BERNARD A FRIEDMAN, Sr., District Judge.
Petitioner has filed a pro se application for a writ of habeas corpus, challenging his state convictions for first-degree home invasion and resisting and obstructing a police officer. Petitioner was sentenced as a habitual offender to imprisonment for ten to fifty years for the home invasion and two to fifteen years for resisting and obstructing a police officer. He claims that (1) there was insufficient evidence to support his conviction for first-degree home invasion, (2) his sentence was based on inaccurate information, and (3) his sentence violates the principles set forth in Blakely v. Washington, 542 U.S. 296 (2004). Respondent urges the Court to dismiss the petition on the grounds that petitioner did not exhaust state remedies for all of his claims and that his claims lack merit or are not cognizable on habeas review. The Court agrees that petitioner is not entitled to habeas corpus relief. Accordingly, the Court shall deny the petition.
Petitioner was charged with first-degree home invasion, Mich. Comp. Laws § 750.110a(2), and resisting and obstructing a police officer, Mich. Comp. Laws § 750.81d(1). The charges arose from on incident that occurred on June 15, 2009, when petitioner broke into Father Eugene Simon's second-floor apartment in Southfield, Michigan. The evidence at trial established that Father Simon was an 84-year-old priest. After attending services early on Monday, June 15, 2009, he returned home about 9:15 a.m. and
People v. Fulton, No. 296114, 2011 WL 832949, at *1 (Mich. Ct. App. Mar. 10, 2011).
There was additional evidence that Father Simon remained on the first floor of the apartment building after he admitted the police officers into the building and that he remained there while the officers checked his apartment. After the officers entered the apartment and detained petitioner, Father Simon went up to his apartment and identified petitioner as someone he had known for about a year. He testified that he had helped petitioner in the past by providing him with housing when petitioner was evicted from a facility run by the Salvation Army. Father Simon also testified that he did not give petitioner permission to enter his apartment and that he had never given petitioner a set of his keys.
Father Simon and one of the two responding police officers were the only witnesses at petitioner's jury trial in Oakland County Circuit Court. Petitioner did not testify or present any witnesses, and he did not dispute the facts. He also did not contest the count charging him with resisting and obstructing a police officer. His attorney argued to the jury that petitioner was guilty of second-degree home invasion, at most, because Father Simon was not present in his apartment when petitioner broke into the apartment. Defense counsel moved for a directed verdict of acquittal on that basis, but the trial court denied his motion. And while the trial court instructed the jury on the lesser offense of second-degree home invasion, the jury found petitioner guilty, as charged, of first-degree home invasion and resisting and obstructing a police officer.
On October 15, 2009, the trial court sentenced petitioner as a fourth felony offender to imprisonment for ten to fifty years for the home invasion and two to fifteen years for resisting and obstructing a police officer. In an appeal of right, petitioner argued that (1) there was insufficient evidence to convict him of first-degree home invasion and (2) one of the offense variables in the state sentencing guidelines was scored on the basis of inaccurate information. The Michigan Court of Appeals affirmed petitioner's convictions and sentence in an unpublished, per curiam opinion. See People v. Fulton, No. 296114, 2011 WL 832949 (Mich. Ct. App. Mar. 10, 2011). Petitioner raised the same claims in the Michigan Supreme Court, which denied leave to appeal because it was not persuaded to review the issues. See People v. Fulton, 490 Mich. 882; 803 N.W.2d 881 (2011).
On July 16, 2012, petitioner filed the instant petition pursuant to 28 U.S.C. §§ 2241 and 2254. As noted above, he alleges that (1) the evidence was insufficient to convict him of first-degree home invasion, (2) he was sentenced on the basis of inaccurate information, and (3) his sentence violates the principles set forth in Blakely, 542 U.S. at 296.
Respondent contends that petitioner did not exhaust his state remedies for his third claim. Petitioner concedes that he did not raise his third claim in any state court, but he maintains that there is no state court remedy to exhaust.
A state prisoner ordinarily must exhaust state remedies before raising his claims in federal court. See 28 U.S.C. § 2254(b)(1); O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). But the exhaustion requirement is not jurisdictional, see Castille v. Peoples, 489 U.S. 346, 349 (1989), and a federal court may deny a habeas petition on the merits despite the petitioner's failure to exhaust available state remedies. See 28 U.S.C. § 2254(b)(2). Because petitioner's claims lack merit, the Court shall deny them on that basis, rather than for petitioner's failure to exhaust.
