Rodgers v. Howes
OPINION AND ORDER denying 1 Petition for writ of habeas corpus and declining to issue a certificate of appealability or leave to appeal in forma pauperis. Signed by District Judge George Caram Steeh. (DPer)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
JOHN WILLIAM RODGERS,
CASE NO. 2:10-CV-14134
HONORABLE GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
OPINION AND ORDER DENYING THE PETITION FOR WRIT OF HABEAS
CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY
OR LEAVE TO APPEAL IN FORMA PAUPERIS
John William Rodgers, (“Petitioner”), confined at the Lakeland Correctional
Facility in Coldwater, Michigan, seeks the issuance of a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. In his pro se application, petitioner challenges his
sentence for third-degree fleeing and eluding, M.C.L.A. 257.602a(3); and being a
fourth felony habitual offender, M.C.L.A. 769.12. For the reasons stated below,
the petition for writ of habeas corpus is DENIED.
Petitioner pleaded guilty to the above charges in the Jackson County
Circuit Court. In exchange for his plea, the prosecutor agreed to dismiss charges
of carrying a concealed weapon, felon in possession of a firearm, and possession
of a firearm in the commission of a felony. Petitioner was sentenced to four to
twenty years in prison, to be served consecutively to his parole violation for a
prior delivery of heroin conviction.
Petitioner’s conviction and sentence were affirmed on appeal. People v.
Rodgers, No. 285018 (Mich.Ct.App. May 27, 2008); lv. den. 482 Mich. 1034; 757
N.W. 2d 104 (2008)(Kelly, J. would grant leave to appeal). Petitioner then filed a
post-conviction motion for relief from judgment, which was denied. People v.
Rodgers, No. 06-3599-FH (Jackson County Circuit Court, July 22, 2009);
reconsideration den. October 6, 2009. The Michigan appellate courts denied
petitioner’s post-conviction appeal. People v. Rodgers, No. 295295(Mich.Ct.App.
March 17, 2010); lv. den. 487 Mich. 856; 784 N.W. 2d 805 (2010).
Petitioner has now filed a petition for writ of habeas corpus. Petitioner
seeks habeas relief on the grounds that he has raised in Attachments C and D of
his habeas petition. Because some of these claims overlap or are duplicative or
contain additional subclaims within the claims, the Court will paraphrase
petitioner’s claims, rather than recite them verbatim:
I. Petitioner was wrongly denied sentencing credits for the time
spent in jail awaiting sentence.
II. Petitioner was sentenced on the basis of inaccurate information.
III. The trial court erred in sentencing petitioner above the
sentencing guidelines range.
IV. Petitioner’s sentence was disproportionate.
V. The trial court violated petitioner’s Sixth Amendment right to a
jury trial by using factors which had not been proven beyond a
reasonable doubt or admitted to by petitioner in fashioning the
VI. Petitioner was denied the effective assistance of counsel at
II. Standard of Review
28 U.S.C. § 2254(d), as amended by The Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA), imposes the following standard of review for
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–
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
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.
A decision of a state court 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, 405-06 (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." Id. at 410-11.
The Supreme Court has explained that “[A] federal court’s collateral
review of a state-court decision must be consistent with the respect due state
courts in our federal system.” Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).
The “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, 130 S.Ct. 1855, 1862 (2010)(internal quotations
omitted). “[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, 131 S. Ct. 770,
The Court will discuss petitioner’s sentencing claims together because
they are interrelated. Petitioner brings various challenges to his sentence. 1
The Court recognizes that respondent only addressed petitioner’s sentencing credits claim in
his answer. Petitioner, however, is not entitled to habeas relief because of respondent’s failure to respond
to petitioner’s other claims, because to do so “would be tantamount” to granting a default judgment to
petitioner in this case, which is a form of relief unavailable in habeas proceedings. See Alder v. Burt, 240
F. Supp. 2d 651, 677 (E.D. Mich. 2003)(citing to Allen v. Perini, 424 F. 2d 134, 138 (6th Cir. 1970)); See
also Gordon v. Duran, 895 F. 2d 610, 612 (9th Cir. 1990)(failure of state to respond to five of eight claims
raised in habeas petition did not entitle habeas petitioner to default judgment on those claims). Moreover,
in this case, petitioner did not specifically delineate his claims in his petition for writ of habeas corpus, but
referred to “Attachment C” and “Attachment D” of his petition, which as this Court mentioned above,
contains overlapping and duplicative claims. Because of the confusing manner in which petitioner
asserted his claims, the respondent’s failure to address petitioner’s other claims is understandable.
