Clifton v. Bell

Filing 8

ORDER Denying Petition for Writ of Habeas Corpus Signed by District Judge Victoria A. Roberts. (CPin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
SCOTT MICHAEL CLIFTON,
Petitioner,
v.

Civil No. 2:10-CV-14264
HONORABLE VICTORIA A. ROBERTS
UNITED STATES DISTRICT JUDGE

THOMAS BELL,
Respondent,
/
OPINION AND ORDER DENYING THE PETITION FOR WRIT OF HABEAS
CORPUS, DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY,
AND GRANTING PETITIONER LEAVE TO APPEAL IN FORMA PAUPERIS
Scott Michael Clifton, (“Petitioner”), confined at the Gus Harrison Correctional
Facility in Adrian, Michigan, filed a petition for a writ of habeas corpus pursuant to 28
U.S.C.§ 2254. In his pro se habeas petition, Petitioner challenges his conviction and
sentence for two counts of armed robbery, M.C.L.A. 750.529; one count of first-degree
home invasion, M.C.L.A. 750.110a(2); and being a fourth felony habitual offender,
M.C.L.A. 769.12.
The petition for writ of habeas corpus is DENIED.
I. Background
Petitioner pleaded guilty to the above charges in the Oakland County Circuit
Court, based upon a sentence agreement made with the trial court judge pursuant to
People v. Cobbs, 443 Mich. 276; 505 N.W. 2d 208 (1993), in which the judge agreed to
sentence Petitioner to fourteen and one-half to twenty five years in prison, in exchange
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for Petitioner’s plea of guilty to the charges. (Tr. 8/6/2007, p. 3, 6). The prosecutor also
agreed to dismiss an assault and battery charge against Petitioner. (Id. at p. 4). Prior to
accepting Petitioner’s plea, the trial judge advised Petitioner of the maximum penalties
for the charges that he was pleading guilty to, as well as the rights to a trial that he would
be waiving by pleading guilty. (Id. at pp. 6-8). In response to the trial judge’s question,
Petitioner acknowledged that by pleading guilty, he could not later come back to court
and claim that his plea was the result of any promises or threats or that it was not his own
choice to plead guilty. (Id. at pp. 8-9). In response to further questions from the judge,
Petitioner denied that anyone had threatened him to get him to plead guilty and
acknowledged that it was his own choice to plead guilty. (Id. at p. 9). In establishing the
factual basis for the plea, Petitioner indicated that he broke and entered a home in Keego
Harbor, Michigan while armed with a knife. Petitioner indicated that it was his intent to
steal drugs from the house. Petitioner further indicated that he used the knife to put the
two victims in fear so that he could steal the drugs, as well as a telephone from one of the
victims. (Id. at pp. 11-13).
On September 4, 2007, Petitioner was sentenced to concurrent sentences of
fourteen and one-half to twenty five years in prison on the three charges. (Tr. 9/4/2007, p.
4).
Petitioner filed a delayed application for leave to appeal in the Michigan Court of
Appeals, through counsel, in which he raised the following claims.
I. Petitioner is entitled to resentencing because the trial court improperly
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scored Offense Variable 13.
II. The trial court erred when it used improper evidence in determining
Petitioner’s sentence in violation of the law set forth in Blakely v.
Washington.
Petitioner’s conviction and sentence were affirmed on appeal. People v. Clifton,
No. 283264 (Mich. Ct. App. March 4, 2008)); lv. den. 482 Mich. 896; 753 N.W.2d 174
(2008).
Petitioner then filed a post-conviction motion for relief from judgment pursuant to
M.C.R. 6.500, et. Seq, in which he raised the following claims:
I. Petitioner was denied the effective assistance of counsel when his trial
counsel failed to present a meaningful defense, failed to communicate the
nature of the crime charged, and coerced him into entering a guilty plea,
thereby making the plea unknowing and involuntary.
II. Petitioner was denied due process because his plea was ultimately
illusory.
III. The prosecutor and trial court abused their discretion by charging
Petitioner with different crimes than those to which he pleaded guilty.
IV. Petitioner was denied the effective assistance of counsel on appeal when
his appellate counsel failed to raise meritorious issues on appeal.
The trial court denied the motion for relief from judgment. People v. Clifton, No.
07-213507-FC (Oakland County Circuit Court, September 15, 2009). The Michigan
appellate courts denied Petitioner leave to appeal. People v. Clifton, No. 294818 (Mich.
Ct. App; February 23, 2010); lv. den. 487 Mich. 854, 785 N.W.2d 155 (2010). 1
1

While Petitioner’s collateral appeal was pending in the state courts, Petitioner filed a petition for writ of
habeas corpus, which was dismissed without prejudice. Clifton v. McKee, U.S.D.C. No. 09-12935; No. 2009 WL
2960422 (E.D. Mich. September 11, 2009).

