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Cotton v. Mackie

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

December 13, 2016

THOMAS MACKIE, 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 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).

         Petitioner challenges his sentence. Petitioner contends that the trial court improperly scored Offense Variable 19.[1] 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, PageID.27.)

         Petitioner 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.)

         On 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 ...

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