A sentence imposed within the statutory limits is not generally subject to
habeas review. Townsend v. Burke, 334 U.S. 736, 741 (1948); Friday v. Pitcher,
200 F. Supp. 2d 725, 744 (E.D. Mich. 2002). The offense of third-degree fleeing
and eluding is punishable by a sentence of up to five years in prison. Under the
fourth felony habitual offender statute, the maximum five year sentence can be
enhanced to a sentence of up to life in prison. See M.C.L.A. 769.12(1)(a).
Petitioner’s sentence of four to twenty years was within the statutory maximum
for third-degree fleeing and eluding and being a fourth felony habitual offender.
A sentence within the statutory maximum set by statute does not normally
constitute cruel and unusual punishment. Austin v. Jackson, 213 F. 3d 298, 302
(6th Cir. 2000); Friday, 200 F. Supp. 2d at 744.
Petitioner initially claims that the trial court erred in refusing to grant him
sentencing credit for the time that he spent in jail awaiting sentence. The trial
court ruled that petitioner could not receive sentencing credit on his current
sentence for the time spent in jail because his current sentence would have to
be served consecutively to any prison time that petitioner received for violating
the terms of his parole on his prior conviction.
A federal court may grant a writ of habeas corpus only if the petitioner “is
in custody in violation of the Constitution or laws or treaties of the United States.”
28 U.S.C. §§ 2241(c)(3) and 2254(a). Therefore, violations of state law and
procedure which do not infringe specific federal constitutional protections are not
cognizable claims under Section 2254. Estelle v. McGuire, 502 U.S. 62, 67-68
(1991). A prisoner has no right under the federal constitution to earn or receive
sentencing credits. See Moore v. Hofbauer, 144 F. Supp. 2d 877, 882 (E.D.
Mich. 2001)(citing Hansard v. Barrett, 980 F. 2d 1059, 1062 (6th Cir.1992)).
Because petitioner’s claim challenges the interpretation and application of state
crediting statutes, the claim is noncognizable on federal habeas review. See
Howard v. White, 76 Fed. Appx. 52, 53 (6th Cir. 2003); See also Grays v. Lafler,
618 F. Supp. 2d 736, 747 (W.D. Mich. 2008).
Petitioner’s related claim that the Michigan courts have violated the
separation of powers between the legislative and judicial branches of the State
of Michigan by crafting an exception to Michigan’s jail credit statute, M.C.L.A.
769.11b, to preclude defendants who commit a crime while on parole from
receiving sentencing credits towards their new sentence is not cognizable on
habeas review because the inter-branch relations of a state government is a
matter of state law. See Austin v. Jackson, 213 F. 3d 298, 302 (6th Cir. 2000).
Petitioner next contends that the trial court improperly departed above the
sentencing guidelines in this case. Petitioner’s sentencing guidelines range for
his minimum sentence was 12-48 months. Petitioner’s minimum sentence of
four years or forty eight months was within the sentencing guidelines range.
Under Michigan law, only the minimum sentence must presumptively be set
within the appropriate sentencing guidelines range. See People v. Babcock, 469
Mich. 247, 255, n. 7; 666 N.W. 2d 231 (2003)(citing M.C.L.A 769.34(2)).
Because petitioner’s minimum sentence was within the sentencing guidelines
range, there was no departure.
In any event, petitioner’s claim that the state trial court incorrectly scored
or calculated his sentencing guidelines range under the Michigan Sentencing
Guidelines is not a cognizable claim for federal habeas review, because it is
basically a state law claim. See Howard v. White, 76 Fed. Appx. at 53; See also
Haskell v. Berghuis, 695 F. Supp. 2d 574, 598 (E.D. Mich. 2010). “[I]n short,
petitioner had no federal constitutional right to be sentenced within Michigan’s
guideline minimum sentence recommendations.” Doyle v. Scutt, 347 F. Supp. 2d
474, 485 (E.D. Mich. 2004). Any error by the trial court in calculating his
guideline score or in departing above his sentencing guidelines range alone
would not merit habeas relief. Id.
Petitioner also appears to argue that his sentence of four to twenty years
in prison was disproportionate to the offense and to the offender.
