Grace v. Gidley

Filing 9

OPINION AND ORDER DENYING THE PETITION FOR WRIT OF HABEAS CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY OR LEAVE TO APPEAL IN FORMA PAUPERIS Signed by District Judge Gershwin A. Drain. (TBan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JAQAVICE GRACE,
Petitioner,
CASE NO. 2:16-CV-14243
HONORABLE GERSHWIN A. DRAIN
UNITED STATES DISTRICT COURT

v.

LORI GIDLEY,
Respondent.
_______________________________/
OPINION AND ORDER DENYING THE PETITION FOR WRIT OF HABEAS CORPUS
AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY OR LEAVE TO
APPEAL IN FORMA PAUPERIS
Jaqavice Grace, (“Petitioner”), incarcerated at the Central Michigan Correctional Facility
in St. Louis, Michigan, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In
his application, filed pro se, petitioner challenges his conviction for unlawful imprisonment, Mich.
Comp. Laws § 750.349(b), and interference with electronic communications, Mich. Comp. Laws
§ 750.540. For the reasons stated below, the petition for writ of habeas corpus is DENIED.
I. Background
Petitioner was convicted of unlawful imprisonment, felonious assault, and interference with
electronic communications following a jury trial in the Saginaw County Circuit Court. The jury
acquitted petitioner of kidnapping, first-degree criminal sexual conduct, and a second charge of
felonious assault. This Court recites verbatim the relevant facts relied upon by the Michigan Court
of Appeals, which are presumed correct on habeas review pursuant to 28 U.S.C. § 2254(e)(1). See
Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009):

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The charges against defendant arose from an incident occurring in February 2014
involving two female high school students. Defendant was also a high school
student at the time. Defendant and one of the alleged victims met on a social
website. She, along with a friend, picked defendant up in Saginaw, Michigan and
attended a house party. After leaving the party, the two victims, one driving and the
other riding in the front passenger seat, began driving defendant to an address that
he provided. On the way, defendant allegedly started fondling the victim in the
passenger seat. The victims testified at trial that defendant brandished a gun, took
the driver’s cellphone, and forced the driver to pull over and the passenger to enter
the backseat, where he sexually assaulted her. As previously stated, defendant was
acquitted of the crimes allegedly committed against the passenger, but was convicted
of the crimes committed against the driver.

At sentencing, defense counsel argued that because defendant possessed a starter
pistol when convicted under MCL 750.82(1) and MCL 750.349(1)(a), a directed
verdict should have been entered with respect to the felonious assault and unlawful
imprisonment charges. The trial court stated that this issue should have been brought
before the jury’s deliberations, and nevertheless, a starter pistol can be used to strike
someone, cause hearing damage, or physical harm due to the pistol spark. The trial
court reasoned that the pistol, not having bullets, will not kill someone, but there are
many different ways that it could be used as a weapon, and after hearing the proper
instructions, the jury decided that the pistol was used in that manner. Defendant was
sentenced as stated above. This appeal ensued.

People v. Grace, No. 322653, 2016 WL 196991, at * 1 (Mich. Ct. App. Jan. 14, 2016).

