R. ALLAN EDGAR, District Judge.
Petitioner filed this § 2254 petition for a writ of habeas corpus challenging the validity of his state court conviction for violations of his constitutional rights. In 2011, a jury convicted Petitioner of extortion (MICH. COMP. LAWS § 750.213) and use of a computer to commit a crime (MCL § 752.797(3)(f)). PageID.1, 186-87. For each offense, Petitioner was sentenced to a concurrent sentence of 60 to 240 months. PageID.1, 186. Petitioner remains in the custody of the Michigan Department of Corrections (MDOC).
Petitioner was convicted at trial for attempting to extort money from Steelcase, his former employer, by sending several threatening e-mails under the name "Crazy Chrissy" to Steelcase's board of directors. People v. Morrissey, No. 306901, 2012 WL 4039682, at *1 (Mich. Ct. App. Sept. 13, 2012). In those e-mails, "Chrissy" threatened to release allegedly harmful information related to Petitioner's termination from Steelcase. Id. To stop this information from being released, "Chrissy" demanded money and an ability for Petitioner to be put through the severance process. Id.
After his conviction, Petitioner filed an application for leave to appeal in the Michigan Court of Appeals. PageID.2, 187. The Court of Appeals denied his application and affirmed his convictions on September 13, 2012. PageID.2, 187. Petitioner then filed an application for leave to appeal in the Michigan Supreme Court, which was denied on March 4, 2013. PageID.2, 187.
Petitioner then filed a motion for relief from judgment in the state trial court, but this motion was denied on December 12, 2013. PageID.188. Petitioner appealed to the Michigan Court of Appeals, who denied his request for relief on August 7, 2014. Petitioner did not appeal to the Michigan Supreme Court.
Petitioner did not appeal to the United States Supreme Court. Instead, he filed a habeas petition in this Court on September 26, 2013. ECF No. 1. Petitioner also filed an amended habeas application on January 17, 2014 (ECF No. 7), to include his motion for relief from judgment filings in the state court. Petitioner maintains that his convictions were based on violations of his state and federal rights. Petitioner sets forth the following claims for relief:
PageID.4-5, 7-8, 10-11, 13, 19-20, 189-190, 192-193, 195-196, 198. Respondent filed a response to the amended petition on May 2, 2015. ECF No. 8. On June 6, 2014, Petitioner filed a reply (ECF No. 10), and on August 20, 2014, Petitioner filed a supplemental brief in support of his reply (ECF No. 12). The matter is now ready for a decision.
Petitioner filed this petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996. PUB. L. 104-132, 110 STAT. 1214 (AEDPA); Bell v. Cone, 535 U.S. 685, 693-94 (2002) (noting that AEDPA prevents federal habeas "retrials" and ensures state convictions are made under state law). 28 U.S.C. § 2254(d) provides that any habeas application by a person in state custody shall not be granted in regards to any claim that has previously been adjudicated on the merits in state court unless the adjudication:
28 U.S.C. § 2254(d)(1)-(2).
This Court may only consider "clearly established holdings" of the Supreme Court, not lower federal courts, in analyzing a petitioner's claim under § 2254. Williams v. Taylor, 529 U.S. 362, 412 (2000); Bailey v. Mitchell, 271 F.3d 652, 655 (6th Cir. 2001). A decision of the state court may only be overturned if: (1) it applies a rule contradicting Supreme Court governing law, (2) it contradicts a set of facts materially indistinguishable from a Supreme Court decision, (3) it unreasonably applies correct Supreme Court precedent to the facts of the case, (4) it unreasonably extends Supreme Court legal principles where it should not apply, or (5) it unreasonably refuses to extend Supreme Court legal principle where it should apply. Bailey, 271 F.3d at 655; see also Lancaster v. Adams, 324 F.3d 423, 429 (6th Cir. 2003).
