UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

DENISE ANN REVERS,

Petitioner,

v.

MILLICENT WARREN,

Respondent.

/

Case Number: 2:14-CV-13421

HONORABLE VICTORIA A. ROBERTS

OPINION AND ORDER DENYING PETITION FOR WRIT OF 

HABEAS CORPUS AND DENYING CERTIFICATE OF APPEALABILITY

Petitioner Denise Ann Revers, a prisoner in the custody of the Michigan

Department of Corrections, filed a petition for a writ of habeas corpus under 28 U.S.C. §

2254. Petitioner challenges her conviction for first-degree home invasion. Respondent

argues that the petition should be denied because the claims are without merit and

because her third claim is procedurally defaulted. 

The Court denies the petition.

I. Background

Petitioner’s convictions arise from a break-in that occurred on February 28, 2010,

at the home of Petitioner’s ex-boyfriend, James Giganic. The Michigan Court of Appeals

provided this summary of the testimony presented at trial:

The prosecution alleged that defendant and [her husband, Edward] Revers

broke into Giganic’s home in the early morning hours of February 28, 2010. 

Giganic was at work during the home invasion but his live-in girlfriend,

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Shari Luke, and his roommate, Lance Wilson, were both home and asleep. 

Luke awoke when she heard noises downstairs. Upon investigation, Luke

saw shadows in the living room, assumed it was Wilson and returned to

bed. Wilson awoke when he heard someone shut his laptop computer that

was sitting on his bedside table. Wilson chased the person out of the room

and the perpetrator ran downstairs and out of the house. Wilson saw only

the person’s shadowy silhouette, but estimated that the person was six feet

tall and 180 to 200 pounds Giganic later discovered that an intruder had

pried open the home’s doorwall. The responding officer discovered several

tracks leading from a nearby parking lot to the back of the home, suggesting

either that one intruder made several trips between a vehicle and the house

or that more than one intruder was involved in the offense.

Two days after the home invasion, defendant took five leather jackets, a

vest, and a laptop computer to the home of her daughter, Lisa Marie Vitale. 

Vitale testified that defendant told her that she and Revers had broken into

Giganic’s home and stole several items and that two people were home

during the offense. Defendant wanted to give Vitale one jacket from the

burglary as recompense for Revers breaking into Vitale’s home on another

occasion. Vitale testified that defendant was vengeful in the years

following her break-up with Giganic and that defendant often spoke of

trying to steal Giganic’s motorcycle.1

 Defendant subsequently visited the

home of her other daughter, Candace Parsons. Parsons also testified that

defendant told her that she and Revers had broken into Giganic’s house and

stole several items. Defendant also tried to give stolen items to Parsons.

Based on police reports made by Vitale and Parsons, an investigating

detective visited defendant’s home and discovered the remainder of the

items stolen from Giganic’s house.

Defendant testified on her own behalf and claimed that Revers committed

the home invasion alone. Defendant admitted to possessing the items stolen

from Giganic’s home, but claimed that her husband acted without her

assistance in the burglary and then instructed her to transfer the stolen items

to her daughters.

______________________

1

Giganic also testified that defendant reacted poorly to their break-up,

repeatedly attempting to reconcile with him and then threatening him with

violence.

People v. Revers, No. 308989, 2013 WL 1442203, *1-2 (Mich. Ct. App. Apr. 9, 2013).

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Petitioner was convicted by a jury in Macomb County Circuit Court of first-degree

home invasion, Mich. Comp. Laws § 750.110a(2). On February 4, 2012, she was

sentenced to 9 to 20 years’ imprisonment.

Petitioner filed an appeal of right in the Michigan Court of Appeals, raising these

claims: (i) insufficient evidence supported her convictions; (ii) offense variables 4 and 10

were incorrectly scored; and (iii) the trial court based her sentence on inaccurate

information. Petitioner also filed a motion to remand for an evidentiary hearing pursuant

to People v. Ginther, 390 Mich. 436 (Mich. 1973). The Michigan Court of Appeals

affirmed her conviction and denied the motion for remand. Id. Petitioner filed an

application for leave to appeal in the Michigan Supreme Court, raising the same claims

raised in the Michigan Court of Appeals and an additional claim that the Michigan Court

of Appeals erred in denying her motion to remand. The Michigan Supreme Court denied

leave to appeal. People v. Revers, 495 Mich. 854 (Mich. Sept. 13, 2013).

