Board #766060 v. Morrison

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
______
RYAN MARQUISE BOARD,
Petitioner,
v.
BRYAN MORRISON,
Respondent.
____________________________/
Case No. 1:25-cv-1334
Honorable Sally J. Berens
OPINION
This is a habeas corpus action brought by a state prisoner under 28 U.S.C. § 2254. Pursuant
to 28 U.S.C. § 636(c) and Rule 73 of the Federal Rules of Civil Procedure, Petitioner consented to
proceed in all matters in this action under the jurisdiction of a United States magistrate judge. (ECF
No. 1, PageID.15.) Section 636(c) provides that “[u]pon the consent of the parties, a full-time
United States magistrate judge . . . may conduct any or all proceedings in a jury or nonjury civil
matter and order the entry of judgment in the case . . . .” 28 U.S.C. § 636(c).
This case is presently before the Court for preliminary review pursuant to 28 U.S.C. § 2253
and Rule 4 of the Rules Governing § 2254 Cases. The Court is required to conduct this initial
review prior to the service of the petition. Rule 4, Rules Governing § 2254 Cases.
Service of the petition on the respondent is of particular significance in defining a putative
respondent’s relationship to the proceedings. “An individual or entity named as a defendant is not
obliged to engage in litigation unless notified of the action, and brought under a court’s authority,
by formal process.” Murphy Bros. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 347 (1999).
“Service of process, under longstanding tradition in our system of justice, is fundamental to any
Case 1:25-cv-01344-SJB ECF No. 3, PageID.<pageID> Filed 12/09/25 Page 1 of 12

2
procedural imposition on a named defendant.” Id. at 350. “[O]ne becomes a party officially, and
is required to take action in that capacity, only upon service of a summons or other authority-
asserting measure stating the time within which the party served must appear and defend.” Id.
(citations omitted). That is, “[u]nless a named defendant agrees to waive service, the summons
continues to function as the sine qua non directing an individual or entity to participate in a civil
action or forgo procedural or substantive rights.” Id. at 351.
Rule 4, by requiring courts to review and even resolve the petition before service, creates
a circumstance where there may only be one party to the proceeding—the petitioner. Because
Respondent has not yet been served, the undersigned concludes that Respondent is not presently a
party whose consent is required to permit the undersigned to conduct a preliminary review of the
petition. See Neals v. Norwood, 59 F.3d 530, 532 (5th Cir. 1995) (“The record does not contain a
consent from the defendants[; h]owever, because they had not been served, they were not parties
to th[e] action at the time the magistrate entered judgment.”).1 Petitioner’s consent is sufficient to
permit the undersigned to conduct the Rule 4 review.
The Court conducts a preliminary review of the petition under Rule 4 to determine whether
“it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to
relief 	in 	the 	district 	court.” 	Rule 	4, 	Rules 	Governing 	§ 	2254 	Cases; 	see 	28 	U.S.C.
§ 2243. If so, the petition must be summarily dismissed. Rule 4; see Allen v. Perini, 424 F.2d 134,
1 But see Coleman v. Lab. & Indus. Rev. Comm’n of Wis., 860 F.3d 461, 471 (7th Cir. 2017)
(concluding that, when determining which parties are required to consent to proceed before a
United States magistrate judge under 28 U.S.C. § 636(c), “context matters” and the context the
United States Supreme Court considered in Murphy Bros. was nothing like the context of a
screening dismissal pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b), and 42 U.S.C. § 1997e(c));
Williams v. King, 875 F.3d 500, 503–04 (9th Cir. 2017) (relying on Black’s Law Dictionary for
the definition of “parties” and not addressing Murphy Bros.); Burton v. Schamp, 25 F.4th 198, 207
n.26 (3d Cir. 2022) (premising its discussion of “the term ‘parties’ solely in relation to its meaning
in Section 636(c)(1), and . . . not tak[ing] an opinion on the meaning of ‘parties’ in other contexts”).
Case 1:25-cv-01344-SJB ECF No. 3, PageID.<pageID> Filed 12/09/25 Page 2 of 12

