UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

TYRELL HENDERSON, #810508,

Petitioner,

CASE NO. 2:14-CV-13912

v. HONORABLE SEAN F. COX

B FOREMAN,

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

I. Introduction

Michigan prisoner Tyrell Henderson (“Petitioner”) has filed a pro se petition for a writ of

habeas corpus pursuant to 28 U.S.C. § 2254 challenging his state criminal sentences. Petitioner was

convicted of three counts of armed robbery, one count of conspiracy to commit armed robbery, one

count of assault with intent to rob while armed (vacated on appeal), one count of carrying a

concealed weapon, and one count of possession of a firearm during the commission of a felony

following a jury trial in the Genesee County Circuit Court in 2011. He is serving concurrent terms

of 225 months to 40 years imprisonment on the armed robbery and conspiracy convictions, a

concurrent term of two to five years imprisonment on the concealed weapon conviction, and a

consecutive term of two years imprisonment on the felony firearm conviction. In his pleadings,

Petitioner asserts that the state trial court mis-scored four offense variables of the state sentencing

guidelines.

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Promptly after the filing of a habeas petition, 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 also 28 U.S.C. § 2243. If, after preliminary consideration, the Court

determines that the petitioner is not entitled to relief, the court must summarily dismiss the petition. 

Id., see also 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 federal district court is authorized to summarily

dismiss a habeas corpus petition if it plainly appears from the face of the petition and any attached

exhibits that the petitioner is not entitled to federal habeas relief. McFarland v. Scott, 512 U.S. 849,

856 (1994); Carson v. Burke, 178 F.3d 434, 436 (6th Cir. 1999); Rule 4, Rules Governing § 2254

Cases. No response to a habeas petition is necessary when the petition is frivolous, obviously lacks

merit, or where the necessary facts can be determined from the petition itself without consideration

of a response from the State. Allen, 424 F.2d at 141; Robinson v. Jackson, 366 F. Supp. 2d 524, 525

(E.D. Mich. 2005). After undertaking the review required by Rule 4, the Court finds that Petitioner

is not entitled to federal habeas relief and denies the petition. 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 convictions arise from his armed robbery of a store in Flint, Michigan on

October 26, 2010 with co-defendant Phillip Charles Gibbs, who was tried and convicted of similar

charges during their joint trial with separate juries. The Michigan Court of Appeals described the

relevant 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:

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This case arises from an armed robbery that occurred at a store called Wholesale 4

U in Flint, Michigan, on October 26, 2010. Nancy Anagnostopoulos and her

husband, Costas Anagnostopoulos, owned the store and were present at the time of

the robbery. Also present was employee Jeremy Kassing. Defendants had been to the

store together numerous times that day. Originally, they had hoped to pawn some

jewelry. After finding out that the jewelry had no value, Henderson purchased a

video game. He later decided to return it. Defendants entered the store and told

Costas that the game did not work. As Costas attempted to help determine what was

wrong with the game, Henderson struck him in the head with a gun. Gibbs, who was

not personally armed during the incident, approached Nancy and removed her

necklaces and ring. He took her identification and purse. Gibbs also took an iPod

from the store, as well as a number of laptop computers. In the meantime, Henderson

took Costas's jewelry, wallet, and money. He ordered Costas to open the store's

register and then took Costas to a back room where a safe was kept. Part of Costas's

ear was cut off as a result of the blow he received, and he received stitches for the

injury. Kassing's wallet was also taken. A subsequent search of the home Gibbs

shared with his mother uncovered a sandwich bag containing jewelry, a sandwich

bag containing papers and the identifications of the three victims, and several

watches identified as those taken from the store.

In separate police interviews, both defendants admitted their involvement. However,

Gibbs told the officer that his involvement was involuntary. Gibbs believed that they

were going to the store to return the video game and had no idea that Henderson was

planning a robbery. Gibbs stated that Henderson ordered him to take the victims'

belongings and other store items. Gibbs testified at trial that he complied only

because he did not want anything to happen to him.

The juries convicted defendants and they were sentenced....

People v. Gibbs (& Henderson), 299 Mich. App. 473, 478-79, 830 N.W.2d 821 (2013). 

Following his convictions and sentencing, Petitioner filed an appeal of right with the

Michigan Court of Appeals raising a double jeopardy claim and the same sentencing claims

presented on habeas review. The Michigan Court of Appeals granted relief on the double jeopardy

claim and vacated Petitioner’s assault conviction, but denied relief on his sentencing claims and

affirmed his remaining convictions and sentences. Id. at 488-94. Petitioner then filed an application

for leave to appeal with the Michigan Supreme Court, which was denied in a standard order. People

v. Henderson, 495 Mich. 889, 838 N.W.2d 876 (2013).

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Petitioner dated his federal habeas petition on September 29, 2014. In his pleadings, he

challenges the scoring of Offense Variables 3, 4, 13, and 14 of the Michigan Sentencing Guidelines. 

III. Standard of Review

The provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),

codified at 28 U.S.C. § 2241 et seq., govern this case because Petitioner filed his petition after the

AEDPA’s effective date. See Lindh v. Murphy, 521 U.S. 320, 336 (1997). The AEDPA 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 proceeding.

28 U.S.C. §2254(d) (1996). Additionally, this Court must presume the correctness of state court

factual determinations. 28 U.S.C. § 2254(e)(1).

