Johnson v. Olson

Filing 12

OPINION and ORDER Denying 1 Petition for Writ of Habeas Corpus, Denying Petitioner's Motion to Stay, Declining to Issue a Certificate of Appealability, and Denying Leave to Appeal In Forma Pauperis. Signed by District Judge Robert H. Cleland. (SBur)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

JASON O. JOHNSON,
Petitioner,
Case No. 16-12489

v.
KATHLEEN OLSON,
Respondent.
/

OPINION AND ORDER (1) DENYING THE PETITION FOR WRIT OF HABEAS
CORPUS, (2) DENYING PETITIONER’S MOTION TO STAY, (3) DECLINING TO
ISSUE A CERTIFICATE OF APPEALABILITY, AND (4) DENYING LEAVE TO
APPEAL IN FORMA PAUPERIS
Christopher Jason Johnson, (“Petitioner”), filed a petition for writ of habeas
corpus challenging his St. Clair County Circuit Court plea-based conviction for unarmed
robbery. Petitioner was sentenced to a term of five to fifteen years. The petition will be
denied because Petitioner’s sole sentencing claim cannot be supported by clearly
established Supreme Court law as required by 28 U.S.C. § 2254(d). The Court will also
deny Petitioner’s alternative request to stay the petition, deny a certificate of
appealability, and deny leave to appeal in forma pauperis.
I. Background
Petitioner’s conviction stemmed from an incident where he robbed the attendant
at an Admiral Gas Station in Port Huron, Michigan. Petitioner pleaded guilty to unarmed
robbery in exchange for dismissal of resisting arrest and habitual offender charges.
(Dkt. #11-2, Pg. ID 82-83.) There was no sentencing agreement, and Petitioner was
informed that his maximum sentence would be fifteen years. (Id., Pg. ID 85.)

At the sentencing hearing the sentencing guidelines were calculated to call for a
minimum sentencing term between 42 and 86 months. (Dkt. #11-3, Pg. ID 105.)
Petitioner was sentenced to a minimum term of five years and a maximum term of
fifteen years. (Id., Pg. ID 110.)
Following sentencing, Petitioner was appointed appellate counsel who filed an
application for leave to appeal in the Michigan Court of Appeals. The appeal raised the
following claims:
I. The trial court committed clear error in scoring Offense Variable 10.
II. Johnson has a constitutional right to have an ability to pay assessment
before he is ordered to pay attorney fees.
The Michigan Court of Appeals denied the application for leave to appeal “for
lack of merit in the grounds presented.” People v. Johnson, No. 324771, at *1 (Mich. Ct.
App. Jan 5, 2015). Petitioner subsequently filed an application for leave to appeal in the
Michigan Supreme Court which raised the same claims as in the Michigan Court of
Appeals. The Michigan Supreme Court denied the application on June 30, 2015,
because it was not persuaded that the questions presented should be reviewed by the
Court. People v. Johnson, 498 Mich. 854 (2015) (Table).
II. Standard of Review
28 U.S.C. § 2254(d)(1) curtails a federal court’s review of constitutional claims
raised by a state prisoner in a habeas action. Relief is barred under this section unless
the state court adjudication was “contrary to” or resulted in an “unreasonable application
of” clearly established Supreme Court law.
“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
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‘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. “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); see also Woods v. Etherton, No.
15-723, 2016 WL 1278478, at *3 (U.S. Apr. 4, 2016) (habeas relief precluded if state
court decision is “not beyond the realm of possibility [from what] a fairminded jurist could
conclude.”)
“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.” Richter, 562 U.S. at 103.

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III. Discussion
Petitioner’s sole habeas claim asserts that the trial court erred in assessing him
points under Michigan’s sentencing guidelines for “predatory conduct.” He claims that
his Sixth Amendment right to a jury trial was violated because there was no jury finding
beyond a reasonable doubt that he engaged in predatory conduct, and he did not admit
to such conduct at the guilty plea hearing. Petitioner recognizes that he did not present
his claim on direct review as a federal one, so he asks in the alternative for the court to
stay his case so he can file for state post-conviction review on this basis if the petition is
not granted. (See Dkt. #1, Pg. ID 21.)
First, any argument that the sentencing guidelines were scored incorrectly under
state law is not cognizable. A state trial “court’s alleged misinterpretation of state
sentencing guidelines . . . is a matter of state concern,” Howard v. White, 76 F. App'x
52, 53 (6th Cir. 2003), and “federal habeas corpus does not lie for errors of state law.”
Lewis v. Jeffers, 497 U.S. 764, 780 (1990). Consequently, Petitioner’s allegation that
the trial court incorrectly scored an offense variable of the state sentencing guidelines is
not a cognizable claim. Tironi v. Birkett, 252 F. App'x 724, 725 (6th Cir. 2007).
As for Petitioner’s Sixth Amendment claim, on June 17, 2013, the United States
Supreme Court ruled that any fact that increases the mandatory minimum sentence for
a crime is an element of the criminal offense that must be proven beyond a reasonable
doubt. See Alleyne v. United States, 133 S. Ct. 2151, 2155 (2013). Alleyne is an
extension of the Supreme Court’s holdings in Apprendi v. New Jersey, 530 U.S. 466
(2000) and Blakely v. Washington, 542 U.S. 296 (2004), in which the Supreme Court
held that any fact that increases or enhances a penalty for a crime beyond the