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Petitioner seeks a writ of habeas corpus on the following grounds: (i) the trial court
improperly scored Offense Variable 13 of the Michigan Sentencing Guidelines; (ii) the
trial court at sentencing used factors that had not been submitted to a jury and proven
beyond a reasonable doubt or admitted to by Petitioner; (iii) Petitioner was denied the
effective assistance of trial counsel; (iv) Petitioner’s guilty plea should have been set
aside because it was coerced; (v) the prosecutor erred in charging Petitioner with armed
robbery, in light of the fact that Petitioner did not admit to taking money from the victims;
and (vi) Petitioner was denied the effective assistance of appellate counsel.
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 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 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

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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 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)((quoting Lindh v. Murphy, 521 U.S. 320, 333, n. 7 (1997); Woodford v.
Viscotti, 537 U.S. 19, 24 (2002) (per curiam)). “[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, 786 (2011). 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). Furthermore, pursuant to § 2254(d), “a
habeas court must determine what arguments or theories supported or...could have
supported, the state court’s decision; and then it must ask whether it is possible
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fairminded jurists could disagree that those arguments or theories are inconsistent with
the holding in a prior decision” of the Supreme Court. Id.
III. Discussion
A. The procedural default issue.
Respondent contends that Petitioner’s third through sixth claims are procedurally
defaulted, because he raised them for the first time in his post-conviction motion for
relief from judgment and failed to show cause for failing to raise these issues in his direct
appeal, as well as prejudice, as required by M.C.R. 6.508(D)(3).
Petitioner claims that his appellate counsel was ineffective for failing to raise his
claims in his direct appeal.
Procedural default is not a jurisdictional bar to review of a habeas petition the
merits. See Trest v. Cain, 522 U.S. 87, 89 (1997). In addition, “[F]ederal courts are not
required to address a procedural-default issue before deciding against the petitioner on
the merits.” Hudson v. Jones, 351 F. 3d 212, 215 (6th Cir. 2003)(citing Lambrix v.
Singletary, 520 U.S. 518, 525 (1997)). “Judicial economy might counsel giving the
[other] question priority, for example, if it were easily resolvable against the habeas
petitioner, whereas the procedural-bar issue involved complicated issues of state law.”
Lambrix, 520 U.S. at 525. Because “the procedural default issue raises more questions
than the case on the merits”, this Court will assume, for the sake of resolving the claims,
that there is no procedural default by Petitioner and will decide the merits of the claims.
See Falkiewicz v. Grayson, 271 F. Supp. 2d 942, 948 (E.D. Mich. 2003)(internal
6