A federal habeas court may not find a state adjudication to be "unreasonable" simply because that court decides, in its own judgment, that the relevant state decision applied federal law incorrectly. Williams, 529 U.S. at 410-11 (noting that it must instead determine if the state court's application of clearly established federal law was "objectively unreasonable"). This Court defers to state court decisions when the state court addressed the merits of petitioner's claim. Harris v. Stovall, 212 F.3d 940, 943 (6th Cir. 2000); see Wiggins v. Smith, 539 U.S. 510, 534 (2003) (allowing review of habeas application de novo when state court clearly did not reach the question). When applying AEDPA to state factual findings, factual issues by state courts are presumed correct unless the petitioner rebuts the presumption with clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Lancaster, 324 F.3d at 429.
After applying the standards under AEDPA to Petitioner's case, this Court concludes that Petitioner has not provided clear and convincing evidence that the state court improperly applied clearly established federal law to the facts of Petitioner's case.
Petitioner has raised seven claims alleging that his constitutional rights were violated. Each issue is addressed separately.
Petitioner's first claim states that "[t]he trial court prevented the defendant from introducing the PowerPoint into evidence of what the threat was." PageID.4, 189. Specifically, Petitioner claims that during his trial and throughout appellate review, "there were several different interpretations of what the actual alleged threat to Steelcase was," and Petitioner tried to explain that the "alleged threat was to re-expose the PowerPoint information." PageID.30, 1247. However, the courts would not allow him to introduce this PowerPoint into evidence. PageID.30-31, 1247.
The extraordinary remedy of habeas corpus lies only for a violation of the Constitution. 28 U.S.C. § 2254(a). As the Supreme Court explained in Estelle v. McGuire, 502 U.S. 62 (1991), an inquiry into whether evidence was properly admitted or improperly excluded under state law "is no part of the federal court's habeas review of a state conviction [for] it is not the province of a federal habeas court to re-examine state-court determinations on state-law questions." Id. at 67-68. Rather, "[i]n conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." Id. at 68. State-court evidentiary rulings cannot rise to the level of due process violations unless they offend some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental. Seymour v. Walker, 224 F.3d 542, 552 (6th Cir. 2000) (quotation omitted); accord Coleman v. Mitchell, 268 F.3d 417, 439 (6th Cir. 2001); Bugh v. Mitchell, 329 F.3d 496, 512 (6th Cir. 2003), cert. denied, 124 S.Ct. 345 (2003). "[C]ourts have defined the category of infractions that violate fundamental fairness very narrowly." Bugh, 329 F.3d at 512 (internal quotations and citations omitted); see Kelly v. Withrow, 25 F.3d 363, 370 (6th Cir. 1994) (noting that state court errors pertaining to admission of evidence are only cognizable on habeas review if it denies the petitioner his fundamental right to a fair trial).
Petitioner has failed to show that this state law issue rendered his trial fundamentally unfair. In denying Petitioner's direct appeal, the Michigan Court of Appeals concluded that Petitioner's trial rights were not impinged by the court's decision not to introduce the Power Point into evidence:
Morrissey, 2012 WL 4039682, at **3-4. The appellate court's review of Petitioner's claim is thorough and complete, and it does not contradict or unreasonably apply Supreme Court law to the facts of Petitioner's case. Bailey, 271 F.3d at 655. As the appellate court noted, the Power Point presentation was properly excluded, meaning Petitioner's trial was not fundamentally unfair due to the exclusion of this Power Point. Even though Petitioner continues to argue that the "threat" in this case was the Power Point, not the e-mails, he has not demonstrated that his trial was unfair due to the exclusion of this evidence. See PageID.30-36. Accordingly, Petitioner's first claim fails as it is not cognizable on habeas review.
