Maldonado-Zapon v. Booker

Filing 16

OPINION and ORDER denying 1 Petition for Writ of Habeas Corpus, declining to issue a Certificate of Appealability, but granting leave to proceed in forma pauperis on appeal. Signed by District Judge Robert H. Cleland. (DWor)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
_____________________________________________________________________
JENDRI MALDONADO-ZAPON,
Petitioner,
v.

Case No. 09-10224

RAYMOND T. BOOKER,
Respondent.
__________________________________/
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS,
DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY,
BUT GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
Petitioner Jendri Maldonado-Zapon has filed a pro se petition for the writ of
habeas corpus under 28 U.S.C. § 2254. The pleading challenges Petitioner’s state
convictions for first-degree criminal sexual conduct and kidnapping on grounds that the
trial court erred during post-conviction proceedings, trial and appellate counsel were
ineffective, and his sentence is invalid. The court finds no merit in these claims.
Accordingly, the habeas petition will be denied.
I. BACKGROUND
A. The Charges, Plea, and Sentence
Petitioner was charged in Kent County, Michigan with kidnapping, assault with
intent to commit first-degree criminal sexual conduct, and three counts of first-degree
criminal sexual conduct. The charges arose from allegations that Petitioner forcibly
moved the victim from one place to another place and then sexually penetrated her,
using force or coercion and aided by one or more other men.

On October 30, 2001, Petitioner pleaded guilty to one count of first-degree
criminal sexual conduct, Mich. Comp. Law § 750.520b(1)(d)(ii), and one count of
kidnapping, Mich. Comp. Law § 750.349. In exchange for the plea, the prosecutor
dismissed the other counts. The parties and the trial court also agreed that the
minimum sentence would not exceed twelve years and that Petitioner would be turned
over to immigration authorities for deportation after serving his sentence. On December
18, 2001, the trial court sentenced Petitioner to imprisonment for two concurrent terms
of twelve to fifty years.
B. The Motion for Resentencing and First Appeal
In 2002, Petitioner requested appointment of appellate counsel. The trial court
denied Petitioner’s request, and Petitioner did not apply for leave to appeal in propria
persona. In 2005, following the Supreme Court’s decision in Halbert v. Michigan, 545
U.S. 605 (2005), the trial court appointed an appellate attorney for Petitioner. Counsel
for Petitioner then filed a motion for resentencing pursuant to Michigan Court Rule
6.429. He argued that the sentencing guidelines of 126 to 210 months for first-degree
criminal sexual conduct should be reduced to 42 to 70 months on the basis of Blakely v.
Washington, 542 U.S. 296 (2004), because he did not admit the facts used to score
certain offense variables of the Michigan sentencing guidelines. The trial court denied
Petitioner’s motion as untimely under Michigan Court Rule 6.429(B)(1)–(3) and stated
that Petitioner could seek relief only through a motion for relief from judgment under
Subchapter 6.500 of the Michigan Court Rules.

2

Petitioner applied for leave to appeal through counsel. He argued that the trial
court erred when it determined that his motion for re-sentencing was untimely and that
his only avenue for relief was a motion for relief from judgment. The Michigan Court of
Appeals denied leave to appeal for lack of merit in the ground presented. See People v.
Maldonado-Zapon, No. 272313 (Mich. Ct. App. Sept. 28, 2006).
Petitioner raised the same issue and two new issues in the Michigan Supreme
Court. The new issues alleged that trial and appellate counsel were ineffective and that
Petitioner’s sentence was increased on the basis of facts that he did not admit and
which were not proved to a jury beyond a reasonable doubt. The Michigan Supreme
Court denied leave to appeal on January 4, 2007, because it was not persuaded to
review the issues. See People v. Maldonado-Zapon, 725 N.W.2d 345 (Mich. 2007).
C. The Motion for Relief from Judgment and Second Appeal
On December 20, 2007, Petitioner filed a motion for relief from judgment. He
alleged that: (1) appellate counsel was the “cause” of his procedural default; (2) trial
counsel was ineffective for failing to object to the asserted erroneous calculation of the
sentencing guidelines; (3) his sentence was increased on the basis of facts that he did
not admit and that were not proved to a jury beyond a reasonable doubt; and (4)
appellate counsel was ineffective for failing to raise meritorious claims in the direct
appeal. The trial court denied Petitioner’s motion, but ordered the probation department
to reduce Petitioner’s offense-variables total and to change the total offense-variables
score on Petitioner’s sentencing information report.