quotation omitted).
B. The guilty plea claims.
Many of the claims raised by Petitioner overlap or are interrelated. For the sake
of judicial clarity, the Court addresses the various issues raised by Petitioner in the
chronological order they took place in the state courts, rather than in the order that they
were presented in his habeas application.
Petitioner first contends throughout his various claims that his guilty plea is
invalid.
A plea of guilty must be knowingly and voluntarily made. The defendant must be
aware of the “relevant circumstances and likely consequences” of his plea. Hart v.
Marion Correctional Institution, 927 F. 2d 256, 257 (6th Cir. 1991). The defendant must
also be aware of the maximum sentence that can be imposed for the crime for which he
is pleading guilty. King v. Dutton, 17 F. 3d 151, 154 (6th Cir. 1994). When a petitioner
brings a federal habeas petition challenging his plea of guilty, the state generally satisfies
its burden by producing a transcript of the state court proceedings showing that the plea
was made voluntarily. Garcia v. Johnson, 991 F. 2d 324, 326 (6th Cir. 1993). The factual
findings of a state court that the guilty plea was properly made are generally accorded a
presumption of correctness. Petitioner must overcome a heavy burden if the federal
court is to overturn these findings by the state court. Id.
The record in this case establishes that Petitioner knowingly and voluntarily
pleaded guilty to the charges. Petitioner was advised of the maximum penalties of the
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crimes that he was pleading to, as well as the rights that he would be giving up by
pleading guilty. The terms of the plea agreement were placed on the record. Petitioner
acknowledged several times that he was pleading guilty freely and voluntarily and that
no threats had been made to get him to plead guilty.
Petitioner, however, contends that his plea of guilty should be set aside because
he only admitted to taking drugs from the victim’s house, but at sentencing was ordered
to pay $ 5,884.00 in restitution for money that was also taken from the victims at the
time of the robbery and home invasion. Petitioner contends that because he did not
admit to taking the money from the victims, there was an insufficient factual basis for the
plea. Petitioner further contends that he did not understand the charges against him
when he pleaded guilty, because he did not know that the prosecutor was alleging that he
had stolen money as well as drugs from the house. Petitioner finally argues that because
he did not steal this money from the victims, his plea is illusory.
There is no federal constitutional requirement that a factual basis be established to
support a guilty plea. See Roddy v. Black, 516 F. 2d 1380, 1385 (6th Cir. 1975); See also
Holtgreive v. Curtis, 174 F. Supp. 2d 572, 582 (2001). Petitioner's claim that the trial
court failed to establish a sufficient factual basis to support his guilty plea does not
provide a basis for federal habeas relief, because there is no federal constitutional
requirement that a factual basis supporting a guilty plea be established, or that the
defendant admit factual guilt, so long as the plea is intelligently and voluntarily made.
Holtgreive, 174 F. Supp. 2d at 583.
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To the extent that Petitioner contends that he had inadequate notice of the charges
against him, he is not entitled to relief. It is true that where a defendant pleads guilty to a
crime without having been informed of the crime’s elements, the voluntary, knowing,
and intelligent standard for a guilty plea is not met and the plea is invalid. See Bradshaw
v. Stumpf, 545 U.S. 175, 183 (2005). However, a defendant is presumed to have been
informed adequately by his defense counsel of the criminal charge to which he is
pleading guilty, even when the trial court record is devoid of an explanation of the
charge by the judge or of a representation by defense counsel that the nature or the
elements of the charge have been explained to the defendant. See Berry v. Mintzes, 726
F. 2d 1142, 1147 (6th Cir. 1984)(citing Henderson v. Morgan, 426 U.S. at 647).
Petitioner claims that his guilty plea to the armed robbery and home invasion
charges is invalid because he did not know that he was being charged with taking money
as well as drugs and a telephone from the victims.
In rejecting Petitioner’s claim, the trial court judge noted that the information had
been amended to allege that the first count of armed robbery was based on “a larceny of
money and/or drugs.” People v. Clifton, No. 07-213507-FC, * 4 (Oakland County Circuit
Court, September 15, 2009). Petitioner was made aware that the first armed robbery
charge included an allegation that he took either money and/or drugs. Petitioner has not
presented sufficient evidence to establish that he did not understand the charges against
him or the essential elements of the offenses. Accordingly, Petitioner is not entitled to
habeas relief on his claim. See Siebert v. Jackson, 205 F. Supp. 2d 727, 733 (E.D. Mich.
9

