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Scarberry v. Jackson

United States District Court, W.D. Michigan, Southern Division

November 4, 2016

SHANE JACKSON, Respondent.


          Janet T. Neff United States District Judge

         This is a habeas corpus action brought by a state prisoner pursuant to 28 U.S.C. § 2254. Promptly after the filing of a petition for habeas corpus, the Court must undertake a preliminary review of the petition to determine whether “it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court.” Rule 4, Rules Governing § 2254 Cases; see 28 U.S.C. § 2243. If so, the petition must be summarily dismissed. Rule 4; see Allen v. Perini, 424 F.2d 134, 141 (6th Cir. 1970) (district court has the duty to “screen out” petitions that lack merit on their face). A dismissal under Rule 4 includes those petitions which raise legally frivolous claims, as well as those containing factual allegations that are palpably incredible or false. Carson v. Burke, 178 F.3d 434, 436-37 (6th Cir. 1999). After undertaking the review required by Rule 4, the Court concludes that the petition must be dismissed because it fails to raise a meritorious federal claim.

         Factual Allegations

         Petitioner Patrick Eugene Scarberry is incarcerated with the Michigan Department of Corrrections (MDOC) at the West Shoreline Correctional Facility in Muskegon Heights, Michigan. On March 27, 2013, a St. Joseph County Circuit Court jury convicted Petitioner on one count of first-degree home invasion, Mich. Comp. Laws § 750.110(A)(2) and one count of domestic violence, Mich. Comp. Laws § 750.81(2). On May 3, 2013, the Court sentenced Petitioner to a term of imprisonment of 10 years to 20 years for home invasion and a sentence of seventy-five days for domestic violence.

         Petitioner, with the assistance of counsel, filed a direct appeal of his convictions and sentences in the Michigan Court of Appeals raising three issues:

I. Petitioner was denied a fair trial by the admission of unduly prejudicial evidence of other acts of domestic violence, as well as by the gratuitous repetition of the allegations by several witnesses.
II. Petitioner must be resentenced where his sentence is based on incorrectly scored sentencing guidelines and inaccurate information.
III. Petitioner's Sixth and Fourteenth Amendment rights were violated by judicial factfinding, which increased the floor of the permissible sentence, in violation of Alleyne v. United States.

(Pet. Attach. A, ECF No. 1-2, PageID.22.)

         The Michigan Court of Appeals affirmed Petitioner's convictions and sentences in an unpublished opinion. People v. Scarberry, No. 317183, 2014 WL 6602530 (Mich. Ct. App. Nov. 20, 2014).

         Petitioner proceeded to file an application for leave to appeal in the Michigan Supreme Court. The Michigan Supreme Court held the application in abeyance pending its decision in People v. Lockridge, 870 N.W.2d 502');">870 N.W.2d 502 (Mich. 2015). People v. Scarberry, 836 N.W.2d 316 (Mich. 2015). On October 28, 2015, in lieu of granting leave to appeal, the supreme court reversed the decision of the court of appeals with respect to issue III and remanded to the St. Joseph County Circuit Court to determine whether the trial court would have imposed a materially different sentence under the sentencing procedure described in Lockridge, 870 N.W.2d at 502. People v. Scarberry, 870 N.W.2d 896 (Mich. 2015). In all other respects, however, the supreme court denied the application for leave to appeal. Id.

         On remand, the trial court considered and denied Petitioner's request for resentencing in light of Lockridge, 870 N.W.2d at 502. The trial court stated:

[P]ursuant to part VI of the Lockridge decision, the Court reviewed the file and the Presentence Report. The Court being now aware that the guidelines are advisory only, has determined that the original sentence was just and reasonable and would not have changed it knowing the guidelines are advisory.

(Nov. 24, 2015 St. Joseph Cty. Circuit Ct. Order, Attach. C, ECF No. 1-2, PageID.60.)

         Petitioner did not pursue any appeal of the trial court's order on remand.

         On September 19, 2016, Petitioner filed his habeas corpus petition in this Court.[1] H e raises the same issues he raised in the Michigan Court of Appeals and Supreme Court, except that he has restated Issue I to expressly reference his constitutional rights and the Sixth and Fourteenth Amendments. (Grounds Raised, Pet. Attach. C, ECF No. 1-2, PageID.59.)