The Michigan Court of Appeals reversed petitioner’s conviction for felonious assault, on the
ground that petitioner’s starter pistol did not qualify as a dangerous weapon within the meaning of
the felonious assault statute. Id., at * 4. The Michigan Court of Appeals affirmed petitioner’s
remaining two convictions. Id., at * 5–6. The Michigan Court of Appeals ruled that the sentencing
guidelines had been scored correctly under a preponderance of evidence standard. Id., * 6–8. The
Michigan Court of Appeals nonetheless remanded the matter back to the trial court in light of the
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Michigan Supreme Court’s decision in People v. Lockridge, 498 Mich. 358; 870 N.W.2d 502 (Mich.
2015), because the jury did not find the facts to support the scoring of the sentencing guidelines
beyond a reasonable doubt as they were not part of the elements of unlawful imprisonment and
petitioner did not admit to these facts. Id., * 8–9. On remand, the trial judge was to determine
whether he would have imposed a materially different sentence but for the constitutional error. Id.
The Michigan Supreme Court denied petitioner leave to appeal. People v. Grace, 499 Mich.
929, 878 N.W.2d 861 (2016).
On remand, the trial judge indicated that he would not have imposed a materially different
sentence and affirmed the sentence imposed. People v. Grace, No. 14-039975-FC (Saginaw Cty.
Cir.Ct., Nov. 3, 2016)(This Court’s Dkt. # 8-12).
Petitioner seeks a writ of habeas corpus on the following grounds:
I. The prosecution presented insufficient evidence to support a prosecution.
II. Due process requires dismissal of the charges due to an inconsistent verdict where
the jury acquitted Grace of all sexual assault charges related to Hunter Roy, but
convicted him of all charges related to Megan Bebee.
III. Grace is entitled to resentencing where the trial court misconstrued the
sentencing guidelines and trial counsel was ineffective for failing to challenge the
scoring of offense values.

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:

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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 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)(citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).
Therefore, 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 103. A habeas petitioner should be denied relief as long as it is within the

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“realm of possibility” that fairminded jurists could find the state court decision to be reasonable.
See Woods v. Etherton, 136 S. Ct. 1149, 1152 (2016).
III. Discussion
A. Claim # 1. The sufficiency of evidence claim.
Petitioner contends that there was insufficient evidence to convict him of unlawful
imprisonment because the starter pistol that he used did not qualify as a “weapon or a dangerous
instrument,” within the meaning of the unlawful imprisonment statute.
Under Michigan law, a person is guilty of the crime of unlawful imprisonment if he or she
knowingly restrains another person under any of the following circumstances:
(a) The person is restrained by means of a weapon or dangerous instrument.
(b) The restrained person was secretly confined.
(c) The person was restrained to facilitate the commission of another felony or to
facilitate flight after commission of another felony.
See United States v. Anderson, 608 F. App’x. 369, 373 (6th Cir. 2015)(citing Mich. Comp.
Laws § 750.349b).
Petitioner was convicted of unlawful imprisonment under section (a) of the statute.
The Michigan Court of Appeals rejected petitioner’s claim:
MCL 750.349b(1)(a) does not define what comprises a “weapon or dangerous
instrument.” Hence, by the Legislature not expressly defining the language
“weapon or dangerous instrument,” those words are open to more than one
reasonable meaning. People v. Gardner, 482 Mich. 41, 50 n. 12; 753 NW2d 78
(2008). Therefore, we construe the statute to give effect to the Legislature's intent.
People v. Cole, 491 Mich. 325, 330; 817 NW2d 497 (2012). “Unless they are
otherwise defined in the statute or are terms of art or technical words, we assign the
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words of a statute their plain and ordinary meanings.” People v. Haynes, 281
Mich.App 27, 29; 760 NW2d 283 (2008).

Recently, in People v. Ackah–Essien, ––– Mich.App ––––; ––– NW2d –––– (2015),
this Court defined the term “weapon” for purposes of MCL 750.226 as “something
(as a club, knife or gun) used to injure, defeat or destroy.” Slip op. at 6 (quotation
marks omitted). It is therefore important to note that contrary to the implications
set forth in defendant’s brief on appeal, the analysis employed pursuant to Stevens,
409 Mich. at 564 1 is inapplicable to MCL 750.349b. Unlike MCL 750.82, MCL
750.349b does not require proof that defendant used a “dangerous weapon.” Rather,
conviction under MCL 750.349b(1)(a) merely requires proof beyond a reasonable
doubt that the defendant used “a weapon ” to restrain another person.

