Wershe v. Mackie

Filing 8

OPINION and ORDER denying 1 Petition for Writ of Habeas Corpus and declining to issue a certificate of appealability. Signed by District Judge George Caram Steeh. (MBea)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
RICHARD WERSHE, Jr.,
Petitioner,
v.

Case No. 2:16-CV-14264
HON. GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE

THOMAS MACKIE,
Respondent.
_______________________/
OPINION AND ORDER DENYING THE PETITION
FOR WRIT OF HABEAS CORPUS AND DECLINING
TO ISSUE A CERTIFICATE OF APPEALABILITY
Richard Wershe. Jr., (“Petitioner”), currently on parole supervision
wth the Michigan Department Of Corrections, filed a petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2254, in which he challenges his
life sentence for possession with intent to deliver more than 650 grams of
cocaine and the Michigan Parole Board’s refusals to release him parole.
For the reasons that follow, the petition for writ of habeas corpus is
DENIED WITH PREJUDICE.
I. Background
Petitioner was charged with the above offense in 1987. At the time of
the offense, petitioner was 17 years old. Petitioner was convicted following

-1-

a jury trial in the Wayne County Circuit Court. Petitioner was sentenced to
life in prison without parole.
In 1992, subsequent to petitioner’s conviction, the Michigan Supreme
Court decided the case of People v. Bullock, 440 Mich. 15, 485 N.W.2d
866 (1992), in which that court held that a mandatory sentence of life
imprisonment without parole violated the Michigan Constitution’s ban on
“cruel or unusual punishments.” Id. at 37-41. To remedy the constitutional
infirmity of the statute, the Supreme Court ordered that all persons
convicted under the statute be granted “the parole consideration otherwise
available upon completion of ten calender years of the sentence.” Id. at 42.
Petitioner’s sentence was amended to a parolable life sentence.
Mich. Comp. Laws § 791.234(6), as amended by P.A.1998, No. 314,
effective October 1, 1998, indicates that a defendant convicted of violating
or conspiring to violate section 7401(2)(a)(i) of the public health code, the
section under which the petitioner was convicted, shall be eligible for parole
after serving seventeen and one half (17-½) years in prison. Under Mich.
Comp. Laws § 791.234(9), a defendant’s sentence under section
7401(2)(a)(i) may be further reduced another two and one half (2 ½) years
if the sentencing judge or his or her successor determines that the

-2-

defendant cooperated with law enforcement. If the defendant had no
relevant or useful information, the judge is required to conclude that the
defendant cooperated with the police.
In 2000, petitioner's sentencing judge concluded that petitioner had
cooperated with the police and was entitled to the 2-½ year reduction in his
sentence.
Petitioner was denied consideration for parole in 2003, 2008, and
2012.
In 2015, petitioner filed a motion for relief from judgment with the trial
court, challenging his sentence. The Wayne County Circuit Court granted
petitioner’s motion, ruling that petitioner’s parolable life sentence was
unduly severe, in light of the fact that petitioner was only seventeen years
old at the time of the offense. The judge ordered that petitioner be resentenced at which time petitioner’s youth at the time of the offense would
be considered by the judge in determining whether to amend petitioner’s
sentence to a term of years. People v. Wershe, No. 87-004902-FC (Wayne
Cty. Cir. Ct., Sep. 4, 2015).
The Michigan Court of Appeals reversed the trial court’s decision to
grant post-conviction relief, on the ground that petitioner’s post-conviction