3
141 (6th Cir. 1970) (discussing that a district court has the duty to “screen out” petitions that lack
merit on their face). A dismissal under Rule 4 includes those 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 the review required by Rule 4,
the Court concludes that the petition must be dismissed because it fails to raise a meritorious
federal claim.
Discussion
I. 	Factual Allegations
Petitioner Ryan Marquise Board is incarcerated with the Michigan Department of
Corrections (MDOC) at the Lakeland Correctional Facility. Petitioner is serving a string of
consecutive sentences. In this proceeding, he challenges his most recent conviction for possessing
a weapon in prison in violation of Mich. Comp. Laws § 800.283(4). The Michigan Court of
Appeals described the facts underlying Petitioner’s conviction as follows:
Defendant was a prisoner at Chippewa Correctional Facility (CCF) on July 2, 2018.
On that day, CCF Officer Kirk Radtke was making rounds of a yard at CCF when
he observed defendant holding something in his hand and showing the item to
another prisoner. According to Officer Radtke, when defendant saw Officer Radtke
walking toward him, defendant tried to conceal the item in his pants. Defendant
then turned away from Officer Radtke and began walking toward another prisoner.
Officer Radtke observed defendant engage in a verbal exchange with the other
prisoner, who raised his hands and backed away from defendant. Officer Radtke
walked over to defendant and pulled him away from the other prisoner. When he
asked defendant what he had concealed in his pants, defendant said that he had
nothing.
Officer Radtke informed his supervisor, Sergeant William Sturm, that he would be
bringing a prisoner to the west annex of the facility for the purpose of a search.
Officer Radtke and CCF Officer Abraham McLarahmore accompanied defendant
to the healthcare waiting room in the west annex. A few minutes later, defendant
was taken to the strip-search room where Officer Radtke conducted a strip search
of defendant in the presence of Sergeant Sturm. Officer Radtke instructed defendant
to remove his clothing one article at a time. After defendant had stripped down to
his undergarments, Officer Radtke and Sergeant Sturm observed a glove sticking
out of the waistband of defendant’s shorts. The glove contained an eight-inch metal
Case 1:25-cv-01344-SJB ECF No. 3, PageID.<pageID> Filed 12/09/25 Page 3 of 12

4
weapon with a homemade handle. Sergeant Sturm photographed the glove, the
weapon, and defendant’s ID, and the evidence was processed and placed into a
Michigan State Police evidence locker. Defendant was charged with being a
prisoner in possession of a weapon.
People v. Board, No. 352371, 2022 WL 66501, at *1 (Mich. Ct. App. Jan. 6, 2022).
Petitioner does not contest his guilt in this proceeding; instead, he argues that the trial court
improperly scored an offense variable when the court applied the Michigan Sentencing Guidelines.
(Pet., ECF No. 1, PageID.6.) Moreover, Petitioner claims that his counsel’s failure to object to that
error constituted ineffective assistance of counsel. (Id.)
II. 	AEDPA Standard
The AEDPA “prevent[s] federal habeas ‘retrials’” and ensures that state court convictions
are given effect to the extent possible under the law. Bell v. Cone, 535 U.S. 685, 693–94 (2002).
An application for writ of habeas corpus on behalf of a person who is incarcerated pursuant to a
state conviction cannot be granted with respect to any claim that was adjudicated on the merits in
state court unless the adjudication:
(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). “Under these rules, [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.” Stermer v. Warren, 959 F.3d 704, 721 (6th Cir. 2020) (internal
quotation marks omitted) (quoting Harrington v. Richter, 562 U.S. 86, 101 (2011)); Yarborough
v. Alvarado, 541 U.S. 652, 664 (2004). This standard is “intentionally difficult to meet.” Woods v.
Donald, 575 U.S. 312, 316 (2015) (internal quotation marks omitted).
Case 1:25-cv-01344-SJB ECF No. 3, PageID.<pageID> Filed 12/09/25 Page 4 of 12

5
The AEDPA limits the source of law to cases decided by the United States Supreme Court.
28 U.S.C. § 2254(d). In determining whether federal law is clearly established, the Court may not
consider the decisions of lower federal courts. Williams v. Taylor, 529 U.S. 362, 381–82 (2000);
Miller v. Straub, 299 F.3d 570, 578–79 (6th Cir. 2002). Moreover, “clearly established Federal
law” does not include decisions of the Supreme Court announced after the last adjudication of the
merits in state court. Greene v. Fisher, 565 U.S. 34, 37–38 (2011). Thus, the inquiry is limited to
an examination of the legal landscape as it would have appeared to the Michigan state courts in
light of Supreme Court precedent at the time of the state-court adjudication on the merits. Miller
v. Stovall, 742 F.3d 642, 644 (6th Cir. 2014) (citing Greene, 565 U.S. at 38).
A federal habeas court may issue the writ under the “contrary to” clause if the state court
applies a rule different from the governing law set forth in the Supreme Court’s cases, or if it
decides a case differently than the Supreme Court has done on a set of materially indistinguishable
facts. Bell, 535 U.S. at 694 (citing Williams, 529 U.S. at 405–06). “To satisfy this high bar, a
habeas petitioner is required to ‘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.’” Woods, 575
U.S. at 316 (quoting Harrington, 562 U.S. at 103).
Determining whether a rule application was unreasonable depends on the rule’s specificity.
Stermer, 959 F.3d at 721. “The more general the rule, the more leeway courts have in reaching
outcomes in case-by-case determinations.” Yarborough, 541 U.S. at 664. “[W]here the precise
contours of the right remain unclear, state courts enjoy broad discretion in their adjudication of a
prisoner’s claims.” White v. Woodall, 572 U.S. 415, 424 (2014) (internal quotation marks omitted).
Case 1:25-cv-01344-SJB ECF No. 3, PageID.<pageID> Filed 12/09/25 Page 5 of 12

