Hernandez v. Tribley
Filing
17
ORDER granting 12 Motion for Summary Judgment; granting 15 Motion to Amend/Correct; Dismissal of Petition; Denying Certificate of Appealability; Granting In Forma Pauperis Status on Appeal. Signed by District Judge Victoria A. Roberts. (CPin)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
AARON HERNANDEZ,
Petitioner,
CASE NO. 14-12206
HONORABLE VICTORIA A. ROBERTS
v.
LINDA TRIBLEY,
Respondent.
____________________________/
OPINION AND ORDER
GRANTING PETITIONER’S MOTION TO AMEND (ECF NO. 15),
GRANTING RESPONDENT’S MOTION FOR SUMMARY JUDGMENT
AND DISMISSAL OF THE PETITION (ECF NO. 12),
DENYING A CERTIFICATE OF APPEALABILITY, AND
GRANTING IN FORMA PAUPERIS STATUS ON APPEAL
Petitioner Aaron Hernandez, a state prisoner at Central Michigan Correctional
Facility in St. Louis, Michigan, filed a pro se habeas corpus petition in 2014.
Respondent Linda Tribley moved for summary judgment and dismissal of the petition on
the ground that the petition is time-barred. Petitioner filed a reply and a motion to
amend his petition to clarify his initial claims. The Court grants Petitioner’s motion to
amend the petition, but because the petition is time-barred and meritless, the Court will
grant Respondent’s motion for summary judgment and dismissal of the petition.
I. Background
Petitioner initially was charged in Wayne County, Michigan with criminal sexual
conduct in the first degree, assault with intent to commit sexual penetration, home
invasion in the first degree, assault with intent to commit great bodily harm less than
murder, stalking, and a telecommunications offense. On July 18, 2008, Petitioner
pleaded guilty in Wayne County Circuit Court to first-degree home invasion, second
offense, Mich. Comp. Laws § 750.110a(2), assault with intent to commit great bodily
harm less than murder, Mich. Comp. Laws § 750.84, and misdemeanor stalking, Mich.
Comp. Laws § 750.411h. In return, the prosecutor dismissed the counts charging
Petitioner with first-degree criminal sexual conduct, assault with intent to commit sexual
penetration, and the telecommunications offense. The prosecutor reduced the stalking
charge to a misdemeanor, and the parties agreed to a sentence of six to twenty years
for the home invasion.
On August 6, 2008, the trial court sentenced Petitioner to concurrent terms of six
to twenty years for the home invasion and one to ten years for the assault, with 145
days of jail credit. The court sentenced Petitioner to thirty days probation for the
stalking conviction and ordered restitution in the amount of $3,950.00.
In a delayed application for leave to appeal, Petitioner argued through counsel
that (1) his guilty plea was not intelligent, voluntary, and knowing, (2) it was error to
score offense variables 12 and 13 of the state sentencing guidelines, and (3) trial
counsel was ineffective for failing to object to the scoring of the guidelines and for failing
to preserve an objection to the assessment of restitution. The Michigan Court of
Appeals denied leave to appeal “for lack of merit in the grounds presented.” See
People v. Hernandez, No. 293425 (Mich. Ct. App. Nov. 16, 2009).1
On February 12, 2010, Petitioner filed a pro se habeas corpus petition in this
Court. The Court dismissed the petition without prejudice for failure to exhaust state
1
Presiding Judge Cynthia Diane Stephens voted to grant Petitioner’s delayed
application for leave to appeal.
2
remedies. See Hernandez v. McQuiggin, No. 2:10-cv-10640 (E.D. Mich. Feb. 25,
2010).
Meanwhile, Petitioner appealed to the Michigan Supreme Court, raising the same
three issues that he presented to the Michigan Court of Appeals. He also raised a new
claim about offense variable 19 of the sentencing guidelines. On June 28, 2010, the
supreme court denied leave to appeal because it was not persuaded to review the
issues. People v. Hernandez, 486 Mich. 1042; 783 N.W.2d 336 (2010). Petitioner
moved for reconsideration, but, on September 9, 2010, Court declined to reconsider its
prior decision. See People v. Hernandez, 488 Mich. 859; 787 N.W.2d 484 (2010).
Petitioner did not file a petition for writ of certiorari in the United States Supreme
Court; on December 8, 2010, the deadline for doing so expired. Over ten months later on October 14, 2011 - Petitioner filed a motion for relief from judgment. He argued
through counsel that: (1) his presentence information report contained false and
inaccurate information; (2) he received ineffective assistance of counsel at sentencing;
(3) he was entitled to an additional sixteen days of jail credit; (4) he was improperly
assessed ten points for offense variable 12 and offense variable 13 of the sentencing
guidelines, and he was improperly assessed points under offense variables 10 and 19;
and (5) the amount of restitution that he was ordered to pay was unproven and
excessive. The trial court denied Petitioner’s motion in a reasoned opinion, and the
Michigan Court of Appeals denied leave to appeal the trial court’s decision because
Petitioner failed to establish entitlement to relief under Michigan Court Rule 6.508(D).