Petitioner then filed this habeas corpus petition. She raises these claims:

I. The trial court unlawfully deprived Revers of her due process, equal

protection, and other protected rights under the United States and Michigan

Constitutions when it entered a judgment of conviction and sentence on

evidence that is insufficient to support the conviction.

II. The trial court unlawfully deprived Revers of her due process, equal

protection, and other protected rights under the United States and Michigan

Constitutions and reversibly erred when it scored 10 points on OV-4 and 10

points on OV-9.

III. The trial court unlawfully violated the United States and Michigan

Constitutions in sentencing Revers to a prison term of 108-240 months on

the first-degree home invasion conviction; on plain error and/or ineffective

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assistance of counsel grounds.

II. Standard

28 U.S.C. § 2254(d) provides:

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 proceedings.

28 U.S.C. § 2254(d).

“A state court’s decision is ‘contrary to’ ... clearly established law if it ‘applies a

rule that contradicts the governing law set forth in [Supreme Court cases]’ or if it

‘confronts a set of facts that are materially indistinguishable from a decision of [the

Supreme] Court and nevertheless arrives at a result different from [this] precedent.’” 

Mitchell v. Esparza, 540 U.S. 12, 15-16 (per curiam), quoting Williams v. Taylor, 529

U.S. 362, 405-06 (2000). “[T]he ‘unreasonable application’ prong of the statute permits a

federal habeas court to ‘grant the writ if the state court identifies the correct governing

legal principle from [the Supreme] Court but unreasonably applies that principle to the

facts’ of petitioner’s case.” Wiggins v. Smith, 539 U.S. 510, 520 (2003), quoting

Williams, 529 U.S. at 413. However, “[i]n order for a federal court to find a state court’s

application of [Supreme Court] precedent ‘unreasonable,’ the state court’s decision must

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have been more than incorrect or erroneous. The state court’s application must have been

‘objectively unreasonable.’” Wiggins, 539 U.S. at 520-21 (citations omitted); see also

Williams, 529 U.S. at 409. “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). “Section 2254(d) reflects the

view that habeas corpus is a guard against extreme malfunctions in the state criminal

justice systems, not a substitute for ordinary error correction through appeal.... As a

condition for obtaining habeas corpus from a federal court, a state prisoner must 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.” Id. at 786-87 (internal quotation

omitted).

Section 2254(d)(1) limits a federal habeas court’s review to a determination of

whether the state court’s decision comports with clearly established federal law as

determined by the Supreme Court at the time the state court renders its decision. See

Williams, 529 U.S. at 412. Section 2254(d) “does not require citation of [Supreme Court]

cases – indeed, it does not even require awareness of [Supreme Court] cases, so long as

neither the reasoning nor the result of the state-court decision contradicts them.” Early v.

Packer, 537 U.S. 3, 8 (2002). “[W]hile the principles of “clearly established law” are to

be determined solely by resort to Supreme Court rulings, the decisions of lower federal

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courts may be instructive in assessing the reasonableness of a state court’s resolution of

an issue.” Stewart v. Erwin, 503 F.3d 488, 493 (6th Cir. 2007), citing Williams v.

Bowersox, 340 F.3d 667, 671 (8th Cir.2003).

Lastly, a federal habeas court must presume the correctness of state court factual

determinations. See 28 U.S.C. § 2254(e)(1). A petitioner may rebut this presumption

only with clear and convincing evidence. Warren v. Smith, 161 F.3d 358, 360-61 (6th

Cir. 1998).

III. Discussion

A. Sufficiency of the Evidence

Petitioner seeks habeas relief on the ground that insufficient evidence was

presented to sustain her first-degree home invasion conviction because no eyewitness or

physical evidence placed her at Giganic’s house on the night of the break in.

“[T]he Due Process Clause protects the accused against conviction except upon

proof beyond a reasonable doubt of every fact necessary to constitute the crime with

which he is charged.” In re Winship, 397 U.S. 358, 364 (1970). On direct review, review

of a sufficiency of the evidence challenge must focus on whether “after viewing the

evidence in the light most favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt.” Jackson v.

