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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

WILLIAM NEWMAN, #242710,

Petitioner,

v. CASE NO. 2:09-CV-13351

HONORABLE PAUL D. BORMAN

PERCY CONERLY,

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

This is a habeas case brought pursuant to 28 U.S.C. § 2254. Michigan prisoner William

Newman (“Petitioner”) was convicted of accosting, enticing, soliciting, or encouraging a child for

immoral purposes, MICH. COMP. LAWS § 750.145a, following a jury trial in the Saginaw County

Circuit Court. He was sentenced as a fourth habitual offender, MICH. COMP. LAWS § 769.12, to 2

1⁄2 to 14 years imprisonment in 2005. In his pleadings, Petitioner raises claims concerning the

sufficiency of the evidence and the scoring of the state sentencing guidelines. For the reasons set

forth, the Court denies the petition for a writ of habeas corpus. 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 conviction arises from improper remarks he made to a teenage girl at a tractor

show in Brady Township, Michigan in 2004. The Michigan Court of Appeals provided a factual

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summary, which is presumed correct on habeas review, see Monroe v. Smith, 197 F. Supp. 2d 753,

758 (E.D. Mich. 2001), aff’d. 41 F. App’x 730 (6th Cir. 2002), as follows:

Defendant's conviction arises out of an incident that took place at a tractor show in

Brady Township in August, 2004. Fifteen-year-old Stephanie Koski attended the

tractor show and camped at the show grounds with her family and some friends. On

August 22, 2004, defendant appeared at the Koski's campsite and sat at their picnic

table. After being shooed away by Stephanie's mother, he later approached Stephanie

at a ride, reached his hand toward her, and asked her if she wanted to go f* * *. The

incident was reported to the police, and defendant was ultimately arrested and

charged with accosting, enticing, soliciting, or encouraging a child for immoral

purposes. Defendant was convicted as charged, and sentenced. . . .

People v. Newman, No. 261974, 2006 WL 3751384, *1 (Mich. Ct. App. Dec.1, 2006) (unpublished)

(footnote omitted).

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

Michigan Court of Appeals asserting that the trial court erred in refusing to suppress his handwritten

police statement and that the trial court improperly scored OV 9, OV 10, and PRV 5 of the

sentencing guidelines. The court denied relief on those claims and affirmed Petitioner’s conviction

and sentence. Id at *1-3. The Michigan Supreme Court denied leave to appeal in a standard order.

People v. Newman, 478 Mich. 870, 731 N.W.2d 718 (2007).

Petitioner then filed a motion for relief from judgment with the state trial court asserting that

the prosecutor presented insufficient evidence to support his conviction and that the prosecutor

committed misconduct. The trial court denied the motion, ruling that Petitioner had not shown cause

for failing to raise the issues on direct appeal and that the claims nonetheless lacked merit. People

v. Newman, No. 04-024980 FH 4 (Saginaw Co. Cir. Ct. May 13, 2008) (unpublished). Petitioner

filed an application for leave to appeal with the Michigan Court of Appeals asserting that the trial

court erred in refusing to suppress his handwritten police statement, that the pre-sentencing

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investigation report included a false police report, and that the trial court erred in denying his motion

for relief from judgment. The court denied leave to appeal “for failure to establish entitlement to

relief under MCR 6.508(D).” People v. Newman, No. 287493 (Mich. Ct. App. March 26, 2009)

(unpublished). Petitioner attempted to seek leave to appeal with the Michigan Supreme Court, but

his application was rejected as untimely. See Deputy Clerk letter dated August 3, 2009.

Petitioner thereafter filed the instant petition asserting that: (1) the prosecution presented

insufficient evidence of intent to support his conviction, and (2) the trial court mis-scored two

offense variables (OV 9 and OV 10) and one prior record variable (PRV 5) of the state sentencing

guidelines. Respondent has filed an answer to the petition contending that it should be denied

because the insufficient evidence claim is procedurally barred and the sentencing claim lacks merit.

III. Standard of Review

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

codified 28 U.S.C. § 2241 et seq., govern this case because Petitioner filed this 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).

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

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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 [that] precedent.’” Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003)

(per curiam) (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000)); see also Bell v. Cone, 535

U.S. 685, 694 (2002). “[T]he ‘unreasonable application’ prong of § 2254(d)(1) 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); see also Bell, 535

U.S. at 694. 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 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. “AEDPA thus imposes a

‘highly deferential standard for evaluating state-court rulings,’ and ‘demands that state-court

decisions be given the benefit of the doubt.’” Renico v. Lett, _ U.S. _, 130 S. Ct. 1855, 1862 (2010)

(quoting Lindh, 521 U.S. at 333, n. 7; Woodford v. Viscotti, 537 U.S. 19, 24 (2002) (per curiam)).