See People v. Hernandez, No. 310978 (Mich. Ct. App. Dec. 14, 2012). On October 23,
2013, the Michigan Supreme Court denied leave to appeal for the same reason. See
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People v. Hernandez, 495 Mich. 875; 838 N.W.2d 147 (2013). On May 28, 2014,
Petitioner filed his habeas corpus petition,2 and on February 26, 2015, he filed his
motion to amend the petition, along with an amended petition for the writ of habeas
corpus.
II. The Statute of Limitations
A. 28 U.S.C. § 2244(d)
Respondent argues in her motion for summary judgment and dismissal of the
petition that Petitioner’s claims are barred from review by the one-year statute of
limitations. The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
established a one-year period of limitation for state prisoners to file a federal petition for
writ of habeas corpus. Wall v. Kholi, 562 U.S. 545, 550 (2011) (citing 28 U.S.C. §
2244(d)(1)). The period of limitations runs from the latest of the following four dates:
(A) the date on which the judgment became final by the conclusion
of direct review or the expiration of the time for seeking such review;
2
Although the Clerk of the Court filed the petition on June 4, 2014, “a habeas petition
is considered filed when the prisoner provides the petition to prison officials for filing.”
Keeling v. Warden, Lebanon Corr. Inst., 673 F.3d 452, 456 (6th Cir. 2012) (citing Cook
v. Stegall, 295 F.3d 517, 521 (6th Cir. 2002) (citing Houston v. Lack, 487 U.S. 266, 273
(1988)).
Cases expand the understanding of this handing-over rule with an
assumption that, absent contrary evidence, a prisoner does so on the date
he or she signed the complaint. See, e.g., Goins v. Saunders, 206 Fed.
Appx. 497, 498 n. 1 (6th Cir. 2006) (per curiam) (“[W]e treat the petition as
filed on the date [the prisoner] signed it.”); Bomar v. Bass, 76 Fed. Appx.
62, 63 (6th Cir. 2003) (order); Towns v. United States, 190 F.3d 468, 469
(6th Cir. 1999) (order).
Brand v. Motley, 526 F.3d 921, 925 (6th Cir. 2008). The Court therefore deems
Petitioner’s application for the writ of habeas corpus filed on May 28, 2014, the date on
which Petitioner signed his petition and placed the petition in the prison mail system.
See Pet. for Writ of Habeas Corpus, page 14.
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(B) the date on which the impediment to filing an application
created by State action in violation of the Constitution or laws of the United
States is removed, if the applicant was prevented from filing by such State
action;
(C) the date on which the constitutional right asserted was initially
recognized by the Supreme Court, if the right has been newly recognized
by the Supreme Court and made retroactively applicable to cases on
collateral review; or
(D) the date on which the factual predicate of the claim or claims
presented could have been discovered through the exercise of due
diligence.
28 U.S.C. § 2244(d)(1). The limitations period is tolled while a “properly filed application
for State post-conviction or other collateral review with respect to the pertinent judgment
or claim is pending” in state court. 28 U.S.C. § 2244(d)(2).
Petitioner is not relying on a newly recognized constitutional right or on newly
discovered facts, and he has not shown that the State created an impediment to filing a
timely habeas petition. Cf. 28 U.S.C. § 2244(d)(1)(B-D). Consequently, the statute of
limitations began to run when Petitioner’s convictions “became final by the conclusion of
direct review or the expiration of the time for seeking such review.” 28 U.S.C. §
2244(d)(1)(A). “Direct review” concludes for purposes of subsection 2244(d)(1)(A)
when the availability of direct appeal to the state courts and to the United States
Supreme Court has been exhausted. Jimenez v. Quarterman, 555 U.S. 113, 119
(2009).
For petitioners who pursue direct review all the way to [the Supreme]
Court, the judgment becomes final at the “conclusion of direct review”—
when [the Supreme] Court affirms a conviction on the merits or denies a
petition for certiorari. For all other petitioners, the judgment becomes final
at the “expiration of the time for seeking such review”—when the time for
pursuing direct review in [the Supreme] Court, or in state court, expires.
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Gonzalez v. Thaler, 132 S.Ct. 641, 653-54 (2012). A petition for writ of certiorari to
review a judgment entered by a state’s highest court must be filed in the United States
Supreme Court no later than ninety days after entry of the state court’s judgment. Sup.
Ct. R. 13.1.
B. Application
Petitioner did not seek review in the United States Supreme Court on direct
review of his convictions. Therefore, his convictions became final on December 8,
2010, ninety days after the Michigan Supreme Court denied reconsideration on direct
review. The one-year statute of limitations began to run on the following day, Miller v.
Collins, 305 F.3d 491, 495 n.4 (6th Cir. 2002), and it ran 309 days until October 14,
2011, when Petitioner filed his motion for relief from judgment in the state trial court.