Petitioner's next claim is that the trial court abused its discretion when it "refused to adjourn the trial so a critical witness for the defense could be brought to trial." PageID.5, 190. Specifically, Petitioner claims the trial should have been adjourned so that Mr. Jim Hackett (the CEO of Steelcase) could testify. PageID.37-38. Petitioner believes his testimony was important as it would ultimately allow additional e-mails (between Mr. Hackett and Petitioner) to be introduced into evidence. PageID.37-38. Petitioner further states that these e-mails to Mr. Hackett "would have shown that all correspondence, including the Chrissy e-mails, had the same intent of trying to clear the defendant's name." PageID.38. Moreover, Petitioner states that Mr. Hackett would have been called to testify if the prosecutor did not persuade Petitioner's previous attorney to release Mr. Hackett from his subpoena. PageID.38.
"The decision whether to grant a motion for continuance is within the discretion of the trial judge." Powell v. Collins, 332 F.3d 376, 396 (citing Ungar v. Sarafite, 376 U.S. 575, 589-90 (1964)); see also Morris v. Slappy, 461 U.S. 1, 11 (1983) (noting that trial courts have broad discretion in deciding whether to grant a continuance). "Absent proof of a violation of a specific constitutional protection, a habeas petitioner must show that a trial error was so egregious as to deprive him of a fundamentally fair adjudication, thus violating constitutional principles of due process." Id. (citing Cooper v. Sowders, 837 F.2d 284, 286 (6th Cir. 1988); see also White v. Berghuis, No. 2:12-CV-13680, 2014 WL 1304648, at *6 (E.D. Mich. Mar. 28, 2014) (citing Burton v. Renico, 391 F.3d 764, 772 (6th Cir. 2004) ("In criminal proceedings, a trial court's denial of a continuance rises to the level of a due process constitutional violation only when there is an unreasoning and arbitrary insistence upon expeditiousness in the face of a justifiable request for delay."). In addition, a habeas petitioner must show that he suffered actual prejudice as a result of the trial court's denial of his request for a continuance. White, 2014 WL 1304648, at *6 (citing Burton, 391 F.3d at 772 and Powell, 332 F.3d at 396). "Actual prejudice may be demonstrated by showing that additional time would have made relevant witnesses available or otherwise benefitted the defense." Id. (citing Powell, 332 F.3d at 396). Factors to consider in the deciding whether the denial of the continuance was proper are whether the defendant contributed to the situation giving rise to the delay, whether the delay was for a legitimate reason, and whether denial of the delay would cause identifiable prejudice to the defendant's case, for example. Powell, 332 F.3d at 396.
Petitioner raised this claim in his direct appeal to the Michigan Court of Appeals. The appellate court denied his claim for the following reasons, ultimately concluding that Mr. Hackett's testimony would not have positively contributed to Petitioner's defense:
Morrissey, 2012 WL 4039682, at *5. The appellate court's decision is thorough and complete, and it does not improperly apply or contradict Supreme Court precedent. Bailey, 271 F.3d at 655.
Nonetheless, Petitioner claims that Mr. Hackett was crucial to his defense. At trial, Petitioner stated that he wanted to question Mr. Hackett about e-mails between them in 2009 (before the Crazy Chrissy e-mails were sent to Steelcase), and ultimately show that Mr. Hackett understood that those e-mails were not intended to extort the company. PageID.37-39, 701-702, 1247-1248 (noting that Mr. Hackett once told Petitioner's previous attorney that "the C[h]rissy e-mails were `too old to be true' and they had a `comic book nature to them.'").
Despite his assertions, Petitioner has not shown that he suffered actual prejudice by being denied a continuance for purpose of subpoenaing Mr. Hackett. As the trial court stated, and the appellate court reiterated, "at best Mr. Hackett's testimony would be irrelevant and at worst a waste of time and needless harassment." PageID.703; Morrissey, 2012 WL 4039682, at *5. The testimony would, in fact, likely harm Petitioner's defense by showing that Petitioner sent these e-mails to Steelcase to make Steelcase "do something they didn't want to do," thereby enhancing the prosecution's evidence in support of a conviction for extortion. PageID.702. As a result, Petitioner was not prejudiced by the trial court's decision to deny a continuance for purposes of obtaining Mr. Hackett for trial. Accordingly, Petitioner's second claim is denied.
