Reign v. Gidley

          OPINION AND ORDER (1) DENYING THE PETITION FOR WRIT OF HABEAS CORPUS, (2) DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY, AND (3) GRANTING LEAVE TO APPEAL IN FORMA PAUPERIS

          GERSHWIN A. DRAIN UNITED STATES DISTRICT JUDGE.

         Marcus Magnum Reign, (“Petitioner”), filed a petition for writ of habeas corpus. Petitioner pled guilty in the Kent Circuit Court to armed robbery. Petitioner was sentenced to a term of 9 to 30 years. Petitioner challenges his sentence on two grounds: (1) the trial court relied on inaccurate information in scoring the sentencing guidelines, and (2) the sentencing judge relied on facts not admitted by Petitioner or determined beyond a reasonable doubt in determining Petitioner's sentence. The petition will be denied because Petitioner's claims are without merit. The Court will deny a certificate of appealability, but it will grant leave to appeal in forma pauperis.

         I. Background

         Petitioner was charged with armed robbery after he demanded money from a person while pretending to possess a gun. Rather than stand trial, Petitioner pled guilt to one count of armed robbery, and in exchange, the prosecutor dismissed a habitual felony offender charge. Dkt. 6-3. Petitioner was initially sentenced to 12 to 30 years. Dkt. 6-4.

         Petitioner was appointed appellate counsel who filed a motion for resentencing. The motion alleged that there were inaccuracies in the presentencing information report, causing an incorrect scoring of the sentencing guidelines. See Dkt. 6-5; Dkt. 6-6, at 6.

         The trial court granted the motion in part, making the following pertinent findings:

OV 13 is scored based on a continuing pattern of criminal behavior. Twenty-five points are scored if “the offense was part of a pattern of felonious criminal activity involving 3 or more crimes against a person. MCL 777.43(1)(c). Ten points are scored if [t]he offense was part of a pattern of felonious criminal activity involving a combination of 3 or more crimes against a person or property or a violation of section 740l(2)(a)(i) to (iii) or section 7403(2)(a)(i) to (iii) of the public health code.. . . MCL 777.43(1)(d). For determining the appropriate points under this variable, all crimes within a 5-year period, including the sentencing offense, shall be counted regardless of whether the offense resulted in a conviction. MCL 777.43(2)(a).

This variable was scored at 25 points. This was because of the present offense and statements made by the prosecution regarding two other robberies recently committed by defendant. According to the prosecution, in one of the robberies defendant left an item of clothing behind that contained his DNA, and in the other robbery defendant can be seen on video stealing a purse. In the present motion, defendant claims there was not evidence of the crimes presented to the Court other than the prosecution's statements. Thus, defendant believes this should be scored at 0.

The prosecution acknowledges that there was an error in scoring this variable. The robbery of the purse appears to have been larceny from a building, which is a crime against property. The prosecution has also provided police reports describing this and the other robbery. Thus, there is documentation of a pattern of felonious activity involving a combination of two crimes against a person and one crime against property, which would support a score of 10 points for OV 13.

Based on the foregoing, the current record only supports scoring of OV 13 at 10 points, rather than 25.

***

OV 19 was scored at 10 points because it was determined that defendant interfered with or attempted to interfere with the administration of justice. MCL 777.49(c). This was based on statements in the PSI regarding defendant giving investigators a false name of Marcus Magnumreign, repeatedly stating he does not have a middle name, claiming this was his true name, and denying using the name Marcus Magnum Reign.

Defendant claims he legally changed his name from Marcus Draper to Marcus Magnum Reign when he was in California and he gave his correct name to law enforcement when he was arrested. However, the statements in the PSI discuss defendants use of the false name Marcus Magnumreign, without a middle name, during the investigation prior to his arrest. Case law is clear that “[p]roviding a false name to the police constitutes interference with the administration of justice, and OV 19 may be scored, when applicable, for this conduct. People v. Barbee, 470 Mich. 283, 288 (2004). OV 19 is properly scored.

Dkt. 6-7, Opinion and Order Dated May 18, 2015, at 3-4 (emphasis in original).

         At the resentencing hearing, Petitioner's counsel indicated that she had an opportunity to review the revised presentencing information report. Dkt. 6-6, at 8. She indicated that she filed written objections to the scoring of the sentencing guidelines. Id. Based on the written objections, the trial court noted that it lowered the scoring of Offense Variable 9 from ten points to zero points. Id., at 9. The court also indicated that Offense Variable 13 was lowered from twenty-five points to ten points. Id. The Court indicated that the prosecutor had failed to provide any information to justify scoring points for Offense Variable 9. Id. Petitioner's challenge to Offense Variable 19, regarding Petitioner's alleged use of a false name, was rejected in the court's order. The court noted that the new scoring of the guidelines called for a minimum sentence between 81 and 135 months. Id.

         Defense counsel then asserted that she was still challenging the scoring of points for Offense Variable 13, regarding prior criminal conduct, because the prior armed robbery offense was never charged. Id., at 10. Defense counsel noted that the description of the perpetrator in that case did not match Petitioner. Id. Petitioner was given an opportunity to personally address the court. Id., at 12-13. The court then sentenced Petitioner to 10 to 30 years. Id., at 14.

         New appellate counsel was subsequently appointed to represent Petitioner, and counsel filed another motion for resentencing, asserting that former appellate counsel had misstated the recalculated guideline range. The motion was granted in part, and the trial court resentenced Petitioner to a term of 9 to 30 years. Dkt. 6-7, Delayed Application for Leave to Appeal, Appendix A. The trial court noted in its order with respect to Petitioner's claim that the court should not have considered a California charge against Petitioner: “the Court already amended the section of the PSI referencing the alleged assault in California, and the PSI now includes defendants claim that he did not assault anyone and the case was dismissed. Defendant has not provided any additional documentation or argument that would justify removing this charge that appears on his record.” Dkt. 6-7, Opinion and Order Granting in Part Defendant's Motion for Resentencing, at 2-3.

         Petitioner's appellate counsel then filed an application for leave to appeal in the Michigan Court of ...