The limitations period was tolled from October 14, 2011, until October 23, 2013,
when the Michigan Supreme Court denied leave to appeal the trial court’s denial of
Petitioner’s motion for relief from judgment. See 28 U.S.C. § 2244(d)(2) (“The time
during which a properly filed application for State post-conviction or other collateral
review with respect to the pertinent judgment or claim is pending shall not be counted
toward any period of limitation under this subsection.”); see also Carey v. Saffold, 536
U.S. 214, 219-20 (2002) (stating that an application for state collateral review “is
pending as long as the ordinary state collateral review process is ‘in continuance’ - i.e.,
‘until the completion of’ that process. In other words, until the application has achieved
final resolution through the State’s post-conviction procedures, by definition it remains
‘pending.’ ”).
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On October 24, 2013, the limitations period resumed running, and Petitioner had
56 days, or until December 18, 2013, to file his habeas petition. Because Petitioner
waited until May 28, 2014, to file his petition, the petition is untimely.
C. Equitable Tolling
Petitioner concedes that his habeas petition is untimely, but urges the Court to
equitably toll the limitations period. “The doctrine of equitable tolling allows courts to toll
a statute of limitations when ‘a litigant’s failure to meet a legally-mandated deadline
unavoidably arose from circumstances beyond that litigant’s control.’ ” Robertson v.
Simpson, 624 F.3d 781, 783 (6th Cir. 2010) (quoting Graham-Humphreys v. Memphis
Brooks Museum of Art, Inc., 209 F.3d 552, 560–61 (6th Cir. 2000)). The habeas statute
of limitations “is subject to equitable tolling in appropriate cases.” Holland v. Florida,
560 U.S. 631, 645 (2010). Nevertheless, to have a limitations period equitably tolled,
the petitioner must show “ ‘(1) that he has been pursuing his rights diligently, and (2)
that some extraordinary circumstance stood in his way’ and prevented timely filing.” Id.
at 649 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)); see also Hall v.
Warden, Lebanon Corr. Inst., 662 F.3d 745, 749-50 (6th Cir. 2011) (adopting Holland’s
two-part test for determining whether a habeas petitioner is entitled to equitable tolling).
1. The Post-Conviction Attorney’s Advice
Petitioner argues that the advice given to him by his attorney on state collateral
review is the reason for his untimely habeas petition. Sometimes, professional
misconduct can “amount to egregious behavior and create an extraordinary
circumstance that warrants equitable tolling.” Holland, 560 U.S. at 651. And, in this
case, Petitioner’s post-conviction attorney provided misleading advice to Petitioner after
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the state courts concluded their review of Petitioner’s motion for relief from judgment.
The attorney stated in a letter to Petitioner dated October 25, 2013, that one of
Petitioner’s options at that point was to file a petition for writ of habeas corpus in federal
district court. The attorney then stated that a habeas petition must be filed within one
year after the deadline expires to file a petition for writ of certiorari in the United States
Supreme Court. See Petitioner’s Reply to Respondent’s Motion for Summary
Judgment, Ex. A.
The attorney’s comment about the deadline for filing a habeas corpus petition in
federal court was misleading; it failed to acknowledge that the limitations period in
Petitioner’s case had already run approximately ten months: from the time that
Petitioner’s convictions became final on direct review (December 8, 2010) until
Petitioner filed his motion for relief from judgment on October 14, 2011. The attorney
also failed to advise Petitioner that the limitations period is not tolled under 28 U.S.C. §
2244(d)(2) for the time during which a petition for writ of certiorari in the Supreme Court
can be filed following state collateral review. See Lawrence v. Florida, 549 U.S. 327,
333-36 (2007) (concluding that the limitations period is not tolled during the pendency of
a petition for writ of certiorari following state post-conviction review); cf. Gonzalez, 132
S.Ct. at 653-54 (explaining that, for prisoners who do not pursue direct review all the
way to the Supreme Court, a prisoner’s judgment becomes final on direct review “when
the time for pursuing direct review in [the Supreme] Court, or in state court, expires”).
Despite the misleading advice offered by Petitioner’s post-conviction attorney,
the Supreme Court has said that “miscalculation [of the limitations period] is simply not
sufficient to warrant equitable tolling, particularly in the postconviction context where
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prisoners have no constitutional right to counsel.” Lawrence, 549 U.S. at 336-37 (citing
Coleman v. Thompson, 501 U.S. 722, 756-77 (1991)); accord Martin v. Hurley, 150 F.
App’x 513, 516 (6th Cir. 2005) (stating that “attorney error is an inadequate justification
for equitable tolling in this circuit”); Whalen v. Randle, 37 F. App’x 113, 120 (6th Cir.
2002) (stating that a lawyer’s mistake generally is not a valid basis for equitable tolling);
Elliott v. Dewitt, 10 F. App'x 311, 313 (6th Cir. 2001) (stating that “an attorney’s mistake
which results in missing the filing deadline imposed by the AEDPA is not a basis for
equitable tolling”); see also Maples v. Thomas, 132 S. Ct. 912, 922 (2012) (declining to
disturb the general rule that, “when a petitioner’s postconviction attorney misses a filing
deadline, the petitioner is bound by the oversight and cannot rely on it to establish
cause” for a procedural default, and contrasting that situation with a situation where an
attorney abandons his client without notice). Improper advice from an attorney and the
receipt of incorrect information from an attorney about the filing deadline for a habeas
petition simply do not qualify a petitioner for equitable tolling. Whalen, 37 F. App’x at
119-20.
