Gibbons v. McCullick
OPINION and ORDER Denying the 1 Petition for Writ of Habeas Corpus, Declining to Issue a Certificate of Appealability, and Granting Leave to Appeal In Forma Pauperis. Signed by District Judge Denise Page Hood. (JOwe)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
LAWRENCE NORMAN GIBBONS,
Case No. 2:16-CV-13992
HONORABLE DENISE PAGE HOOD
CHIEF UNITED STATES DISTRICT JUDGE
OPINION AND ORDER DENYING THE PETITION FOR WRIT OF
HABEAS CORPUS, DECLINING TO ISSUE A CERTIFICATE OF
APPEALABILITY, AND GRANTING LEAVE TO APPEAL IN FORMA
Lawrence Norman Gibbons, (“Petitioner”), confined at the St. Louis
Correctional Facility in St. Louis, Michigan, filed a pro se petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction
and sentence for first-degree criminal sexual conduct, M.C.L.A.
750.520b(1)(A). For the reasons that follow, the petition for writ of habeas
corpus is DENIED.
Petitioner was originally charged with one count of first-degree
criminal sexual conduct based on an allegation that he engaged in sexual
penetration with a person under the age of thirteen years old. This charge
carries a mandatory minimum twenty five year prison sentence. See
M.C.L.A. 750.520b(2)(b). Petitioner was also charged with one count of
second-degree criminal sexual conduct.
On August 24, 2015, petitioner pleaded guilty to a first-degree
criminal sexual conduct charge that was amended by the prosecutor to
remove any allegation that the offense was perpetrated by an individual
older than seventeen years old against a person younger than thirteen
years old, so as to remove the mandatory minimum twenty five year
sentence. The prosecutor agreed that petitioner’s sentencing guidelines
were between eighty one to one hundred and twenty months and that his
maximum sentence would be fifteen years. (Tr. 8/24/15, p. 3). Petitioner
pleaded guilty after being advised of the constitutional rights. (Id., pp. 4-7).
Petitioner was sentenced on September 9, 2015. Prior to the
sentence being imposed, defense counsel successfully objected to the
scoring of points under Prior Record Variable (PRV) 6 and Offense
Variables (OV) 3 and 8 of the Michigan Sentencing Guidelines. The judge,
however, rejected counsel’s objections to the scoring of OV 4 and OV 11 of
the Michigan Sentencing Guidelines. The corrected sentencing guidelines
range was reduced to fifty one to eighty five months. (Tr. 9/9/15, pp. 6-10).
In imposing sentence, the judge noted that petitioner’s counsel had
managed to negotiate the removal of the mandatory minimum twenty five
year prison sentence and had been able to cap petitioner’s maximum
sentence at fifteen years. After considering the Michigan Supreme Court
case of People v. Lockridge, the plea agreement, and the seriousness of
the offense, the judge sentenced petitioner to ten to fifteen years in prison.
(Id., p. 12).
Petitioner’s conviction and sentence were affirmed on appeal. People
v. Gibbons, No. 330909 (Mich.Ct.App. Feb. 18, 2016); lv. Den. 882 N.W.
2d 147 (Mich. 2016).
Petitioner seeks a writ of habeas corpus on the following grounds:
I. Trial court deprived Defendant of due process with
sentencing, and counsel was ineffective.
II. Trial court violated constitutional law in sentencing, and
ineffective assistance of 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
(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
A decision of a state court is “contrary to” clearly established federal
law if the state court arrives at a conclusion opposite to that reached by
the Supreme Court on a question of law or if the state court decides a
case differently than the Supreme Court has on a set of materially
indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000).
An “unreasonable application” occurs when “a state court decision
unreasonably applies the law of [the Supreme Court] to the facts of a
prisoner’s case.” Id. at 409. A federal habeas court may not “issue the
writ simply because that court concludes in its independent judgment that
the relevant state-court decision applied clearly established federal law
erroneously or incorrectly.” Id. at 410-11. “[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). In order to
obtain habeas relief in federal court, a state prisoner is required to show
that the state court’s rejection of 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
The Michigan Court of Appeals denied petitioner’s application for
leave to appeal on petitioner’s direct appeal in a form order “for lack of
merit in the grounds presented.” The Michigan Supreme Court
subsequently denied the petitioner leave to appeal in a standard form
order without any extended discussion. Determining whether a state
court’s decision resulted from an unreasonable legal or factual conclusion,
as would warrant federal habeas relief, does not require that there be an
opinion from the state court that explains the state court’s reasoning.