6
The AEDPA requires heightened respect for state factual findings. Herbert v. Billy, 160
F.3d 1131, 1134 (6th Cir. 1998). A determination of a factual issue made by a state court is
presumed to be correct, and the petitioner has the burden of rebutting the presumption by clear and
convincing evidence. 28 U.S.C. § 2254(e)(1); Davis v. Lafler, 658 F.3d 525, 531 (6th Cir. 2011)
(en banc); Lancaster v. Adams, 324 F.3d 423, 429 (6th Cir. 2003); Bailey v. Mitchell, 271 F.3d
652, 656 (6th Cir. 2001). This presumption of correctness is accorded to findings of state appellate
courts, as well as the trial court. See Sumner v. Mata, 449 U.S. 539, 546–547 (1981); Smith v.
Jago, 888 F.2d 399, 407 n.4 (6th Cir. 1989).
Section 2254(d) limits the facts a court may consider on habeas review. The federal court
is not free to consider any possible factual source. The reviewing court “is limited to the record
that was before the state court that adjudicated the claim on the merits.” Cullen v. Pinholster, 563
U.S. 170, 180 (2011). “[I]f a review of the state court record shows that additional fact-finding
was required under clearly established federal law or that the state court’s factual determination
was unreasonable, the requirements of § 2254(d) are satisfied, and the federal court can review the
underlying claim on its merits.” Stermer, 959 F.3d at 721 (citing, inter alia, Brumfield v. Cain, 576
U.S. 305 (2015), and Panetti v. Quarterman, 551 U.S. 930, 954 (2007)).
If the petitioner “satisfies the heightened requirements of § 2254(d), or if the petitioner’s
claim was never ‘adjudicated on the merits’ by a state court, 28 U.S.C. § 2254(d),”—for example,
if he procedurally defaulted the claim—“AEDPA deference no longer applies.” Stermer, 959 F.3d
at 721. Then, the petitioner’s claim is reviewed de novo. Id. (citing Maples v. Stegall, 340 F.3d
433, 436 (6th Cir. 2003)).
Case 1:25-cv-01344-SJB ECF No. 3, PageID.<pageID> Filed 12/09/25 Page 6 of 12

7
III. 	Sentencing Guidelines
“[A] federal court may issue the writ to a state prisoner ‘only on the ground that he [or she]
is in custody in violation of the Constitution or laws or treaties of the United States.’” Wilson v.
Corcoran, 562 U.S. 1, 5 (2010) (quoting 28 U.S.C. § 2254(a)). A habeas petition must “state facts
that point to a ‘real possibility of constitutional error.’” Blackledge v. Allison, 431 U.S. 63, 75 n.7
(1977) (quoting Advisory Committee Note to Rule 4, Rules Governing Habeas Corpus Cases).
The federal courts have no power to intervene on the basis of a perceived error of state law. Wilson,
562 U.S. at 5; Bradshaw v. Richey, 546 U.S. 74, 76 (2005); Estelle v. McGuire, 502 U.S. 62, 67–
68 (1991); Pulley v. Harris, 465 U.S. 37, 41 (1984).
Claims concerning the improper application of, or departures from, sentencing guidelines
are state-law claims and typically are not cognizable in habeas corpus proceedings. See Hutto v.
Davis, 454 U.S. 370, 373–74 (1982) (federal courts normally do not review a sentence for a term
of years that falls within the limits prescribed by the state legislature); Austin v. Jackson, 213 F.3d
298, 301–02 (6th Cir. 2000) (alleged violation of state law with respect to sentencing is not subject
to federal habeas relief). Petitioner’s challenge contests the sentencing court’s application of the
state sentencing guidelines and, therefore, is not cognizable on habeas review. As the Supreme
Court explained in Estelle, “it is not the province of a federal habeas court to reexamine state-court
determinations on state-law questions.” 502 U.S. at 67–68. The decision of the state courts on a
state-law issue is binding on a federal court. See Wainwright v. Goode, 464 U.S. 78, 84 (1983);
see also Bradshaw, 546 U.S. at 76 (“We have repeatedly held that a state court’s interpretation of
state law, including one announced on direct appeal of the challenged conviction, binds a federal
court sitting in habeas corpus.”).
Case 1:25-cv-01344-SJB ECF No. 3, PageID.<pageID> Filed 12/09/25 Page 7 of 12