2002).
Finally, to the extent that Petitioner claims that there was insufficient evidence for
the prosecutor to charge him with these crimes, his claim is waived by his plea of guilty.
An unconditional guilty plea constitutes a waiver of all pre-plea non-jurisdictional
constitutional deprivations. Tollett v. Henderson, 411 U.S. 258, 267 (1973). By pleading
guilty, Petitioner waived his right to challenge the sufficiency of the evidence to convict
him of these charges. See United States v. Manni, 810 F.2d 80, 84 (6th Cir. 1987).
Petitioner further alleges that his plea should be set aside because it was illusory.
A plea agreement is entered into involuntarily and unknowingly if the defendant
is unaware that the prosecution’s promise is illusory. See United States v. Randolph, 230
F.3d 243, 250-51 (6th Cir. 2000).
Here, the trial judge agreed to sentence Petitioner to fourteen and a half to twenty
five years in prison if Petitioner pleaded guilty to the armed robbery, home invasion, and
fourth felony habitual offender charges. The prosecutor also dismissed an assault and
battery charge against Petitioner. Because Petitioner derived a real benefit from his plea
and sentencing bargain in this case, his plea was not illusory and he is therefore not
entitled to habeas relief on his claim. See McAdoo v. Elo, 365 F. 3d 487, 498 (6th Cir.
2004).
Petitioner next claims that his plea of guilty is invalid because he was coerced by
his defense counsel and his own brother into pleading guilty.
Petitioner’s claim that his counsel and his brother coerced him into pleading
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guilty is defeated by the fact that Petitioner stated on the record at the plea hearing that
no threats had been made to get him to plead guilty. Petitioner’s bare claim that he was
coerced into pleading guilty is insufficient to overcome the presumption of verity which
attaches to Petitioner’s statements during the plea colloquy, in which he denied that any
threats had been used to get him to enter his plea. See Shanks v. Wolfenbarger, 387 F.
Supp. 2d 740, 750-51 (E.D. Mich. 2005). Moreover, the Sixth Circuit noted that
“[w]here a defendant is aware of the condition or reason for a plea withdrawal, at the
time the guilty plea is entered, a case for withdrawal is weaker.” United States v.
Spencer, 836 F. 2d 236, 239 (6th Cir. 1987). Because Petitioner knew about this alleged
coercion at the time he entered his plea, his unexplained delay in bringing this alleged
coercion to the attention of the state trial and appellate courts until years later and after
he had been sentenced undermines the credibility of his claim that he was coerced into
pleading guilty. See United States v. Ford, 15 Fed. Appx. 303, 309 (6th Cir. 2001).
Moreover, the mere fact that Petitioner’s brother encouraged him to plead guilty to the
charges was not impermissible coercion to justify setting aside his guilty plea. See, e.g.,
United States v. Pellerito, 878 F.2d 1535, 1541 (1st Cir. 1989)(holding that family
pressure, though “probative of an accused’s motivation for pleading guilty, ... does not
necessarily show coercion, duress or involuntariness” (emphasis in original)); United
States ex rel. Brown v. La Vallee, 424 F.2d 457, 461 (2nd Cir. 1970)(holding that pressure
from defendant’s lawyers and mother to plead guilty was not coercive, but rather “sound
advice”).
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C. The ineffective assistance of trial counsel claims.
Petitioner next contends that he was deprived of the effective assistance of trial
counsel.
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). In so doing, the
defendant must overcome a strong presumption that counsel’s behavior lies within the
wide range of reasonable professional assistance. Id. In other words, petitioner must
overcome the presumption that, under the circumstances, the challenged action might be
sound trial strategy. Strickland, 466 U.S. at 689. Second, the defendant must show that
such performance prejudiced his defense. Id. To demonstrate prejudice, the defendant
must show that “there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at
694.
Petitioner initially claims that trial counsel was ineffective for advising him to
plead guilty rather than take the case to trial.
The Supreme Court recently noted:
Acknowledging guilt and accepting responsibility by an early plea respond
to certain basic premises in the law and its function. Those principles are
eroded if a guilty plea is too easily set aside based on facts and circumstances
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not apparent to a competent attorney when actions and advice leading to the
plea took place. Plea bargains are the result of complex negotiations suffused
with uncertainty, and defense attorneys must make careful strategic choices
in balancing opportunities and risks. The opportunities, of course, include
pleading to a lesser charge and obtaining a lesser sentence, as compared with
what might be the outcome not only at trial but also from a later plea offer if
the case grows stronger and prosecutors find stiffened resolve. A risk, in
addition to the obvious one of losing the chance for a defense verdict, is that
an early plea bargain might come before the prosecution finds its case is
getting weaker, not stronger. The State’s case can begin to fall apart as
stories change, witnesses become unavailable, and new suspects are
identified.
Premo v. Moore, 131 S. Ct. 733, 741 (2011).
The Supreme Court further admonished:
These considerations make strict adherence to the Strickland standard all the
more essential when reviewing the choices an attorney made at the plea
bargain stage. Failure to respect the latitude Strickland requires can create at
least two problems in the plea context. First, the potential for the distortions
and imbalance that can inhere in a hindsight perspective may become all too
real. The art of negotiation is at least as nuanced as the art of trial advocacy
and it presents questions farther removed from immediate judicial
supervision. There are, moreover, special difficulties in evaluating the basis
for counsel’s judgment: An attorney often has insights borne of past dealings
with the same prosecutor or court, and the record at the pretrial stage is never
as full as it is after a trial. In determining how searching and exacting their
review must be, habeas courts must respect their limited role in determining
whether there was manifest deficiency in light of information then available
to counsel. AEDPA compounds the imperative of judicial caution.
Second, ineffective-assistance claims that lack necessary foundation may
bring instability to the very process the inquiry seeks to protect. Strickland
allows a defendant “to escape rules of waiver and forfeiture,”. Prosecutors
must have assurance that a plea will not be undone years later because of
infidelity to the requirements of AEDPA and the teachings of Strickland. The
prospect that a plea deal will afterwards be unraveled when a court
second-guesses counsel’s decisions while failing to accord the latitude
Strickland mandates or disregarding the structure dictated by AEDPA could
lead prosecutors to forgo plea bargains that would benefit defendants, a result
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favorable to no one.
Premo, 131 S. Ct. at 741-42 (internal citations and quotations omitted).
Moreover, in order to satisfy the prejudice requirement for an ineffective
assistance of counsel claim in the context of a guilty plea, the defendant must show that
there is a reasonable probability that, but for counsel’s errors, he or she would not have
pleaded guilty, but would have insisted on going to trial. Premo, 131 S. Ct. at 743 (citing
Hill v. Lockhart, 474 U.S. 52, 58-59 (1985). An assessment of whether a defendant
would have gone to trial but for counsel’s errors “will depend largely on whether the
affirmative defense likely would have succeeded at trial.” Hill, 474 U.S. at 59. The
Sixth Circuit has interpreted Hill to require a federal habeas court to always analyze the
substance of the habeas petitioner’s underlying claim or defense to determine whether
but for counsel’s error, petitioner would likely have gone to trial instead of pleading
guilty. See Maples v. Stegall, 340 F. 3d 433, 440 (6th Cir. 2003). The petitioner must
therefore show a reasonable probability that but for counsel’s errors, he would not have
pleaded guilty, because there would have been a reasonable chance that he would have
been acquitted had he insisted on going to trial. Doyle v. Scutt, 347 F. Supp. 2d 474, 484
(E.D. Mich. 2004).
Petitioner failed to show a reasonable probability that he could have prevailed had
he insisted on going to trial, or that he would have received a lesser sentence than he did
by pleading guilty. See Shanks, 387 F. Supp. 2d at 750. Petitioner was facing up to life

