in abeyance pending its decision in Jackson, 769 N.W.2d 630. In Jackson, the Michigan Supreme Court considered the constitutionality of Michigan's statutory scheme forrecouping fees for court-appointed attorneys. Id. at 633. The state supreme court examined existing United States Supreme Court precedent regarding the imposition of fees on indigent defendants. Id. at 635-36 (). Overruling Dunbar, 690 N.W.2d 476, the Jackson court concluded that criminal defendants do not have a constitutional right to a presentence determination of their ability to pay fees. Instead, the Jackson court concluded that Michigan's statutory scheme for recouping court-appointed attorney fees, MICH. COMP. LAWS §§ 769.1k-769.1l, was constitutional because it required that, before a trial court could enforce any fee imposed at sentencing, the defendant must be advised of the enforcement action and be given an opportunity to contest enforcement based on his indigency. Jackson, 769 N.W.2d at 642-43. On the basis of the its decision in Jackson, the state supreme court reconsidered and denied Petitioner's application for leave to appeal.
The state court's determination was an entirely reasonable application of established Supreme Court precedent. In James, 407 U.S. 128, the Supreme Court found unconstitutional a Kansas recoupment statute that permitted the state to recoup court-appointed attorney fees without permitting the defendant to raise any of the defenses permitted to other civil judgments. Most importantly, the recoupment provision did not permit the defendant to defend the execution of the recoupment based on an inability to pay. Id. at 135-36. As a consequence, the Court found that the Kansas statute violated the Equal Protection Clause. Id. at 141-42.
In Fuller, 417 U.S. 40, the Supreme Court considered the Oregon statutory scheme for recouping court-appointed attorney fees. The Fuller Court distinguished the Oregon statutory model from the one at issue in James. Id. at 47. The Court held that the Oregon statute, unlike theKansas statute, treated debt for court-appointed attorney fees the same as other civil judgments, allowing the same exemptions to collection. In addition, unlike in James, the Oregon statute was not mandatory, and required the sentencing court to consider at sentencing the likelihood that the defendant would have a future ability to pay. Id. at 45-46. Based on these distinctions, the Court upheld the constitutionality of the Oregon recoupment scheme.
In Bearden v. Georgia, 461 U.S. 660 (1983), the Supreme Court again considered a state attempt to recoup court-appointed attorney fees. In Bearden, a Georgia defendant was ordered, as a condition of his three-year term of probation, to pay a $500.00 fine and $250.00 in restitution. When the petitioner lost his job and was unable to pay the balance of the fine and restitution, his probation was revoked and he was sentenced to prison for the remainder of the probationary term. The Supreme Court held that, absent a finding of intentional failure to pay or other fault by the probationer, a sentencing co...
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