3

Petitioner appealed the trial court’s decision, but the Michigan Court of Appeals
denied leave to appeal for failure to establish entitlement to relief under Michigan Court
Rue 6.508(D). See People v. Maldonado-Zapon, No. 286699 (Mich. Ct. App. Oct. 10,
2008). On April 28, 2009, the Michigan Supreme Court denied leave to appeal for the
same reason. See People v. Maldonado-Zapon, 764 N.W.2d 247 (Mich. 2009).
D. The Habeas Petition and Responsive Pleading
Petitioner filed his habeas corpus petition on January 21, 2009. His grounds for
relief are (1) the trial court erred when it concluded that Petitioner’s only post-conviction
remedy was a motion for relief from judgment, (2) ineffective assistance of appellate
counsel was sufficient “cause” to excuse Petitioner’s procedural default, (3) trial counsel
was ineffective for failing to object to the trial court’s erroneous calculation of the
sentencing guidelines range, (4) the trial court sentenced him on the basis of facts that
he did not admit and that were not proved to a jury, and (5) appellate counsel was
ineffective for failing to raise various claims on appeal. Respondent argues in an
answer to the habeas petition that Petitioner’s first claim is not cognizable on habeas
corpus review, that Petitioner’s third and fourth claims are procedurally defaulted
because Petitioner did not raise them on direct review, and the second and fifth claims
lack merit.
Procedural default also is not a jurisdictional limitation. Pudelski v. Wilson, 576
F.3d 595, 606 (6th Cir. 2009), cert. denied, __ U.S. __, 130 S. Ct. 3274 (2010). Thus,
there is no need to determine whether Petitioner’s claims are procedurally defaulted or
whether he has shown cause for the default and resulting prejudice. The court will
proceed to address Petitioner’s claims on their merits.
4

II. STANDARD OF REVIEW
State prisoners are entitled to the writ of habeas corpus only if the state court’s
adjudication of their claims on the merits
(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 federal law if the state
court arrives at a conclusion opposite to that reached by the Supreme Court on a
question of law or if the state court decides a case differently than the Supreme Court
has on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 40506 (2000). An “unreasonable application” occurs when “a state-court decision
unreasonably applies the law of [the Supreme Court] to the facts of a prisoner’s case.”
Id. at 409.
“[A] federal habeas court may not issue the writ simply because that court
concludes in its independent judgment that the relevant state-court decision applied
clearly established federal law erroneously or incorrectly. Rather, that application must
also be unreasonable.” Id. at 411. “[W]here factual findings are challenged, the habeas
petitioner has the burden of rebutting, by clear and convincing evidence, the
presumption that the state court’s factual findings are correct.” Goodwin v. Johnson,
632 F.3d 301, 308 (6th Cir. 2011) (citing 28 U.S.C. § 2254(e)(1) and Landrum v.
Mitchell, 625 F.3d 905, 914 (6th Cir. 2010)).
5

“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). To
obtain a writ of habeas corpus from a federal court, a petitioner must show that the state
court’s decision “was so lacking in justification” that it resulted in “an error well
understood and comprehended in existing law beyond any possibility for fairminded
disagreement.” Id. at 786-87.
III. DISCUSSION
A. The Denial of Petitioner’s Motion for Resentencing
Petitioner alleges that the trial court erred when it denied his motion for
resentencing and concluded that his only post-conviction remedy was a motion for relief
from judgment. Petitioner contends that his motion for resentencing should have been
considered timely because the motion was his first-tier appeal and because the
Supreme Court stated in Halbert that defendants who plead guilty are entitled to
appellate counsel for their first-tier appeal as of right. 545 U.S. at 610.
This claim lacks merit because it is based on the trial court’s interpretation of
Michigan Court Rule 6.429 and Subchapter 6.500 of the Court Rules. “A federal court
may not issue the writ [of habeas corpus] on the basis of a perceived error of state law.”
Pulley v. Harris, 465 U.S. 37, 41 (1984). “In conducting habeas review, a federal court
is limited to deciding whether a conviction violated the Constitution, laws, or treaties of
the United States.” Estelle v. McGuire, 502 U.S. 62, 68 (1991) (citing 28 U.S.C. § 2241
and Rose v. Hodges, 423 U.S. 19, 21 (1975) (per curiam)).