"The statutory authority of federal courts to issue habeas corpus relief for persons in state custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)." Harrington v. Richter, ___ U.S. ___, ___, 131 S.Ct. 770, 783 (2011). Pursuant to § 2254, the court may not grant a state prisoner's application for a writ of habeas corpus unless the state court's adjudication of the prisoner's claims on the merits
28 U.S.C. § 2254(d).
Williams v. Taylor, 529 U.S. 362, 412-13 (2000).
"[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411.
Renico v. Lett, 559 U.S. 766, 773 (2010).
"A state court's determination that a claim lacks merit precludes federal habeas relief so long as `fairminded jurists could disagree' on the correctness of the state court's decision." Harrington, 131 S. Ct. at 786 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). A petitioner's burden is to show that the state court's ruling on his or her claim "was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Id. at 786-87.
Petitioner first argues that the evidence adduced at trial was insufficient to convict him of first-degree home invasion because no one was present when he broke into Father Simon's apartment. Petitioner claims that he is guilty of nothing more than second-degree home invasion, which does not require that a person be present in the dwelling when a home invasion occurs.
"[T]he Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship, 397 U.S. 358, 364 (1970). "After Winship the critical inquiry on review of the sufficiency of the evidence to support a criminal conviction" is
Jackson v. Virginia, 443 U.S. 307, 318-19 (1979) (internal citation and footnote omitted) (emphases in original).
"A sufficiency of the evidence claim is a `steep climb' . . . ." United States v. Ross, 703 F.3d 856, 882 (6th Cir. 2012) (quoting United States v. Stafford, 639 F.3d 270, 273 (6th Cir. 2011)). Federal courts, moreover,
Moreland v. Bradshaw, 699 F.3d 908, 916-17 (6th Cir. 2012).
The Jackson standard "must be applied with explicit reference to the substantive elements of the criminal offense as defined by state law." Jackson, 443 U.S. at 324 n.16. The Michigan statute on first-degree home invasion states:
Mich. Comp. Laws § 750.110a(2). These elements can be broken down as follows:
People v. Wilder, 485 Mich. 35, 43; 780 N.W.2d 265, 269 (2010) (emphases in original).
The only element in contention here is the second prong of element three, that is, whether another person was lawfully present in Father Simon's apartment when petitioner entered, was present, or was exiting the apartment. According to petitioner, the statute protects homeowners and the requirement that another person must be lawfully present is not satisfied by a police officer who responds to a call about a breaking and entering. The Michigan Court of Appeals, however, stated on review of petitioner's claim that
Fulton, 2011 WL 832949, at *1.
The Court of Appeals also determined that, while one purpose of the statute is to protect an inhabitant's peaceful habitation,
Id.
The Court of Appeals opined that the statute was not ambiguous and that the implied intent of the statute "was to define broadly the class of persons who might be present." Id. at *2. The Court of Appeals concluded that the trial court properly denied petitioner's motion for a directed verdict of acquittal.
The testimony at trial established that two police officers entered Father Simon's apartment while petitioner was present in the apartment and as petitioner attempted to exit the apartment. Thus, a rational trier of fact could have concluded from the evidence, taken in the light most favorable to the prosecution, that petitioner was guilty of first-degree home invasion beyond a reasonable doubt.
Even if the court had concluded otherwise, the state appellate court's conclusion that another person was lawfully present in Father Simon's apartment while petitioner was present or exiting the apartment was not unreasonable. This Court therefore must defer to the state court's decision. See Moreland, 699 F.3d at 917. Given the deference due on habeas review and the fact that "a state court's interpretation of state law . . . binds a federal court sitting in habeas corpus," Bradshaw v. Richey, 546 U.S. 74, 76 (2005), petitioner has no right to relief on the basis of his challenge to the sufficiency of the evidence.
Petitioner's remaining two claims challenge his sentence. He alleges first that the trial court improperly assessed ten points on offense variable ten (OV 10) of the state sentencing guidelines. This claim lacks merit because the state court's interpretation and application of its own sentencing laws and guidelines is a matter of state concern only, see Howard v. White, 76 F. App'x 52, 53 (6th Cir. 2003), and "federal habeas corpus relief does not lie for errors of state law." Lewis v. Jeffers, 497 U.S. 764, 780 (1990). Consequently, the contention that the trial court incorrectly calculated the state sentencing guidelines is not cognizable on federal habeas corpus review. See Tironi v. Birkett, 252 F. App'x 724, 725 (6th Cir. 2007); McPhail v. Renico, 412 F.Supp.2d 647, 656 (E.D. Mich. 2006); Robinson v. Stegall, 157 F.Supp.2d 802, 823 (E.D. Mich. 2001).
