UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

RICHARD BASTUBA,

Petitioner,

v.

J. BARRETT,

Respondent. 

 /

Case Number: 2:15-cv-10884

HONORABLE GERALD E. ROSEN

OPINION AND ORDER DISMISSING PETITION FOR WRIT OF HABEAS

CORPUS AND DENYING CERTIFICATE OF APPEALABILITY AND

LEAVE TO APPEAL IN FORMA PAUPERIS

Petitioner Richard Bastuba has filed a pro se petition for a writ of habeas corpus

pursuant to 28 U.S.C. § 2254. Petitioner is incarcerated at the Cooper Street Correctional

Facility in Jackson, Michigan, pursuant to convictions for second-degree home invasion

and receiving and concealing stolen property. He seeks habeas relief on the grounds that

inaccurate information was relied upon for the scoring of his offense variables and that

the presentence investigation report included inaccurate and biased statements. It is

apparent from the face of the petition that habeas relief is not warranted. Therefore, the

Court summarily dismisses the petition.

I. Background

Petitioner pleaded no contest in Washtenaw County Circuit Court to second-degree

home invasion and receiving and concealing stolen property. On January 3, 2013, he was

sentenced to 3 to 15 years’ imprisonment for the home invasion conviction and 1 to 5

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years’ imprisonment for the stolen property conviction. 

On June 26, 2013, Petitioner filed a motion to correct presentence report in the trial

court. The trial court denied the motion on August 5, 2013. People v. Bastuba, No. 11-

001459-FH (Washtenaw County Cir. Ct. Aug. 5, 2013).

Petitioner filed an application for leave to appeal in the Michigan Court of

Appeals. The Michigan Court of Appeals denied leave to appeal “for lack of merit in the

grounds presented.” People v. Bastuba, No. 320250 (Mich. Ct. App. Apr. 17, 2014). 

Petitioner filed an application for leave to appeal in the Michigan Supreme Court. The

Michigan Supreme Court denied leave to appeal. People v. Bastuba, 497 Mich. 919

(Mich. Nov. 26, 2014). 

Petitioner then filed the pending habeas petition. He raises these claims:

I. Petitioner’s due process rights have been infringed upon by the state court

denials using an unreasonable application of federal precedent law set forth

in Townsend v. Burke, 334 U.S. 736 (1948). Also the state courts used an

unreasonable determination of the actual facts of the case that are

unfounded and unsupported.

II. Petitioner’s due process rights have been infringed upon by a presentence

report full of inaccurate and biased statements, rendering the state court

denials as an unreasonable application of Townsend v. Burke, and an

unreasonable determination of the actual facts of the case as to the existing

record. 

II. Standard

A.

Upon the filing of a habeas corpus petition, the court must promptly examine the

petition to determine “if it plainly appears from the face of the petition and any exhibits

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annexed to it that the petitioner is not entitled to relief.” Rule 4, Rules Governing Section

2254 cases. If the court determines that the petitioner is not entitled to relief, the court

shall summarily dismiss the petition. McFarland v. Scott, 512 U.S. 849, 856 (1994) 

(“Federal courts are authorized to dismiss summarily any habeas petition that appears

legally insufficient on its face”). The habeas petition does not present grounds which

may establish the violation of a federal constitutional right. The petition will be

dismissed.

B.

Review of this case is governed by the Antiterrorism and Effective Death Penalty

Act of 1996 (“AEDPA”). Under the AEDPA, a state prisoner is entitled to a writ of

habeas corpus only if he can show that the state court’s adjudication of his claims – 

(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 (2003) (per curiam), quoting Williams v. Taylor,

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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 find a state

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

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

must have been ‘objectively unreasonable.’” Id. 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 102-03 (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

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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 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); Dickens v. Jones, 203 F. Supp.

2d 354, 359 (E.D. Mich. 2002).

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

Petitioner raises two claim for habeas relief, both of which deal with sentencing

proceedings. In his first claim, Petitioner argues that the scoring of offense variables 2, 4,

10, and 13, violated his rights under the Due Process Clause because the scoring was

based upon inaccurate information. Petitioner’s second claim for relief alleges that the

presentence information report also contained inaccurate information. 

A sentence violates due process if it is based on “misinformation of constitutional

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magnitude[,]” Roberts v. United States, 445 U.S. 552, 556 (1980), or “extensively and

materially false” information, which the defendant had no opportunity to correct. 

Townsend v. Burke, 334 U.S. 736 (1948). “Townsend and its progeny are generally

viewed as having established a due process ‘requirement that a defendant be afforded the

opportunity of rebutting derogatory information demonstrably relied upon by the

sentencing judge, when such information can in fact be shown to have been materially

false.’” Stewart v. Erwin, 503 F.3d 488, 495 (6th Cir. 2007), quoting Collins v. Buchkoe,

493 F.2d 343, 345 (6th Cir. 1974).

Petitioner merely disagrees with the factual findings made and inferences drawn

by the trial judge. However, as the Supreme Court made clear in Townsend, an alleged

error by the trial court in resolving a disputed factual question at sentencing does not

constitute reliance on materially false information:

Nor do we mean that mere error in resolving a question of fact on a plea of

guilty by an uncounseled defendant in a non-capital case would necessarily

indicate a want of due process of law. Fair prosecutors and conscientious

judges sometimes are misinformed or draw inferences from conflicting

evidence with which we would not agree. But even an erroneous judgment,

based on a scrupulous and diligent search for truth, may be due process of

law.

Townsend, 334 U.S. at 741. 

Petitioner admits that he had a sentencing hearing before the trial court with an

opportunity to challenge the scoring of the guidelines, and, according to Petitioner,

defense counsel did, in fact, challenge the scoring of the disputed offense variables and

presentence investigation report. Petitioner also presented his sentencing claims to the

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state courts on appeal. Thus, he had an opportunity to rebut the information relied upon

by the sentencing court. This opportunity satisfied the Townsend requirements. Petitioner

fails to establish that the state trial court relied upon materially false or inaccurate

information in imposing his sentence which he had no opportunity to correct. No due

process violation occurred and habeas relief is denied. 

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. Rule 11 of

the Rules Governing Section 2254 Proceedings requires that a court “issue or deny a

certificate of appealability when it enters a final order adverse to the applicant.” 

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). The substantial showing

threshold is satisfied when a petitioner demonstrates “that reasonable jurists would find

the district court’s assessment of the constitutional claims debatable or wrong.” Slack v.

McDaniel, 529 U.S. 473, 484 (2000). 

In this case, the Court concludes that reasonable jurists would not debate the

conclusion that the petition does not state a claim upon which habeas relief may be

granted. Therefore, the Court will deny a certificate of appealability. The Court also will

also deny Petitioner permission to appeal in forma pauperis because any appeal would be

frivolous.

V. CONCLUSION

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For the foregoing reasons,

IT IS ORDERED that the petition for a writ of habeas corpus, a certificate of

appealability and leave to appeal in forma pauperis are DENIED.

IT IS FURTHER ORDERED that this case is DISMISSED WITH

PREJUDICE.

s/Gerald E. Rosen 

Chief Judge, United States District Court

Dated: April 15, 2015

I hereby certify that a copy of the foregoing document was served upon the parties and/or

counsel of record on April 15, 2015, by electronic and/or ordinary mail.

s/Julie Owens 

Case Manager, (313) 234-5135

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