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Raisbeck v. Stewart

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

January 31, 2018

TONYA RAISBECK, Petitioner,
v.
ANTHONY STEWART, Respondent.

          OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF HABEAS CORPUS, DENYING A CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

          Denise Page Hood Chief Judge, United States District Court

         I. Introduction

         This is a pro se habeas action brought pursuant to 28 U.S.C. § 2254. Tonya Raisbeck (“Petitioner”) was convicted of one count of conducting a criminal enterprise/racketeering following a jury trial in the Allegan County Circuit Court and was sentenced to three to 20 years imprisonment in 2013. In her petition, she challenges the sufficiency of the evidence to support her conviction. At the time she instituted this action, Petitioner was confined at the Huron Valley Women's Correctional Facility in Ypsilanti, Michigan. She was released on parole in October, 2016 and discharged from state custody in October, 2017. See Offender Profile, Michigan Department of Corrections Offender Tracking Information System (“OTIS”), http://mdocweb.state.mi.us/otis2profile.aspx?mdocNumber=815316. For the reasons set forth, the Court denies habeas relief. The Court also denies a certificate of appealability and denies leave to proceed in forma pauperis on appeal.

         II. Facts and Procedural History

         Petitioner's conviction arises from her actions in forming a mortgage-related business in 2008, soliciting clients and promising to obtain mortgage modifications for them, taking money from those clients in 2009 and 2010, and then not providing the promised services. The Michigan Court of Appeals described the underlying facts, which are presumed correct on habeas review, 28 U.S.C. § 2254(e)(1); Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009), as follows:

In the summer of 2010, Special Agent John C. Mulvaney headed an investigation into Mobile Modification, Inc. (MMI), a business incorporated by Raisbeck in 2008. MMI operated from a location in Fennville. For a fee, MMI promised to obtain mortgage modifications for its customers. Mulvaney's investigation began after several complaints were received that MMI would collect its fees, but provide nothing to its customers. On July 27, 2010, Raisbeck was arrested on misdemeanor charges and presented with a search warrant for the premises on which the business operated. Raisbeck allowed agents to search the premises. Through this search, agents discovered 195 customer files. After reviewing these files, it did not appear that a single modification had been successfully completed.
Raisbeck was initially prosecuted in Allegan County in case numbers 10-017019-FH and 10-017020-FH. These cases concerned six victims. Ultimately, Raisbeck was convicted of two counts of false pretenses more than $1, 000 but less than $20, 000. She was also convicted of one count of conspiracy to commit false pretenses. While preparing for this first trial, Mulvaney became aware of additional victims of MMI. After these initial cases concluded, Special Agent Pete Ackerly took over the investigation. Ackerly identified several additional victims. In January 2012, Raisbeck was charged with racketeering in case number 12-017853-FH, the case from which the instant appeal arises. On September 6, 2013, after a lengthy trial, a jury convicted Raisbeck of one count of racketeering. Through a special verdict form, the jury concluded that Raisbeck defrauded nine individual victims of a total of $7, 752.4
4 Specifically, the jury found that Raisbeck defrauded three victims of $994 each, and six victims of $795 each. The jury found that Raisbeck had not defrauded three additional victims.

People v. Raisbeck, 312 Mich.App. 759, 760-62, 882 N.W.2d 161 (2015) (irrelevant footnotes omitted).

         Following her conviction and sentencing, Petitioner filed an appeal of right with the Michigan Court of Appeals raising claims concerning the sufficiency of the evidence, sentencing credit, and restitution. The court denied relief on the sufficiency of the evidence and sentencing credit claims, but granted relief on the restitution claim. The court vacated the judgment of sentence with respect to restitution, remanded the case for entry of an order containing the proper restitution amount, and affirmed Petitioner's conviction in all other respects. Id. at 763-73. Petitioner filed an application for leave to appeal with the Michigan Supreme Court, which was denied in a standard order. People v. Raisbeck, 499 Mich. 871, 875 N.W.2d 224 (2016). Petitioner also filed a motion for reconsideration, which was denied. People v. Raisbeck, 499 Mich. 973, 880 N.W.2d 538 (2016).

         Petitioner dated her federal habeas petition on October 20, 2016. She challenges the sufficiency of the evidence to support her conviction. Specifically, she asserts:

I. The state appellate court unreasonably applied the proof beyond a reasonable doubt constitutional standard where the state court applied the standard to the facts and then relied upon an unsupported prosecutorial theory to affirm a racketeering conviction.
II. The state appellate court unreasonably determined that an unsupported prosecutorial theory of aggregation was fact, despite there being no record evidence to support such a finding, and it being in complete opposition to the factual findings made by the jury on the special verdict form.

         Respondent has filed an answer to the petition contending that it should be denied for lack of merit. Petitioner has filed a reply to that answer.

         III. Standard of Review

         The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), codified at 28 U.S.C. § 2241 et seq., sets forth the standard of review that federal courts must use when considering habeas petitions brought by prisoners challenging their state court convictions. The AEDPA provides, in relevant part:

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 ...

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