The Supreme Court recently held that “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, _ U.S. _, 131 S. Ct. 770, 786 (2011) (citing

Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The Supreme Court emphasized “that even

a strong case for relief does not mean the state court’s contrary conclusion was unreasonable.” Id.

( citing Lockyer v. Andrade, 538 U.S. 63, 75 (2003). Pursuant to § 2254(d), “a habeas court must

determine what arguments or theories supported or . . . could have supported, the state court’s

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decision; and then it must ask whether it is possible fairminded jurists could disagree that those

arguments or theories are inconsistent with the holding in a prior decision” of the Supreme Court.

Id. Thus, in order to obtain habeas relief in federal court, a state prisoner must show that the state

court’s rejection of his claim “was so lacking in justification that there was an error well understood

and comprehended in existing law beyond any possibility for fairminded disagreement.” Id.

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; see also

Knowles v. Mirzayance, _ U.S. _, 129 S. Ct. 1411, 1419 (2009) (noting that the Supreme Court “has

held on numerous occasions that it is not ‘an unreasonable application of clearly established Federal

law’ for a state court to decline to apply a specific legal rule that has not been squarely established

by this Court”) (quoting Wright v. Van Patten, 552 U.S. 120, 125-26 (2008) (per curiam)); Lockyer

v. Andrade, 538 U.S. 63, 71-72 (2003). Section 2254(d) “does not require a state court to give

reasons before its decision can be deemed to have been ‘adjudicated on the merits.’” Harrington,

131 S. Ct. at 785. Furthermore, it “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); see also

Mitchell, 540 U.S. at 16. While the requirements of “clearly established law” are to be determined

solely by Supreme Court precedent, the decisions of lower federal courts may be useful in assessing

the reasonableness of the state court’s resolution of an issue. See 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. 354, 359 (E.D. Mich. 2002).

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Lastly, a state court’s factual determinations are presumed correct on federal habeas review.

See 28 U.S.C. § 2254(e)(1). A petitioner may rebut this presumption only with clear and

convincing evidence. See Warren v. Smith, 161 F.3d 358, 360-61 (6th Cir. 1998).

IV. Analysis

A. Insufficient Evidence Claim

Petitioner first asserts that he is entitled to federal habeas relief because the trial court

presented insufficient evidence of intent to support his conviction. Respondent contends that this

claim was not properly exhausted in the state courts and is now barred by procedural default.

A prisoner filing a petition for a writ of habeas corpus under 28 U.S.C. §2254 must first

exhaust all state remedies. See O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (“state prisoners

must give the state courts one full fair opportunity to resolve any constitutional issues by invoking

one complete round of the State’s established appellate review process”); Rust v. Zent, 17 F.3d 155,

160 (6th Cir. 1994). A Michigan prisoner must raise each issue he seeks to present in a federal

habeas proceeding to both the Michigan Court of Appeals and the Michigan Supreme Court to

satisfy the exhaustion requirement. See Mohn v. Bock, 208 F.2d 796, 800 (E.D. Mich. 2002); see

also Hafley v. Sowders, 902 F.2d 480, 483 (6th Cir. 1990). The burden is on the petitioner to prove

exhaustion. Rust, 17 F.3d at 160.

The Court agrees that Petitioner has not properly exhausted this claim in the state courts.

Petitioner first presented this claim to the state courts in his motion for relief from judgment. The

trial court ruled that Petitioner had not shown cause for his failure to raise the claim on direct

appeal and also found that the claim lacked merit. The Michigan Court of Appeals denied relief

pursuant to Michigan Court Rule 6.508(D). Petitioner then failed to properly exhaust this claim

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in the state courts because he did not timely seek leave to appeal with the Michigan Supreme Court.

A state prisoner’s habeas claim is procedurally defaulted if the prisoner has failed to comply

with an independent and adequate state procedural rule, thus causing default of the claim in state

court. See Coleman v. Thompson, 501 U.S. 722, 750 (1991). This can occur when an individual

fails to present an issue to a state appellate court upon the only opportunity to do so. See Teague

v. Lane, 489 U.S. 288, 297-98 (1989); Rust, 17 F.3d at 160. In Coleman, the Supreme Court held

that if the decision of the last state court to which a habeas petitioner presented his federal claims

fairly appeared to rest primarily on federal law, or to be interwoven with federal law, and did not

clearly and expressly rely on an independent and adequate state ground, a federal court may address

the petition. Id. at 735. The Court went on to note:

This rule does not apply if the petitioner failed to exhaust state remedies and the

court to which the petitioner would be required to present his claims in order to

meet the exhaustion requirement would now find the claims procedurally barred.