Petitioner's third claim is that his "right to present a defense was violated by the trial court's exclusion of evidence and witnesses critical to his defense." PageID.7, 192. Petitioner claims that he had two witnesses in the courtroom during trial that would have testified regarding his difficulty obtaining employment, and that this testimony was important because it demonstrates his motive for sending the e-mails to Steelcase. PageID.40-41. In addition, Petitioner claims that the trial court prevented him from presenting a defense by: (1) not admitting his Power Point into evidence, (2) declining to admit that a previous lawsuit was already made public, (3) not adjourning the trial to obtain Mr. Hackett as a witness, (4) refusing to let him show a visual history of the events leading up to this case, (5) not allowing him to impeach a prosecutor's witness, (6) having a biased judge conduct his trial, and (7) allowing the prosecution to disparage him. PageID.1248.
While Respondent raises the issue of procedural default, the Court will address Petitioner's claim on the merits. "If a petitioner does not satisfy the procedural requirements for bringing an error to the state court's attention — whether in trial, appellate, or habeas proceedings, as state law may require — procedural default will bar federal review." Magwood v. Patterson, 561 U.S. 320, 130 S.Ct. 2788, 2801 (2010). Nevertheless, the U.S. Supreme Court has held that federal courts are not required to address a procedural-default issue before deciding against the petitioner on the merits. See Hudson v. Jones, 351 F.3d 212, 216 (6th Cir. 2003) (citing Lambrix v. Singletary, 520 U.S. 518, 525 (1997) ("Judicial economy might counsel giving the [other] question priority, for example, if it were easily resolvable against the habeas petitioner, whereas the procedural-bar issue involved complicated issues of state law."), and Nobles v. Johnson, 127 F.3d 409, 423-24 (5th Cir. 1997) (deciding against the petitioner on the merits even though the claim was procedurally defaulted)). See also 28 U.S.C. § 2254(b)(2) ("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.").
"A defendant's right to present relevant evidence is not unlimited, but rather is subject to reasonable restrictions." United States v. Scheffer, 523 U.S. 303, 308 (1998) (citing Taylor v. Illinois, 484 U.S. 400, 410 (1988); Rock v. Arkansas, 483 U.S. 44, 55 (1987); Chambers v. Mississippi, 410 U.S. 284, 295 (1973)). "A defendant's interest in presenting such evidence may thus `bow to accommodate other legitimate interests in the criminal trial process.'" Id. (quoting Rock, 483 U.S. at 55 (quoting Chambers, 410 U.S. at 295) (internal citation omitted)). Consequently, judges have "broad latitude under the Constitution" to make rules that exclude evidence from criminal trials, and they do not "abridge an accused's right to present a defense" in so doing as long as the rules are not "arbitrary" or "disproportionate to the purposes they are designed to serve." Id. (citing Rock, 483 U.S. at 58; Michigan v. Lucas, 500 U.S. 145, 151 (1991)). Excluding evidence is only arbitrary or disproportionate "where it has infringed upon a weighty interest of the accused." Id.
Petitioner raised this claim in his direct appeal to the Michigan Court of Appeals, and the court denied it for the following reasons:
Morrissey, 2012 WL 4039682, at **6-8. Again, the analysis done by the appellate court is thorough and complete, and it does not misapply or misinterpret any Supreme Court precedent. Bailey, 271 F.3d at 655. The appellate court's analysis shows that the trial court's exclusion of several items of evidence did not prevent Petitioner from presenting a defense and was, at best, harmless error. See Brecht v. Abrahamson, 507 U.S. 619, 638 (1993) (noting that the harmless error standard under 28 U.S.C. § 2111 applies to habeas claims pertaining to constitutional errors done by the trial courts). As a result, Petitioner's third claim fails.
Petitioner's next claim is that "[n]o legitimate threat of injury was made, as reexposing the already public Power Point information was of no consequence to Steelcase and could not cause them injury." PageID.8, 193. In making this claim, Petitioner cites to numerous laws and Michigan court decisions in an attempt to demonstrate that sending e-mails that contain language threatening to expose a Power Point cannot constitute a threat. PageID.44-50.
