Sherman v. Davids

          OPINION

          ROBERT J. JONKER CHIEF UNITED STATES DISTRICT JUDGE

         This is a habeas corpus action brought by a state prisoner under 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.

         Discussion

         I. Factual allegations

         Petitioner William Earl Sherman is incarcerated with the Michigan Department of Corrections at the Ionia Correctional Facility (ICF) in Ionia County, Michigan. Following a four-day jury trial in the Macomb County Circuit Court, Petitioner was convicted of second-degree murder in violation of Mich. Comp. Laws § 750.317. On November 15, 2016, the court sentenced Petitioner as a third habitual offender, Mich. Comp. Laws § 769.11, to a prison term of 27 to 40 years.

         The facts underlying Petitioner's conviction were summarized by the Michigan Court of Appeals as follows:

This case arises out of the early-morning stabbing death of Andrew Logsdon at his home. The victim lived in the home with defendant and three other people: Victor Marcus, Elizabeth Tankiewicz, and Anthony Rappazini. On the night leading up to the event, the victim, Tankiewicz, Marcus, and Rappazini were using heroin. Tankiewicz, Marcus, and the victim retired for bed, but were later awoken by defendant and Rappazini, who claimed that the victim had stolen their money.

An argument ensued between the five roommates after the victim discovered that defendant had ransacked the victim's room and the victim's money and other belongings were missing. The argument peaked when Marcus discovered that defendant had in his possession the exact amount of money that was reportedly missing. Marcus punched defendant in the head, gave defendant a garbage bag, and instructed him to start packing and leave the home. At some point immediately before or after the punch, the victim grabbed the money. According to Tankiewicz, defendant then went upstairs and the victim followed him, neither having anything in their hands. Approximately 30 seconds or a minute later, the victim yelled, “[Marcus], get up here. [Defendant] just stabbed me.”

According to Tankiewicz, Marcus ran upstairs and told her to call 911. Marcus testified that, when he reached the upstairs, he saw the victim “slouched in the corner . . . and [defendant] pull the blade out of his chest and stick it in again and then pull it out quick. “Marcus stated that, at that point, he punched defendant, who was standing over the victim while still holding the knife. Marcus further stated that defendant fell after the punch, but remained holding the knife. Marcus explained that he got on top of defendant's back and head, and continued punching him, while continually telling defendant to drop the knife. Rappazini also came upstairs and helped disarm defendant by kicking the knife away after defendant dropped it. The knife belonged to the victim, who kept the knife on the dresser in his bedroom. Tankiewicz called the police, and while she was still on the phone, went upstairs and saw the victim bloodied and unconscious, at which time she covered the victim's wounds per the 911 operator's direction. The victim was stabbed a total of 10 times, which included four stab wounds on the victim's back. The victim eventually died from his injuries.

After defendant was disarmed, he told Marcus, “Don't call the police, please.” Tankiewicz and Marcus told defendant to leave, and defendant obliged. As Officer Steven Reed was responding to the call, he observed defendant walking away from the home and arrested him without incident. When defendant was arrested, he acknowledged stabbing the victim, although he alleged that he did so in self-defense. Defendant had injuries following the incident-blood in his mouth, facial injuries, and head and neck pain-and was transported to the hospital to be treated for those injuries. When answering the paramedic's question as to what happened to him, defendant responded that someone stole his money, but “that person would never do that again. At the hospital, defendant was interviewed by police. Defendant again asserted that he acted in self-defense but gave inconsistent statements as to whether he was being assaulted by a single person or multiple persons and whether the victim had a knife or was unarmed.

         (Mich. Ct. App. Op., ECF No. 1-1, PageID.54.)

         The trial court instructed the jurors that they could find Petitioner guilty or not guilty of first-degree murder, the lesser-included offense of second-degree murder, or the lesser-included offense of manslaughter. (Id.) The jury found Petitioner guilty of second-degree murder.

         Petitioner, with the assistance of counsel, directly appealed his conviction and sentence. He raised three issues, the same issues he raises in his habeas petition. By unpublished opinion issued June 19, 2018, the Michigan Court of Appeals affirmed the trial court. The appellate court remanded the matter to the trial court, however, to correct a clerical error in the judgment that identified Petitioner as a fourth habitual offender when the charge and the sentencing transcript made clear that Petitioner was a third habitual offender. (Id., PageID.57.)

         Petitioner, again with the assistance of counsel, filed an application for leave to appeal in the Michigan Supreme Court, raising the same issues he raised in the court of appeals. (Pet., ECF No. 1, PageID.2.) The supreme court denied leave by form order entered December 21, 2018.

         On October 10, 2019, Petitioner timely filed his habeas corpus petition, raising three grounds for relief, as follows:

I. Petitioner is entitled to a resentencing when the trial court violated the two-thirds rule of People [v.] Tanner, 387 Mich. 683 (1972), erroneously scored [Offense Variables] six and nine, and imposed an unreasonable sentence.

