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Fuson v. MaClaren

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

August 30, 2017

MIKELL FUSON, Petitioner,



         Petitioner Mikell Fuson, who is presently incarcerated at the Chippewa Correctional Facility in Kincheloe, Michigan, has filed a petition for the writ of habeas corpus under 28 U.S.C. § 2254. In his pro se application, Petitioner challenges his state convictions and sentence for first-degree home invasion, Mich.Comp. Laws § 750.110a(2), felon in possession of a firearm, Mich. Comp. Laws § 750.224f, and two counts of possession of a firearm during the commission of a felony (felony firearm), Mich. Comp. Laws § 750.227b. For the reasons stated below, the petition for writ of habeas corpus is DENIED WITH PREJUDICE.

         I. BACKGROUND

         The charges against Petitioner arose from the breaking and entering of a house in Milford, Michigan on November 29, 2010. The homeowners arrived at the house while the home invasion was in progress. They saw two armed suspects in the house and one suspect outside the house. The homeowners left their property without entering the house and contacted the police, who arrested Petitioner and one of his accomplices within an hour of being dispatched to the area. A canine handler and his dog tracked Petitioner's scent back to an area near the victims' house.

         On April 28, 2011, Petitioner pleaded guilty in Oakland County Circuit Court to first-degree home invasion, felon in possession of a firearm, and two counts of felony firearm. Petitioner also acknowledged being a habitual offender. In return, the trial court agreed to sentence Petitioner at the bottom of the sentencing guidelines, which were expected to be eighty-four months.[1]

         On May 20, 2011, the trial court sentenced Petitioner, as promised, to eighty-four months (seven years) to forty years for the home-invasion conviction, fourteen months to forty years for the felon-in-possession conviction, and two years in prison for each of the felony-firearm convictions. The felony-firearm sentences were ordered to run concurrently with each other, but consecutively to the other sentences, which ran concurrently with each other. All the sentences were ordered to run consecutively to the sentence that Petitioner was serving for violating parole in an unrelated case.

         In an application for leave to appeal, Petitioner argued that he lacked a rational and factual understanding of the proceedings against him and that both the trial court and defense counsel erred by failing to raise the issue of his competence. The Michigan Court of Appeals denied leave to appeal for lack of merit in the grounds presented to it. See People v. Fuson, No. 310400 (Mich. Ct. App. June 27, 2012). Petitioner apparently attempted to appeal the Court of Appeals' decision, but his application was rejected as untimely. See Pet. at 2 and Brief in Support of Pet. for Writ of Habeas Corpus, at ix; see also Affidavit of Larry Royster, Clerk of the Michigan Supreme Court, stating that the decision in Michigan Court of Appeals number 310400 was not appealed to the Michigan Supreme Court (ECF No. 10-10.)

         Petitioner raised six of his seven habeas claims in a motion for relief from judgment. The trial court denied his motion in a reasoned opinion, and the Michigan Court of Appeals denied leave to appeal under Michigan Court Rule 6.508(D) and, more specifically, Rule 6.508(D)(3). See People v. Fuson, No. 319265 (Mich. Ct. App. Apr. 7, 2014). On November 25, 2014, the Michigan Supreme Court also denied leave to appeal under Rule 6.508(D). See People v. Fuson, 856 N.W.2d 16 (Mich. 2014).

         Finally, on January 5, 2015, Petitioner filed his habeas petition. He raises seven claims about his sentence, his multiple convictions for firearm offenses, his trial and appellate attorneys, and the lack of an evidentiary hearing in state court.

         Respondent Duncan MacLaren argues through counsel that the majority of Petitioner's claims (one through four and seven) are procedurally defaulted because Petitioner raised those claims for the first time in his post-conviction motion and the Michigan Court of Appeals relied on that fact to deny relief. Respondent also argues that, even if the Court considers the claims, they are meritless or not cognizable on habeas review.