         I. Factual Allegations

         Petitioner concisely recounted the underlying facts and trial testimony in his application for leave to appeal filed in the Michigan Supreme Court:

The charges arose out of an alleged home invasion at the home of Mr. Scarberry's exwife, Tammy Scarberry, in Stu[r]gis, Michigan. Mr. Scarberry denied committing the offense, and had an alibi to verify his whereabouts at the time of the alleged incident.
Trial Testimony
Tammy Scarberry was formerly married to Mr. Scarberry, and they had an 11-year-old daughter, Ashlie. [Trial 3/26/13, 97-98] There were disputes because Mr. Scarberry did not have visitation rights. [Trial 3/26113, 122-123]
Ms. Scarberry said she and Ashlie were asleep at about 4:30 a.m. on July 23, 2012, when a man she identified as Mr. Scarberry entered through the bedroom window. [Trial 3/26/13, 98] The window was open; the intruder broke through the screen. [Trial 3/26/13, 99] She further claimed that Mr. Scarberry slapped her one time on the right cheek. [Trial 3/26/13, 99-101, 126-127] Then Mr. Scarberry left through the front door. [Trial 3/26/13, 123] She called her brother, who then called police. [Trial 3/26/13, 100]
Ashlie Scarberry likewise claimed that she was asleep with her mother when Mr. Scarberry broke into the screen and entered through the bedroom window. [Trial 3/26/13, 140] She added that Mr. Scarberry slapped her mother on the face, once. [Trial 3/26/13, 141, 143] He told her, “come on, Ashlie, ” and she said, “no.” [Trial 3/26/13, 140] Then he left through the front door. [Trial 3/26/13, 143] She was not wearing her glasses when the incident occurred. [Trial 3/26/13, 142]
The defense objected when the prosecutor elicited testimony that Tammy Scarberry had obtained a Personal Protection Order against Mr. Scarberry. [Trial 3/26/13, 106] The court held a hearing away from the jury, at which it admonished counsel for failing to file a motion in limine to exclude the evidence, stating that “the prejudice is already attached because it was already offered that he had a PPO.” [Trial 3/26/13, 107] Counsel argued, inter alia, that introduction of the conduct underlying the PPO would be substantially more probative. [Trial 3/26/13, 109-110] Nevertheless, the court decided to admit the evidence, “to determine a pattern of behavior, ” pursuant to MCL 768.27b. [Trial 3/26/13, 113]
The PPO was admitted into evidence [Trial 3/26/13, 118] and the complainant proceeded to testify that she had obtained it in September or October 2011 because Mr. Scarberry had “slapped [her] and put [her] in a headlock.” [Trial 3/26/13, 116] The court instructed the jury that the PPO was being offered to show “history between the parties” and to show “their prior relationship and behavior.” [Trial 3/26/13, 118]
The defense objected when the prosecutor elicited testimony from Tammy Scarberry's brother, Kent Schmucker, repeating what she told him when she called him on the phone. [Trial 3/26/13, 146-147] Treating it as a hearsay objection, the court admitted the testimony. [Trial 3/26/13, 148] Mr. Schmucker recounted that Ms. Scarberry called a few minutes after 4:00 a.m., bawling, hysterical, almost hyperventilating, and asserted that Mr. Scarberry had broken in and slapped her. [Trial 3/26/13, 146, 148]
The story was repeated, again over defense objection [Trial 3/26/13, 151 ], by Officer Matt Boerman, who was dispatched for a burglary at 4:26 a.m. [Trial 3/26/13, 150] Officer Boerman reiterated Ms. Scarberry's report that Mr. Scarberry had broken into her home and slapped her. [Trial 3/26/13, 151] Ms. Scarberry complained of pain to her face; her face was red, but he couldn't tell if it was from injury or from crying. [Trial 3/26/13, 152] He located the window screen outside. [Trial 3/26/13, 152]
Mr. Scarberry's daughter, Kellie Scarberry, arrived at 4:30 a.m., while police were there. [Trial 3/26/13, 171] There were no visible injuries to Tammy ...

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