UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

DONALD HAYDEN, #285134,

Petitioner,

 CASE NO. 2:15-CV-12117

v. HONORABLE JOHN CORBETT O’MEARA

CATHLEEN STODDARD,

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 Donald Hayden (“Petitioner”) has filed a pro se petition for a writ of

habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner was convicted of third-degree criminal

sexual conduct, MICH. COMP. LAWS § 750.520d(1)(a), and fourth-degree criminal sexual conduct,

MICH. COMP. LAWS § 750.520e(1)(a), following a jury trial in the St. Clair County Circuit Court. 

He was sentenced as a third habitual offender, MICH. COMP. LAWS § 769.11, to 20 to 30 years

imprisonment on the third-degree conviction and to time served on the fourth-degree conviction in

2013. In his pleadings, Petitioner raises claims concerning the effectiveness of trial counsel and the

scoring of the state sentencing guidelines.

Promptly after the filing of a habeas petition, a federal district 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

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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 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. 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). A dismissal under Rule 4 includes 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 such review, the Court concludes that the

habeas petition lacks merit and must be denied.

II. Facts and Procedural History

Petitioner’s convictions arise from his sexual assault of a teenage girl at his residence. The

Michigan Court of Appeals described the underlying facts, which are presumed correct on habeas

review, see 28 U.S.C. § 2254(e)(1); Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009), as follows:

Defendant’s convictions arose from a sexual assault on a 15-year-old female

acquaintance. According to the testimony at trial, defendant, who was age 34, took

the 15-year-old girl and her 17-year-old boyfriend to defendant’s house to smoke

marijuana. Defendant’s cousin was in the house at the time. Defendant later asked

to two minors to come to his detached garage to see a car that he owned. While in the

garage, defendant sent the boyfriend to a store. Defendant told the girl to stay with

him in the garage, ostensibly because she recently had foot surgery and was using

crutches. After the boyfriend left, defendant sexually assaulted the girl in the garage. 

People v. Hayden, No. 316758, *1 (Mich. Ct. App. Sept. 23, 2014) (unpublished).

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

Michigan Court of Appeals raising the same claims presented on habeas review. The Michigan

Court of Appeals denied relief and affirmed his convictions and sentences. Id. at *1-3. Petitioner

then filed an application for leave to appeal with the Michigan Supreme Court, which was denied

in a standard order. People v. Hayden, _ Mich. _, 862 N.W.2d 219 (2015).

Petitioner thereafter filed his federal habeas petition raising the following claims:

I. [He] was denied his Sixth Amendment right to the effective assistance of

counsel where counsel opened the door to highly prejudicial testimony.

II. The trial court’s scoring of fifteen points for Offense Variable 8 was an abuse

of discretion which placed [him] in a higher grid than supported by the

record; resentencing is required.

Pet., pp. 8, 10.

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 habeas petition

after the AEDPA’s effective date. 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

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

IV. Discussion

A. Ineffective Assistance of Counsel Claim

Petitioner first asserts that he is entitled to habeas relief because trial counsel was ineffective

for eliciting certain testimony from prosecution witness Roberta Moley during cross-examination. 

The Michigan Court of Appeals described the issue as follows:

Defense counsel asked Moley about a “falling out” with defendant. Moley

responded that she ceased contact with defendant because of “a situation that had

come up with my minor child that I did not agree with and how it was addressed and

that was the end of it. I was not putting my children in danger.” Defendant

maintains that Moley’s response was prejudicial, and that defense counsel should

not have asked Moley about the “falling out.”

Hayden, No. 316758 at *1.

In Strickland v. Washington, 466 U.S. 668 (1984), the United States Supreme Court set forth

a two-prong test for determining whether a habeas petitioner has received the ineffective assistance

of counsel. First, a petitioner must prove that counsel’s performance was deficient. This requires

a showing that counsel made errors so serious that he or she was not functioning as counsel as

guaranteed by the Sixth Amendment. Strickland, 466 U.S. at 687. Second, the petitioner must

establish that counsel’s deficient performance prejudiced the defense. Counsel’s errors must have

been so serious that they deprived the petitioner of a fair trial or appeal. Id.