8
Petitioner contends that the scoring of offense variable 19 (OV19) was incorrect. Section
777.49 of the Michigan Compiled Laws, regarding OV19, states:
Offense variable 19 is threat to the security of a penal institution or court or
interference with the administration of justice or the rendering of emergency
services. Score offense variable 19 by determining which of the following apply
and by assigning the number of points attributable to the one that has the highest
number of points:
(a) The offender by his or her conduct threatened the security of a penal institution
or court 	25 points
(b) The offender used force or the threat of force against another person or the
property of another person to interfere with, attempt to interfere with, or that results
in the interference with the administration of justice or the rendering of emergency
services 	15 points
(c) The offender otherwise interfered with or attempted to interfere with the
administration of justice, or directly or indirectly violated a personal protection
order 	10 points
(d) The offender did not threaten the security of a penal institution or court or
interfere with or attempt to interfere with the administration of justice or the
rendering of emergency services by force or threat of force 	0 points
Mich. Comp. Laws § 777.49. The trial court concluded that Petitioner’s possession of the weapon
was conduct that threatened the security of a penal institution and scored OV19 at 25 points.
Petitioner contends that there was no evidence that he “had any intent to threaten the security of a
penal institution” and that the OV19 statute and developing case law require evidence of such
intent. (Pet., ECF No. 1, PageID.7.)
The Michigan Court of Appeals rejected Petitioner’s argument:
Evidence was presented that defendant possessed an eight-inch metal object with a
blade and concealed the weapon in his underwear. Defendant admits that the officer
“potentially saw him display what could have been the weapon prior to the search.”
Although the trial testimony does not explicitly state that the object Officer Radtke
saw in defendant’s hand was the same metal object found during defendant’s strip
search, there is a reasonable inference that they are one and the same. Inmates are
not allowed to possess weapons. Indeed, as defendant’s conviction establishes, it is
a criminal offense for an inmate to possess a weapon in a penal institution. MCL
800.283(4). An inmate in possession of a weapon is capable at any time of injuring
Case 1:25-cv-01344-SJB ECF No. 3, PageID.<pageID> Filed 12/09/25 Page 8 of 12

9
or killing a guard or another inmate—or even simply taking a guard or another
inmate hostage. Such actions would clearly threaten the security of the penal
institution. Thus, the possession of a weapon by an inmate is an ever-present threat
to the security of the penal institution. We note the following passage from People
v Dickinson, 321 Mich. App. 1, 24; 909 N.W.2d 24 (2017):
Defendant does not dispute the trial court’s conclusion that smuggling
drugs into a penal institution creates serious problems for inmates and
prison guards but rather argues that OV 19 applies only to offenders who
smuggle weapons into a prison. That argument, however, is unavailing
because MCL 777.49 by its language does not limit the assessment of 25
points for OV 19 to offenders who smuggled weapons or other mechanical
destructive devices into a prison. Our review of the trial court’s application
of MCL 777.49 to the facts of this case and the reasonable inferences
drawn from those facts establishes that the trial court’s assessment of 25
points for defendant’s OV 19 score was warranted.
This passage reveals an apparent acceptance by this Court that the possession of a
weapon in prison necessarily threatens the security of that penal institution. And if
smuggled drugs justify a 25-point score for OV 19, defendant’s possession of the
metal weapon certainly demanded the assessment of 25 points.
Our Supreme Court has explained that in the absence of express language to the
contrary, OVs may be scored on the basis of conduct inherent in the sentencing
offense pursuant to the plain language of the statute. Hardy, 494 Mich. at 441–442;
People v Houston, 473 Mich. 399, 409–410; 702 N.W.2d 530 (2005). The plain
language of MCL 777.49(a) does not require that a weapon actually be used by a
defendant, nor does the statute require that a defendant have the intent to threaten
the security of a penal institution . . . .
Board, 2022 WL 66501, at *3–4. The state appellate court’s determination regarding the propriety
of the OV19 score binds this Court. Wainwright, 464 U.S. at 84; Bradshaw, 546 U.S. at 76.
Accordingly, Petitioner’s argument that the scoring was in error because there was no evidence of
intent is meritless.
IV. 	Ineffective Assistance of Counsel
In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court established a two-
prong test by which to evaluate claims of ineffective assistance of counsel. To establish a claim of
ineffective assistance of counsel, the petitioner must prove: (1) that counsel’s performance fell
below an objective standard of reasonableness; and (2) that counsel’s deficient performance
Case 1:25-cv-01344-SJB ECF No. 3, PageID.<pageID> Filed 12/09/25 Page 9 of 12