         A procedural default is “a critical failure to comply with state procedural law.” Trest v. Cain, 522 U.S. 87, 89 (1997). It “is not a jurisdictional matter, ” id., and to obtain habeas relief on procedurally defaulted claims, a petitioner “must establish cause and prejudice for the defaults” and “also show that the claims are meritorious.” Babick v. Berghuis, 620 F.3d 571, 576 (6th Cir. 2010).

         Petitioner denies that his claims are procedurally defaulted and also blames his appellate attorney for not raising all his claims on direct appeal. The Court has determined that it is more efficient to address the merits of Petitioner's claims than to consider whether they are procedurally defaulted and whether Petitioner has established “cause” for the alleged defaults and resulting prejudice. Accordingly, the Court “cut[s] to the merits here, ” as “the cause-and-prejudice analysis adds nothing but complexity to the case.” Id.


         28 U.S.C. § 2254(d) provides that:

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.

         A decision of a state court is “contrary to” clearly established law if the state court arrives at a conclusion opposite to that reached by the Supreme Court of the United States on a question of law, or if the state court decides a case differently from the Supreme Court on a set of materially indistinguishable facts. See Williams v. Taylor, 529 U.S. 362, 405-06 (2000). An “unreasonable application” occurs when “a state court decision unreasonably applies the law of [the Supreme Court] to the facts of a prisoner's case.” Id. at 409. “[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.” Id. at 411.

         “A federal court's collateral review of a state-court decision must be consistent with the respect due state courts in our federal system.” Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). Section 2254(d) “thus imposes a ‘highly deferential standard for evaluating state-court rulings, ' and ‘demands that state- court decisions be given the benefit of the doubt.'” Renico v. Lett, 559 U.S. 766, 773 (2010) (quoting Lindh v. Murphy, 521 U.S. 320, 333 n.7 (1997), and Woodford v. Visciotti, 537 U.S. 19, 24 (2002)). “[A] state court's determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree' on the correctness of the state court's decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). “[E]ven a strong case for relief does not mean the state court's contrary conclusion was unreasonable.” Id. at 102 (citing Lockyer v. Andrade, 538 U.S. 63, 75 (2003)). Furthermore, “[u]nder § 2254(d), a habeas court must determine what arguments or theories supported or . . . could have supported, the state court's decision . . . and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the Supreme] Court.” Id.

         Section 2254(d)(1) limits a federal habeas court's review to a determination of whether the state court's decision comports with “the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision.” Andrade, 538 U.S. at 71-72 (citing Williams, 529 U.S. at 405, 413); see also Knowles v. Mirzayance, 556 U.S. 111, 122 (2009) (noting that the Supreme Court “has held on numerous occasions that it is not ‘an unreasonable application of' ‘clearly established Federal law' for a state court to decline to apply a specific legal rule that has not been squarely established by [the Supreme] Court”). Further, “‘a determination of a factual issue made by a State court shall be presumed to be correct, ' unless rebutted by ‘clear and convincing evidence.'” Holland v. Rivard, 800 F.3d 224, 242 (6th Cir. 2015) (quoting 28 U.S.C. § 2254(e)(1)), cert. denied, 136 S.Ct. 1384 (2016). Finally, “review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011).

         III. ANALYSIS

         A. Jail Credit

         In his first claim, Petitioner alleges that the trial court erred by failing to grant him sentencing credit for the time that he spent in jail prior to being sentenced. This claim is not cognizable on habeas review because “[a] state court's alleged misinterpretation of state sentencing guidelines and crediting statutes is a matter of state concern only, ” Howard v. White, 76 F. App'x 52, 53 (6th Cir. 2003), and “federal habeas corpus relief does not lie for errors of state law.” Lewis v. Jeffers, 497 U.S. 764, 780 (1990). “In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States.” Estelle v. McGuire, 502 U.S. 62, 68 (1991).

