Potter v. Yukins

Full title: MELODY ANN POTTER, Petitioner, v. JOAN YUKINS, Respondent

Court: United States District Court, E.D. Michigan, Southern Division

Date published: Jul 7, 2000

Civil No. 00-CV-71008-DT (E.D. Mich. Jul. 7, 2000)

Opinion

Civil No. 00-CV-71008-DT.

July 7, 2000.

OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

TARNOW, DISTRICT JUDGE

Melody Ann Potter, ("petitioner"), presently confined at the Scott Correctional Facility in Plymouth, Michigan, seeks the issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In her application, filed pro se, petitioner challenges her conviction and sentence on one count of uttering and publishing, M.C.L.A. 750.249; M.S.A. 28.446. For the reasons stated below, petitioner's application for writ of habeas corpus is DENIED.

I. BACKGROUND

On November 3, 1997, petitioner entered a plea of guilty to one count of uttering and publishing. In exchange for her plea, the prosecuting attorney agreed not to file a supplemental information charging petitioner with being an habitual offender. The prosecutor further agreed that no additional charges would be filed involving checks or withdrawals by petitioner off of the same checking account which occurred prior to October 15, 1997.

On December 8, 1997, petitioner was sentenced to nine (9) to fourteen (14) years in prison. Over counsel's objection, the trial court agreed with the probation department that petitioner's eight 1985 convictions out of Iredall County, North Carolina for obtaining property by worthless checks should be considered felony convictions, because although they were referred to as misdemeanor convictions, petitioner received a two year prison sentence for these convictions.

In sentencing petitioner to nine (9) to fourteen (14) years imprisonment, the trial court mentioned that petitioner had fourteen (14) prior felony convictions and fifteen (15) prior misdemeanor convictions. The trial court also noted that petitioner was a parole absconder out of North Carolina and there were warrants out of that state against petitioner for larceny and financial card fraud. The court further indicated that petitioner was wanted in Arkansas for ten counts of forgery.

Petitioner filed an application for leave to appeal her conviction. The Michigan appellate courts denied leave to appeal in standard orders. People v. Potter, 212261 (Mich.Ct.App. July 24, 1998); Iv. den. ___ Mich. ___; 591 N.W.2d 37 (1999). Petitioner now seeks the issuance of a writ of habeas corpus on the following grounds:

I. The trial court failed to consider the established sentencing factors and standards and failed to articulate valid reasons for imposing the 9-14 year sentence upon defendant;

II. The trial court failed to strike inaccurate information contained in defendant's presentence report, and considered the same in imposing sentence upon her;

III. The trial court made an independent finding of guilt of defendant on other charges to justify defendant's sentence;

IV. The trial court violated the concept of proportionality in imposing a 9-14 year sentence upon defendant.

II. STANDARD OF REVIEW

The provisions of the Antiterrorism and Effective Death Penalty Act ("A.E.D.P.A.") govern this case because petitioner filed her habeas application after the effective date of the AEDPA. Lindh v. Murphy, 521 U.S. 320, 336 (1997). The Act altered the standard of review that a federal court must use when reviewing applications for writs of habeas corpus. 28 U.S.C. § 2254 (d) provides:

(d) 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 proceeding.

28 U.S.C. § 2254 (d); Harpster v. State of Ohio, 128 F.3d 322, 326 (6^th Cir. 1997).

With respect to the "contrary to" clause, there are two situations in which a state court decision will be contrary to clearly established federal law. First, a state court decision will clearly be contrary to the Supreme Court's clearly established precedent if the state court applies a rule that contradicts the governing law set forth in the Supreme Court's cases. Second, a state-court decision would also be contrary to the Supreme Court's clearly established precedent if the state court confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at a result different from the Supreme Court precedent. Williams v. Taylor, 120 S. Ct. 1495, 1519-1520 (2000). On the other hand, a "run-of-the-mill state-court decision" which applied the correct legal rule from the Supreme Court's cases to the facts of a petitioner's cases would not fit comfortably within the "contrary to" clause in § 2254(d)(1). Id. at 1520. These cases should be reviewed under the "unreasonable application" language of § 2254(d)(1).

A federal habeas court making the "unreasonable application" inquiry must ask whether the state court's application of clearly established federal law was objectively unreasonable. Williams v. Taylor, 120 S.Ct. at 1521. Although the term unreasonable is difficult to define, it is a common term in the legal world, and federal judges are familiar with its meaning. An unreasonable application of federal law is different from an incorrect application of federal law. Thus, a federal habeas court may not issue a writ simply because the court concludes in its independent judgment that the relevant state court decision applied clearly established federal law erroneously or incorrectly. Rather, the application must also be unreasonable. Id. at 1522.