Petitioner attempts to couch his claim in constitutional terms by alleging that he was sentenced on the basis of inaccurate information in violation of his constitutional right to due process. To prevail on this argument, petitioner must show that his sentence was founded on "misinformation of constitutional magnitude," United States v. Tucker, 404 U.S. 443, 447 (1972), or on "extensively and materially false" information that he had no opportunity to correct through counsel. Townsend v. Burke, 334 U.S. 736, 741 (1948).
At issue is OV 10, "exploitation of a vulnerable victim." Mich. Comp. Laws § 777.40(1). A score of ten points is appropriate if "[t]he offender exploited a victim's physical disability, mental disability, youth or agedness, or a domestic relationship, or the offender abused his or her authority status." Section 777.40(1)(b). "As used in this section . . . `[e]xploit' means to manipulate a victim for selfish or unethical purposes," and "`[v]ulnerability' means the readily apparent susceptibility of a victim to injury, physical restraint, persuasion, or temptation." Section § 777.40(3)(b) and (c).
Petitioner challenges the state court's conclusion that he exploited Father Simon's agedness. He contends that Father Simon was not vulnerable or in poor health. He also contends that he did not wait to commit the crime until Father Simon was alone and defenseless, and he points out that Father Simon was not even home when the home invasion occurred.
The evidence at trial, however, established that Father Simon was eighty-four years old at the time of the crime. He was acquainted with petitioner and had helped petitioner in the past when petitioner was evicted from a Salvation Army facility. At sentencing, the trial court chose to agree with the prosecutor that petitioner preyed on a vulnerable person, someone whom he knew was elderly.
The Michigan Court of Appeals stated on review of petitioner's claim that Father Simon's age was encompassed by the term "agedness" in § 777.40(1)(b) and that Father Simon's advanced age made him vulnerable. The Court of Appeals thought it reasonable to infer that petitioner exploited Father Simon's vulnerability by targeting his home. The Court of Appeals concluded that "[g]iven all the circumstances and reasonable inferences, the trial court's decision was supported by evidence, and reversal [was] therefore unwarranted." Fulton, 2011 WL 832949, at *3.
The state courts reasonably determined that petitioner took advantage of an elderly and vulnerable victim for selfish reasons. Petitioner therefore was not sentenced on the basis of "misinformation of constitutional magnitude" or on "extensively and materially false" information that he had no opportunity to correct through counsel. His due process argument does not warrant habeas relief.
In his third and final claim, petitioner challenges his sentence on the basis of Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely, 542 U.S. at 296. The Supreme Court held in Apprendi that, "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi, 530 U.S. at 490. In Blakely, the Supreme Court stated "that the `statutory maximum' for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." Blakely, 542 U.S. at 303 (emphasis omitted).
Id. at 303-04 (internal citation omitted) (emphasis in original).
Unlike the determinate sentencing scheme at issue in Blakely, Michigan has an indeterminate sentencing scheme in which "[t]he maximum penalty is set by statute, but the minimum penalty is determined by the sentencing court and must fall within a mandated guidelines range." Montes v. Trombley, 599 F.3d 490, 496 (6th Cir. 2010). "[M]inimum sentences fall outside Apprendi's scope," Chontos v. Berghuis, 585 F.3d 1000, 1002 (6th Cir. 2009), and petitioner's maximum sentences were enhanced by his three prior convictions, a fact that the jury did not have to find beyond a reasonable doubt. Apprendi, 530 U.S. at 490. Consequently, petitioner's Blakely claim lacks merit.
The state appellate court's decision was not contrary to Supreme Court precedent, an unreasonable application of Supreme Court precedent, or an unreasonable determination of the facts. Nor was the state court's decision "so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Harrington, 131 S. Ct. at 786-87. Accordingly,
IT IS ORDERED that petitioner's application for a writ of habeas corpus is denied.
IT IS FURTHER ORDERED that a certificate of appealability shall issue on petitioner's first claim because reasonable jurists could conclude that petitioner's challenge to the sufficiency of the evidence is "adequate to deserve encouragement to proceed further." Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). The court declines to issue a certificate of appealability on petitioner's sentencing claims because reasonable jurists could not find the court's assessment of those claims debatable or wrong. Nor could reasonable jurists find that the issues are adequate to deserve encouragement to proceed further.
IT IS FURTHER ORDERED that petitioner may proceed in forma pauperis on appeal.