In such a case there is a procedural default for purposes of federal habeas regardless

of the decision of the last state court to which the petitioner actually presented his

claims [citation omitted].

Id. at 735 n.1.

The United States Court of Appeals for the Sixth Circuit employs a four-part test to

determine whether a state procedural default bars federal habeas review. The inquiry is whether:

(1) a state procedural rule exists that applies to the petitioner's claim, (2) the

petitioner failed to comply with the rule, (3) the state court actually applied the state

rule in rejecting the petitioner's claim, and (4) the state procedural rule is an

adequate and independent ground upon which the state can rely to deny relief.

Frazier v. Huffman, 343 F.3d 780, 790 (6th Cir. 2003) (citing Reynolds v. Berry, 146 F.3d 345, 347

(6th Cir.1998)).

All four parts of the test are met here. Michigan law clearly requires that an application for

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leave to appeal regarding a criminal conviction in the Michigan Supreme Court be filed within 56

days of the lower court decision. See Mich. Ct. R. 7.302(C)(2), (3). Petitioner failed to timely file

his application under Michigan Court Rule 7.302(C)(2), and the Michigan Supreme Court rejected

it on that basis on August 3, 2009. The procedural rule relied upon by the Michigan Supreme Court

to bar review was firmly established and regularly applied at the time of Petitioner’s default. See

Gen. Ct. R. 1963, 853 (effective Jan. 1, 1965); Mich. Ct. R. 7.302 (effective Mar. 1, 1985).

Petitioner thus procedurally defaulted his insufficient evidence claim by failing to timely seek leave

to appeal with the Michigan Supreme Court.

A state prisoner who fails to comply with a state’s procedural rules waives the right to

federal habeas review absent a showing of cause for noncompliance and actual prejudice resulting

from the alleged constitutional violation, or a showing of a fundamental miscarriage of justice. See

Coleman, 501 U.S. at 753; Murray v. Carrier, 477 U.S. 478, 485 (1986); Gravley v. Mills, 87 F.3d

779, 784-85 (6th Cir. 1996). The cause and prejudice test should be applied to all occasions where

a procedural default bars state litigation of a constitutional claim. Coleman, 501 U.S. at 750.

To establish cause, a petitioner must establish that some external impediment frustrated his

ability to comply with the state’s procedural rule. Murray, 477 U.S. at 488. A petitioner must

present a substantial reason to excuse the default. See Amadeo v. Zant, 486 U.S. 214, 223 (1988);

Rust, 17 F.3d at 161. Petitioner neither alleges nor establishes cause to excuse his default. This

Court need not address the issue of prejudice when a habeas petitioner fails to establish cause to

excuse a procedural default. See Smith v. Murray, 477 U.S. 527, 533 (1986); Long v. McKeen, 722

F.2d 286, 289 (6th Cir. 1983); Bell v. Smith, 114 F. Supp. 2d 633, 638 (E.D. Mich. 2000).

Petitioner has also not established that a fundamental miscarriage of justice has occurred.

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The miscarriage of justice exception requires a showing that a constitutional violation probably

resulted in the conviction of one who is actually innocent. See Schlup v. Delo, 513 U.S. 298, 326-

27 (1995); Murray v. Carrier, 477 U.S. at 496. “‘[A]ctual innocence’ means factual innocence, not

mere legal insufficiency.” Bousley v. United States, 523 U.S. 614, 624 (1998). “To be credible,

[a claim of actual innocence] requires petitioner to support his allegations of constitutional error

with new reliable evidence -- whether it be exculpatory scientific evidence, trustworthy eyewitness

accounts, or critical physical evidence -- that was not presented at trial.” Schlup, 513 U.S. at 324.

Petitioner has made no such showing. His assertion that his habeas claims have merit does not

establish a miscarriage of justice. Petitioner’s insufficient evidence claim is barred by procedural

default and does not warrant relief.

Moreover, even if this claim were not barred by procedural default, Petitioner would not

be entitled to habeas relief as this claim lacks merit. The 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). The

standard of review for 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 Cir. 2006) (quoting Jackson, 443 U.S. at

324 n. 16). “A reviewing court does not reweigh the evidence or redetermine the credibility of the

witnesses whose demeanor has been observed by the trial court.” Matthews v. Abramajtys, 319

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F.3d 780, 788 (6th Cir. 2003) (citing Marshall v. Lonberger, 459 U.S. 422, 434 (1983)).

Accordingly, “[t]he mere existence of sufficient evidence to convict . . . defeats a petitioner’s

claim.” Matthews, 319 F.3d at 788-89.