-3-

motion was a second motion for post-conviction relief that was barred
under M.C.R. 6.502(G) and that petitioner’s claim did not involve a
retroactive change in law that would permit petitioner to file a successive
post-conviction motion. People v. Wershe, No. 329110 (Mich.Ct.App. Sep.
29, 2015). The Michigan Court of Appeals further held that petitioner was
not entitled to relief because the Supreme Court cases that he relied on in
support of his claim were inapplicable to petitioner’s parolable life
sentence. Id.
The Michigan Supreme Court denied petitioner leave to appeal.
People v. Wershe, 879 N.W. 2d 873 (Mich. 2016).
Petitioner filed his habeas petition with this Court. While his petition
was pending, the Michigan Parole Board on July 14, 2017 voted to grant
petitioner parole. Petitioner was paroled to the State of Florida on August
22, 2017.1
Petitioner seeks relief on the following grounds:
I. Petitioner is entitled to resentencing where he was originally
sentenced to life without parole for a nonviolent crime committed
as a juvenile with no consideration of the Graham or Miller factors

1

This Court obtained petitioner’s actual release date from the Michigan
Department of Corrections’ Offender Tracking Information System (OTIS), which this
Court is permitted to take judicial notice of. See Ward v. Wolfenbarger,323 F. Supp. 2d
818, 821, n. 3 (E.D. Mich. 2004).
-4-

and no consideration of sentencing guidelines.
II. The Court of Appeals order reversing the trial court constitutes
a denial of Petitioner’s right to equal protection under the 14th
Amendment.
III. Parole eligibility under Michigan law does not provide a
meaningful and realistic opportunity for release.
IV. Defendant is entitled to relief under MCR 650 et seq.
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 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
-5-

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 claim “was so lacking in justification that there
was an error well understood and comprehended in existing law beyond
any possibility for fairminded disagreement.” Harrington, 562 U.S. at 103.
A habeas petitioner should be denied relief as long as it is within the “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).

-6-

III. Discussion
A. Claims ## 1, 2, and 4. The sentencing/post-conviction relief
claims.
The Court discusses petitioner’s first, second, and fourth claims
together because they are interrelated.2
Respondent claims that petitioner’s first and fourth claims are barred
by the one year statute of limitations found in 28 U.S.C. § 2244(d)(1).
The statute of limitations does not constitute a jurisdictional bar to
habeas review; a federal court, can, in the interest of judicial economy,
proceed to the merits of a habeas petition. See Smith v. State of Ohio
Dept. of Rehabilitation, 463 F. 3d 426, 429, n. 2 (6th Cir. 2006)(quoting
Trussell v. Bowersox, 447 F. 3d 588, 590 (8th Cir. 2006)). Simply put, this
Court need not resolve the dispute over the timeliness of petitioner habeas
application. Assuming without deciding that the current petition was timely,
petitioner’s habeas application fails on the merits. See Ahart v. Bradshaw,
122 F. App'x. 188, 192 (6th Cir. 2005).
In his first claim, petitioner argues that his parolable life sentence is

2

Unlike petitioner's third claim, infra, petitioner’s sentencing claims are not moot
in spite of his release on parole because petitioner’s original sentence affects the length
of his parole. See Hodges v. Newland, 172 F. Supp. 2d 1245, 1248–49 (N.D. Cal.
2001).
-7-

unconstitutional because he was under eighteen years old when he
committed the offense and Michigan law prevented the trial judge at the
time of the original sentencing from taking into account petitioner’s youth
and maturity levels when fashioning the sentence. Petitioner argues that
he is entitled to a re-sentencing in which the judge could consider his age
at the time of the offense in fashioning a sentence that would be less than
life in prison.
Petitioner relies on two U.S. Supreme Court cases in support of his
claim.
In Graham v. Florida, 560 U.S. 48, 82 (2010), the Supreme Court
held that the Eighth Amendment prohibits a mandatory sentence of life
imprisonment without parole on a defendant who committed a nonhomicide offense when he or she was a juvenile. The Supreme Court ruled
that although a state was not required to guarantee the defendant eventual
release, if a life sentence were imposed on a juvenile offender, it must
provide that offender “with some realistic opportunity to obtain release
before the end of that term.” Id.
In Miller v. Alabama, 567 U.S. 460, 470, 476-77 (2012), the Supreme
Court held that a mandatory sentence of life imprisonment without parole