Although the Supreme Court reversed the judgment of conviction in Holland, the
problem there was not only “simple negligence” (failing to file a habeas petition on time
and being unaware of the date on which the limitations period expired), but also the
attorney’s failure to: file the habeas petition on time despite the petitioner’s many letters
emphasizing the importance of doing so; perform the research necessary to determine
the proper filing date despite the petitioner’s letters identifying the applicable legal rules;
inform the petitioner in a timely manner that the state supreme court had decided his
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case; and communicate with the petitioner over a period of years. Holland, 560 U.S. at
562.
These failures are not present here. Petitioner’s post-conviction attorney
communicated with Petitioner and promptly informed him that the Michigan Supreme
Court had decided his case. The attorney also offered to represent Petitioner in federal
court if Petitioner made the appropriate arrangements. Petitioner apparently did not
take advantage of the offer, and there is no indication in the pleadings that Petitioner
emphasized the importance of filing a timely habeas petition or that he identified the
applicable rules, as he has done in this case.
The Court finds that this case is one of simple negligence and attorney error. The
misleading advice provided by Petitioner’s post-conviction attorney did not amount to
egregious behavior. Nor did the misleading advice create an extraordinary
circumstance entitling Petitioner to equitable tolling of the limitations period.
2. Actual Innocence
Petitioner urges the Court to equitably toll the limitations period for an additional
reason, namely, that he is actually innocent of the sentence he received.
In this Circuit the actual-innocence exception applies only “if a petitioner is either
(i) factually innocent of the crime for which he was convicted, or (ii) innocent of a death
sentence in a capital case.” Lee v. Brunsman, 474 F. App’x 439, 441 (6th Cir. 2012).
Neither circumstance applies here. This is not a capital case, and Petitioner’s guilty
plea demonstrated that he is not factually innocent of the crimes for which he is
imprisoned. Therefore, the Court declines to equitably toll the limitations period on the
basis of Petitioner’s contention that he is innocent of the penalty. And, because the
10
limitations period ran more than one year, the Court grants Respondent’s motion for
summary judgment and dismissal of the petition.
III. On the Merits
The Court finds for the reasons given below that Petitioner is not entitled to
habeas relief even if his petition were timely. Petitioner’s substantive grounds for relief,
as stated in his amended petition, allege that: (1) Petitioner’s plea was not intelligent,
voluntary and understanding; (2) Petitioner was improperly assessed ten points under
offense variable 12 and offense variable 13 of the state sentencing guidelines; (3)
Petitioner’s trial attorney provided ineffective assistance by failing to object to the
scoring of the guidelines and by failing to preserve an objection to the amount of
restitution; (4) Petitioner’s presentence information report contains false and inaccurate
information, and trial counsel failed to either inform Petitioner of information in the report
or give him an opportunity to review the report before sentencing; and (5) trial counsel
was ineffective for failing to object to the amount of jail credit awarded to Petitioner and
for failing to advise Petitioner of the recommended amount of jail credit.
Petitioner is entitled to habeas relief on these claims only if the state court
decisions on his claims
(1)
resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States; or
(2)
resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.
28 U.S.C. § 2254(d).
Under the “contrary to” clause [of § 2254(d)(1)], a federal habeas court
may grant the writ if the state court arrives at a conclusion opposite to that
11
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. Under the “unreasonable application”
clause [of § 2254(d)(1)], a federal habeas court may grant the writ if the
state court identifies the correct governing legal principle from [the
Supreme] Court’s decisions but unreasonably applies that principle to the
facts of the prisoner’s case.
Williams v. Taylor, 529 U.S. 362, 412-13 (2000) (O’Connor, J., opinion of the Court for
Part II). “[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.
“AEDPA thus imposes a ‘highly deferential standard for evaluating state-court
rulings,’ Lindh v. Murphy, 521 U.S. 320, 333, n. 7 (1997), and ‘demands that state-court
decisions be given the benefit of the doubt,’ Woodford v. Visciotti, 537 U.S. 19, 24
(2002) (per curiam).” Renico v. Lett, 559 U.S. 766, 773 (2010). “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, 562 U.S. 86,101 (2011) (quoting Yarborough v. Alvarado, 541
U.S. 652, 664 (2004)). To obtain a writ of habeas corpus from a federal court, a state
prisoner must show that the state court’s ruling on his or her claim “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 103.
A. The Guilty Plea
Petitioner alleges that his guilty plea was not intelligent, voluntary, and
understanding because he not informed of the sentencing guidelines for his crimes
12
during the plea and sentencing proceedings. Petitioner raised this issue on direct
appeal, but the Michigan Court of Appeals denied leave to appeal for lack of merit in the
grounds presented to the court.