Virginia, 443 U.S. 307, 319 (1979) (emphasis in original). In the habeas context, “[t]he

Jackson standard must be applied ‘with explicit reference to the substantive elements of

the criminal offense as defined by state law.’” Brown v. Palmer, 441 F.3d 347, 351 (6th

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Cir. 2006), quoting Jackson, 443 U.S. at 324 n.16.

“Two layers of deference apply to habeas claims challenging evidentiary

sufficiency.” McGuire v. Ohio, 619 F.3d 623, 631 (6th Cir. 2010), citing Brown v.

Konteh, 567 F.3d 191, 204-05 (6th Cir. 2009). First, the Court “must determine whether,

viewing the trial testimony and exhibits in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.” Brown, 567 F.3d at 205, citing Jackson, 443 U.S. at 319. Second, if

the Court were “to conclude that a rational trier of fact could not have found a petitioner

guilty beyond a reasonable doubt, on habeas review, [the Court] must still defer to the

state appellate court’s sufficiency determination as long as it is not unreasonable.” Id.

Under Michigan law, first-degree home invasion consists of three elements: (1)

breaking and entering a dwelling or entering a dwelling without permission; (2) intending

when entering to commit a felony, larceny, or assault in the dwelling, or at any time while

entering, present in, or exiting the dwelling commits a felony, larceny, or assault; and (3)

while entering, present in, or exiting the dwelling, the defendant is either armed with a

dangerous weapon, or another person is lawfully present in the dwelling. People v.

Wilder, 485 Mich. 35, 43 (2010). The Michigan Court of Appeals found sufficient

evidence was presented for a jury to find beyond a reasonable doubt that Petitioner was

involved in the home invasion. Revers, 2013 WL 1442203 at *2. In reaching its

decision, the state court relied on the following evidence: the testimony of Petitioner’s

two daughters, both of whom testified that, after the home invasion, Petitioner admitted

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her involvement to them and offered each items stolen from Giganic’s home; items stolen

from Giganic’s home were found inside Petitioner’s home; and, footprints observed by

police outside Giganic’s home indicated that there may have been more than one

perpetrator. Id.

The evidence relied upon by the Michigan Court of Appeals amply supports its

decision on the sufficiency of the evidence. Petitioner argues that the Michigan Court of

Appeals’ decision is unreasonable because no direct evidence placed her inside Giganic’s

home at the time of the break-in. The jury, however, was free to conclude from

Petitioner’s daughters’ testimony and Petitioner’s possession of stolen goods, that

Petitioner participated in the home invasion. According the state court’s findings of fact a

presumption of correctness, this Court concludes that the Michigan Court of Appeals’

decision that sufficient evidence was presented to prove the conspiracy conviction did not

“result[] in a decision that . . . involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. §

2254(d)(1). Petitioner is not entitled to federal habeas corpus relief with respect to this

claim. 

B. Sentencing-Related Claims

Petitioner’s second and third claims for habeas relief relate to her sentence. She

argues that the trial court improperly scored ten points for offense variables 4 and 9. She

also argues that the trial court improperly failed to consider several mitigating factors

when imposing her sentence and that her attorney was ineffective in failing to object. 

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The Michigan Court of Appeals held that a sufficient factual basis supported the

scoring of offense variables 4 and 9. Revers, 2013 WL 1442203, at *2-3. “‘[F]ederal

habeas corpus relief does not lie for errors of state law.’” Estelle v. McGuire, 502 U.S.

62, 67, quoting Lewis v. Jeffers, 497 U.S. 764, 780 (1990). Petitioner’s argument that the

state court erred in scoring her sentencing guidelines is based solely on the state court’s

interpretation of state law. It does not implicate any federal rights. Bradshaw v. Richey,

546 U.S. 74, 76 (2005) (“[A] state court’s interpretation of state law, including one

announced on direct appeal of the challenged conviction, binds a federal court sitting on

habeas review.”); Mullaney v. Wilbur, 421 U.S. 684, 691 (1975) (“[S]tate courts are the

ultimate expositors of state law.”). “[A] claim that the trial court mis-scored offense

variables in determining the state sentencing guidelines is not cognizable on habeas

corpus review.” See Adams v. Burt, 471 F. Supp. 2d 835, 844 (E.D. Mich. 2007); see also

Coleman v. Curtin, 425 F. App’x 483, 484-85 (6th Cir. 2011). Habeas corpus relief is not

available for this claim.

