Pugh v. Klee
OPINION and ORDER Denying 1 Petition for Writ of Habeas Corpus. Signed by District Judge Paul D. Borman. (DTof)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case Number: 2:11-CV-10904
HONORABLE PAUL D. BORMAN
UNITED STATES DISTRICT JUDGE
OPINION AND ORDER (1) DENYING PETITION FOR WRIT OF HABEAS
CORPUS AND (2) DENYING A CERTIFICATE OF APPEALABILITY
Petitioner Terrance Pugh has filed a petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2254. Petitioner, who is incarcerated at the Carson City Correctional
Facility in Carson City, Michigan, challenges his convictions for delivery of less than 50
grams of cocaine, felon in possession of a firearm, and felony firearm. He seeks relief on
the grounds that he received ineffective assistance of counsel, and that his sentencing
guidelines were incorrectly calculated. For the reasons set forth below, the Court denies
Petitioner was charged in Genesee County Circuit Court with open murder, felon
in possession, carrying a concealed weapon, and felony firearm. On November 19, 2007,
Petitioner pleaded guilty pursuant to a plea agreement to delivery of cocaine, less than
fifty grams, felon in possession of a firearm, and felony firearm. Pursuant to the plea
agreement, the prosecutor dismissed the open murder and carrying a concealed weapon
charges. On December 17, 2007, he was sentenced as a second-habitual offender to 83
months to 30 years’ in prison for the drug conviction, 47 months to 7-1/2 years’ in prison
for the felon-in-possession conviction, to be served concurrently with one another and
consecutively to two years’ in prison for the felony-firearm conviction.
Petitioner filed a delayed application for leave to appeal in the Michigan Court of
Appeals, raising these claims:
The trial court erred in the scoring of offense variable 1.
The trial court erred in the scoring of offense variable 2.
The Michigan Court of Appeals denied leave to appeal. People v. Pugh, No.
295526 (Mich. Ct. App. Jan. 27, 2010).
Petitioner filed an application for leave to appeal in the Supreme Court, raising the
same claims raised in the Michigan Court of Appeals and a claim of ineffective assistance
Petitioner then filed the pending habeas petition. The claims are not clearly
delineated in the petition, but the Court understands the petition to be raising the same
three claims raised in the Michigan Supreme Court.
Petitioner’s claims are reviewed against the standards established by the
Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat.
1214 (AEDPA). The AEDPA provides:
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
28 U.S.C. § 2254(d).
“A state court’s decision is ‘contrary to’ . . . clearly established law if it ‘applies a
rule that contradicts the governing law set forth in [Supreme Court cases]’ or if it
‘confronts a set of facts that are materially indistinguishable from a decision of [the
Supreme] Court and nevertheless arrives at a result different from [this] precedent.’”
Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003) (per curiam) (quoting Williams v. Taylor,
529 U.S. 362, 405-06 (2000)). “[T]he ‘unreasonable application’ prong of the statute
permits a federal habeas court to ‘grant the writ if the state court identifies the correct
governing legal principle from [the Supreme] Court but unreasonably applies that
principle to the facts’ of petitioner’s case.” Wiggins v. Smith, 539 U.S. 510, 520 (2003)
(quoting Williams, 529 U.S. at 413). However, “[i]n order for a federal court to find a
state court’s application of [Supreme Court] precedent ‘unreasonable,’ the state court’s
decision must have been more than incorrect or erroneous. The state court’s application
must have been ‘objectively unreasonable.’” Wiggins, 539 U.S. at 520-21 (citations
omitted); see also Williams, 529 U.S. at 409. “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, 789 (2011), quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004).
“Section 2254(d) reflects the view that habeas corpus is a guard against extreme
malfunctions in the state criminal justice systems, not a substitute for ordinary error
correction through appeal. . . . As a condition for obtaining habeas corpus from a federal
court, a state prisoner must 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.” Id.
at 786-87 (internal quotation omitted).
Section 2254(d)(1) limits a federal habeas court’s review to a determination of
whether the state court’s decision comports with clearly established federal law as
determined by the Supreme Court at the time the state court renders its decision. See
Williams, 529 U.S. at 412. Section 2254(d) “does not require citation of [Supreme
Court] cases – indeed, it does not even require awareness of [Supreme Court] cases, so
long as neither the reasoning nor the result of the state-court decision contradicts them.”
Early v. Packer, 537 U.S. 3, 8 (2002). “[W]hile the principles of “clearly established
law” are to be determined solely by resort to Supreme Court rulings, the decisions of
lower federal courts may be instructive in assessing the reasonableness of a state court’s
resolution of an issue.” Stewart v. Erwin, 503 F.3d 488, 493 (6th Cir. 2007), citing
Williams v. Bowersox, 340 F.3d 667, 671 (8th Cir. 2003); Dickens v. Jones, 203 F. Supp.
2d 354, 359 (E.D. Mich. 2002).
Lastly, a federal habeas court must presume the correctness of state court factual
determinations. See 28 U.S.C. § 2254(e)(1). A petitioner may rebut this presumption
only with clear and convincing evidence. Warren v. Smith, 161 F.3d 358, 360-61 (6th
A. Sentencing Claims
In his first two habeas claims, Petitioner challenges the scoring of offense
variables 1 and 2. It is well-established that “
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