The United States Constitution does not require that sentences be
proportionate. In Harmelin v. Michigan, 501 U.S. 957, 965 (1991), a plurality of
the U.S. Supreme Court concluded that the Eighth Amendment does not contain
a requirement of strict proportionality between the crime and sentence. The
Eighth Amendment forbids only extreme sentences that are grossly
disproportionate to the crime. Harmelin, 501 U.S. at 1001. Therefore, successful
challenges to the proportionality of a particular sentence in non-capital cases are
“exceedingly rare.” Rummel v. Estelle, 445 U.S. 263, 272 (1980). Federal courts
will therefore generally not engage in a proportionality analysis except where the
sentence imposed is death or life imprisonment without parole. Friday, 200 F.
Supp. 2d at 744. Petitioner’s claim that his sentence is disproportionate under
Michigan law thus would not state a claim upon which habeas relief can be
granted. See Whitfield v. Martin, 157 F. Supp. 2d 758, 761 (E.D. Mich. 2001).
To the extent that petitioner is arguing that the trial court failed to afford
him individualized consideration of mitigating evidence on his behalf, this claim
fails because the U.S. Supreme Court has limited its holding concerning
mitigating evidence to capital cases. Alvarado v. Hill, 252 F. 3d 1066, 1069 (9th
Cir. 2001)(citing to Harmelin, 501 U.S. at 996). Because petitioner had no
constitutional right to an individualized sentence, no constitutional error would
occur if the state trial court failed to consider mitigating evidence on his behalf at
sentencing. See Hastings v. Yukins, 194 F. Supp. 2d 659, 673 (E.D. Mich.
Petitioner further claims that the trial court judge failed to consider
petitioner’s rehabilitative potential when fashioning his sentence. Petitioner’s
claim that the trial court failed to consider his rehabilitative potential in fashioning
his sentence is non-cognizable on federal habeas review. See Grays v. Lafler,
618 F. Supp. 2d at 749. “There is no constitutional principle that prefers
rehabilitation over deterrence and retribution as a goal of sentencing.” Fielding v.
LeFevre, 548 F. 2d 1102, 1108 (2nd Cir. 1977).
Petitioner further alleges that the trial judge erred in failing to recognize
that he had the discretion under Michigan law to refrain from applying the
habitual offender statute to increase his maximum sentence to twenty years in
prison. Petitioner’s claim involving the application of Michigan’s habitual
offender laws is non-cognizable on habeas review, because it involves an
application of state law. See Rodriguez v. Jones, 625 F. Supp. 2d 552, 569 (E.D.
Mich. 2009); Grays v. Lafler, 618 F. Supp. 2d at 751.
Petitioner next contends that the trial judge used inaccurate information to
fashion his sentence, mistakenly believing that petitioner was on absconder
status from his parole at the time of the instant offense. At the time of
sentencing, the trial judge indicated that petitioner was on parole status when
the fleeing and eluding occurred on January 3, 2006 and had actually
absconded on parole. (Tr. 11/15/2007, p. 8). Petitioner denied that he had
absconded on parole, noting that he was not supposed to report to his parole
officer until January 12th, which was after the offense had occurred. (Id. at pp. 89). The judge observed that the pre-sentence investigation report stated that
petitioner was on absconder status. The judge then asked petitioner: “So you
think you were just on parole in good standing with the parole department?”
Petitioner replied that he had no parole violations and thought that he was doing
well on parole up until the time of the new criminal charge. The judge replied,
“Okay, well here’s the difference of opinion, they think you’re an absconder, you
think you’re doing well.” (Id. at p. 9). The judge then proceeded to recount the
details of the crime, including the fact that after being stopped by the police,
petitioner put the car into drive and lead the police on a high speed chase
through the city. The judge noted that petitioner may have been drinking alcohol
at the time of the offense. The judge further noted that petitioner had an
extensive felony conviction record, consisting of several felony convictions in
three different states, which lead to several prison terms. The judge further
mentioned that petitioner picked up this new offense while he was on parole.
The judge, in fact, commented that “The whole theory of parole is, you’re not in
any further difficulty and here you are, now you’ve picked up a new felony and
you’re dragging along all the rest of this mess as a record, which of course
elevates the sentencing guidelines.” (Id. at p. 10). After taking all of these
factors into consideration, the judge sentenced petitioner to 4 to 20 years in
prison. (Id. at pp. 10-11).