As to the performance prong, a petitioner must identify acts that were “outside the wide

range of professionally competent assistance” in order to prove deficient performance. Id. at 690. 

A reviewing court’s scrutiny of counsel’s performance is highly deferential and counsel is strongly

presumed to have made decisions in the exercise of reasonable professional judgment. Id. at 689-

90. To satisfy the prejudice prong, a petitioner must show that “there is a reasonable probability

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that, but for counsel’s unprofessional errors, the result of the proceeding would have been

different.” Id. at 694. A reasonable probability is one that undermines the court’s confidence in

the outcome. Id.

The Supreme Court has recently confirmed that a federal court’s consideration of ineffective

assistance of counsel claims arising from state criminal proceedings is quite limited on habeas

review due to the deference accorded trial attorneys and state appellate courts reviewing their

performance. “The standards created by Strickland and § 2254(d) are both ‘highly deferential,’ and 

when the two apply in tandem, review is ‘doubly’ so.” Harrington v. Richter, _ U.S. _, 131 S. Ct.

770, 788 (2011) (internal and end citations omitted). “When § 2254(d) applies, the question is not

whether counsel’s actions were reasonable. The question is whether there is any reasonable

argument that counsel satisfied Strickland’s deferential standard. Id.

Applying the Strickland standard, the Michigan Court of Appeals found that trial counsel’s

conduct in cross-examining Roberta Moley was sound trial strategy and denied relief on this claim. 

Hayden, No. 316758 at *2-3. The court explained in relevant part:

In this case, defendant has not demonstrated that his counsel’s cross-examination

of Moley was ineffective. On direct examination, Moley had testified that defendant

got “intoxicated and high” with the complainant and the complainant’s mother.

Moley further testified that she had known defendant for 20 years, but that she had

a falling out with him. From the context of defense counsel’s cross-examination, it

appears that his decision to ask Moley about the falling out was a matter of trial

strategy, to indicate to the jury that she was biased against defendant. This strategy

was not objectively unreasonable. Moreover, Moley’s testimony was not directly

responsive to defense counsel’s question. Defense counsel asked Moley a “yes or

no” question, as follows:

Q: Okay. And you agree with me when you say a falling out, --

A: Yes.

Q: -- there was a decision that at least you made unilaterally there

was just going to be no more contact and things of that nature?

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Moley responded as follows:

A: There was going to be no more contact under one condition

and the only reason why is there was a situation that had come up

with my minor child that I did not agree with and how it was

addressed and that was the end of it. I was not putting my children

in danger.

Once Moley presented this answer, defense counsel’s decision regarding whether

to raise an objection was also a matter of strategy. Raising an objection could have

drawn the jury’s attention to Moley’s answer. As our Supreme Court has noted,

“[T]here are times when it is better not to object and draw attention to an improper

comment.” People v Bahoda, 448 Mich 261, 282 n 54; 531 NW2d 659 (1995).

Moreover, Moley’s testimony was vague, and she did not offer details regarding the

“situation.” Under the circumstances, counsel reasonably may have decided that it

was preferable not to object. This Court will not substitute its judgment for that of

counsel regarding matters of trial strategy, nor will it use the benefit of hindsight

when assessing counsel’s competence. People v Unger, 278 Mich App 210,

242-243; 749 NW2d 272 (2008). Defendant has not overcome the presumption that

counsel’s strategy was sound.

Id.