The distinction between a “dangerous weapon” and “a weapon” is significant
because “[i]t is well known that a term can be defined in a number of different
ways; therefore, when interpreting a statute, this Court is to determine the most
pertinent definition of a word in light of its context.” People v. Hershey (On
Remand), 303 Mich.App 330, 339; 844 NW2d 127 (2013)(citation and internal
quotation marks omitted). Additionally, the Legislature is “presumed to know of
and legislate in harmony with existing laws.” People v. Cash, 419 Mich. 230, 241;
351 NW2d 822 (1984)(citation omitted). Therefore, to resolve whether the starter
pistol constituted a weapon, we turn to the evidence produced at trial to determine
if the starter pistol was something defendant used to “injure, defeat or destroy” the
victim. Achah–Essien, ––– Mich.App at ––––; slip op at 6.

Testimony of the driver reveals that defendant pulled out the starter pistol, pointed
it at her and ordered her to “pull the car over.” Next, defendant pointed the starter
pistol at her, ordered her to turn around so that she was facing the front while he
ordered the other victim into the back seat. Testimony of the driver also revealed
that defendant pointed the starter pistol at her when he took her cell phone. The
driver further testified that defendant was pulling the hammer back on the starter
pistol, which she presumed was intended to frighten her. From this record evidence,
we conclude that the starter pistol constituted a weapon within the meaning of MCL
750.349b(1)(a). Defendant used the starter pistol as a means to prevent the driver
from leaving the car and in doing so he defeated any intention the driver had of
assisting her friend during the alleged sexual assault. Achah–Essien, ––– Mich.App
at ––––; slip op at 6. Additionally, defendant used the starter pistol as a means to

1

People v. Stevens, 409 Mich. 564, 297 N.W. 2d 120 (1980).

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acquire the driver’s cell phone. Viewed in a light most favorable to the prosecution,
we find that the evidence at trial would have allowed a jury to find beyond a
reasonable doubt that defendant used the starter pistol as a weapon in order to
restrain the driver. Therefore, contrary to defendant’s argument on appeal, there
was sufficient evidence to sustain his conviction of unlawful imprisonment.
Accordingly, defendant is not entitled to relief on this issue.
People v. Grace, No. 322653, 2016 WL 196991, at * 5 (internal footnote omitted).
It is beyond question that “the Due Process Clause protects the accused against conviction
except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with
which he is charged.” In Re Winship, 397 U.S. 358, 364 (1970). But the critical inquiry on review
of the sufficiency of the evidence to support a criminal conviction is, “whether the record evidence
could reasonably support a finding of guilt beyond a reasonable doubt.” Jackson v. Virginia, 443
U.S. 307, 318 (1979). This inquiry, however, does not require a court to “ask itself whether it
believes that the evidence at the trial established guilt beyond a reasonable doubt.” Instead, the
relevant question is whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime beyond
a reasonable doubt. Id. at 318-19 (internal citation and footnote omitted)(emphasis in the original).
More importantly, a federal habeas court may not overturn a state court decision that rejects
a sufficiency of the evidence claim simply because the federal court disagrees with the state court’s
resolution of that claim. Instead, a federal court may grant habeas relief only if the state court
decision was an objectively unreasonable application of the Jackson standard. See Cavazos v.
Smith, 565 U.S. 1, 2 (2011). “Because rational people can sometimes disagree, the inevitable
consequence of this settled law is that judges will sometimes encounter convictions that they
believe to be mistaken, but that they must nonetheless uphold.” Id. Indeed, for a federal habeas
court reviewing a state court conviction, “the only question under Jackson is whether that finding
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was so insupportable as to fall below the threshold of bare rationality.” Coleman v. Johnson, 132
S. Ct. 2060, 2065 (2012).
The United States Supreme Court has “repeatedly held that a state court’s interpretation of
state law, including one announced on direct appeal of the challenged conviction, binds a federal
court sitting in habeas corpus.” Bradshaw v. Richey, 546 U.S. 74, 76 (2005). State courts are the
“ultimate expositors of state law.” Mullaney v. Wilbur, 421 U.S. 684, 691 (1975). What is essential
to establish an element of a crime, like the question whether a given element is necessary, is a
question of state law, of which federal habeas review is not available. See Sanford v. Yukins, 288
F.3d 855, 862 (6th Cir. 2002). Moreover, a federal court on habeas review must distinguish a
sufficiency of evidence claim from state law claims which are disguised as Jackson claims. Id.
(citing Bates v. McCaughtry, 934 F.2d 99, 103 (7th Cir. 1991)). This Court must therefore defer
to the Michigan Court of Appeals’ construction of the elements of state crimes. See Coe v. Bell, 161
F.3d 320, 347 (6th Cir. 1998).
The Michigan Court of Appeals determined that petitioner’s starter pistol qualified as a
weapon or dangerous instrument within the meaning of Mich. Comp. Laws § 750.349(b)(1)(a).
This Court must defer to the Michigan Court of Appeals’ construction of the elements of the crime
of unlawful imprisonment and therefore cannot grant habeas relief on any claim that the Michigan
Court of Appeals misinterpreted the statute.
Finally, the evidence was sufficient to convict petitioner of unlawful imprisonment. The
victims testified that petitioner pulled his starter pistol out, pointed it at Ms. Megan Beebe, and
ordered her to pull the car over. Petitioner ordered Beebe to turn around and be quiet, before taking