IV. Analysis

Petitioner asserts that he is entitled to habeas relief due to sentencing error – namely that

the state trial court erred in scoring Offense Variables 3 (physical injury), 4 (psychological injury),

13 (continuing pattern of criminal behavior), and 14 (offender leadership role) of the Michigan

Sentencing Guidelines. The Michigan Court of Appeals rendered the last reasoned decision on

these claims and denied relief. The court determined that Offense Variables 3, 4, 13, and 14 were

properly scored. Gibbs (& Henderson), 299 Mich. App. at 492-94.

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The Michigan Court of Appeals’ decision is neither contrary to United States Supreme

Court precedent nor an unreasonable application thereof. Claims which arise out of a state trial

court’s sentencing decision are not normally cognizable upon habeas review, unless the petitioner

can show that the sentence imposed exceeded the statutory limits or is wholly unauthorized by law. 

Lucey v. Lavigne, 185 F. Supp. 2d 741, 745 (E.D. Mich. 2001). Petitioner’s sentences are within

the statutory maximums. See MICH. COMP. LAWS §§ 750.529, 750.157a, 750.227, 750.227b. 

Sentences imposed within the statutory limits are generally not subject to federal habeas review. 

Townsend v. Burke, 334 U.S. 736, 741 (1948); Lucey, 185 F. Supp. 2d at 745; Cook v. Stegall, 56

F. Supp. 2d 788, 797 (E.D. Mich. 1999).

Petitioner asserts that he is entitled to habeas relief because the trial court erred in scoring

Offense Variables 3, 4, 13, and 14 of the state sentencing guidelines. Such claims, however, are

not cognizable on federal habeas review because they are state law claims. See Howard v. White,

76 F. App’x 52, 53 (6th Cir. 2003) (“A state court’s alleged misinterpretation of state sentencing

guidelines and crediting statutes is a matter of state concern only.”); Cheatham v. Hosey, 12 F.3d

211, 1993 WL 478854, *2 (6th Cir. Nov. 19, 1993) (departure from state sentencing guidelines is

a state law issue not cognizable on federal habeas review); 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). Any

error in scoring the offense variables and determining the guideline range does not merit habeas

relief. State courts are the final arbiters of state law and the federal courts will not intervene in such

matters. Lewis v. Jeffers, 497 U.S. 764, 780 (1990); Oviedo v. Jago, 809 F.2d 326, 328 (6th Cir.

1987); see also 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

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sitting on habeas review”); Sanford v. Yukins, 288 F.3d 855, 860 (6th Cir. 2002). Habeas relief

does not lie for perceived errors of state law. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). 

Petitioner thus fails to state a claim upon which relief may be granted as to such issues.

The Court notes that a sentence may violate federal due process if it is carelessly or

deliberately pronounced on an extensive and materially false foundation which the defendant had

no opportunity to correct. Townsend, 334 U.S. at 741; see also United States v. Tucker, 404 U.S.

443, 447 (1972); United States v. Sammons, 918 F.2d 592, 603 (6th Cir. 1990) (defendant must

have a meaningful opportunity to rebut contested sentencing information). To prevail on such a

claim, a petitioner must show that the court relied upon the allegedly false information. United

States v. Polselli, 747 F.2d 356, 358 (6th Cir. 1984); Draughn v Jabe, 803 F. Supp. 70, 81 (E.D.

Mich. 1992). Petitioner makes no such showing. He had a sentencing hearing before the trial court

with ample opportunity to challenge the scoring of the disputed offense variables. He also

presented his sentencing claims to the state appellate courts, which denied relief. Petitioner fails

to establish that the state court relied upon materially false or inaccurate information in imposing

his sentence which he had no opportunity to correct. Habeas relief is not warranted.

V. Conclusion

For the reasons stated, the Court concludes that Petitioner is not entitled to federal habeas

relief on his sentencing claims and the petition must be denied.

Before Petitioner may appeal the Court’s decision, a certificate of appealability must issue. 

See 28 U.S.C. § 2253(c)(1)(a); FED.R.APP.P. 22(b). A certificate of appealability may issue “only

if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2). When a district court relief on the merits, the substantial showing threshold is met

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if the petitioner demonstrates that reasonable jurists would find the court’s assessment of the claims

debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). “A petitioner satisfies this

standard by demonstrating that . . . jurists could conclude the issues presented are adequate to

deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). The

court may not conduct a full merits review, but must limit its examination to a threshold inquiry

into the underlying merit of the claims. Id. at 336-37. Having done so, the Court concludes that

Petitioner has not made a substantial showing of the denial of a constitutional right. No certificate

of appealability is warranted. Nor should Petitioner be granted leave to proceed in forma pauperis

on appeal as any appeal cannot be taken in good faith. See FED. R. APP. P. 24(a).

Accordingly;

IT IS ORDERED that the petition for a writ of habeas corpus is DENIED and

DISMISSED WITH PREJUDICE.

IT IS FURTHER ORDERED that a certificate of appealability is DENIED and leave to

proceed in forma pauperis on appeal is DENIED.

Dated: October 28, 2014 S/ Sean F. Cox 

Sean F. Cox

U. S. District Judge

I hereby certify that on October 28, 2014, the foregoing document was served on counsel of record 

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via electronic means and upon Tyrell Henderson via First Class mail at the address below:

TYRELL HENDERSON 

810508 

EARNEST C. BROOKS CORRECTIONAL FACILITY 

2500 S. SHERIDAN DRIVE 

MUSKEGON HEIGHTS, MI 49444 

S/ J. McCoy 

Case Manager 

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