United States District Court, W.D. Michigan, Southern Division
T. Neff United States District Judge.
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.
Myqueal Dontre Cotton is presently incarcerated with the
Michigan Department of Corrections at the Oaks Correctional
Facility in Manistee, Michigan. Petitioner is serving a
sentence of 4 years, 9 months to 15 years imposed by the Kent
County Circuit Court on March 19, 2015, following
Petitioner's guilty plea and conviction for second-degree
home invasion, Mich. Comp. Laws § 750.110a(3).
challenges his sentence. Petitioner contends that the trial
court improperly scored Offense Variable 19. He raised the
issue in the trial court at a post-conviction motion hearing.
The trial court denied the motion stating that there was a
preponderance of the evidence that Petitioner lied to
investigators and thus the score of 10 points was
appropriate. (Mich. Appl. for Leave to Appeal, ECF No. 1-1,
filed a delayed application for leave to appeal in the
Michigan Court of Appeals. That court denied leave by order
entered January 29, 2016, “for lack of merit in the
grounds presented.” (Mich. Ct. App. Ord., ECF No. 1-1,
PageID.35.) Petitioner then applied for leave to appeal in
the Michigan Supreme Court. The supreme court denied leave by
order entered July 26, 2016. In both Michigan appellate
courts, Petitioner raised one issue: Petitioner was sentenced
on the basis of inaccurate information and in violation of
due process where Offense Variable 19 was incorrectly scored
and he is entitled to resentencing t o correct the error.
That is the sole issue Petitioner raises in his habeas
petition. (Pet., ECF No. 1, PageID.6.)
Petitioner's direct appeal he described the proceedings
in the trial court as follows:
[Petitioner] pled guilty to home invasion second degree on
February 17, 2015 before the Honorable Dennis B. Leiber in
the Kent County Circuit Court.
In making the factual basis for the plea, Mr. Cotton admitted
to entering a home without permission in Grand Rapids on
December 16, 2014, through a window. He entered the home in
order to steal items, and stole a “music poster, a
license plate, a computer . . . and some house shoes and a
pair of boots.” At sentencing on March 19, 2015, Mr.
Cotton's guidelines range was 29 months to 57 months.
Trial counsel made no objections to the scoring of the
offense variables. The trial court sentenced Mr. Cotton to 57
to 180 months in prison.
(Mich. Appl. for Leave to Appeal, ECF No. 1-1, PageID.27
(footnotes and transcript citations omitted).) Petitioner
contests only one aspect of the scoring:
The MDOC assessed 10 points for OV 19, “Interference
with the Administration of Justice.” [The statute]
required the assessment of 10 points when “[t]he
offender otherwise interfered with or attempted to interfere
with the administration of justice.”
There was no evidence presented during the taking of the
plea, or at sentencing, as to why OV 19 was scored at 10
points. In the pre-sentence investigation report, Agent's
Description of the Offense, the following information is
included, which the trial court appeared to rely on in
denying the post-conviction motion for resentencing:
Defendant denied going into the home. When asked why his
fingerprints were on the window, Defendant said he was
probably “looking at a female.” Officer Freres
asked who the females was, and Defendant said, “the
female that lives there.” Defendant was unable to
provide a name. Officer Freres asked Defendant if he normally
peeps in windows, and Defendant responded that he does not do
any window peeping. Officer Freres continued asking about the
alleged female and how Defendant's fingerprints go[t] on
the window, and Defendant indicated that he would not answer
any more questions.
(Id., PageID.29 (transcript citations omitted).)
Petitioner argues that the “Agent's
Description” falls short of the preponderance of the
evidence necessary to show that Mr. Cotton was lying to the
officer. Moreover, Petitioner argues, the error was not
harmless. Proper scoring, he contends, would change his
minimum sentence from a range of 29 to 57 months to a range
of 19 to 38 ...