A criminal defendant possesses a constitutional right not to be sentenced
on the basis of “misinformation of constitutional magnitude.” Roberts v. United
States, 445 U.S. 552, 556 (1980) (quoting United States v. Tucker, 404 U.S.
443, 447 (1972)); see Townsend v. Burke, 334 U.S. at 741(stating that reliance
on “extensively and materially false” information, which the prisoner had no
opportunity to correct, violates due process of law). In order to prevail on a claim
that a trial court relied on inaccurate information at sentencing, a habeas
petitioner must demonstrate that the sentencing court relied upon this
information and that it was materially false. Collins v. Buchkoe, 493 F. 2d 343,
345-346 (6th Cir. 1974). Where a petitioner fails to demonstrate in his or her
petition that the sentencing court relied upon materially false information in
imposing sentence, this claim is without merit. See Thomas v. Foltz, 654 F.
Supp. 105, 108 (E.D. Mich. 1987).
Petitioner has failed to show that the trial court judge relied on materially
false information in fashioning his sentence. Although the trial judge mentioned
that petitioner was a parole absconder, petitioner was given an opportunity to
refute this allegation. Moreover, when viewed in context, the trial judge’s
comments at sentencing shows that the reference to petitioner’s absconder
status was brought up as part of the trial judge’s larger observation that
petitioner had violated the terms of his parole by picking up this new offense.
Moreover, the trial judge also noted the serious nature of the fleeing and eluding
charge as well as petitioner’s extensive prior criminal record. Because there
was an ample basis for the trial judge to sentence petitioner to four to twenty
years even absent the reference to the absconder status, petitioner is not
entitled to habeas relief on this claim. See Vliet v. Renico,193 F. Supp. 2d 1010,
1015 (E.D.Mich. 2002).
Petitioner’s related claim that the trial judge failed to correct his presentence report to remove the reference to his parole absconder status is also
non-cognizable on habeas review. There is no federal constitutional right to a
pre-sentence investigation and report. Allen v. Stovall, 156 F. Supp. 2d 791, 797
(E.D. Mich. 2001)(internal citation omitted). Therefore, the mere presence of
hearsay or inaccurate information in a pre-sentence report does not constitute a
denial of due process so as to entitle a petitioner to habeas relief. Id.
Petitioner further appears to allege that the trial court judge violated his
Sixth Amendment right to a trial by jury by using factors that had not been
submitted to a jury and proven beyond a reasonable doubt when scoring his
In Blakely v. Washington, 542 U.S. 296 (2004), the U.S. Supreme Court
held that other than the fact of a defendant’s prior conviction, any fact that
increases or enhances a penalty for a crime beyond the prescribed statutory
maximum for the offense must be submitted to the jury and proven beyond a
reasonable doubt. Id. at 301 (citing Apprendi v. N.J., 530 U.S. 466, 490 (2000)).
Petitioner is not entitled to habeas relief on his claim. Blakely involved a
trial court’s departure from Washington’s determinate sentencing scheme.
Michigan, by contrast, has an indeterminate sentencing system in which the
defendant is given a sentence within a minimum and maximum sentence. See
People v. Claypool, 470 Mich. 715, 730, n. 14, 684 N.W.2d 278 (Mich. 2004);
People v. Drohan, 475 Mich. 140, 160-61, 715 N.W.2d 778 (Mich. 2006)(both
citing M.C.L.A. 769.8). “[M]ichigan’s sentencing guidelines, unlike the
Washington guidelines at issue in Blakely, create a range within which the trial
court must set a minimum sentence.” Drohan, 475 Mich. at 161. Under Michigan
law, only the minimum sentence must presumptively be set within the
appropriate sentencing guidelines range. See People v. Babcock, 469 Mich.
247, 255, n. 7, 666 N.W.2d 231 (Mich. 2003) (citing M.C.L.A. 769.34(2)). Under
Michigan law, the trial judge sets the minimum sentence, but can never exceed
the maximum sentence. Claypool, 470 Mich. at 730. Therefore, Michigan’s
indeterminate sentencing scheme is unaffected by the U.S. Supreme Court’s
holding in Blakely. Drohan, 475 Mich. at 164.
The holding in Blakely is inapplicable to petitioner’s sentence.
Indeterminate sentencing schemes, unlike determinate sentencing schemes, do
not infringe on the province of the jury. Blakely, 542 U.S. at 304-05, 308-09.