The state court’s decision is neither contrary to Supreme Court precedent nor an

unreasonable application of federal law or the facts. Trial counsel’s conduct in questioning Roberta

Moley about her “falling out” with Petitioner was a reasonable trial strategy to challenge Moley’s

credibility and to show that she was biased against Petitioner. Additionally, once Moley gave her

response, counsel may have reasonably decided not to object to her testimony in order to avoid

drawing attention to her answer. This made particular sense given that her answer was vague and

seemingly unrelated to the charges at hand. The fact that trial counsel’s strategy was ultimately

unsuccessful does not mean that counsel was ineffective. See Moss v. Hofbauer, 286 F.3d 851, 859

(6th Cir. 2002) (an ineffective assistance of counsel claim “cannot survive so long as the decisions

of a defendant's trial counsel were reasonable, even if mistaken”). Petitioner fails to allege facts

or otherwise demonstrate that trial counsel’s conduct was anything less than reasonable under the

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circumstances of this case. He thus fails to establish that trial counsel was ineffective under the

Strickland standard. Habeas relief is not warranted on this claim.

B. Sentencing Claim

Petitioner also asserts that he is entitled to habeas relief because the state trial court erred

in scoring Offense Variable 8 (victim asportation or captivity) of the state sentencing guidelines

at 15 points. The Michigan Court of Appeals found that the trial court properly scored OV-8 at 15

points based upon the fact that Petitioner drove the victim and her boyfriend to his home, took them

to a detached garage, sent the boyfriend to the store leaving the victim alone with him, and moved

the victim’s crutches away from her limiting her ability to move and denied relief on this claim. 

Hayden, No. 316758 at *3.

The state court’s decision is neither contrary to Supreme Court precedent nor an

unreasonable application of federal law or the facts. A sentence imposed within the statutory limits

is generally not subject to federal habeas review. Townsend v. Burke, 334 U.S. 736, 741 (1948);

Cook v. Stegall, 56 F. Supp. 2d 788, 797 (E.D. Mich. 1999). Claims which arise out of a state trial

court’s sentencing decision are not 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 sentence is within the

statutory maximum of 30 years imprisonment. See MICH.COMP. LAWS §§ 750.520d (establishing

a 15-year maximum for third-degree criminal sexual conduct); 769.11 (allowing that sentence to

be doubled for a third habitual offender). Consequently, it is insulated from habeas review absent

a federal constitutional violation.

Petitioner’s claim that the trial court erred in scoring Offense Variable 8 is not cognizable

on habeas review because it is a state law claim. See Howard v. White, 76 F. App’x 52, 53 (6th Cir.

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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 which

is 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). An alleged error

in scoring Offense Variable 8 and determining the sentencing guideline range does not justify

federal habeas relief.

Moreover, to the extent that Petitioner contests the state court’s interpretation of state law

regarding Offense Variable 8 and the application of that law, he is not entitled to relief. It is wellsettled that “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.” Bradshaw v. Richey,

546 U.S. 74, 76 (2005); see also Mullaney v. Wilbur, 421 U.S. 684, 691 (1975) (state courts are the

final arbiters of state law); Sanford v. Yukins, 288 F.3d 855, 860 (6th Cir. 2002). 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). Habeas relief

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

Petitioner fails to state a claim upon which relief may be granted as to this issue. Habeas relief is

not warranted on this claim.

V. Conclusion

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

relief on his claims. Accordingly, the Court DENIES and DISMISSES WITH PREJUDICE the

petition for a writ of habeas corpus.

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

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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 court denies relief on the merits, the substantial showing threshold is met if

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

constitutional claim debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484 (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). Petitioner fails to make a substantial showing of the denial of a constitutional

right as to his claims. Accordingly, the Court DENIES a certificate of appealability.

Lastly, the Court concludes that Petitioner should not be granted leave to proceed in forma

pauperis on appeal as an appeal cannot be taken in good faith. FED.R.APP. P. 24(a). Accordingly,

the Court DENIES Petitioner leave to proceed in forma pauperis on appeal.

IT IS SO ORDERED.

s/John Corbett O’Meara 

United States District Judge

Date: July 1, 2015

I hereby certify that a copy of the foregoing document was served upon the parties of record

on this date, July 1, 2015, using the ECF system and/or ordinary mail.

s/William Barkholz 

Case Manager

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