1. Clearly Established Federal Law
“A guilty or no-contest plea involves a waiver of many substantial constitutional
rights. . . .” Fautenberry v. Mitchell, 515 F.3d 614, 636 (6th Cir. 2008) (citing Boykin v.
Alabama, 395 U.S. 238, 243 (1969)). Consequently, “a court may accept a guilty or nocontest plea only where it is a ‘voluntary[,] . . . knowing, intelligent act [] done with
sufficient awareness of the relevant circumstances and likely consequences.’ ” Id. at
636-37 (quoting Brady v. United States, 397 U.S. 742, 748 (1970)).
For a plea to be valid, the defendant must appreciate the consequences of his
waiver of constitutional rights, waive his rights without coercion, and understand the
rights that he is surrendering by pleading guilty. Ruelas v. Wolfenbarger, 580 F.3d 403,
408 (6th Cir. 2009) (citing Brady, 397 U.S. at 748-50, and Fautenberry, 515 F.3d at
636-37). “While a defendant need not know all the possible consequences of his plea, .
. . he must be aware of the maximum sentence to which he is exposed.” Id. at 408.
Courts must consider all the relevant circumstances when determining whether a plea
was voluntary. Brady, 397 U.S. at 749.
2. Application
The plea and sentence agreement were stated on the record at Petitioner’s plea
proceeding. Petitioner informed the trial court that he understood the charges to which
he was pleading guilty. He also stated that he understood the court could sentence him
up to thirty years in prison as a habitual offender for the home invasion, up to ten years
13
in prison for the assault charge, and up to one year for the stalking charge. (Plea Tr., 25, July 18, 2008.) Additionally, Petitioner assured the trial court that he understood the
rights he was waiving by pleading guilty, and he stated that no one had promised him
anything, threatened him, or coerced him into pleading guilty. He provided a factual
basis for his plea, and he said that he was pleading guilty of his own free will. (Id. at 611.) In light of Petitioner’s “solemn declarations,” which “carry a strong presumption of
verity,” Blackledge v. Allison, 431 U.S. 63, 74 (1977), the Court concludes that
Petitioner’s guilty plea was voluntary, knowing, and intelligent.
While it is true that the sentencing guidelines range was not mentioned at
Petitioner’s plea, “[t]here is no constitutional requirement that a defendant be informed
by the court during the plea colloquy of his estimated guidelines sentencing range.”
United States v. Ufie, 5 F. App’x 357, 359 (6th Cir. 2001). And because Petitioner was
informed of the maximum sentences for his crimes, the Court declines to grant relief on
Petitioner’s first claim.
B. Offense Variables 12 and 13 of the Sentencing Guidelines
The second habeas claim alleges that the trial court improperly assessed ten
points for offense variable 12 and ten points for offense variable 13. “Offense variable
12 is contemporaneous felonious criminal acts,” Mich. Comp. Laws § 777.42(1), and
“[o]ffense variable 13 is continuing pattern of criminal behavior.” Mich. Comp. Laws §
777.43(1). Petitioner asserts that the conduct used to score the two offense variables
was identical and, therefore, he should not have been given ten points for both offense
variables. He argues that assessing ten points for both variables amounted to
impermissible double counting and resulted in an artificially high offense variable total of
14
61 points. Petitioner raised this issue on direct appeal, where his claim was rejected for
lack of merit, and on state collateral review, where the state trial court determined that
Petitioner was precluded from raising the claim.
This Court finds no merit in Petitioner’s claim, because the state court’s
interpretation and application of state sentencing laws and guidelines is a matter of
state concern only, Howard v. White, 76 F. App’x 52, 53 (6th Cir. 2003), and “[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). Consequently, the contention that the
trial court incorrectly calculated the state sentencing guidelines is not cognizable on
federal habeas corpus review. Tironi v. Birkett, 252 F. App’x 724, 725 (6th Cir. 2007);
McPhail v. Renico, 412 F. Supp. 2d 647, 656 (E.D. Mich. 2006); Robinson v. Stegall,
157 F. Supp. 2d 802, 823 (E.D. Mich. 2001).
Although Petitioner contends that the scoring of ten points for both variables
resulted in a sentence based on inaccurate information, he admits that the correct
scoring of the variables 12 and 13 would not change the overall sentencing guidelines
range. See Brief in Support of Amended Pet. for Writ of Habeas Corpus, page 13.
Therefore, even assuming that the state court erroneously scored ten points for offense
variable 12 and offense variable 13, the error was harmless. See Williams v. United
States, 503 U.S. 193, 203 (1992) (stating an error in scoring sentencing guidelines is
harmless if the error did not affect the sentence imposed); see also People v. Johnson,
202 Mich. App. 281, 290; 508 N.W.2d 509, 513 (1993) (stating that an error in
calculating the guidelines range would be harmless where a reduction in the score
would not alter the total offense variable score so as to change the level where the
15
defendant was ultimately placed). Habeas relief is not warranted on Petitioner’s second
claim.