II. Petitioner was denied his state and federal constitutional due process rights where his conviction for second-degree murder is not supported by evidence sufficient to establish his guilt beyond a reasonable doubt, the prosecutor failed to disprove that the killing was justified by self-defense or that the killing was mitigated to manslaughter due to the heat of passion based upon adequate provocation.

III. The trial court reversibly erred and violated Petitioner's constitutional due process rights in wrongly admitting evidence of prior criminal conduct under Mich. Comp. Laws § 768.27b.

         (Pet., ECF No. 1, PageID.3.)

         II. AEDPA standard

         This action is governed by the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. 104-132, 110 Stat. 1214 (AEDPA). The AEDPA “prevents federal habeas ‘retrials'” and ensures that state court convictions are given effect to the extent possible under the law. Bell v. Cone, 535 U.S. 685, 693-94 (2002). An application for writ of habeas corpus on behalf of a person who is incarcerated pursuant to a state conviction cannot be granted with respect to any claim that was adjudicated on the merits in state court unless the adjudication: “(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 upon an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.” 28 U.S.C. § 2254(d). This standard is “intentionally difficult to meet.” Woods v. Donald, 575 U.S. 312, 316 (2015) (internal quotation omitted).

         The AEDPA limits the source of law to cases decided by the United States Supreme Court. 28 U.S.C. § 2254(d). This Court may consider only the holdings, and not the dicta, of the Supreme Court. Williams v. Taylor, 529 U.S. 362, 412 (2000); Bailey v. Mitchell, 271 F.3d 652, 655 (6th Cir. 2001). In determining whether federal law is clearly established, the Court may not consider the decisions of lower federal courts. Lopez v. Smith, 574 U.S. 1, 4 (2014); Marshall v. Rodgers, 569 U.S. 58, 64 (2013); Parker v. Matthews, 567 U.S. 37, 48-49 (2012); Williams, 529 U.S. at 381-82; Miller v. Straub, 299 F.3d 570, 578-79 (6th Cir. 2002). Moreover, “clearly established Federal law” does not include decisions of the Supreme Court announced after the last adjudication of the merits in state court. Greene v. Fisher, 565 U.S. 34, 37-38 (2011). Thus, the inquiry is limited to an examination of the legal landscape as it would have appeared to the Michigan state courts in light of Supreme Court precedent at the time of the state-court adjudication on the merits. Miller v. Stovall, 742 F.3d 642, 644 (6th Cir. 2014) (citing Greene, 565 U.S. at 38).

         A federal habeas court may issue the writ under the “contrary to” clause if the state court applies a rule different from the governing law set forth in the Supreme Court's cases, or if it decides a case differently than the Supreme Court has done on a set of materially indistinguishable facts. Bell, 535 U.S. at 694 (citing Williams, 529 U.S. at 405-06). “To satisfy this high bar, a habeas petitioner is required to ‘show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.'” Woods, 575 U.S. at 316 (quoting Harrington v. Richter, 562 U.S. 86, 103 (2011)). In other words, “[w]here the precise contours of the right remain unclear, state courts enjoy broad discretion in their adjudication of a prisoner's claims.” White v. Woodall, 572 U.S. 415, 424 (2014) (internal quotations omitted).

         The AEDPA requires heightened respect for state factual findings. Herbert v. Billy, 160 F.3d 1131, 1134 (6th Cir. 1998). A determination of a factual issue made by a state court is presumed to be correct, and the petitioner has the burden of rebutting the presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Davis v. Lafler, 658 F.3d 525, 531 (6th Cir. 2011) (en banc); Lancaster v. Adams, 324 F.3d 423, 429 (6th Cir. 2003); Bailey, 271 F.3d at 656. This presumption of correctness is accorded to findings of state appellate courts, as well as the trial court. See Sumner v. Mata, 449 U.S. 539, 546 (1981); Smith v. Jago, 888 F.2d 399, 407 n.4 (6th Cir. 1989).

         III. Discussion

         A. Petitioner's sentence

         Petitioner contends that his sentence is invalid for three reasons: first, it violates the rule announced in People v. Tanner, 199 N.W.2d 202 (Mich. 1972)-that the minimum sentence in an indeterminate sentence cannot exceed two-thirds of the maximum sentence; second, the trial court improperly scored two of the offense variables; and third, a 27-year minimum sentence was unreasonable. Violation of the Tanner rule, the reasonableness of the minimum sentence, and the mis-scoring of Offense Variable 9, as described by Petitioner, are not cognizable on habeas review. Although Petitioner frames the alleged mis-scoring of Offense Variable 6 in a way that is cognizable on habeas review, any error was harmless and, therefore, does not warrant habeas relief.

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