While it appears as though Petitioner raised a similar issue to this one in the state courts on direct appeal, the issue is not precisely the same. See Morrissey, 2012 WL 4039682, at *2. As a result, Respondent has appropriately raised the issue of exhaustion. PageID.303-306. Exhaustion requires that a petitioner "fairly present" federal claims to the state courts so that the state courts have a "fair opportunity" to apply controlling legal principles to the facts bearing upon petitioner's constitutional claim. See O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); Picard v. Connor, 404 U.S. 270, 275-77 (1971) (cited by Duncan v. Henry, 513 U.S. 364, 365 (1995) and Anderson v. Harless, 459 U.S. 4, 6 (1982)).
Despite this exhaustion issue, Respondent urges this Court to "save the appellate state courts the useless review of a meritless constitutional claim," and instead address the issue on the merits. PageID.306. Pursuant to 28 U.S.C. § 2254(b)(2), a habeas court may deny an application on the merits despite "the failure of the applicant to exhaust the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(2). Consequently, this Court will review Petitioner's claim on the merits.
Petitioner raises a sufficiency of the evidence argument in claiming that the an element of extortion was not proven at trial. See PageID.44-50. A § 2254 challenge to the sufficiency of the evidence is governed by the standard set forth by the Supreme Court in Jackson v. Virginia, 443 U.S. 307, 319 (1979), which is "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." This standard of review recognizes the trier of fact's responsibility to resolve reasonable conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Id. Issues of credibility may not be reviewed by the habeas court under this standard. See Herrera v. Collins, 506 U.S. 390, 401-02 (1993). Rather, the habeas court is required to examine the evidence supporting the conviction, in the light most favorable to the prosecution, with specific reference to the elements of the crime as established by state law. Jackson, 443 U.S. at 324 n.16; Allen v. Redman, 858 F.2d 1194, 1196-97 (6th Cir. 1988).
To prove extortion pursuant to MCL § 750.213, the prosecution must demonstrate that a defendant "(1) either orally or by a written or printed communication, maliciously threatens, (2) to accuse another of any crime or offense, or to injure the person or property or mother, father, spouse or child of another (3) with the intent to extort money or any pecuniary advantage whatever, or with the intent to compel the person threatened to do or refrain from doing any act against his or her will." People v. Harris, 495 Mich. 120, 128-29 (2014).
Here, Petitioner claims that because there was no "threat of injury" to Steelcase because the threat of publicizing a Power Point was too insignificant to constitute extortion. PageID.46-47. At his trial, Petitioner made a similar oral argument when asking for a directed verdict, but the trial court denied the motion. PageID.660-680. Moreover, the Michigan Court of Appeals reiterated the facts as established in the trial transcripts pertaining to the extortion conviction. Morrissey, 2012 WL 4039682, at *1. The appellate court noted that there was evidence admitted at trial showing that Petitioner was sending threatening e-mails under the name "Crazy Chrissy" to Steelcase's board of directors, and in these emails, "Chrissy threatened to release materials related to defendant's termination from Steelcase, which `she' claimed would be harmful to Steelcase." Id. at *1. In order to stop the release of this information, "Chrissy" demanded $50,000 from Steelcase to "rectify defendant's allegedly wrongful termination by putting him through the severance process." Id. Based on this series of events, and viewing the evidence in the light most favorable to the prosecution, it is clear that a reasonable trier of fact could conclude that Petitioner committed extortion by sending these "Crazy Chrissy" e-mails. Jackson, 443 U.S. at 324 n.16. Therefore, Petitioner's fourth claim fails.