14

in prison on all three charges. 2 Counsel was able to negotiate a sentencing agreement
with the trial judge of concurrent sentences of fourteen and a half to twenty five years in
prison. Although Petitioner claims that his counsel failed to investigate a meaningful
defense to the charges, Petitioner does not specify what defense he had to these charges.
Conclusory allegations of ineffective assistance of counsel, without any evidentiary
support, do not provide a basis for habeas relief. See Workman v. Bell, 178 F.3d 759, 771
(6th Cir. 1998). A habeas petitioner’s conclusory allegation that his attorney failed to
adequately present a defense, without specifying what more his attorney could have done
to strengthen his defense, is insufficient to establish ineffective assistance of counsel.
Campbell v. Grayson, 207 F. Supp. 2d 589, 598 (E.D. Mich. 2002). Petitioner failed to
establish what defense he had to these charges, he failed to show that counsel was
ineffective for advising him to plead guilty.
Petitioner next contends that trial counsel was ineffective for failing to object to
the scoring of the sentencing guidelines. In light of the fact that the trial judge sentenced
Petitioner in accordance with the sentencing agreement, Petitioner is unable to establish
that counsel was ineffective for failing to object to the scoring of the sentencing
guidelines. See Whitaker v. U.S., 186 Fed. Appx. 571, 573-74 (6th Cir. 2006). Petitioner
is not entitled to habeas relief on his ineffective assistance of trial counsel claims.
2

A conviction for armed robbery carries a possible sentence of any term of years up to life in prison.
M.C.L.A. 750.529. Moreover, although the penalty for first-degree home invasion is up to twenty years in prison,
See M.C.L.A. 750.110a(5); Petitioner was also charged as a fourth felony habitual offender. Under M.C.L.A.
769.12(1)(a), a fourth felony habitual offender can be sentenced to up to life in prison if his current felony carries a
maximum sentence of five or more years in prison.

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D. The sentencing claims.
In his first and second claims, Petitioner raises various challenges to his sentence.
The Court initially notes that the trial judge entered into a Cobbs agreement to
sentence Petitioner to fourteen and a half to twenty five years in prison. The judge
sentenced Petitioner in accordance with this agreement. A defendant who consents to a
specific sentence in a plea agreement and receives the exact sentence that he bargained
for waives the right to challenge the sentence on appeal or collateral review. See United
States v. Livingston, 1 F. 3d 723, 725 (8th Cir. 1993); Lozada-Rivera v. United States,
195 F. Supp. 2d 365, 368 (D. Puerto Rico 2002).
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. 52, 53 (6th Cir. 2003). “Petitioner has no state-created
interest in having the Michigan Sentencing Guidelines applied rigidly in determining his
sentence.” See Mitchell v. Vasbinder, 644 F. Supp. 2d 846, 867 (E.D. Mich. 2009). “[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. at 485.
Any error by the trial court in calculating his guideline score would not merit habeas
relief. Id.
Petitioner further alleges that the trial court judge violated his Sixth Amendment
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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 sentencing guidelines.
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, 16061, 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