C. Trial Counsel
Petitioner’s third and fifth claims allege ineffective assistance of trial counsel.
In his third claim, Petitioner alleges that his trial attorney failed to object to the scoring of
the sentencing guidelines and failed to preserve an objection to the assessment of
restitution. This claim was raised and rejected on direct appeal and on state collateral
review.
In his fifth claim, Petitioner alleges that trial counsel was ineffective for failing to
object to the amount of jail credit Petitioner received and for failing to advise Petitioner
of the recommended amount of credit. Petitioner raised this claim in his motion for relief
from judgment and the subsequent appeal. The trial court rejected the claim on the
ground that, even assuming Petitioner was entitled to additional jail credit, he was
precluded from raising the claim by his failure to raise the issue on direct appeal or in a
prior post-conviction motion.
1. Clearly Established Federal Law
To prevail on his claim, Petitioner must show that his attorney’s “performance
was deficient” and “that the deficient performance prejudiced the defense.” Strickland v.
Washington, 466 U.S. 668, 687 (1984). “Unless a defendant makes both showings, it
cannot be said that the conviction . . . resulted from a breakdown in the adversary
process that renders the result unreliable.” Id.
The “deficient performance” prong of the Strickland test “requires showing that
counsel made errors so serious that counsel was not functioning as the ‘counsel’
16
guaranteed the defendant by the Sixth Amendment.” Id. “Judicial scrutiny of counsel’s
performance must be highly deferential.” Id. at 689.
To demonstrate that counsel’s performance prejudiced the defense, Petitioner
must show “a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id. at 694. “This does
not require a showing that counsel’s actions ‘more likely than not altered the outcome,’”
but “[t]he likelihood of a different result must be substantial, not just conceivable.”
Richter, 562 U.S. at 111-12 (quoting Strickland, 466 U.S. at 693).
2. The Sentencing Guidelines
Petitioner alleges that his trial attorney should have objected to the scoring of
offense variables 12 and 13 of the sentencing guidelines on the ground that assessing
ten points for both variables constituted double counting. Petitioner states that the
assessment of ten points for both variables resulted in an artificially high offense
variable score of 61. He concedes, however, that a correct score of 51 would not have
altered the sentencing guidelines range. The Court therefore finds that, even if trial
counsel’s failure to object to the scoring of the offense variables amounted to deficient
performance, Petitioner was not prejudiced by the alleged deficiency. Petitioner has not
proved both prongs of the Strickland test and therefore is not entitled to habeas relief on
the basis of his claim about trial counsel’s failure to object to the sentencing guidelines.
3. The Restitution
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Petitioner alleges next that his attorney failed to preserve an objection to the
amount of restitution that Petitioner was required to pay. Ordinarily, “fines or restitution
orders fall outside the scope of the federal habeas statute because they do not satisfy
the ‘in custody’ requirement of a cognizable habeas claim.” Washington v. McQuiggin,
529 F. App’x 766, 773 (6th Cir. 2013), cert. denied sub nom Washington v. Woods, 134
S. Ct. 916 (2014). But Petitioner couches his claim in constitutional terms by alleging
ineffective assistance of counsel.
Petitioner was ordered to pay $3,960.00 in restitution. This amount included
$2,500.00 for the victim’s lost wages. According to Petitioner, the victim testified at a
Friend-of-the-Court hearing on December 3, 2007, that she earned only $20.00 per day.
Petitioner estimates that, at $20.00 per day, the victim lost only $250.00 in wages, not
$200.00 per day (for a total of $2,500.00), as she claimed when she was interviewed by
the probation department before Petitioner’s sentencing.
The presentence information report, however, states that the victim lost three and
a half weeks of employment as a waitress due to Petitioner’s assault on her. See
Respondent’s motion for summary judgment, Appendix B. It is at least plausible that
the victim lost $2,500.00 in lost wages, including tips, during that time period. The trial
court, moreover, stated in its order denying Petitioner’s motion for relief from judgment
that the amount of restitution did not fall outside the range of principled outcomes, nor
impose manifest hardship on Petitioner or his family. And Petitioner’s trial attorney
indicated at sentencing that Petitioner would be employable upon his release from
prison.
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Given the facts, defense counsel’s failure to object to the amount of restitution
did not constitute deficient performance, and, even if it did, there is not a substantial
probability that an objection would have been successful. The Court therefore declines
to grant relief on Petitioner’s claim that his attorney failed to contest the amount of
restitution.
4. Jail Credit
Petitioner alleges in his fifth claim that his trial attorney was ineffective for failing
to object to the amount of jail credit he received. The trial court awarded Petitioner 145
days of credit for time spent in jail before sentencing. Petitioner claims that he is
entitled to an additional 16 days of jail credit for the time he spent in jail upon his arrest
in Florida and before his extradition to Michigan. The state trial court addressed this
claim in its order denying Petitioner’s motion for relief from judgment and concluded that
Petitioner was precluded from raising his claim because he could have raised the issue
on direct appeal or in a prior post-conviction motion.