III. DISCUSSION

For the sake of judicial economy and clarity, the Court will address petitioner's several interrelated sentencing claims together. Petitioner raised these claims with the Michigan appellate courts. These courts rejected petitioner's appeal in standard unexplained orders. When a state court, although deciding a claim, does not offer some explanation of its decision, a federal habeas court must conduct its own independent review of the state court's decision. Morse v. Trippett, ___ F. Supp.2d ___; 2000 WL 802782, *9 (E.D. Mich. June 19, 2000). Because the Michigan courts offered no reasons for denying petitioner's claims in their orders, this Court is obligated to conduct an independent review of the record and applicable law and determine whether the state court decision is contrary to federal law, unreasonably applies clearly established law, or is based on an unreasonable determination of the facts in light of the evidence presented; however, that independent review is not a full de novo review of the claims, but remains deferential because a habeas court cannot grant relief unless the state court decision is not in keeping with the AEDPA's strictures. Harris v. Stovall, ___ F.3d ___; 2000 WL 634994, *3 (6^th Cir. May 18, 2000). With this standard of review in mind, the Court will address petitioner's claims.

Petitioner claims that the trial court failed to consider established sentencing factors and standards and failed to articulate valid reasons for imposing a sentence of nine to fourteen years. As part of this claim, petitioner claims that her sentence was based upon inaccurate information, where the trial court considered her 1985 convictions out of Iredall County, North Carolina as felonies, rather than as misdemeanors.

In order to prevail on a claim that a trial court relied on inaccurate information at sentencing, a habeas petitioner must demonstrate that the sentencing court relied upon this information and that it was materially false. Collins v. Buchkoe, 493 F.2d 343, 345-346 (6^th Cir. 1974); Welch v. Burke, 49 F. Supp.2d 992, 1007 (E.D. Mich. 1999) (Cleland, J.). Where a petitioner fails to demonstrate in his or her petition that the sentencing court relied upon materially false information in imposing sentence, this claim is without merit. Thomas v. Foltz, 654 F. Supp. 105, 108 (E.D. Mich. 1987) (Cohn, J.).

A review of the pre-sentence report provided by respondent indicates that petitioner was convicted of eight counts of obtaining property by worthless checks and received two year prison sentences with the North Carolina Department of Corrections on January 10, 1986. Petitioner does not contend that she did not receive two years imprisonment for these offenses. Instead, she argues that because they were considered misdemeanors under North Carolina law, the trial court erred in considering them as felony convictions.

A federal habeas court is generally bound by state court interpretations of state law. Johnson v. Coyle, 200 F.3d 987, 993 (6^th Cir. 2000); Caldwell v. Russell, 181 F.3d 731, 735-736 (6^th Cir. 1999). The Michigan Supreme Court has determined that "two year misdemeanors" are felonies for purposes of the habitual offender, probation, and consecutive sentencing provisions of the Michigan Code of Criminal Procedure. United States v. Rolfe, 997 F.2d 189, 191 (6^th Cir. 1993) ( citing to People v. Smith, 423 Mich. 427; 378 N.W.2d 384 (1985)). Because the Michigan code defines "felony" as an offense punishable by more than one year in state prison, the Michigan Supreme Court has held that an offense labeled as a two year misdemeanor under the Michigan Penal Code falls within the definition of felony. Id. Moreover, the Michigan Sentencing Guidelines define a felony as an offense punishable by more than one year in prison and further indicates that convictions from other states should be considered felonies if the offense is punishable by more than one year in prison. Michigan Sentencing Guidelines (2d ed., 1988), p. 8. Thus, under Michigan law, the trial court could properly consider these offenses as felony convictions so long as petitioner received more than one year incarceration. Because petitioner does not contend that she did not receive a two year prison sentence for these 1985 convictions, she has failed to demonstrate that the trial court relied on inaccurate information in imposing sentence.

Even assuming that the sentencing judge incorrectly considered these prior convictions as felonies, rather than as misdemeanors, the error, if any, was harmless in light of the facts presented on the record. See Herron v. United States, 551 F.2d 62, 64 (5^th Cir. 1977). Even if these eight convictions were counted only as misdemeanors, petitioner would still have had six prior felony convictions on her record. Petitioner's sentencing guidelines range would not have been affected by this alleged error, because her prior record variable range would have remained unchanged even if the trial court had only found that she had six prior felony convictions, rather than fourteen prior felony convictions. Under the prior record variable (PRV) 2 for fraud, the highest number of points that can be assessed against a defendant is forty (40) points for having three or more prior low severity felony convictions. Michigan Sentencing Guidelines (2d ed., 1988), p. 63. Because petitioner's prior record variable scoring would have remained the same even if she only had six prior felony convictions, petitioner has failed to demonstrate any prejudice arising out of the court's characterization of these eight prior convictions as felonies rather than misdemeanors. See United States v. Caldwell, 1997 WL 230788, * 1 (E.D. Pa. April 29, 1997) (petitioner failed to demonstrate any prejudice arising out of court's mischaracterization of his prior misdemeanor burglary conviction as a felony, where petitioner had four other felony convictions which could have been used to enhance his sentence under 18 U.S.C. § 924 (e)).