6

Petitioner implies that his motion for resentencing was timely, relying upon the
Supreme Court’s decision in Halbert. However, Petitioner’s convictions became final in
2002, years before the 2005 ruling in Halbert. The court is barred from applying Halbert
retroactively on collateral review. Simmons v. Kapture, 516 F.3d 450, 451 (6th Cir.
2008). Even if it were retroactive, the holding of Halbert is “that the Due Process and
Equal Protection Clauses require the appointment of counsel for defendants, convicted
on their pleas, who seek access to first-tier review in the Michigan Court of Appeals.”
Halbert, 545 U.S. at 606. Halbert did not extend the deadline for filing motions for
resentencing, nor did it expand the trial court’s jurisdiction to decide motions for
resentencing. Furthermore, the trial court ultimately appointed counsel to assist
Petitioner on appeal and Petitioner was permitted to file a delayed first-tier appeal,
which was rejected for lack of merit. The court concludes that Petitioner’s claim is not
cognizable on habeas review and lacks merit.
B. Trial Counsel
Petitioner alleges next that trial counsel was ineffective for failing to object to the
erroneous calculation of the sentencing guidelines range.
1. Clearly Establish Federal Law
To prevail on a claim of ineffective assistance of trial counsel, a habeas petitioner
must demonstrate “that counsel’s performance was deficient” and “that the deficient
performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687
(1984). To establish deficient performance, a defendant must show “that counsel made
errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the

7

defendant by the Sixth Amendment.” Id. at 687. “Judicial scrutiny of counsel’s
performance must be highly deferential.” Id. at 689.
To demonstrate that counsel’s performance prejudiced the defense, a defendant
must show “a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Id. at 694. “This does not require a
showing that counsel’s actions ‘more likely than not altered the outcome.” Richter, 131
S. Ct. at 792 (quoting Strickland, 466 U.S. at 693). However, “[t]he likelihood of a
different result must be substantial, not just conceivable.” Id. “The standards created
by Strickland and § 2254(d) are both ‘highly deferential,’ and when the two apply in
tandem, review is ‘doubly’ so.” Id. at 788 (citations omitted).
2. Application
Petitioner has not elaborated on his claim about trial counsel, but he alleged in
state court that trial counsel should have objected to the scoring of offense variables
three, ten, eleven, and sixteen of the state sentencing guidelines. He argued that the
trial court scored sixty-one points for conduct already taken into consideration in the
sentencing guidelines and not admitted at the plea proceeding.
“Generally, a defendant who voluntarily and understandingly entered into a plea
agreement that included a specific sentence waives appellate review of that sentence.”
People v. Billings, 770 N.W.2d 893, 900 (Mich. Ct. App. 2009) (citing People v. Wiley,
693 N.W.2d 800, 800 (Mich. 2005)). Because Petitioner voluntarily and knowing
pleaded guilty pursuant to an agreement that called for a specific sentence, he waived
review of a challenge to the scoring of the sentencing guidelines, and trial counsel was
not ineffective for contesting the guidelines score.
8