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her cell phone. Petitioner pulled the hammer of the starter pistol back, which frightened Beebe.
Petitioner used the starter pistol to prevent Ms. Beebe from assisting her friend Ms. Roy from being
sexually assaulted.

This evidence was sufficient to establish the elements of unlawful

imprisonment. Petitioner is not entitled to relief on his first claim.
B. Claim # 2. The inconsistent verdicts claim.
Petitioner contends that the verdict should he set aside because it was inconsistent for the
jury to acquit him of all of the charges relating to Ms. Hunter Roy, but convicted him of the charges
involving Ms. Beebe.
Inconsistency in a verdict is an insufficient reason for setting a verdict aside. Harris v.
Rivera, 454 U.S. 339, 345 (1981); See also Mapes v. Coyle, 171 F. 3d 408, 419-20 (6th Cir. 1999).
The possibility that an inconsistent verdict may favor a criminal defendant as well as a prosecutor
“militates against review of such convictions at the defendant’s behest.” United States v. Powell,
469 U.S. 57, 65 (1984). The fact that an inconsistent verdict might be the result of lenity on the
part of the factfinder, coupled with the fact that the prosecutor is unable to obtain appellate review
of a conviction, “suggests that inconsistent verdicts should not be reviewable.” Id. Petitioner is not
entitled to habeas relief on his second claim.

C. Claim # 3. The sentencing guidelines/ineffective assistance of counsel claims.
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Petitioner lastly argues that his sentencing guidelines were incorrectly scored and that trial
counsel was ineffective for failing to object to the scoring of Offense Variable (OV) 4 of the
sentencing guidelines.
Petitioner was sentenced to eighty six months to fifteen years in prison on the unlawful
imprisonment conviction and one to two years on the interference with electronic communications
conviction. Both sentences were within the statutory limits for those offenses.
A sentence imposed within the statutory limits is not generally subject to habeas review.
Townsend v. Burke, 334 U.S. 736, 741 (1948); Cook v. Stegall, 56 F. Supp. 2d 788, 797 (E.D. Mich.
1999). A sentence within the statutory maximum set by statute does not normally constitute cruel
and unusual punishment. Austin v. Jackson, 213 F. 3d 298, 302 (6th Cir. 2000). Claims which arise
out of a state trial court’s sentencing decision are not normally cognizable on federal habeas review,
unless the habeas petitioner can show that the sentence imposed exceeded the statutory limits or
is wholly unauthorized by law. See Vliet v. Renico, 193 F. Supp. 2d 1010, 1014 (E.D. Mich. 2002).
Petitioner’s claim that the state trial court incorrectly scored or calculated his sentencing
guidelines range under the Michigan Sentencing Guidelines is non-cognizable on habeas review,
because it is basically a state law claim. See Tironi v. Birkett, 252 F. App’x. 724, 725 (6th Cir.
2007); Howard v. White, 76 F. App’x. 52, 53 (6th Cir. 2003). 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 had “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). “In short, petitioner had no federal constitutional right
to be sentenced within Michigan’s guideline minimum sentence recommendations.” Doyle v. Scutt,
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347 F. Supp. 2d 474, 485 (E.D. Mich. 2004). Any error by the trial court in calculating his
guideline score would not merit habeas relief. Id.
The Court is aware that petitioner argued in the state courts that the scoring of his
sentencing guidelines violated his Sixth Amendment right to a jury trial.
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 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. The Supreme Court, however, indicated that its decision did not mean that every fact
influencing judicial discretion in sentencing must be proven to a jury beyond a reasonable doubt.
Id. at 2163.
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
petitioner in this case. See United States v. Cooper, 739 F.3d 873, 884 (6th Cir. 2014); See also