Harrington, 562 U.S. at 98. “Where a state court’s decision is
unaccompanied by an explanation, the habeas petitioner’s burden still
must be met by showing there was no reasonable basis for the state court
to deny relief.” Id. In fact, when a habeas petitioner has presented a
federal claim to a state court and that state court has denied relief, “it may
be presumed that the state court adjudicated the claim on the merits in the
absence of any indication or state-law procedural principles to the
contrary.” Id. at 99. That presumption may be overcome only when there
is a reason to think that some other explanation for the state court’s
decision is more likely. Id. at 99-100.
The AEDPA deferential standard of review applies to petitioner’s
claims where the Michigan Court of Appeals rejected petitioner’s appeal
“for lack of merit in the grounds presented” and the Michigan Supreme
Court subsequently denied leave to appeal in a standard form order,
because these orders amounted to a decision on the merits. See Werth v.
Bell, 692 F. 3d 486, 492-94 (6th Cir. 2012).
The Court discusses petitioner’s claims together for judicial clarity.
In his first claim, petitioner alleges that the judge incorrectly scored
offense variables 4 and 11 of the Michigan Sentencing Guidelines and
that trial counsel was ineffective for failing to object to the scoring. In his
second claim, petitioner alleges that the judge was ineffective for failing to
consider mitigating evidence on his behalf and that trial counsel was
ineffective for failing to present mitigating evidence on behalf at
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 Tironi v. Birkett, 252 F. Appx. 724, 725
(6th Cir. 2007); Howard v. White, 76 F. App’x. 52, 53 (6th Cir. 2003);
Simpson v. Warren, 662 F. Supp. 2d 835, 851 (E.D. Mich. 2009). Errors
in the application of state sentencing guidelines cannot independently
support habeas relief. See Kissner v. Palmer, 826 F. 3d 898, 904 (6th Cir.
2016). “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)(citing
Shanks v. Wolfenbarger, 387 F. Supp. 2d 740, 752 (E.D. Mich. 2005)).
“[I]n short, petitioner had no federal constitutional right to be sentenced
within Michigan’s guideline minimum sentence recommendations.” Doyle
v. Scutt, 347 F. Supp. 2d 474, 485 (E.D. Mich. 2004). Any error by the
Due to the brevity of the petition for writ of habeas corpus, and the fact that petitioner is
proceeding pro se, this Court is willing to incorporate the arguments raised in petitioner’s state appellate
court brief [This Court’s Dkt. # 8-4] as part of petitioner’s application for writ of habeas corpus. See e.g.
Burns v. Lafler, 328 F. Supp. 2d 711, 717, n. 2. (E.D. Mich. 2004).
trial court in calculating his guideline score would not merit habeas relief.
Petitioner appears to argue that the trial judge violated his Sixth
Amendment right to a jury trial by using facts that had not been submitted
to a jury in order to score the offense variables in his case. 2
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 U.S. Supreme Court held that 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. In reaching this conclusion, the
Supreme Court overruled Harris v. United States, 536 U.S. 545 (2002), in
Under Michigan law, only the minimum sentence must presumptively be set within the
appropriate sentencing guidelines range. See People v. Babcock, 469 Mich. 247, 255, n. 7, 666 N.W. 2d
231 (2003)(citing M.C.L.A. 769.34(2)). The maximum sentence is not determined by the trial judge but is
set by law. See People v. Claypool, 470 Mich. 715, 730, n. 14, 684 N.W. 2d 278 (2004)(citing M.C.L.A.
which the Supreme Court had held that only factors that increase the
maximum, as opposed to the minimum, sentence must be proven beyond
a reasonable doubt to a factfinder. Alleyne, 133 S. Ct. at 2157-58.