Even if Petitioner did not waive review of a challenge to the scoring of the
sentencing guidelines, the trial court determined that offense variables three, ten, and
eleven were correctly scored. The trial court also determined that offense variable
sixteen was incorrectly scored, but that the error was harmless because the reduction in
one point for that offense variable would not change the scoring grid or the sentencing
guidelines.
This court must defer to the state court’s interpretation of state law. Bradshaw v.
Richey, 546 U.S. 74, 76 (2005); Israfil v. Russell, 276 F.3d 768, 771 (6th Cir. 2001).
Because the state court found no error or harmless error in the scoring of the
guidelines, defense counsel was not ineffective for failing to object to the guidelines.
“Failure to raise meritless objections is not ineffective lawyering; it is the very opposite.”
Clark v. Collins, 19 F.3d 959, 966 (5th Cir. 1994).
C. The Blakely Claim
Petitioner alleges that the trial court sentenced him on the basis of facts that he
did not admit and that were not proved to a jury. More specifically, Petitioner claims that
he pleaded guilty to one count of first-degree criminal sexual conduct, but the trial court
sentenced him on the basis of multiple acts of criminal sexual conduct that he did not
admit to committing.
This claim is based on Apprendi v. New Jersey, 530 U.S. 466 (2000), and
Blakely v. Washington, 542 U.S. 296 (2004). In Apprendi, the Supreme Court held that,
“[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be submitted to a jury, and proved
beyond a reasonable doubt.” 530 U.S. at 490. In Blakely, the Supreme Court stated
9

that “the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge
may impose solely on the basis of the facts reflected in the jury verdict or admitted by
the defendant.” 542 U.S. at 303 (emphasis omitted).
The United States Court of Appeals for the Sixth Circuit has held that Blakely
does not apply to Michigan’s indeterminate sentencing scheme, so long as the sentence
does not exceed the statutory maximum. See Montes v. Trombley, 599 F.3d 490, 497
(6th Cir. 2010). Petitioner’s sentence of twelve to fifty years does not exceed the
statutory maximum of life imprisonment. See Mich. Comp. Laws § 750.520b(2)(a).
Therefore, his sentence is not invalid under Blakely, and he has no right to relief.
D. Appellate Counsel
Petitioner alleges in his second claim that ineffective assistance of appellate
counsel presents sufficient cause to excuse his procedural default of failing to raise all
his claims on direct appeal. Even without considering the effectiveness of appellate
counsel, the court has excused the alleged procedural default, and the court will
addressed Petitioner’s claims on their merits. Thus, there is no need to determine
whether the action or inaction of appellate counsel presents sufficient “cause” for
Petitioner’s failure to raise all his claims on direct appeal.
The fifth and final claim, however, alleges that appellate counsel was ineffective
for failing to raise meritorious claims on appeal. Petitioner asserts that his appellate
attorney should have argued that (1) his sentence was increased on the basis of facts
not proved to a jury beyond a reasonable doubt, nor admitted by Petitioner, (2) counsel
was ineffective for failing to object to incorrectly scored sentencing guidelines, and (3)
he was denied his constitutional right to a first-tier appeal.
10

1. Clearly Established Federal Law
The Strickland standard applies to claims regarding appellate counsel. Webb v.
Mitchell, 586 F.3d 383, 398 (6th Cir. 2009) (citing Smith v. Robbins, 528 U.S. 259, 285
(2000)), cert. denied, __ U.S. __, 130 S. Ct. 2110 (2010). The “deficient performance”
prong of the two-part Strickland test requires showing that appellate counsel made an
objectively unreasonable decision to raise other issues in place of the petitioner’s
claims. Thompson v. Warden, Belmont Corr. Inst., 598 F.3d 281, 285 (6th Cir. 2010).
Petitioner must show that his claims are clearly stronger than the issues counsel
presented to the Michigan Court of Appeals. Id. (quoting Webb v. Mitchell, 586 F.3d at
399). To demonstrate “prejudice,” Petitioner must show a reasonable probability that he
would have prevailed on appeal but for his attorney’s failure to raise all his claims.
2. Application
a. Blakely
Petitioner’s argument that appellate counsel should have raised a Blakely claim
on appeal lacks merit because the Michigan Supreme Court had already held that
Michigan’s sentencing system was unaffected by the holding in Blakely and that the
maximum sentence a trial court may impose in Michigan is the statutory maximum. See
People v. Drohan, 715 N.W.2d 778, 791-92 (Mich. 2006). In light of this holding by the
State’s highest court and the fact that Petitioner was sentenced within the statutory
maximum of life imprisonment, appellate counsel was not ineffective for failing to raise a
Blakely claim. An attorney is not ineffective for failing to make a futile argument. See
Harris v. United States, 204 F.3d 681, 683 (6th Cir. 2000).