The Supreme Court clarified this in Cunningham v. California, 549 U.S. 270
(2007), when the Supreme Court explained that states may retain determinate
sentencing by requiring the jury “to find any fact necessary to the imposition of
an elevated sentence” or by allowing judges “to exercise broad discretion . . .
within a statutory range, which everyone agrees, encounters no Sixth
Amendment shoal.” Id. at 294. (quoting United States v. Booker, 543 U.S. 220,
233 (2005)); See also Harris v. United States, 536 U.S. 545, 565
(2002)(“[w]hether chosen by the judge or the legislature, the facts guiding judicial
discretion below the statutory maximum need not be alleged in the indictment,
submitted to the jury, or proved beyond a reasonable doubt” and the judge “may
impose the minimum, the maximum, or any other sentence within the range
without seeking further authorization from those [grand and petit] juries-and
without contradicting Apprendi.”), and Id. at 569-70 (Breyer, J.,
concurring)(agreeing that “Apprendi does not apply to mandatory minimums.”).
The holdings in Apprendi and Blakely therefore do not apply to a judge’s
factfinding that increases a minimum sentence so long as the sentence does not
exceed the applicable statutory maximum. See Chontos v. Berghuis, 585 F.3d
1000, 1002 (6th Cir. 2009); See also Montes v. Trombley, 599 F.3d 490, 495 (6th
Cir. 2010)(the Blakely-Apprendi rule requiring any fact that increases the penalty
for a crime beyond the prescribed statutory maximum to be submitted to a jury
and proved beyond a reasonable doubt does not apply to laws that set the
maximum sentence by statute but that permit a judge to determine the minimum
sentence through judicial factfinding, and does not preclude a judge from
utilizing the preponderance-of-the-evidence standard when finding facts related
to sentencing). As noted by the Sixth Circuit, “[T]he Sixth Amendment gives a
criminal defendant the right to have a jury find any fact that increases the
maximum sentence the defendant faces, not any fact that increases the
minimum sentence.” Arias v. Hudson, 589 F.3d 315, 317 (6th Cir. 2009)(citing
McMillan v. Pennsylvania, 477 U.S. 79 (1986))(emphasis original). Indeed, “[B]y
clarifying that minimum sentences fall outside Apprendi’s scope, Harris
forecloses [petitioner’s] claim.” Chontos, 585 F. 3d at 1002. The Sixth
Amendment jury trial right merely “ensure[s] that the defendant ‘will never get
more punishment than he bargained for when he did the crime’”; it does “not
promise that he will receive ‘anything less' than that.” Id. (quoting Harris, 536
U.S. at 566 (quoting Apprendi, 530 U.S. at 498)(Scalia, J., concurring)).
When petitioner violated the third-degree fleeing and eluding and fourth
felony habitual offender statues, he bargained that if a jury found him guilty, that
he could face up to life in prison. Therefore, “regardless of the ways that judicial
factfinding and Michigan's guidelines affected his minimum sentence,” petitioner
“got no more than he bargained for.” Chontos, 585 F.3d 1002. Because
Michigan’s sentencing laws create an indeterminate-sentencing scheme, it does
not violate petitioner’s due-process rights or his right to a jury trial. Montes, 599
F. 3d at 497. Petitioner is not entitled to habeas relief on any Blakely claim. Id.,
See also Haskell, 695 F. Supp. 2d at 599.
Petitioner lastly contends that his trial counsel was ineffective for failing to
object to some of the sentencing errors that he raises in his habeas petition.
To show that he was denied the effective assistance of counsel under
federal constitutional standards, a defendant must satisfy a two prong test. First,
the defendant must demonstrate that, considering all of the circumstances,
counsel’s performance was so deficient that the attorney was not functioning as
the “counsel” guaranteed by the Sixth Amendment. Strickland v. Washington,
466 U.S. 668, 687 (1984). Second, the defendant must show that such
performance prejudiced his defense. Id.
Although the Supreme Court has never expressly extended Strickland to
noncapital sentencing cases, the Sixth Circuit has applied it in that context with
regards to reviewing federal convictions on direct appeal. See United States v.