Petitioner's fifth claim is that "[t]here is significant evidence that the trial judge was prejudiced against the defendant based on his knowledge of disputed evidentiary facts." PageID.10, 195. In supporting this claim, Petitioner notes that the trial judge in this criminal case was also the same judge that handled his civil suit against Steelcase and Nextel from 2005 to 2007. PageID.51. Petitioner claims that some of the statements the trial judge made in deciding his civil case (against Petitioner) demonstrate that the judge was biased against him, and that he agreed that Petitioner should have been fired from Steelcase. See, e.g., PageID.52 (quoting the judge's decision: "Clearly [the defendant] received the benefit of in essence a free phone subsidized by his employer."; "But wouldn't over time a reasonable person know or should know that they're receiving a service and that the billing is being handled by someone other than himself?"). Moreover, Petitioner states that his previous attorney in his criminal case filed a motion for recusal, but the trial judge denied the motion. PageID.53.
Petitioner raised this claim for the first time in his direct appeal to the Michigan Supreme Court, and then on his motion for relief from judgment to both the trial and appellate courts. PageID.132, 1267, 1276. As previously mentioned, a habeas court may deny a habeas petition on the merits despite a procedural bar such as exhaustion pursuant to 28 U.S.C. § 2254(b)(2). Accordingly, this Court will deny Petitioner's claim on the merits for the following reasons.
"The Due Process Clause of the Fourteenth Amendment requires a fair trial in a fair tribunal before a judge with no actual bias against the defendant or an interest in the outcome of the case." Love v. Burt, No. 2:15-CV-12118, 2015 WL 3916098, at *4 (E.D. Mich. June 25, 2015) (citing Bracy v. Gramley, 520 U.S. 899, 904-05 (1997)). "A claim of judicial bias against a state court judge is analyzed under the standard announced in Liteky v. United States, 510 U.S. 540 [] (1994), in which the Court held that `judicial rulings alone almost never constitute a valid basis for a bias or partiality motion.'" Rockwell v. Palmer, 559 F.Supp.2d 817, 832 (W.D. Mich. Mar. 31, 2008) (citing Liteky, 510 U.S. at 551-55 (noting that judges' opinions "as a result of what they learned in earlier proceedings" do not constitute bias or prejudice against a person or case) and Corbett v. Bordenkircher, 615 F.2d 722, 723-24 (6th Cir. 1980) ("Absent a showing of actual bias, there is no rule that a judge must disqualify themselves where they prosecuted the defendant in an earlier proceeding.")).
For a habeas petitioner to prevail on a claim of judicial bias, he must show "either actual bias or the appearance of bias creating a conclusive presumption of actual bias." Love, 2015 WL 3916098, at *4 (citing United States v. Lowe, 106 F.3d 1498, 1504 (6th Cir. 1997)); see also Liteky, 510 U.S. at 552 (noting that the judge must "display a deep-seated favoritism or antagonism that would make a fair judgment impossible."). "Only in the most extreme of cases would disqualification on the basis of bias and prejudice be constitutionally required." Williams v. Anderson, 460 F.3d 789, 814 (6th Cir. 2006). In reviewing such a claim, the habeas court must initially presume that the trial judge properly went about his or her official duties. Love, 2015 WL 3916098, at *4.
Petitioner's claim fails the Liteky standard for judicial recusal. While Petitioner has cited to four statements made by the judge in Petitioner's previous civil case against Steelcase, the comments do not demonstrate "the degree of antagonism necessary for him to succeed in a claim of judicial bias." See Rockwell, 559 F. Supp. 2d at 832. The record does not show that the trial judge treated Petitioner unfairly and, in fact, the trial transcripts show that the judge was extremely patient with Petitioner, especially given Petitioner's decision to proceed to trial pro se. See, e.g., ECF No. 9-23; 9-24; 9-25; 9-26; 9-27; 9-28. Consequently, Petitioner's claim of judicial bias fails.
Petitioner's next claim is that "[t]he [trial] court abused its discretion in sentencing the defendant in OV 13 at 25 points because there were only restatements of the same alleged threat, not several independent ones." PageID.11, 196.