As with state sentencing guidelines, a state court’s alleged misinterpretation of
crediting statutes and the computation of a petitioner’s prison term are matters of state
law that are not cognizable on habeas review. Howard, 76 F. App'x at 53; Kipen v.
Renico, 65 F. App’x 958, 959 (6th Cir. 2003). Furthermore, the Court finds for the
following reasons that Petitioner’s ineffective-assistance-of-counsel claim is
procedurally defaulted.
The doctrine of procedural default prohibits a federal court from reviewing the
merits of a habeas petitioner’s claims, including constitutional claims, if a state court
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declined to hear the claims because the prisoner failed to abide by a state procedural
rule. Martinez v. Ryan, 132 S. Ct. 1309, 1316 (2012). In this Circuit,
“[a] habeas petitioner’s claim will be deemed procedurally defaulted if
each of the following four factors is met: (1) the petitioner failed to comply
with a state procedural rule; (2) the state courts enforced the rule; (3) the
state procedural rule is an adequate and independent state ground for
denying review of a federal constitutional claim; and (4) the petitioner has
not shown cause and prejudice excusing the default.” [Jalowiec v.
Bradshaw, 657 F.3d 293, 302 (6th Cir. 2011)]. To determine whether a
state procedural rule was applied to bar a habeas claim, [courts] look “to
the last reasoned state court decision disposing of the claim.” Guilmette v.
Howes, 624 F.3d 286, 291 (6th Cir. 2010) (en banc).
Henderson v. Palmer, 730 F.3d 554, 560 (6th Cir. 2013).
The state procedural rule in question here is Michigan Court Rule
6.508(D)(3), which prohibits a state court from granting relief if a motion
for relief from judgment
alleges grounds for relief, other than jurisdictional defects, which
could have been raised on appeal from the conviction and sentence or in
a prior motion under this subchapter, unless the defendant demonstrates
(a) good cause for failure to raise such grounds on appeal or in the prior
motion, and
(b) actual prejudice from the alleged irregularities that support the claim for
relief . . . .
Mich. Ct. R. 6.508(D)(3).
Petitioner violated this rule by first raising his claim about jail credit and his
attorney’s failure to object to the amount of jail credit in his motion for relief from
judgment rather than on direct appeal from his convictions. The last state court to
review Petitioner’s claim in a reasoned opinion was the trial court, which enforced Rule
6.508(D)(3) by citing the rule and by stating that Petitioner was precluded from raising
his claim because he could have raised the claim on direct appeal or in a prior postconviction motion. The procedural bar in Rule 6.508(D) is an adequate and
20
independent state ground on which Michigan courts may rely in foreclosing review of
federal claims. Howard v. Bouchard, 405 F.3d 459, 477 (6th Cir. 2005). Consequently,
the first three factors of procedural default are satisfied.
The fourth and final factor is whether Petitioner has shown “cause” for his failure
to raise his claim on direct appeal and prejudice from the alleged irregularities that
support his claim. Petitioner acknowledges that his claim is subject to the “cause and
prejudice” requirement, see Brief in Support of Amended Pet. for Writ of Habeas Corpus
at 28, but he has not alleged “cause” for his failure to raise his claim on direct appeal.
In the absence of “cause and prejudice,” Petitioner can prevail on his claim only if
he “demonstrate[s] that the failure to consider [his claim] will result in a fundamental
miscarriage of justice. A fundamental miscarriage of justice results from the conviction
of one who is ‘actually innocent.’” Lundgren v. Mitchell, 440 F.3d 754, 764 (6th Cir.
2006) (quoting Murray v. Carrier, 477 U.S. 478, 496 (1986)). To be credible, however,
“such a claim requires petitioner to support his allegations of constitutional error with
new reliable evidence . . . .” Schlup v. Delo, 513 U.S. 298, 324 (1995).
Petitioner pleaded guilty to the charges for which he is incarcerated, and he has
not produced any new evidence suggesting that he is actually innocent of the charges.
Therefore, a miscarriage of justice will not result from the Court’s failure to address the
substantive merits of his claim about jail credit and trial counsel’s failure to object to the
amount of jail credit. The claim is procedurally defaulted.
D. The Pre-sentence Information Report and Trial Counsel
The fourth habeas claim alleges that Petitioner’s pre-sentence information report
contains false and inaccurate information that caused the Michigan Department of
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Corrections to erroneously classify Petitioner as a sex offender. The allegedly
inaccurate information in the report is the probation officer’s description of the offense,
which included a reference to the criminal sexual conduct charges that were dismissed
as part of the plea and sentencing agreement. Petitioner claims that the information
should not have been included in the report because the charges were dismissed
without any admission or finding of guilt.
Petitioner also claims that the report contains irrelevant, unauthenticated, and
inaccurate information about threatening and harassing text messages that he sent to
the victim of his crimes. Petitioner further alleges that his trial attorney not only failed to
give him an opportunity to review the report before sentencing, but failed to advise him
of the contents of the report. As a result, Petitioner contends that was deprived of an
opportunity to challenge the false and inaccurate information, and the Michigan Parole
Board is likely will scrutinize the allegations of criminal sexual conduct when deciding
whether to release him on parole or make him serve more time in prison.