11

b. Trial Counsel
Petitioner argues next that appellate counsel should have raised a claim about
trial counsel’s failure to object to the incorrectly scored sentencing guidelines. Trial
counsel negotiated a favorable plea and sentencing agreement, and, as noted above,
Petitioner waived his challenge to the scoring of the sentencing guidelines by agreeing
to a minimum sentence of twelve years. The trial court, moreover, ultimately
determined that there was sufficient evidence to support the scoring of offense variables
three, ten, and eleven, and that the erroneous scoring of offense variable sixteen was
harmless. Trial counsel, therefore, was not ineffective for failing to challenge the
guidelines score, and the court’s inquiry is at an end. Because trial counsel performed
adequately, appellate counsel was not ineffective for failing to raise a meritless issue
about trial counsel. Greer v. Mitchell, 264 F.3d 663, 676 (6th Cir. 2001).
c. First-Tier Appeal
Petitioner’s final claim about appellate counsel is that counsel failed to argue that
Petitioner was denied his constitutional right to a first-tier appeal. Petitioner, however,
was not denied a first-tier appeal. His appellate attorney filed a delayed application for
leave to appeal in the Michigan Court of Appeals and argued that the motion for
resentencing was timely under Halbert. Because Petitioner was not denied an appeal,
appellate counsel was not ineffective for failing to make that argument.
For the reasons given above, the court concludes that appellate counsel’s
performance was not deficient and that the allegedly deficient performance did not
prejudice Petitioner. The result of the appeal would not have been different had

12

appellate counsel raised all of Petitioner’s claims on appeal. Consequently, appellate
counsel was not constitutionally ineffective.
IV. CERTIFICATE OF APPEALABILITY
A certificate of appealability may be issued “only if the applicant has made a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). A
petitioner must “sho[w] that reasonable jurists could debate whether (or, for that matter,
agree that) the petition should have been resolved in a different manner or that the
issues presented were ‘adequate to deserve encouragement to proceed further.’” Slack
v. McDaniel, 529 U.S. 473, 484 (2000). In this case, the court concludes the
reasonable jurists could not disagree and the issues do not deserve encouragement to
proceed further.
The standard for granting an application for leave to proceed in forma pauperis is
a lower standard than the standard for certificates of appealability. See Foster v.
Ludwick, 208 F. Supp. 2d 750, 764 (E.D. Mich. 2002). Whereas a certificate of
appealability may only be granted if petitioner makes a substantial showing of the denial
of a constitutional right, a court may grant leave to proceed in forma pauperis if it finds
that an appeal is being taken in good faith. 28 U.S.C. § 1915(a)(3); Fed. R. App. P.
24(a); Foster, 208 F. Supp. 2d at 764-65. “Good faith” requires a showing that the
issues raised are not frivolous; it does not require a showing of probable success on the
merits. Foster, 208 F. Supp. 2d at 765. Although the court declined to issue a
certificate of appealability, the court finds that Petitioner’s claims are not frivolous. The
court will therefore grant Petitioner’s application to proceed on appeal in forma pauperis.

13

V. CONCLUSION
The state courts’ rejection of Petitioner’s claims did not result in decisions that
were contrary to federal law, unreasonable applications of federal law, or unreasonable
determinations of the facts. Accordingly,
IT IS ORDERED that the petition for a writ of habeas corpus [Dkt. # 1] is
DENIED.
IT IS FURTHER ORDERED that the court DECLINES to issue a certificate of
appealability.
IT IS FURTHER ORDERED that Petitioner may proceed in forma pauperis on
appeal without further authorization pursuant to Federal Rule of Appellate Procedure
24(a)(3).

s/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE
Dated: July 6, 2011
I hereby certify that a copy of the foregoing document was mailed to counsel of record
and to Petitioner Jendri Maldonado-Zapon, #387743, Thumb Correctional Facility, 3225
John Conley Drive, Lapeer, MI 48446, on this date, July 6, 2011, by electronic and/or
ordinary mail.
s/Lisa G. Wagner
Case Manager and Deputy Clerk
[phone]

S:\Cleland\JUDGE'S DESK\C1 ORDERS\09-10224.MALDONADO.2254.Habeas.bh.wpd

14