-8-

for defendants who were under 18 years old when they committed their
crimes, violates the Eighth Amendment, even if the offense was for murder.
Petitioner’s case is distinguishable from the sentences in Graham
and Miller because although petitioner was originally sentenced to life
without parole, his sentence was subsequently amended to a parolable life
sentence. Petitioner, in fact, has been paroled on his sentence. Petitioner
was not sentenced to a non-parolable life sentence, therefore the holdings
in Graham and Miller would not entitle petitioner to relief. See, e.g., Bunch
v. Smith, 685 F.3d 546, 553 (6th Cir. 2012); See also Goins v. Smith, 556
F. App’x. 434, 440 (6th Cir. 2014).
Moreover, not only was petitioner given an opportunity to be paroled,
he has now in fact been released on parole. Petitioner was thus given a
meaningful opportunity for release from his life sentence. The Michigan
Court of Appeals decision to deny petitioner relief was not an unreasonable
application of clearly established law, so as to entitle petitioner to relief.
See Virginia v. LeBlanc, 137 S. Ct. 1726, 1728-29 (2017)(State court’s
denial of petitioner’s motion to vacate state court sentence of life
imprisonment without parole for a non-homicide offense of rape and
abduction that he committed at age of 16 was not an unreasonable

-9-

application of Supreme Court decision in Graham v. Florida, so as to entitle
the petitioner to federal habeas relief, where the state had a geriatric
release program that considered parole factors in determining release,
which could satisfy the requirement in Graham to provide meaningful
opportunity to receive parole). Petitioner is not entitled to relief on his first
claim.
In his second claim, petitioner argues that the Michigan Court of
Appeals’ decision to reverse the trial court ’s order of re-sentencing violates
the Equal Protection Clause of the 14th Amendment because petitioner is
the only prisoner in Michigan who was sentenced to life in prison as a
juvenile offender who has not been afforded an opportunity for resentencing, in which the trial judge could consider various factors related to
petitioner’s maturity and rehabilitative potential to then use the Michigan
Sentencing Guidelines to fashion a sentence of a term of years rather than
a sentence of life in prison.
A habeas petitioner serving a state sentence has no federal
constitutional right to retroactive application of more lenient state
sentencing rules and is therefore not entitled to federal habeas relief on
that ground. See Dockins v. Hines, 374 F.3d 935, 940 (10th Cir. 2004); See

-10-

also Rashad v. Lafler, 675 F.3d 564, 570 (6th Cir. 2012)(no United States
Supreme Court precedent requires the retroactive application of state
sentencing law); Maples v. Stegall, 175 F. Supp. 2d 918, 923-24 (E.D.
Mich. 2001); rev’d on other grds, 340 F. 3d 433 (6th Cir. 2003)(petitioner
not entitled to habeas relief on claim involving the non-retroactivity of
Michigan’s new sentencing guidelines). Moreover, there is no
constitutional requirement that persons convicted of the same offenses
receive identical sentences. Williams v. Illinois, 399 U.S. 235, 243 (1970).
A state legislature may therefore prospectively reduce the maximum
penalty for a crime even though prisoners sentenced to the maximum
penalty before the effective date of the act would serve a longer term of
imprisonment than a prisoner sentenced to the maximum term thereafter.
See Frazier v. Manson, 703 F. 2d 30, 36 (2nd Cir. 1983). Petitioner is thus
not entitled to habeas relief on his claim that the disparity between the
sentence he received under Michigan’s old 650 law and the sentences that
juvenile offenders receive under the new drug law (or any other law)
violates equal protection and due process. Rashad v. Lafler, 675 F. 3d at
570-71. Petitioner is not entitled to relief on his second claim.
Petitioner in his fourth claim argues that the Michigan Court of