Claims concerning the improper scoring of sentencing guidelines are state-law claims and typically are not cognizable in habeas corpus proceedings. See Hutto v. Davis, 454 U.S. 370, 373-74 (1982) (federal courts normally do not review a sentence for a term of years that falls within the limits prescribed by the state legislature); Austin v. Jackson, 213 F.3d 298, 301-02 (6th Cir. 2000) (alleged violation of state law with respect to sentencing is not subject to federal habeas relief); Cheatham v. Hosey, No. 93-1319, 1993 WL 478854, at *2 (6th Cir. Nov. 19, 1993) (departure from sentencing guidelines is an issue of state law, and, thus, not cognizable in federal habeas review); Cook v. Stegall, 56 F.Supp.2d 788, 797 (E.D. Mich. 1999) (the sentencing guidelines establish only rules of state law). There is no constitutional right to individualized sentencing. 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). Moreover, a criminal defendant has "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); accord Lovely v. Jackson, 337 F.Supp.2d 969, 977 (E.D. Mich. 2004); Thomas v. Foltz, 654 F.Supp. 105, 106-07 (E.D. Mich. 1987).
Although state law errors generally are not reviewable in a federal habeas proceeding, 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.'" Koras v. Robinson, 123 F. App'x 207, 213 (6th Cir. Feb. 15, 2005) (citing Bowling v. Parker, 344 F.3d 487, 521 (6th Cir. 2003)); see also Doyle, 347 F. Supp. 2d at 485 (a habeas court "will not set aside, on allegations of unfairness or an abuse of discretion, terms of a sentence that is within state statutory limits unless the sentence is so disproportionate to the crime as to be completely arbitrary and shocking.") (citation omitted). A sentence may violate due process if it is based upon material "misinformation of constitutional magnitude." Koras, 123 Fed. App'x at 213 (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. Tucker, 404 U.S. at 447; United States v. Polselli, 747 F.2d 356, 358 (6th Cir. 1984); see also Koras, 123 Fed. App'x at 213 (quoting United States v. Stevens, 851 F.2d 140, 143 (6th Cir. 1988)). A sentencing court demonstrates actual reliance on misinformation when the court gives "explicit attention" to it, "found[s]" its sentence "at least in part" on it, or gives "specific consideration" to the information before imposing sentence. Tucker, 404 U.S. at 444, 447.
Petitioner's sentence of five to twenty years clearly is not so disproportionate to the crime as to be arbitrary or shocking. Doyle, 347 F. Supp. 2d at 485; see MCL § 750.213 (noting that a person convicted under this statute shall be imprisoned "not more than 20 years."); see, e.g., People v. Maranian, 359 Mich. 361, 363 (1960) (sentencing a defendant to three and a half to twenty years for extortion); People v. Bosca, 310 Mich.App. 1, 6 (2015) (sentencing defendant to fifty-seven months to twenty years for extortion); People v. Markham, No. 303734, 2012 WL 6178273, at *1 (Mich. Ct. App. Dec. 11, 2012) (sentencing defendant to seventy-five months to twenty years for extortion); People v. Poindexter, 138 Mich.App. 322, 324 (1984) (sentencing defendant to five to twenty years).
Furthermore, the state-court's rejection of Petitioner's objection to scoring OV 13 at the twenty-five points (PageID.833) during sentencing was not based on an unreasonable determination of the facts and was neither contrary to nor an unreasonable application of established Supreme Court precedent:
PageID.834-835; see also 28 U.S.C. § 2254(d). Moreover, the Michigan Court of Appeals heard, and denied, this claim on Petitioner's direct appeal:
Morrissey, 2012 WL 4039682, at **9-10. The appellate court's decision is thorough and complete, and it does not improperly apply federal law to the facts of Petitioner's case. Overall, because Petitioner has not shown that his sentencing score was so egregious as to amount to a denial of due process, this claim is not cognizable on habeas review. See Koras, 123 Fed. App'x at 213.
