Zemke v. Brewer
| Decision Date | 12 April 2019 |
| Docket Number | Case. No. 2:19-cv-10632 |
| Parties | ALICIA ZEMKE, Petitioner, v. SHAWN BREWER, Respondent. |
| Court | U.S. District Court — Eastern District of Michigan |
Hon. Gershwin A. Drain
Petitioner Alicia Zemke, presently confined at the Women's Huron Valley Correctional Facility in Ypsilanti, Michigan, seeks issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In her pro se application, Petitioner challenges as "unreasonable" the twenty- to eighty-year prison sentence she received for a conviction of Child Abuse, First Degree, Mich. Comp. Laws § 750.136b. For the reasons stated below, the application for writ of habeas corpus is summarily denied.
Petitioner Zemke was convicted by a no contest plea to first-degree child abuse on January 20, 2017. Under Michigan's sentencing guidelines, her minimum sentence range was calculated to be 9 to 15 years. (Pet. at 17, ECF No. 1, PageID 17.) She was sentenced on March 13, 2017 to 20 to 80 years incarceration. (Id. at 15.)
Following her conviction and sentence, Zemke filed a Delayed Application for Leave to Appeal with the Michigan Court of Appeals. In the sole basis for her appeal, Zemke sought resentencing "because her sentence was an unreasonable and disproportionate upward departure for her recommended Guideline Range." (Pet. at 2, ECF No. 1, PageID 2.) The Court of Appeals denied the Delayed Application in a standard form order, "for lack of merit in the grounds presented." People v. Zemke, No. 339906 (Mich. Ct. App. October 27, 2017) (unpublished). On July 27, 2018, the Michigan Supreme Court denied her Application for Leave to Appeal the lower court's decision. People v. Zemke, 502 Mich. 937, 915 N.W.2d 469 (2018) (Mem).
Zemke did not file a Petition for a Writ of Certiorari with the United States Supreme Court. She filed this petition, seeking relief on the grounds that she is "entitled to resentencing because her sentence was . . . unreasonable and [based on] inaccurate OV [Offense Variable] scoring." (Pet. at 5, ECF No. 1, PageID 5.)
Zemke filed a motion for resentencing with the Berrien County Circuit Court, raising the issue that her "OV [Offense Variable] scores are wrong." (Id. at 6, PageID 6.) Zemke included with her petition an unsigned, undated copy of this motion,captioned "Motion for Relief from Judgment under Lockridge1 2015 MICH LEXIS 1774." (Id. at 19, PageID 19.) That motion argues that four offense variables were incorrectly scored and asks the trial court "to resentence this Defendant because the sentence is based on unreliable and inaccurate OV scoring." (Id. at 20, PageID 20.) Zemke provided neither the date the motion was filed nor its status, except to say she "do[es]n't know yet" the result of her motion. (Id. at 3, PageID 3.)
Upon receipt of a habeas corpus petition, a federal court must "promptly examine [the] petition to determine 'if it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief.'" Crump v. Lafler, 657 F.3d 393, 396 n. 2 (6th Cir. 2011) (). "Federal courts are authorized to dismiss summarily any habeas petition that appears legally insufficient on its face[.]" McFarland v. Scott, 512 U.S. 849, 856 (1994); see also Martin v. Overton, 391 F.3d 710, 714 (6th Cir. 2004). A habeas petition may also besummarily dismissed if it does not set forth facts that give rise to a cause of action under federal law. See Perez v. Hemingway, 157 F.Supp.2d 790, 796 (E.D. Mich. 2001).
Rule 4 screening extends to unexhausted claims as well as exhausted ones. Unexhausted claims may be addressed if pursuit of a state court remedy would be futile, see Witzke v. Withrow, 702 F.Supp. 1338, 1348 (W.D.Mich.1988), or if the unexhausted claim is meritless such that addressing it in the screening process would be efficient and not offend federal-state comity. See Prather v. Rees, 822 F.2d 1418, 1422 (6th Cir.1987); see also 28 U.S.C. § 2254(b)(2) ().
The Sixth Circuit disapproves of ordering a response to a habeas petition "until after the District Court first has made a careful examination of the petition." Allen v. Perini, 424 F.2d 134, 140 (6th Cir.1970). A district court therefore has the duty to screen out any habeas corpus petition which lacks merit on its face. Id. at 141. No response to a habeas petition "is necessary when the petition is frivolous, or obviously lacks merit, or where the necessary facts can be determined from the petition itself without need for consideration of a response." Id.; see also 28 U.S.C.A. § 2243.