Stevens, 851 F. 2d 140, 145 (6th Cir. 1988). However, the AEDPA standard of
review found in 28 U.S.C. § 2254 (d)(1) prohibits the use of lower court decisions
in determining whether the state court decision is contrary to, or an
unreasonable application of, clearly established federal law. Miller v. Straub, 299
F. 3d 570, 578-579 (6th Cir. 2002). The Ninth Circuit has noted, “[W]hen the
Supreme Court established the test for ineffective assistance of counsel claims
in Strickland, the [Supreme] Court expressly declined to ‘consider the role of
counsel in an ordinary sentencing, which ... may require a different approach to
the definition of constitutionally effective assistance.’” Cooper-Smith v.
Palmateer, 397 F. 3d 1236, 1244 & n. 39 (9th Cir. 2005)(quoting Strickland, 466
U.S. at 686; 104 S. Ct. at 2064). Because the Supreme Court has not decided
what standard should apply to ineffective assistance of counsel claims in the
noncapital sentencing context, there is no clearly established federal law
regarding ineffective assistance of counsel claims in noncapital sentencing
cases, so as to provide petitioner with a basis for habeas relief on his claim. Id.,
See also Davis v. Grigas, 443 F. 3d 1155, 1158 (9th Cir. 2006).
Assuming that Strickland applies to petitioner’s ineffective assistance of
counsel claim, he is not entitled to relief. Petitioner raised his various sentencing
claims before the state courts either on his direct appeal or in his post-conviction
motion for relief from judgment. The state courts rejected his sentencing claims
on both occasions. When the alleged attorney error involves the failure to object
to a violation of state law that does not involve the enforcement of federal
constitutional rights or interests, there is no Supreme Court case which prevents
a federal court sitting in habeas review of a state court conviction from looking
“to whether there is a reasonable probability that the do-over proceeding state
law provides would reach a different result.” See Hammond v. Hall, 586 F.3d
1289, 1340 (11th Cir. 2009).
In light of the fact that the petitioner’s sentencing claims were rejected by
the Michigan courts on either his direct appeal or his post-conviction
proceedings, petitioner cannot show that he was prejudiced by trial counsel’s
failure to object to these alleged sentencing errors. See Myers v. Ludwick, No.
2009 WL 4581693, * 3 (E.D. Mich. December 3, 2009). If “one is left with pure
speculation on whether the outcome of ... the penalty phase could have been
any different,” there has been an insufficient showing of prejudice. Baze v.
Parker, 371 F. 3d 310, 322 (6th Cir. 2004). Because petitioner has offered no
evidence to show that the state trial court judge would have been inclined to
impose a lesser sentence or that the Michigan appellate courts were inclined to
reverse his sentence, petitioner is unable to show that he was prejudiced by his
counsel’s purported ineffectiveness in failing to raise objections to his
sentencing. See Spencer v. Booker, 254 Fed. Appx. 520, 525-26 (6th Cir. 2007).
The Court will deny the petition for writ of habeas corpus. The Court will
also deny a certificate of appealability to petitioner. In order to obtain a
certificate of appealability, a prisoner must make a substantial showing of the
denial of a constitutional right. 28 U.S.C. § 2253(c)(2). To demonstrate this
denial, the applicant is required to show that reasonable jurists could debate
whether, or 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, 483-84 (2000). When a
district court rejects a habeas petitioner’s constitutional claims on the merits, the
petitioner must demonstrate that reasonable jurists would find the district court’s
assessment of the constitutional claims to be debatable or wrong. Id. at 484.
“The district court must issue or deny a certificate of appealability when it enters
a final order adverse to the applicant.” Rules Governing § 2254 Cases, Rule
11(a), 28 U.S.C. foll. § 2254.
For the reasons stated in this opinion, the Court will deny petitioner a
certificate of appealability because he has failed to make a substantial showing
of the denial of a federal constitutional right. Myers v. Straub, 159 F. Supp. 2d
621, 629 (E.D. Mich. 2001). The Court will also deny petitioner leave to appeal
in forma pauperis, because the appeal would be frivolous. Id.
Based upon the foregoing, IT IS ORDERED that the Petition for a Writ of
Habeas Corpus is DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED That a Certificate of Appealability is DENIED.
IT IS FURTHER ORDERED that Petitioner will be DENIED leave to appeal
in forma pauperis.
Dated: June 7, 2011
S/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
June 7, 2011, by electronic and/or ordinary mail and also to
John Rodgers at Lakeland Correctional Facility, 141 First
Street, Coldwater, MI 49036.
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