Under Michigan law, “the elements of accosting a minor include: 1) accosting, enticing or

soliciting, 2) a child under 16, 3) with the intent to induce or force the child to commit or submit

to an immoral act, an act of sexual intercourse or gross indecency, or any other act of depravity or

delinquency, or 4) encouraging a child to engage in any of those acts. MCL 750.145a.” People

v. Middleton, No. 268265, 2007 WL 1610502, *6 (Mich. Ct. App. June 5, 2007) (unpublished); see

also People v. Brower, No. 86551, 2010 WL 1979280, *1-2 (Mich. Ct. App. May 18, 2010)

(unpublished).

On collateral review, the state trial court denied relief on this claim, ruling, in part, that the

trial testimony provided sufficient evidence to establish that Petitioner committed the crime and that

he acted with the requisite intent. That decision is neither contrary to Jackson nor an unreasonable

application of federal law or the facts. The victim’s testimony established the elements of the

crime. The testimony of a victim alone can be constitutionally sufficient to sustain a conviction.

See Tucker v. Palmer, 541 F.3d 652, 658 (6th Cir. 2008) (citing cases). Although Petitioner denies

having the necessary intent, the victim’s testimony and reasonable inferences therefrom indicate

otherwise. It is the job of the jury or fact-finder at trial, not a federal habeas court, to resolve

evidentiary conflicts. See Jackson, 443 U.S. at 326; Martin v. Mitchell, 280 F.3d 594, 618 (6th Cir.

2002); Walker v. Engle, 703 F.2d 959, 969-70 (6th Cir. 1983) (“A federal habeas corpus court faced

with a record of historical facts that supports conflicting inferences must presume - even if it does

not affirmatively appear in the record - that the trier of fact resolved any such conflicts in favor of

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the prosecution, and must defer to that resolution.”). The state court’s decision that the prosecution

presented sufficient evidence to support Petitioner’s conviction was reasonable. Moreover, the

Court would reach the same result under de novo review. The victim’s testimony and the

circumstances of Petitioner’s contact with her provided sufficient evidence to support his

conviction. Habeas relief is not warranted on this claim.

B. Sentencing Claim

Petitioner also asserts that he is entitled to habeas relief because the trial court mis-scored

two offense variables (OV 9 and OV 10) and one prior record variable (PRV 5) of the state

sentencing guidelines. 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. See Lucey v. Lavigne, 185 F. Supp.

2d 741, 745 (E.D. Mich. 2001). Petitioner makes no such allegation.

Petitioner’s claim that the trial court erred in scoring OV 9, OV 10, and PRV 5 under the

state sentencing guidelines is not cognizable on federal habeas review because it is basically 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.”); Cheatham v. Hosey, 12 F.3d 211, 1993 WL 478854, *2 (6th Cir. Nov.19, 1993) (ruling that

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). 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. See Lewis v. Jeffers, 497 U.S.

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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); Sanford v. Yukins, 288 F.3d 855, 860 (6th Cir. 2002). Habeas relief does

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

Moreover, even if this claim were cognizable, Petitioner is not entitled to relief. The

Michigan Court of Appeals determined that any error in scoring OV 9 was harmless and that OV

10 and PRV 5 were properly scored. See Newman, 2006 WL 261974 at *2-3. That decision is

reasonable and is neither contrary to Supreme Court precedent nor an unreasonable application

thereof. 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 the claims contained in his petition and that his petition for a writ of habeas corpus 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 federal court rejects a habeas claim 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. See 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). In applying this standard, a court may not conduct a full merits

review, but must limit its examination to a threshold inquiry into the underlying merit of the claims.

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Id. at 336-37. When a court denies a habeas claim on procedural grounds without addressing the

merits, a certificate of appealability should issue if it is shown that jurists of reason would find it

debatable whether the petitioner states a valid claim of the denial of a constitutional right, and that

jurists of reason would find it debatable whether the court was correct in its procedural ruling. See

Slack, 529 U.S. at 484-85.

Having conducted the requisite review, the Court concludes that Petitioner has failed to

make a substantial showing of the denial of a constitutional right as to his habeas claims and that

reasonable jurists would not find the Court’s procedural ruling debatable. A certificate of

appealability is not warranted. The Court further concludes that Petitioner should not be granted

leave to proceed in forma pauperis on appeal as any appeal would be frivolous and 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 and leave to proceed in

forma pauperis on appeal are DENIED.

S/Paul D. Borman 

PAUL D. BORMAN

UNITED STATES DISTRICT JUDGE

Dated: May 2, 2011

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CERTIFICATE OF SERVICE

Copies of this Order were served on the attorneys of record and by electronic means and:

William Newman

242710 

14329 Sheridan Road 

Apt. 4 

Montrose, MI 48457 

by U.S. Mail on May 2, 2011.

S/Denise Goodine 

Case Manager

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