Alleyne is inapplicable to petitioner’s case, because the Supreme
Court’s holding in “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,” which is what happened to the
petitioner in this case. 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)(collecting cases and noting that at least four post-Alleyne
unanimous panels of the Sixth Circuit haved “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)(“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....”). The Sixth Circuit, in fact, 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).
The Michigan Supreme Court recently 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; 870 N.W.2d 502 (Mich. 2015).
Petitioner cannot rely on Lockridge to obtain relief with this Court.
The AEDPA standard of review found in 28 U.S.C. § 2254 (d)(1) prohibits
the use of lower court decisions in determining whether the state court
decision is contrary to, or an unreasonable application of, clearly
established federal law. See Miller v. Straub, 299 F. 3d 570, 578-579 (6th
Cir. 2002). “The Michigan Supreme Court’s decision in Lockridge does
not render the result ‘clearly established’ for purposes of habeas review.”
Haller v. Campbell, No. 1:16-CV-206, 2016 WL 1068744, at * 5 (W.D.
Mich. Mar. 18, 2016). In light of the fact that the Sixth Circuit has ruled
that Alleyne does not apply to sentencing guidelines factors, reasonable
jurists at a minimum could disagree about whether Alleyne applies to the
calculation of Michigan’s minimum sentencing guidelines. Id. at * 6.
“Alleyne therefore did not clearly establish the unconstitutionality of the
Michigan sentencing scheme and cannot form the basis for habeas
corpus relief.” Id.; See also Perez v. Rivard, No. 2:14-CV-12326, 2015 WL
3620426, at *12 (E.D. Mich. June 9, 2015). Petitioner is not entitled to
relief on this portion of his first claim.
In his second claim, petitioner alleges that the judge failed to
consider mitigating evidence on his behalf at sentencing.
Petitioner’s claim that the trial court failed to afford him individualized
consideration of mitigating evidence on his behalf fails to state a claim
upon which habeas relief can be granted, because the U.S. Supreme
Court has limited its holding concerning mitigating evidence to capital
cases. Alvarado v. Hill, 252 F. 3d 1066, 1069 (9th Cir. 2001)(citing to
Harmelin v. Michigan, 501 U.S. 957, 996 (1991)); See also Engle v.
United States, 26 F. App’x. 394, 397 (6th Cir. 2001)(Eighth Amendment
does not require consideration of mitigating factors at sentencing in
non-capital cases). Because petitioner had no constitutional right to an
individualized sentence, no constitutional error occurred because of the
state trial court’s failure to consider mitigating evidence on his behalf at
sentencing. See Hastings v. Yukins, 194 F. Supp. 2d 659, 673 (E.D. Mich.
Petitioner argues that counsel was ineffective at sentencing.
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.
A right to the effective assistance of counsel exists during
sentencing in both noncapital and capital cases. See Lafler v. Cooper, 132
S. Ct. 1376, 1385-86 (2012). Although sentencing does not involve a
criminal defendant’s guilt or innocence, “ineffective assistance of counsel
during a sentencing hearing can result in Strickland prejudice because
‘any amount of [additional] jail time has Sixth Amendment significance.’”
Lafler, 132 S. Ct. at 1386 (quoting Glover v. United States, 531 U.S. 198,
Petitioner first claims that counsel was ineffective for failing to object
to the scoring of OV 4 and OV 11 of the Michigan Sentencing Guidelines.
Petitioner is not entitled to relief. Counsel did object to the scoring
of these two offense variables along with several other prior record and
offense variables that he was successful in challenging. The judge
indicated that he would keep the scoring of OV 4 at ten points and OV 11
at twenty five points.
As the Eleventh Circuit noted, when the alleged attorney error
involves the failure to object to a violation of state law that does not
involve the enforcement of federal constitutional rights or interests, there
is no Supreme Court case which prevents a federal court sitting in habeas
review of a state court conviction from looking “to whether there is a
reasonable probability that the do-over proceeding state law provides
would reach a different result.” See Hammond v. Hall, 586 F.3d 1289,
1340 (11th Cir. 2009).