Petitioner raised his fourth claim in his motion for relief from judgment and the
subsequent appeal. The trial court rejected the claim, stating that Petitioner failed to
challenge the contents of his pre-sentence information report at the appropriate time
and that his claim about defense counsel was undermined by his argument that counsel
advised him that any information in the report about criminal sexual conduct would be
removed.
1. The Report
This Court finds no merit in Petitioner’s claim about his pre-sentence information
report, because “the mere presence of hearsay or inaccurate information in a
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[presentence report] does not constitute a denial of due process.” Hili v. Sciarrotta, 140
F.3d 210, 216 (2nd Cir. 1998). The contention that a presentence report contains
inaccurate information raises
[a] state law issue[], and “federal habeas corpus relief does not lie for
errors of state law.” Lewis v. Jeffers, 497 U.S. 764, 780, 110 S.Ct. 3092,
111 L.Ed.2d 606 (1990). “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, 112
S.Ct. 475, 116 L.Ed.2d 385 (1991).
Rodriguez v. Jones, 625 F. Supp. 2d 552, 569 (E.D. Mich. 2009). For this reason, the
Court rejects petitioner’s claim about the pre-sentence information report.
2. Trial Counsel
Petitioner alleges that his trial attorney failed to inform him of the contents of the
pre-sentence information report and failed to give him an opportunity to review the
report. To prevail on this claim, Petitioner must show that his attorney’s performance
was deficient and that the deficient performance prejudiced the defense. Strickland,
466 U.S. at 687. The Court finds for the following reasons that Petitioner failed to meet
this standard.
Petitioner disputes information in his presentence report that he committed
criminal sexual conduct and sent the victim threatening and harassing text messages.
Although the criminal sexual conduct and telecommunications charges ultimately were
dismissed, Petitioner admitted at the plea proceeding that he harassed the victim and
made threatening telephone calls to her even though there was a personal protection
order against him and even though he knew he was not supposed to call the victim.
(Plea Tr., 10-11, July 18, 2008.) The victim, moreover, testified at the preliminary
examination that, on December 4, 2007, Petitioner made numerous calls and threats to
23
her, came to her home, kicked in her door, hit her on the face and head with his fists,
ripped off her clothes, and shoved his finger in her vagina. (Prelim. Examination Tr., 89, Mar. 26, 2008.)
In light of the victim’s testimony and Petitioner’s admissions at his plea, it does
not appear that the disputed information in the pre-sentence information report was
false or inaccurate. Furthermore, the trial court apparently did not rely on the
information when sentencing Petitioner, and Petitioner has not demonstrated that the
Michigan Parole Board actually used the disputed information to keep him in prison.
The Court concludes that defense counsel’s alleged failure to inform Petitioner of
information in the pre-sentence information report and alleged failure to show the report
to Petitioner did not amount to deficient performance and did not prejudice Petitioner.
The Court, therefore, declines to grant relief on Petitioner’s claim about trial counsel’s
alleged omissions regarding the pre-sentence report.
IV. Conclusion and Order
The state courts’ rejection of Petitioner’s claims did not result in decisions that
were contrary to clearly established federal law, unreasonable applications of clearly
established federal law, or unreasonable applications of the facts. The state court
decisions also were not so lacking in justification that there was an error beyond any
possibility for fairminded disagreement. The Court denies the amended petition for writ
of habeas corpus (ECF No. 16) on the merits.
The initial and amended petitions also are untimely. The Court grants
Respondent’s motion for summary judgment and dismissal of the petition (ECF No. 12).
Finally, the Court grants Petitioner’s motion to amend (ECF No. 15).
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V. Certificate of Appealability and In Forma Pauperis Status on Appeal
Petitioner may not appeal this Court’s decision unless a district or circuit judge
issues a certificate of appealability, 28 U.S.C. § 2253(c)(1)(A); Fed. R. App. P. 22(b)(1),
and a certificate of appealability may issue “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
satisfies this standard by demonstrating that jurists of reason could disagree with the
district court’s resolution of his constitutional claims or that jurists could conclude the
issues presented are adequate to deserve encouragement to proceed further.” Miller-El
v. Cockrell, 537 U.S. 322, 327 (2003) (citing Slack v. McDaniel, 529 U.S. 473, 484
(2000)).
Reasonable jurists would not disagree with the Court’s resolution of Petitioner’s
claims, nor conclude that the issues deserve encouragement to proceed further. The
Court therefore declines to issue a certificate of appealability. Petitioner nevertheless
may proceed in forma pauperis on appeal if he chooses to appeal this decision because
an appeal could be taken in good faith. 28 U.S.C. § 1915(a)(3).
S/Victoria A. Roberts
VICTORIA A. ROBERTS
UNITED STATES DISTRICT JUDGE
Dated: 7/30/2015
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