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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 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)(“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, 672– 73 (6th Cir. 2013).
The Court is aware that 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). The Michigan
Court of Appeals in petitioner’s case relied on Lockridge to remand his case to the trial court for
a hearing to determine whether he would have imposed a materially different sentence. 2
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,

2

Any Alleyne/Lockridge claim could very well have been mooted by the Michigan Court
of Appeals’ remand order. However, to the extent that petitioner is claiming that the trial judge’s
reimposition of the same sentence violates his Sixth Amendment right to a jury trial, he would
still not be entitled to habeas relief.
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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 not entitled to habeas relief on claim that his
sentencing guidelines scored in violation of Alleyne).
Petitioner further claims that trial counsel was ineffective for failing to object to the scoring
of OV 4 at 10 points for serious psychological injury requiring professional treatment.
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.

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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, 203 (2001)).
In this case, the Michigan Court of Appeals concluded that there was a factual basis for the
scoring of OV 4 under a preponderance of evidence standard. People v. Grace, 2016 WL 196991,
at * 7. Although the Michigan Court of Appeals further concluded that the matter had to be
remanded to the trial court because none of the sentencing guidelines variables had been proven
beyond a reasonable doubt, on remand the trial judge indicated he would have imposed the same
sentence in spite of any constitutional error. People v. Grace, No. 14-039975-FC, * 2.
The Michigan Court of Appeals concluded that there was at least some evidence to support
the scoring of OV 4. On remand, the judge determined that he would have imposed the same
sentence regardless of the scoring of the sentencing guidelines. 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). If “one is left with pure speculation on whether the outcome of ... the penalty phase could
have been any different,” there has been an insufficient showing of prejudice. Baze v. Parker, 371
F. 3d 310, 322 (6th Cir. 2004). Because petitioner has offered no evidence to show that the state
trial court judge would have been inclined to impose a lesser sentence, petitioner is unable to show
that he was prejudiced by his counsel’s purported ineffectiveness in failing to object to the scoring
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of OV 4 of the sentencing guidelines. See Spencer v. Booker, 254 F. App’x. 520, 525-26 (6th Cir.
2007). Petitioner is not entitled to relief on his third claim.
IV. Conclusion
The Court will deny the petition for a writ of habeas corpus. The Court will also deny a
certificate of appealability. 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.
For the reasons stated in this opinion, the Court will deny petitioner a certificate of
appealability because reasonable jurists would not find this Court’s assessment of petitioner’s
claims to be debatable or wrong. Johnson v. Smith, 219 F. Supp. 2d 871, 885 (E.D. Mich. 2002).
The Court will also deny petitioner leave to appeal in forma pauperis, because the appeal would
be frivolous. Allen v. Stovall, 156 F. Supp. 2d 791, 798 (E.D. Mich. 2001).
V. ORDER

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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 DENIED.
IT IS FURTHER ORDERED that leave to appeal in forma pauperis is DENIED.

Dated: June 28, 2017

/s/Gershwin A Drain
HON. GERSHWIN A. DRAIN
UNITED STATES DISTRICT JUDGE

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