In this case, the trial judge concluded that there was a factual basis
for the scoring of OV 4 and OV 11 under the Sentencing Guidelines and
the Michigan appellate courts upheld this ruling. Petitioner is therefore
unable to show that he was prejudiced by his counsel’s purported
ineffectiveness in failing to object to the scoring of his sentencing
guidelines. See Coleman v. Curtin, 425 F. App’x. 483, 485 (6th Cir. 2011).
Although the judge agreed to reduce the sentencing guidelines
range to 51-85 months, he departed above the sentencing guidelines
range and imposed a sentence of ten to fifteen years in prison. In light of
the fact that the trial court would have departed above the sentencing
guidelines range and imposed the same sentence even if counsel had
been more effective in objecting to the scoring of the guidelines variables,
counsel’s purported failure to do so did not prejudice petitioner. Petitioner
is not entitled to relief on his ineffective assistance of counsel claim on
counsel’s failure to object to the scoring of his sentencing guidelines. See
U.S. v. Kirkham, 295 F. App’x. 910, 913 (10th Cir. 2008).
Petitioner also argues that counsel was ineffective for failing to
present mitigating evidence on his behalf at sentencing.
In the context of presenting mitigating evidence at sentencing, there
is an insufficient showing of prejudice, so as to establish an ineffective
assistance of counsel claim, where “one is left with pure speculation on
whether the outcome of the trial or the penalty phase could have been any
different.”Slaughter v. Parker, 450 F.3d 224, 234 (6th Cir. 2006)(quoting
Baze v. Parker, 371 F.3d 310, 322 (6th Cir. 2004)).
In the present case, petitioner pleaded guilty to sexually penetrating
his six year old step-granddaughter. Petitioner was originally facing a
mandatory minimum twenty five year sentence. The judge departed
above the guidelines because of Michigan caselaw, the plea agreement,
and the seriousness of the offense. Given the serious nature of the
offense to which petitioner entered a guilty plea, engaging in acts of
sexual penetration with his six year old step-granddaughter, as well as the
nature of petitioner’s conduct in engaging in these acts, any mitigating
evidence offered on petitioner’s behalf would probably not have
persuaded the trial judge “to take a more lenient view of his grossly
offensive, inappropriate, and unlawful conduct” towards his own stepgranddaughter, such that petitioner was not prejudiced by counsel’s failure
to present any mitigating evidence on his behalf. See Catalano v. Colson,
493 F. App'x 696, 703 (6th Cir. 2012). Petitioner is not entitled to relief.
For the reasons discussed, the petition for writ of habeas corpus is
In order to obtain a certificate of appealability, a prisoner must make
a substantial showing of the denial of a constitutional right. 28 U.S.C. §
2253(c)(2). To demonstrate this denial, the applicant is required to show
that reasonable jurists could debate whether, or agree that, the petition
should have been resolved in a different manner, or that the issues
presented were adequate to deserve encouragement to proceed further.
Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). When a district court
rejects a habeas petitioner’s constitutional claims on the merits, the
petitioner must demonstrate that reasonable jurists would find the district
court’s assessment of the constitutional claims to be debatable or wrong.
Id. at 484. “The district court must issue or deny a certificate of
appealability when it enters a final order adverse to the applicant.” Rules
Governing § 2254 Cases, Rule 11(a), 28 U.S.C. foll. § 2254.
This Court denies a certificate of appealability because reasonable
jurists would not find this Court’s assessment of the claims to be
debatable or wrong. See Slack v. McDaniel, 529 U.S. at 484. Petitioner
may, however, proceed in forma pauperis on appeal because an appeal
could be taken in good faith. 28 U.S.C. § 1915(a)(3).
Based upon the foregoing, IT IS ORDERED that the petition for a
writ of habeas corpus is DENIED WITH PREJUDICE.
IT IS FURTHER ORDERED That a certificate of appealability is
IT IS FURTHER ORDERED that the petitioner will be GRANTED
leave to appeal in forma pauperis.
s/Denise Page Hood
Denise Page Hood
Chief Judge, United States District Court
Dated: April 28, 2017
I hereby certify that a copy of the foregoing document was served upon
counsel of record on April 28, 2017, by electronic and/or ordinary mail.
s/Julie Owens acting in the absence of LaShawn R. Saulsberry
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