Petitioner further alleges that the trial court improperly referred to her pending criminal charges in Arkansas and North Carolina in imposing sentence. A sentencing court generally may exercise wide discretion in the kind of information it considers in determining punishment. Williams v. New York, 337 U.S. 241, 246 (1949). A trial judge, in performing the sentencing function, may appropriately consider any responsible information of a relevant nature, even though unsworn or derived from an out-of-court source, including evidence of criminal charges for which the defendant may never have been tried. Collins v. Buchkoe, 493 F.2d at 345; See also Jackson v. Roth, 24 F.3d 1002, 1004 (7^th Cir. 1994) (internal citations omitted). A sentencing judge may properly consider a defendant's past conduct, including evidence of crimes for which the defendant has been indicted, but not convicted, in determining punishment. Bourgeois v. Whitley, 784 F.2d 718, 720-721 (5^th Cir. 1986). See also Peterson v. LeFevre, 753 F. Supp. 518, 521 (S.D.N.Y. 1991) (a court may properly consider other criminal conduct that may fairly be attributed to the defendant, including matters for which he has not been charged or convicted, so long as there is a factual basis for reliance upon such matters). The state trial court's consideration of petitioner's pending criminal charges in other states would not have been unconstitutional, particularly where petitioner has offered no evidence to this Court to show that these allegations were false. Moreover, petitioner admits that she was allowed to assert her innocence to these charges at the time of sentencing.

Petitioner finally claims that her sentence of nine to fourteen years imprisonment violates the principle of proportionality. A sentence imposed within the statutory limits is not generally subject to habeas review. Townsend v. Burke, 334 U.S. 736, 741 (1948); Cook v. Stegall, 56 F. Supp.2d 788, 797 (E.D. Mich. 1999) (Gadola, J.). The U.S. Constitution does not require that sentences be proportionate. In Harmelin v. Michigan, 501 U.S. 957, 965 (1991), a plurality of the U.S. Supreme Court concluded that the Eighth Amendment does not contain a requirement of strict proportionality between the crime and sentence. The Eighth Amendment forbids only extreme sentences that are grossly disproportionate to the crime. Harmelin, 501 U.S. at 1001.

Successful challenges to the proportionality of a particular sentence in non-capital cases are "exceedingly rare". Rummel v. Estelle, 445 U.S. 263, 272 (1980). Federal courts will therefore not engage in a proportionality analysis except where the sentence imposed is death or life imprisonment without parole. Seeger v. Straub, 29 F. Supp.2d 385, 392 (E.D. Mich. 1998). Petitioner's claim that her sentence is disproportionate under Michigan law thus would not state a claim upon which habeas relief can be granted. Atkins v. Overton, 843 F. Supp. 258, 260 (E.D. Mich. 1994) (Gadola, J.).

Petitioner also claims that her sentence of nine to fourteen years violates the cruel and unusual punishment clause of the Eighth Amendment, because the offense that she was convicted of involved only a sixty five ($65.00) dollar check for which the victim was fully reimbursed. Other courts have rejected similar claims. In Burt v. Puckett, 933 F.2d 350, 351-353 (5^thCir. 1991), the Fifth Circuit ruled that a sentence of fifteen years without parole imposed under the Mississippi habitual offender statute upon conviction for uttering a thirty five ($35.00) dollar check was not unconstitutionally disproportionate in violation of the Eighth Amendment's cruel and unusual punishment clauses. Recently, another judge in this district upheld a sentence of seven to fourteen years for uttering and publishing because the sentence fell within the statutory limits for the offense. See Colon v. Smith, ___ F. Supp.2d ___; 2000 WL 760711, * 6 (E.D. Mich. May 8, 2000) (Borman, J.).

In the present case, petitioner's sentence of nine to fourteen years was within the statutory limits of uttering and publishing. See M.C.L.A. 750.249; M.S.A. 28.446. Because petitioner's sentence falls within the statutory limits, petitioner is not entitled to habeas relief. The Court will therefore deny the petition for writ of habeas corpus.

IV. ORDER

Based upon the foregoing, IT IS ORDERED that the petition for a writ of habeas corpus is DISMISSED.