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prescribed statutory maximum for the offense must be submitted to the jury and proven
beyond a reasonable doubt.
Alleyne, however, is inapplicable to Petitioner’s case because Alleyne “dealt with
judge-found facts that raised the mandatory minimum sentence under a statute, not
judge-found facts that trigger an increased guidelines range.” See United States v.
Cooper, 739 F.3d 873, 884 (6th Cir. 2014); see also United States v. James, 575 F.
App'x 588, 595 (6th Cir. 2014) (unpublished) (collecting cases and noting that at least
four post-Alleyne unanimous panels of the Sixth Circuit have “taken for granted that the
rule of Alleyne applies only to mandatory minimum sentences.”); Saccoccia v. Farley,
573 F. App'x 483, 485 (6th Cir. 2014) (unpublished) (“But Alleyne held only that ‘facts
that increase a mandatory statutory minimum [are] part of the substantive offense.’ . . .
It said nothing about guidelines sentencing factors. . . .”). Petitioner’s claim concerns
judicial findings that set the guideline range for his minimum sentence. The Sixth Circuit
has ruled that Alleyne did not decide the question whether judicial factfinding under
Michigan’s indeterminate sentencing scheme violates the Sixth Amendment. See Kittka
v. Franks, 539 F. App'x 668, 673 (6th Cir. 2013) (unpublished).
Petitioner points to the fact that the Michigan Supreme Court relied on the
Alleyne decision in holding that Michigan’s Sentencing Guidelines scheme violates the
Sixth Amendment right to a jury trial. See People v. Lockridge, 498 Mich. 358 (2015).
Petitioner cannot rely on a state court decision, however, to obtain federal habeas
corpus relief. The § 2254(d) standard of review prohibits the use of lower court
decisions in determining whether a habeas petitioner’s federal constitutional rights were
violated. See Miller v. Straub, 299 F. 3d 570, 578-579 (6th Cir. 2002). “The Michigan

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Supreme Court’s decision in Lockridge does not render the result ‘clearly established’
for purposes of habeas review.” Haller v. Campbell, No. 16-206, 2016 WL 1068744, at
*5 (W.D. Mich. Mar. 18, 2016).
Petitioner’s alternative request to stay his petition and hold the case in abeyance
while he presents his claim under Lockridge is likewise without merit. A federal district
court has discretion to stay a petition to allow a petitioner to present unexhausted claims
to the state courts and then return to federal court on a perfected petition. See Rhines v.
Weber, 544 U.S. 269, 276 (2005). Stay and abeyance is not available, however, where
a petitioner’s unexhausted claim is “plainly meritless.” Id. at 277.
Lockridge cannot form the basis for granting any future federal habeas relief as
explained above. Nor does it appear that the state courts will give Petitioner the benefit
of that decision on post-conviction review. The Michigan Supreme Court “made its
holding [in Lockridge] applicable only to cases still pending on direct review.” Hawkins v.
Napel, No. 13-43, 2016 WL 1055755, at *2 n.1 (W.D. Mich. Mar. 17, 2016).
(unpublished) (emphasis added). Petitioner’s direct review ended on June 30, 2015,
when the Michigan Supreme Court denied relief, and Lockridge was issued about a
month later on July 29, 2015. As a potential future federal habeas claim, Petitioner’s
unexhausted Lockbridge claim is plainly meritless. The Court therefore denies
Petitioner’s alternate request to stay this case.
IV. CERTIFICATE OF APPEALABILITY
Federal Rule of Appellate Procedure 22 provides that an appeal may not proceed
unless a certificate of appealability (“COA”) is issued under 28 U.S.C. § 2253. A COA
may be issued “only if the applicant has made a substantial showing of the denial of a

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constitutional right.” 28 U.S.C. § 2253(c)(2). When a district court denies a habeas
petition on the merits of the claims presented, a certificate may issue if the petitioner
demonstrates that reasonable jurists would find the district court’s assessment of the
constitutional claims debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484 (2000).
In this case, the Court concludes that reasonable jurists would not debate the Court’s
conclusion that the petition should be denied because the claim it raises is devoid of
merit. Therefore, the Court denies a certificate of appealability. Furthermore, leave to
appeal in forma pauperis will be denied because any appeal of this order would be
frivolous. 28 U.S.C. § 1915(a)(3).
V. CONCLUSION
IT IS ORDERED, that the petition for a writ of habeas corpus is DENIED.
IT IS FURTHER ORDERED that Petitioner’s request for an abeyance is DENIED.
IT IS FURTHER ORDERED that a certificate of appealability and permission to
proceed on appeal in forma pauperis are DENIED.

S/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE
Dated: January 30, 2017
I hereby certify that a copy of the foregoing document was mailed to counsel of record
on this date, January 30, 2017, by electronic and/or ordinary mail.
S/Shawna C. Burns
Case Manager Generalist
[phone]

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