Petitioner's final claim is that "[t]he trial court errored [sic] when it awarded Steelcase full restitution for investigation expenses they chose to spend that did not give rise to the conviction." PageID.13, 198. Specifically, Petitioner claims that it should not have to pay Steelcase $23,505 in legal fees used to find out who Crazy Chrissy was because it was Steelcase's decision to use a private investigator, rather than the police, to do this investigative work. PageID.62-65.
Notably, Petitioner raised his claim for the first time to the Michigan Supreme Court on direct appeal (PageID.174), and the court did not grant leave to appeal the issue (PageID.132). Petitioner's claim was not "fairly" presented to the state courts in this manner. See Farley v. Lafler, 193 Fed. App'x 543, 549 (6th Cir. 2006). Subsequently, Petitioner then raised this claim in the trial court on his motion for relief from judgment in the trial and appellate courts (PageID.1267, 1276), but this was denied because Petitioner failed to provide "good cause" for failing to raise this claim on his direct appeal (PageID.1256). Petitioner did not appeal the denials of his motion for relief from judgment to the Michigan Supreme Court, meaning he did not filly exhaust his claims. Regardless, this Court will deny Petitioner's unexhausted claim on the merits for the reasons below, in order to "avoid further litigation for the sake of efficiency." Farley, 193 Fed. App'x at 549 (citing 28 U.S.C. § 2254(b)(2) ("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.")).
Petitioner does not state a claim upon which habeas relief can be granted. "Where a habeas petitioner is not claiming the right to be released but is challenging the imposition of a fine or other costs, he or she may not bring a petition for writ of habeas corpus." Mullins v. Birkett, No. 2:09-CV-12515, 2010 WL 764386, at *3 (E.D. Mich. Mar. 4, 2010) (citing United States v. Watroba, 56 F.3d 28, 29 (6th Cir. 1995)). "Liability under a restitution order is like a fine-only conviction and is not a serious restraint on liberty sufficient to warrant habeas relief." Colvin v. McKee, No. 1:10-CV-197, 2010 WL 1558686, at *1 (citing Barnickel v. United States, 113 F.3d 704, 706 (7th Cir. 1997); Tinder v. Paula, 725 F.2d 801, 805 (1st Cir. 1984)). "Because the appropriate relief would be an amendment of the court's order of restitution and not release from custody, the grant of a writ of habeas corpus or other post conviction relief would be inappropriate." Mullins, 2010 WL 764386, at *3 (citing United States v. Zaragoza, 16 F.Supp.2d 1111, 1112 (N.D. Ind. 1998)).
Petitioner's restitution order is not "a sufficient enough restraint on his liberty" to justify habeas relief. Mullins, 2010 WL 764386, at *3. Accordingly, this claim is not cognizable on habeas review, and is denied.
Overall, this Court concludes that all of Petitioner's claims are without merit. Should Petitioner choose to appeal this action, the Court must determine whether a certificate of appealability may be granted. A certificate should issue if Petitioner has demonstrated a "substantial showing of a denial of a constitutional right." 28 U.S.C. § 2253(c)(2). The Sixth Circuit Court of Appeals has disapproved issuance of blanket denials of a certificate of appealability. Murphy v. Ohio, 263 F.3d 466 (6th Cir. 2001). Each issue must be considered under the standards set forth in Slack v. McDaniel, 529 U.S. 473 (2000). Under Slack, to warrant a grant of the certificate, "[t]he petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack, 529 U.S. at 484. The Court examined each of Petitioner's claims under the Slack standard and concludes that reasonable jurists could not find that a dismissal of each of Petitioner's claims was debatable or wrong. Therefore, this Court
For the same reasons the Court dismissed this action, the Court will certify that any appeal by Petitioner from the Court's decision and judgment would be frivolous and not taken in good faith, pursuant to 28 U.S.C. § 1915(a)(3) and Fed. R. App. P. 24. Therefore, any application by Petitioner for leave to proceed in forma pauperis on appeal is hereby
In summary, Petitioner's habeas application (ECF No. 7), filed pursuant to 28 U.S.C. § 2254, is