-11-

Appeals erred in denying him post-conviction relief on his claim.
This Court notes that “[t]he Sixth Circuit consistently held that errors
in post-conviction proceedings are outside the scope of federal habeas
corpus review.” Cress v. Palmer, 484 F. 3d 844, 853 (6th Cir. 2007). Thus,
a federal habeas corpus petition cannot be used to mount a challenge to a
state’s scheme of post-conviction relief. See Greer v. Mitchell, 264 F. 3d
663, 681 (6th Cir. 2001). The reason for this is that the states have no
constitutional obligation to provide post-conviction remedies. Id. (citing to
Pennsylvania v. Finley, 481 U.S. 551, 557 (1987)). Challenges to state
collateral post-conviction proceedings “cannot be brought under the federal
habeas corpus provision, 28 U.S.C. § 2254,” because “‘the essence of
habeas corpus is an attack by a person in custody upon the legality of that
custody, and ... the traditional function of the writ is to secure release from
illegal custody.’” Kirby v. Dutton, 794 F. 2d 245, 246 (6th Cir. 1986)(quoting
Preiser v. Rodriguez, 411 U.S. 475, 484 (1973)). “A due process claim
related to collateral post-conviction proceedings, even if resolved in a
petitioner’s favor, would not ‘result [in] ... release or a reduction in ... time to
be served or in any other way affect his detention because we would not be
reviewing any matter directly pertaining to his detention.’” Cress, 484 F. 3d

-12-

at 853 (quoting Kirby, 794 F. 2d at 247). Thus, the “‘scope of the writ’”
does not encompass a “‘second tier of complaints about deficiencies in
state post-conviction proceedings.’” Cress, 484 F. 3d at 853 (quoting Kirby,
794 F. 2d at 248). “[T]he writ is not the proper means to challenge
collateral matters as opposed to the underlying state conviction giving rise
to the prisoner’s incarceration.” Id. (internal quotations omitted). Petitioner
is not entitled to relief on his fourth claim.
B. Claim # 3. The parole denial claim.
Petitioner in his third claim argues that he has wrongly been denied
parole by the Michigan Parole Board on several occasions.
Petitioner’s claim is moot because he has been released on parole.
Article III, § 2 of the United States Constitution requires the existence
of a case or controversy through all stages of federal judicial proceedings.
This means that, throughout the litigation, the petitioner “must have
suffered, or be threatened with, an actual injury traceable to the defendant
and likely to be redressed by a favorable judicial decision.” Lewis v.
Continental Bank Corp., 494 U.S. 472, 477 (1990). An incarcerated
habeas petitioner’s challenge to the validity of his or her conviction satisfies
the case-or-controversy requirement because the incarceration constitutes

-13-

a concrete injury which can be redressed by the invalidation of the
conviction. See Spencer v. Kemna, 523 U.S. 1, 7 (1998). Once the
convict’s sentence has expired, however, some concrete and continuing
injury other than the now-ended incarceration or parole -- some “collateral
consequence” of the conviction -- must exist if the suit is to be maintained
in federal court and not considered moot. Id.
Where a habeas petitioner chooses to attack only his or her
sentence, and not the underlying conviction, and that sentence expires
during the course of the habeas proceeding, the habeas petitioner’s claim
for relief is moot. See Lane v. Williams, 455 U.S. 624, 630-31 (1982).
“[M]ootness results when events occur during the pendency of a litigation
which render the court unable to grant the requested relief.” Carras v.
Williams, 807 F. 2d 1286, 1289 (6th Cir. 1986).
Petitioner’s release on parole renders his parole denial claim moot,
because there is no longer a case or controversy to litigate with respect to
this claim. See Townsend v. Vasbinder, 365 F. App’x. 657, 660 (6th Cir.
2010). Petitioner is not entitled to relief on his third claim.

-14-

IV. Conclusion
The Court will deny the petition for writ of habeas corpus. The Court
will also deny a certificate of appealability to petitioner. 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, 48384 (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 he has failed to make a substantial
showing of the denial of a federal constitutional right. Myers v. Straub, 159

-15-

F. Supp. 2d 621, 629 (E.D. Mich. 2001).
V. ORDER
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.
Dated: October 4, 2017
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
October 4, 2017, by electronic and/or ordinary mail.
s/Marcia Beauchemin
Deputy Clerk

-16-