UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

PHILLIP STOWE, #856404,

Petitioner,

CASE NO. 2:15-CV-12057

v. HONORABLE NANCY G. EDMUNDS

PAUL KLEE,

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 Phillip Stowe (“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 pleaded no contest to four counts of second-degree criminal sexual conduct,

MICH. COMP. LAWS § 750.520c(2)(b), in the Macomb County Circuit Court and was

sentenced to concurrent terms of 10 to 15 years imprisonment in 2012. In his pleadings,

Petitioner asserts that the state trial court erred in departing above the recommended

minimum range 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 consideration, the court determines that the petitioner is not entitled to relief,

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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.

II. Facts and Procedural History

Petitioner’s convictions arise from his improper sexual conduct with young family

members. The Michigan Court of Appeals described the relevant 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 is a grandfather who sexually molested a number of children in his

family. He digitally penetrated his 13–year–old granddaughter several times

over three years, rubbed his 10–year–old great niece's breasts on three

occasions, and attempted to molest his 8–year–old granddaughter. In

November 2012, the Macomb County prosecutor's office charged him with

four counts of violation of MCL 750.520(C)(1)(a), to which he pled no

contest.FN1 The trial court sentenced him to 10 to 15 years on each count,

which was an upward departure from the sentencing guideline's

recommendation of a sentence range from 43 to 86 months. It explained that

the upward departure was warranted because of the severity of defendant's

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crimes, particularly his exploitation of his familial relationships with the young

victims.

FN1. Defendant was also convicted in Oakland County for two

counts of CSC II involving a child under the age of 13, and

sentenced to 15 to 100 years in prison.

People v. Stowe, No. 315215, 2014 WL 4055838, *1 (Mich. Ct. App. Aug. 14, 2014)

(unpublished).

Following his plea and sentencing, Petitioner filed an appeal with the Michigan Court

of Appeals asserting that he should be resentenced because the trial court did not provide

substantial and compelling reasons to explain how the upward departure was proportionate

to his conduct and criminal history and his sentence was disproportionate to his crimes. 

The Michigan Court of Appeals denied relief on those issues and affirmed his sentences. 

Id. at *1-2. Petitioner then filed an application for leave to appeal with the Michigan

Supreme Court, which was denied in a standard order. People v. Stowe, _ Mich. _, 861

N.W.2d 904 (2015).

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

[He] is entitled to resentencing where the trial court exceeded the sentencing

guidelines in violation of his state and federal right to due process where

there were no substantial and compelling reasons for an upward departure

and when the court did not articulate nor establish whey the upward

departure sentences imposed were proportionate to these offenses and this

offender.

Pet., p. 4.

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

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his 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, a federal habeas 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 and should be resentenced

because the state trial court erred in departing above the recommended minimum range

of the state sentencing guidelines. The Michigan Court of Appeals ruled that the trial court

properly explained its reasons for the upward sentencing departure (his position of

authority and familial relationship with the victims), that the trial court indicated that the

sentencing guidelines did not provide a proportionate penalty to fit his conduct, and that

the trial court was not required to explicitly mention prior criminal history in imposing

sentence. Stowe, 2014 WL 4055838 at *1-2.

The state court’s decision is neither contrary to United States Supreme Court

precedent nor an unreasonable application of federal law or the facts. Claims which arise

out of a state trial court’s sentencing decision are not normally cognizable upon habeas

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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 maximum of 15 years

imprisonment. MICH. COMP. LAWS § 750.520c(2)(b). 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’s claim challenging the trial court’s upward departure from the

recommended minimum sentencing range is not cognizable on federal habeas review

because it is a state law claim. 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.”); Austin v. Jackson, 213 F.3d 298, 300-01 (6th

Cir. 2000) (state court did not abuse its discretion nor violate federal due process by

imposing a sentence above the state sentencing guidelines); 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); Mitchell v.

Vasbinder, 644 F. Supp. 2d 846, 867 (E.D. Mich. 2009) (denying habeas relief on

sentencing departure claim). Any alleged error in departing from the recommended

minimum 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

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court 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 federal habeas relief

may be granted.

Similarly, to the extent that Petitioner asserts that his sentences are

disproportionate under state law, he fails to state a claim for federal habeas relief. See

Austin, 213 F.3d at 300. Petitioner is also not entitled to relief on any claim that his

sentences are disproportionate or constitute cruel and unusual punishment under federal

law. The United States Constitution and the Eighth Amendment do not require strict

proportionality between a crime and its punishment. Harmelin v. Michigan, 501 U.S. 957,

965 (1991). A sentence that falls within the maximum penalty authorized by statute

“generally does not constitute ‘cruel and unusual punishment.’” Austin, 213 F.3d at 302

(internal citation omitted). Petitioner’s sentences are within the statutory maximums. The

state trial court acted within its discretion in imposing his sentence and there is no extreme

disparity between his crimes and sentences so as to offend the Eighth Amendment. 

Habeas relief is not warranted on this claim.

Lastly, 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) (citing Townsend); 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

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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. Habeas relief is not warranted on

the basis of the state trial court’s sentencing decision.

V. Conclusion

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

habeas relief on his claims and that his habeas petition must be denied.

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

issue. 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 federal district 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 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). Petitioner makes no such showing. A certificate of appealability is not warranted. 

Nor should Petitioner 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).

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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.

s/ Nancy G. Edmunds

NANCY G. EDMUNDS

UNITED STATES DISTRICT JUDGE

Dated: June 15, 2015

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