Searle v. Rapelje

JOHN SEARLE, #645865, Petitioner,

v.LLOYD RAPELJE, Respondent.

CASE NO. 2:09-CV-13369

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

Dated: September 7, 2011

HONORABLE LAWRENCE P. ZATKOFF

OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF HABEAS

CORPUS AND DENYING A CERTIFICATE OF APPEALABILITY

I. Introduction

This is a habeas case brought pursuant to 28 U.S.C. § 2254. Michigan prisoner John Searle pleaded guilty to: (1) arson of a dwelling house, Mich. Comp. Laws § 750.72, (2) arson - preparation to burn property valued at $20,000 or more, Mich. Comp. Laws § 750.77(1)(d)(i), (3) arson - burning other real property, Mich. Comp. Laws § 750.73, (4) two counts of arson of personal property valued at $20,000 or more, Mich. Comp. Laws § 750.74(1)(d)(i), (5) arson of personal property valued at $1,000 or more but less than $20,000, Mich. Comp. Laws § 750.74(1)(c)(i), and (6) arson - preparation to burn property valued at $1,000 or more but less than $20,000, Mich. Comp. Laws § 750.77(1)(c)(i), in the St. Clair County Circuit Court. He was sentenced to concurrent terms of 13 to 20 years imprisonment on the arson of a dwelling house conviction, two to 10 years imprisonment on four of the other arson convictions, and one to five years imprisonment on two of the arson convictions in 2007.

In his pleadings, Petitioner challenges his sentencing, not his convictions. Specifically, he raises claims concerning the trial court's upward sentencing departure, the trial judge's impartiality, the trial judge's view of the crime scene in the absence of counsel, and the trial court's scoring of three offense variables of the state sentencing guidelines. Respondent has filed an answer to the petition contending that it should be denied. For the reasons stated, the Court denies the petition for a writ of habeas corpus and denies a certificate of appealability as to all of Petitioner's claims.

II. Facts and Procedural History

Petitioner's convictions arise from his conduct of setting multiple fires on properties located on McLain Road in St. Clair County, Michigan, during the early morning hours on September 9, 2006. One set of fires caused damage to a family's home and their teenage son suffered smoke inhalation. Another fire destroyed a man's truck. A third fire resulted in the destruction of a barn and its contents, including the deaths of 18 horses. Petitioner tendered his plea on April 20, 2007, in exchange for the dismissal of additional misdemeanor charges. At the plea hearing, Petitioner provided a factual basis for his plea and indicated that he was pleading guilty of his own free will. The trial court accepted the plea, finding it to be knowing, intelligent, and voluntary.

Petitioner was sentenced on May 21, 2007. During the sentencing hearing, the trial judge admitted that he had driven the probation officer to the area of the fires and observed the scene without getting out of his vehicle. The judge waved to a woman mowing grass while near the scene. He did not recognize the woman at that time, but realized that she was one of the property owners at the sentencing hearing. None of the parties raised an objection to these matters.

Defense counsel objected to the scoring of several offense variables at the hearing. The trial court heard arguments from the prosecutor and defense counsel and resolved those issues. The courtscored OV 3 at five points for bodily injury not requiring medical treatment based upon the smoke inhalation suffered by the teenage boy. The court scored OV 4 at 10 points for degree of psychological injury to a victim based upon the barn owner's traumatic experience in dealing with the fire and the loss of her horses and livelihood. The court scored OV 9 at 25 points for 10 or more victims placed in danger of physical injury based upon the people who lived nearby, as well as responding personnel.

The trial court also allowed the victims and Petitioner to address the court. During the victims' remarks, the judge stated that he grew up on a farm with horses, reminisced about the horses' smell and nicker, and indicated that he presented horse awards at the county fair. The judge also confirmed that he had reviewed photographs of the burned property and the dead horses in preparation for sentencing.

The judge went on to discuss the possibility of exceeding the minimum sentence guideline range. The court stated:

We also have to consider me, because my obligation in effecting and pronouncing an appropriate sentence is a number of factors that I have to consider, not the least of which are the guidelines, but I have to consider not only the victims, my community, but I have to consider the defendant. I'm required to do that. And I'm trying to be on guard of my own emotions because - I got to be careful, I, I can't necessarily stick up for the animals because I don't think the law permits me to do that, but I've already indicated I was born on a farm. The animals were my best friends. And what farmers do, or those who are in charge of animals, they're obligated to - because they're in charge of the animals, are obligated to see to their welfare, to not put them in danger, or in some way since they're captured, they're not free to run around anymore, their, their guardians are required to see to their, their best interest, feed, shelter, and all those kinds of things.

So, I'm trying really hard not to let my own personal experience creep in, but in saying that, I'm not doing that, because the law permits the Court if given proper circumstances, to exceed the guidelines, and the guideline, therefore, if it is exceeded the [minimum] would be two-thirds of - the maximum....

The court then departed above the sentencing guideline range of 51 to 87 months (on the arson of a dwelling house conviction) by imposing a minimum sentence of 13 years imprisonment. The court indicated that it was departing above the recommended range because the guidelines did not account for the loss of the horses, the financial and emotional injuries to the barn owner and other victims, and the negative impact on the community. The court also found that Petitioner knew or should have known of the potential effect of his actions on life, limb, and property due to his past experience with the Coast Guard and said that there was no excuse for his actions. The court emphasized that it had considered the guidelines, sentencing reports, letters and correspondence, and other relevant information and was basing its sentence on the entire record.

Following sentencing, Petitioner filed a delayed application for leave to appeal with the Michigan Court of Appeals asserting the same sentencing claims raised on habeas review. The Michigan Court of Appeals denied leave to appeal "for lack of merit in the grounds presented." People v. Searle, No. 285516 (Mich. Ct. App. June 17, 2008) (unpublished). Petitioner filed an application for leave to appeal with the Michigan Supreme Court, which was denied in a standard order. People v. Searle, 482 Mich. 1067, 760 N.W.2d 461 (2008).

Petitioner thereafter filed his federal habeas petition with this Court asserting the following claims as grounds for relief:

I. He is entitled to re-sentencing where the trial court disproportionately exceeded the statutory sentencing guidelines range based on factors that are not substantial and compelling.

II. He is entitled to re-sentencing under the state and federal due process clauses where the trial judge lacked impartiality.

III. He was denied his Sixth Amendment right to counsel when the court and the probation officer viewed the scene without the presence of counsel.

IV. He is entitled to re-sentencing because the sentencing guidelines range was enhanced by the scoring of offense variables 3, 4, and 9 based on facts not proven to a jury beyond a reasonable doubt nor admitted by him in support of his guilty plea in violation of the Sixth and Fourteenth Amendments to the United States Constitution.

Respondent has filed an answer to the petition contending that it should be denied because the claims are not cognizable and/or lack merit. Petitioner has filed a reply to that answer.

III. Standard of Review

Federal law imposes the following standard of review for habeas cases:

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 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 [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." Wigginsv. 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 find a state court's application of [Supreme Court] precedent 'unreasonable,' the state court's decision must have been more than incorrect or...