United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER (1) DENYING PETITION FOR WRIT OF HABEAS CORPUS (Dkt. 1), AND (2) DENYING A CERTIFICATE OF APPEALABILITY
MARK A. GOLDSMITH, District Judge.
Petitioner Alicia Cargill, currently confined at the Huron Valley Correctional Facility in Ypsilanti, Michigan, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Dkt. 1), through her attorney Mark H. Magidson. Petitioner was convicted of assault with the intent to rob while armed. Mich. Comp. Laws § 750.89. For the reasons stated below, the Court denies the petition for writ of habeas corpus. The Court also denies a certificate of appealability.
On December 2, 2005, Petitioner pleaded guilty in Monroe County Circuit Court to assault with intent to rob while armed. See Pet. at 2, 7. On January 5, 2006, she was sentenced to one year in jail and five years' probation. Id Petitioner subsequently absconded from probation and was convicted of second-degree robbery in Travis County, Texas. Id at 9. Petitioner returned to Michigan and was arrested on a probation violation warrant. Id at 7. Petitioner admitted to violating the terms of her probation by virtue of her Texas conviction. Id at 2, 7. On July 16, 2010, Petitioner's probation was revoked and she was sentenced to 85 months to 20 years of imprisonment. Id at 2, 7, 10; 7/16/10 Sentencing Tr. (Dkt. 6-3).
Petitioner filed a motion for resentencing in the trial court on the ground that offense variables ("OV") four and 13 were incorrectly scored. The trial court denied the motion. See 2/4/11 Mot. Hr'g Tr. (Dkt. 6-4).
Petitioner then filed a delayed application for leave to appeal in the Michigan Court of Appeals, in which she raised the following claims: (i) when there is no evidence that the victim sustained a serious psychological injury requiring professional treatment, an OV four score of 10 points is incorrectly assigned; and (ii) when defendant's record indicates two juvenile misdemeanor adjudications and two adult felony convictions, including the instant offense, an OV 13 score of 10 points is incorrectly assigned. People v. Cargill, No. 304789, Order at 12, 14 (cm/ecf pages) (Mich. Ct. App. Aug. 5, 2011) (Dkt. 6-5). The Michigan Court of Appeals denied leave to appeal "for lack of merit in the grounds presented." Id at 1 (cm/ecf page).
Petitioner filed an application for leave to appeal in the Michigan Supreme Court, raising the same claims as those raised in the Michigan Court of Appeals, as well as the following additional claims: (i) she was sentenced to a term that would be at the high end of the guidelines if her offense variables were corrected; and (ii) her attorney at her original sentencing was ineffective for failing to object to the scoring of OV four and 13. See App. for Leave to Appeal at 3-7 (cm/ecf pages) (Dkt. 6-6). The Michigan Supreme Court denied leave to appeal because it was "not persuaded that the questions presented should be reviewed by this Court." People v. Cargill, 806 N.W.2d 744 (Mich. 2011).
Petitioner then filed the pending habeas corpus petition. She raises this claim:
The Michigan courts erred in allowing Petitioner, Alicia Cargill, to be sentenced utilizing inaccurate, incorrect and incomplete information, thereby depriving defendant of her due process rights as guaranteed by the Fourteenth Amendment to the United States Constitution."
Pet. at 13.
III. STANDARD OF REVIEW
Title 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214, imposes the following standard of review for habeas cases:
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 ...