Petitioner’s claims that the trial court improperly failed to consider mitigating

evidence in sentencing her and that her attorney was ineffective in failing to object are

also meritless. First, the trial court’s alleged failure to consider mitigating evidence fails

to state a federal constitutional claim. Generally, a non-capital sentence that falls within

statutory limits (as Petitioner’s sentence does) is not grounds for habeas relief. Townsend

v. Burke, 334 U.S. 736, 741 (1948); see also Cook v. Stegall, 56 F. Supp. 2d 788, 797

(1999). The Supreme Court “has refused to extend the doctrine of individualized

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sentencing to noncapital cases.” Hastings v. Yukins, 194 F. Supp. 2d 659, 673 (E.D.

Mich. 2002) (citing Harmelin v. Michigan, 501 U.S. 957, 995-96 (1991)). The

Constitution does not require a sentencing court to consider mitigating circumstances in

non-capital cases. U.S. v. Levy, 904 F.2d 1026, 1035 (6th Cir. 1990). Accord United

States v. Walker, 506 F. App’x 482, 490 (6th Cir. 2012), citing Harmelin v. Michigan,

501 U.S. 957, 995 (1991) (“[T]he Eighth Amendment does not require a consideration of

a defendant’s mitigating factors in a non-capital case.”). In addition, any alleged

violation of the Michigan Constitution is not cognizable on habeas review because habeas

review is limited to alleged violations of the Constitution, laws, or treaties of the United

States. Estelle v. McGuire, 502 U.S. 62, 68 (1991). Moreover, the Michigan Court of

Appeals held that the record showed that the trial court considered Petitioner’s substance

abuse history and that, contrary to Petitioner’s assertions, Petitioner did not have strong

family support that would have supported a downward departure. Petitioner’s claim fails

to state a federal constitutional claim. 

Petitioner also claims that counsel’s assistance was ineffective because counsel did

not object on the ground that the sentence failed to take into account mitigating factors

and the court failed to assess Petitioner’s rehabilitative potential. A violation of the Sixth

Amendment right to effective assistance of counsel is established where an attorney’s

performance was deficient and the deficient performance prejudiced the defense. 

Strickland v. Washington, 466 U.S. 668, 687 (1984). The Michigan Court of Appeals

denied this claim, finding counsel’s failure to object reasonable because there was no

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reasonable ground upon which counsel could have objected. Revers, 2013 WL 144303 at

*4. Petitioner has not shown that the trial court’s assessment of counsel’s performance

was unreasonable. Because Petitioner fails to establish that the trial court erred in

sentencing her, she cannot establish that counsel was ineffective. Counsel is not deficient

for failing to make a futile or meritless objections. See Coley v. Bagley, 706 F.3d 741,

752 (6th Cir. 2014) (“Omitting meritless arguments is neither professionally unreasonable

nor prejudicial.”). Habeas relief is not warranted on this claim.

IV. Certificate of Appealability

Federal Rule of Appellate Procedure 22 provides that an appeal may not proceed

unless a certificate of appealability (“COA”) is issued under 28 U.S.C. § 2253. A COA

may be issued “only if the applicant has made a substantial showing of the denial of a

constitutional right.” 28 U .S.C. § 2253(c)(2). A petitioner must show “that reasonable

jurists could debate whether (or, for that matter, agree that) the petition should have been

resolved in a different manner or that the issues presented were adequate to deserve

encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000)

(citation omitted). The Court finds that reasonable jurists would not debate the

conclusion that the petition fails to state a claim upon which habeas corpus relief should

be granted. Therefore, the Court denies a certificate of appealability.

V. Conclusion

The petition for a writ of habeas corpus and a certificate of appealability are

DENIED and the matter is DISMISSED WITH PREJUDICE.

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SO ORDERED.

S/Victoria A. Roberts

Victoria A. Roberts

United States District Judge

Dated: October 30, 2015

The undersigned certifies that a copy of this

document was served on the attorneys of record

and Denise Ann Revers by electronic means or

U.S. Mail on October 30, 2015.

s/Linda Vertriest 

Deputy Clerk

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