10
prejudiced the petitioner resulting in an unreliable or fundamentally unfair outcome. Id. at 687–
88. A court considering a claim of ineffective assistance must “indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional assistance.” Id. at 689.
The petitioner bears the burden of overcoming the presumption that the challenged action might
be considered sound trial strategy. Id. (citing Michel v. Louisiana, 350 U.S. 91, 101 (1955)); see
also Nagi v. United States, 90 F.3d 130, 135 (6th Cir. 1996) (holding that counsel’s strategic
decisions were hard to attack). The court must determine whether, in light of the circumstances as
they existed at the time of counsel’s actions, “the identified acts or omissions were outside the
wide range of professionally competent assistance.” Strickland, 466 U.S. at 690. Even if a court
determines that counsel’s performance was outside that range, the petitioner is not entitled to relief
if counsel’s error had no effect on the judgment. Id. at 691.
The Michigan Court of Appeals rejected Petitioner’s ineffective assistance of counsel
claim, stating: defense counsel was not ineffective for failing to object to the scoring of OV 19.
People v Ericksen, 288 Mich. App. 192, 201; 793 N.W.2d 120 (2010) (‘Failing to advance a
meritless argument or raise a futile objection does not constitute ineffective assistance of
counsel.’).” Board, 2022 WL 66501, at *4. The appellate court’s determination is entirely
consistent with clearly established federal law. See Mahdi v. Bagley, 522 F.3d 631, 638 (6th Cir.
2008) (“No prejudice flows from the failure to raise a meritless claim.”); see also Coley v. Bagley,
706 F.3d 741, 752 (6th Cir. 2013) (noting that “omitting meritless arguments is neither
professionally unreasonable nor prejudicial”). Petitioner, therefore, is not entitled to habeas relief
with respect to his ineffective assistance of counsel claim.
Case 1:25-cv-01344-SJB ECF No. 3, PageID.<pageID> Filed 12/09/25 Page 10 of
12

11
V. 	Certificate of Appealability
Under 28 U.S.C. § 2253(c)(2), the Court must determine whether a certificate of
appealability should be granted. A certificate should issue if Petitioner has demonstrated “a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
The Sixth Circuit Court of Appeals has disapproved issuance of blanket denials of a
certificate of appealability. Murphy v. Ohio, 263 F.3d 466, 467 (6th Cir. 2001) (per curiam).
Rather, the district court must “engage in a reasoned assessment of each claim” to determine
whether a certificate is warranted. Id. Each issue must be considered under the standards set forth
by the Supreme Court in Slack v. McDaniel, 529 U.S. 473 (2000). Murphy, 263 F.3d at 467.
Consequently, this Court has examined Petitioner’s claims under the Slack standard. Under Slack,
529 U.S. at 484, to warrant a grant of the certificate, “[t]he petitioner must demonstrate that
reasonable jurists would find the district court’s assessment of the constitutional claims debatable
or wrong.” Id. “A petitioner satisfies this standard by demonstrating that jurists of reason . . . 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, the Court may not conduct a
full merits review, but must limit its examination to a threshold inquiry into the underlying merit
of Petitioner’s claims. Id.
The Court finds that reasonable jurists could not conclude that this Court’s dismissal of
Petitioner’s claims was debatable or wrong. Therefore, the Court will deny Petitioner a certificate
of appealability. Moreover, for the same reasons the Court finds that Petitioner has failed to
demonstrate that he is in custody in violation of the Constitution and has failed to make a
substantial showing of the denial of a constitutional right, the Court also concludes that any issue
Case 1:25-cv-01344-SJB ECF No. 3, PageID.<pageID> Filed 12/09/25 Page 11 of
12

12
Petitioner might raise on appeal would be frivolous. Coppedge v. United States, 369 U.S. 438, 445
(1962).
Conclusion
The Court will enter a judgment dismissing the petition and an order denying a certificate
of appealability.
Dated: 	December 9, 2025 	/s/ Sally J. Berens
SALLY J. BERENS
United States Magistrate Judge
Case 1:25-cv-01344-SJB ECF No. 3, PageID.<pageID> Filed 12/09/25 Page 12 of
12