17

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 holdings in Apprendi
and Blakely 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).
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

18

497. Petitioner is not entitled to habeas relief on any Blakely claim. Id. 3
Finally, to the extent that Petitioner challenges the trial judge’s order of restitution
concerning the $ 5,884.00 that was taken, Petitioner does not state a claim upon which
federal habeas relief can be granted. Where a habeas petitioner is not claiming the right
to be released but is challenging the imposition of a fine or other costs, he or she may not
bring a petition for writ of habeas corpus. United States v. Watroba, 56 F. 3d 28, 29 (6th
Cir. 1995). Continuing liability under a restitution order is like a fine-only conviction
and is not a serious restraint on liberty as to warrant habeas relief. Barnickel v. United
States, 113 F. 3d 704, 706 (7th Cir. 1997)(quoting Tinder v. Paula, 725 F. 2d 801, 805
(1st Cir. 1984). Petitioner is not entitled to habeas relief on his sentencing claims.
E. The ineffective assistance of appellate counsel claim.
Petitioner contends that appellate counsel was ineffective for failing to raise his
third through fifth claims on direct appeal.
It is well-established that a criminal defendant does not have a constitutional right
to have appellate counsel raise every non-frivolous issue on appeal. See Jones v. Barnes,
463 U.S. 745, 751 (1983). “[A]ppellate counsel cannot be found to be ineffective for
‘failure to raise an issue that lacks merit.’” Shaneberger v. Jones, 615 F. 3d 448, 452 (6th
Cir. 2010); cert. den . 131 S. Ct. 1013 (2011)(quoting Greer v. Mitchell, 264 F.3d 663,

3

Because the holding in Blakely is inapplicable to Michigan’s indeterminate sentencing scheme, trial
counsel was not ineffective for failing to object to the scoring of the sentencing guidelines on this basis. See Rupert
v. Berghuis, 619 F. Supp. 2d 363, 371 (W.D. Mich. 2008).

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676 (6th Cir.2001)). In light of the fact that none of these claims have any merit,
appellate counsel was not ineffective for failing to raise them on Petitioner’s direct
appeal.
F. The motion for oral argument.
Petitioner filed a motion for oral argument.
A federal district court can grant oral argument in a habeas case where it would
assist in resolving the matters raised in the habeas petition. See e.g. Haskell v. Berghuis,
695 F. Supp. 2d 574, 584 (E.D. Mich. 2010). In light of the fact that this Court has
determined from the pleadings that Petitioner is not entitled to habeas relief, the Court
will deny the motion for oral argument. See Lovely v. Jackson, 337 F. Supp. 2d 969, 978
(E.D. Mich. 2004).
III. Conclusion
The Court denies the petition for writ of habeas corpus. The Court also denies 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
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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; See also Strayhorn v. Booker, 718 F. Supp. 2d 846, 875 (E.D. Mich. 2010).
For the reasons stated in this opinion, the Court denies petitioner a certificate of
appealability; he failed to make a substantial showing of the denial of a federal
constitutional right. See Siebert, 205 F. Supp. 2d at 735.
Although this Court denies a certificate of appealability to petitioner, the standard
for granting an application for leave to proceed in forma pauperis (IFP) 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 IFP status if it finds that an appeal is being taken in good faith. Id. at
764-65; 28 U.S.C. § 1915(a)(3); Fed. R.App.24 (a). “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 jurists of reason would not
debate this Court’s resolution of petitioner’s claim, the issues are not frivolous;
therefore, an appeal could be taken in good faith and petitioner may proceed in forma
pauperis on appeal. Id.

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IV.

ORDER

The Court Denies: (1) the Petition for Writ of Habeas Corpus; (2) the motion for oral
argument [Dkt. # 7]; (3) A Certificate of Appealability.
Petitioner is GRANTED leave to appeal in forma pauperis.

S/Victoria A. Roberts
Victoria A. Roberts
United States District Judge
Dated: July 22, 2011

The undersigned certifies that a copy of this
document was served on the attorneys of record
and Scott Michael Clifton by electronic means
or U.S. Mail on July 22, 2011.
s/Carol A. Pinegar
Deputy Clerk

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