         Petitioner's claim also lacks merit. Michigan's jail credit statute provides that,

[w]henever any person is hereafter convicted of any crime within this state and has served any time in jail prior to sentencing because of being denied or unable to furnish bond for the offense of which he is convicted, the trial court in imposing sentence shall specifically grant credit against the sentence for such time served in jail prior to sentencing.

         Mich. Comp. Laws § 769.11b.

         Petitioner, however, was on parole when he committed the crimes at issue here, and the Michigan Supreme Court has held that

the jail credit statute does not apply to a parolee who is convicted and sentenced to a new term of imprisonment for a felony committed while on parole because, once arrested in connection with the new felony, the parolee continues to serve out any unexpired portion of his earlier sentence unless and until discharged by the Parole Board.

People v. Idziak, 773 N.W.2d 616, 624 (Mich. 2009). In other words,

the parolee is “liable, when arrested, to serve out the unexpired portion of his or her maximum imprisonment” and actually resumes serving that term of imprisonment on the date of his availability for return to the [Department of Corrections], which in this case is synonymous with the date of his arrest. . . . Because the parolee is required to remain in jail pending the resolution of the new criminal charge for reasons independent of his eligibility for or ability to furnish bond for the new offense, the jail credit statute does not apply.

Id. at 626-27.

         Petitioner acknowledges the holding in Idziak, but argues that it does not apply to him because, in his opinion, the majority decision was based on an erroneous and incomplete reading of Michigan statutes. Petitioner contends that the trial court should have relied on Justice Markman's dissenting opinion, which states that, after a new conviction, the Michigan Parole Board is “required to make an affirmative determination as to whether the defendant is required to serve any remaining portion on his original sentence.” Id. at 654. The trial court, however, was required to follow the Michigan Supreme Court's majority opinion in Idziak.See Solomon v. Civil Serv. Commission, City of Highland Park, 236 N.W.2d 94, 95 (1975) (noting that the Court of Appeals was bound by a majority opinion of the Michigan Supreme Court).

         Petitioner also claims that Idziak does not apply to him because the trial court denied him jail credit before the court revoked his parole. Petitioner contends that this sequence of events violated his right to notice and due process of law. The record, however, indicates that Petitioner was informed before he pleaded guilty that his sentence likely would run consecutively to the sentence for which he was on parole. (4/28/11 Plea Tr. at 7-8.) The implication was that he was serving time on his prior conviction and would begin serving his new sentence after the expiration of his prior sentence. His right to notice was not violated, and his jail-credit claim lacks merit.

         B. Calculation of the Sentencing Guidelines

         Petitioner alleges next that the trial court incorrectly scored offense variables 9 and 19 the Michigan sentencing guidelines. Petitioner received ten points for both offense variables. He maintains that subtracting ten points from either one of those offense variables would decrease the sentencing guidelines range, and because the trial court agreed to sentence him at the low end of the guidelines, the trial court's errors prejudiced him. The trial court reviewed Petitioner's claim during post-conviction proceedings and determined that Petitioner had failed to show the sentencing guidelines were improperly scored.

         This Court rejects Petitioner's claim because, like his first claim, a challenge to the state court's application and interpretation of state sentencing guidelines is “a matter of state concern only.” Howard, 76 F. App'x at 53. Consequently, his claim is not cognizable on habeas review. Tironi v. Birkett, 252 F. App'x 724, 725 (6th Cir. 2007); McPhail v. Renico, 412 F.Supp.2d 647, 656 (E.D. Mich. 2006); Robinson v. Stegall, 157 F.Supp.2d 802, 823 (E.D. Mich. 2001). And even though Petitioner argues that the trial court relied on inaccurate information in violation of his constitutional rights, the following discussion demonstrates that the trial court did not rely on “extensively and materially false” information in violation of Petitioner's right to due process. Townsend v. Burke, 334 U.S. 736, 741 (1948).

         1. ...

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