After undertaking the review required by Rule 4, this Court concludes, for reasons stated in greater detail below, that Petitioner's claims do not entitle her tohabeas relief and the petition must be summarily denied. See McIntosh v. Booker, 300 F.Supp.2d 498, 499 (E.D. Mich. 2004).
In general, "a state court's interpretation of state law . . . binds a federal court sitting in habeas corpus," and federal habeas relief is not available for errors of state law. Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (per curiam). More specifically, "[e]rrors in the application of state sentencing guidelines . . . cannot independently support habeas relief." Kissner v. Palmer, 826 F. 3d 898, 904 (6th Cir. 2016). A claim that the state trial court incorrectly scored, calculated, or applied state legislative sentencing guidelines is not a cognizable claim for federal habeas review because it is based solely on state law. Paris v. Rivard, 105 F. Supp. 3d 701, 724 (E.D. Mich. 2015) (citing McPhail v. Renico, 412 F.Supp.2d 647, 656 (E.D. Mich. 2006)). Habeas petitioners have "no state-created interest in having the Michigan Sentencing Guidelines applied rigidly" in their sentence determinations. Mitchell v. Vasbinder, 644 F. Supp. 2d 846, 867 (E.D. Mich. 2009). Petitioners have "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).
Habeas relief is potentially available where "[v]iolations of state law and procedure . . . infringe specific federal constitutional protections[.]" Cook v. Stegall,56 F. Supp. 2d 788, 797 (E.D. Mich. 1999) (citing 28 U.S.C. § 2254; Estelle v. McGuire, 502 U.S. 62 (1991)). This may occur when the sentence imposed exceeds statutory limits or is wholly unauthorized by law. Vliet v. Renico, 193 F. Supp. 2d 1010, 1014 (E.D. Mich. 2002). However, "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, 62-63 (6th Cir.1995) (citing United States v. Williams, 15 F.3d 1356, 1364 (6th Cir.1994)).
Further, 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.' " Bowling v. Parker, 344 F.3d 487, 521 (6th Cir.2003). A sentence may violate due process if it is based upon "material 'misinformation of constitutional magnitude.'" Koras v. Robinson, 123 F. App'x 207, 213 (6th Cir.2005) (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. Koras, 123 F. App'x at 213 (quoting United States v. Stevens, 851 F.2d 140, 143 (6th Cir.1988)); see also United States v. Polselli, 747 F.2d 356, 358 (6th Cir.1984).
Petitioner's argument that the state trial court incorrectly scored or calculated her sentencing guidelines range under the Michigan Sentencing Guidelines is not a cognizable claim for federal habeas review because it is fundamentally a state law claim. Bradshaw, 546 U.S. at 76; see also Tironi v. Birkett, 252 Fed.App'x 724, 725 (6th Cir. 2007) (unpublished); Howard v. White, 76 Fed.App'x 52, 53 (6th Cir. 2003) (unpublished); McPhail, 412 F. Supp. 2d at 656. Petitioner's argument to the state court of appeals that the trial court improperly departed above the correct sentencing guidelines range2 would similarly not entitle her to habeas relief, because such departures do not violate federal due process rights. Austin v. Jackson, 213 F. 3d 298, 301-02 (6th Cir. 2000).
Petitioner cannot argue that her sentence violates the constitution's prohibition against "cruel and unusual punishment," because her sentence is authorized by law. Organek, 65 F.3d at 62-63. That is, the maximum sentence for first-degree child abuse is life imprisonment or any term of years. Mich. Comp Law § 750.136b(2). Petitioner's eighty-year maximum is thus within statutory range.
Finally, Petitioner cannot show that her sentence was based on "material misinformation of constitutional magnitude." Koras, 123 F. App'x at 213. A petitioner's disagreement with the sentencing judge's factual findings and inferences is insufficient to meet this standard. The trial court's resolution of a disputed factual question is not reliance on materially false information:
Nor do we mean that mere error in resolving a question of fact on a plea of guilty by an uncounseled defendant in a non-capital case would necessarily indicate a want of due process of law. Fair prosecutors and conscientious judges sometimes are misinformed or draw inferences from conflicting evidence with which we would not agree....
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