Mathis v. Stewart

Filing 10

OPINION and ORDER Denying 1 Petition for Writ of Habeas Corpus, Denying Certificate of Appealability and Granting Permission to Appeal In Forma Pauperis. Signed by District Judge Denise Page Hood. (LSau)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
TONYA LYNN MATHIS,

Petitioner,

Case No. 2:16-cv-14292
Hon. Denise Page Hood

v.
ANTHONY STEWART,
Respondent.
___________________________________/
OPINION AND ORDER (1) DENYING PETITION FOR WRIT OF HABEAS
CORPUS, (2) DENYING CERTIFICATE OF APPEALABILITY, AND (3)
GRANTING PERMISSION TO APPEAL IN FORMA PAUPERIS
This is a habeas case brought by a Michigan prisoner under 28 U.S.C.
§ 2254. Tonya Lynn Mathis, (“Petitioner”), was convicted after a jury trial in the
Oakland Circuit Court of first-degree criminal sexual conduct, MICH. COMP.
LAWS § 750.520b; and two counts of second-degree criminal sexual conduct.
MICH. COMP. LAWS § 750.520c. Petitioner was sentenced to three concurrent
terms, the longest of which is 225 months to 99 years for her first-degree
criminal sexual conduct conviction.
The petition asserts six grounds for relief: (1) insufficient evidence was
presented to sustain Petitioner’s convictions, (2) the trial court erred in
allowing testimony regarding the statistical likelihood of false allegations of

sexual abuse, (3) the trial court erred in allowing testimony regarding
Petitioner’s conduct with one of her other children, (4) the prosecutor
committed misconduct during closing argument, (5) the trial court incorrectly
scored the sentencing guidelines, and (6) Petitioner’s sentence to life-time
electronic monitoring violates the Ex Post Facto Clause.
The Court finds that Petitioner’s claims are without merit. Therefore, the
petition will be denied. The Court will also deny Petitioner a certificate of
appealability, but it will grant permission to appeal in forma pauperis.
I. Background
The victim, Benjamin Mathis, Jr., testified that he was eighteen years old
at the time of trial. Benjamin had three siblings: an older sister named Tiffany,
and two younger siblings named Austin and Brennan. Benjamin testified that
he and Austin lived with their father in Tennessee, he did not know where his
older sister lived, and Brennan lived with her father in Michigan. Benjamin
testified that when he was younger he used to live in an apartment in
Michigan with Petitioner, his mother.
Benjamin’s earliest memories were from his first day of Kindergarten,
when Petitioner hit him in the nose and pushed him down steps. Petitioner
was physically abusive toward Benjamin when they lived together, and she

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often told him that she hated him.
Benjamin testified that Petitioner would have him bathe with her, and
she directed him to wash her body including her breasts and vagina until she
told him to stop.
Other times, Petitioner would direct Benjamin into her bedroom.
Petitioner would lie down on her bed with her underwear removed. Petitioner
would use an aggressive tone and direct Benjamin to insert his fingers inside
her vagina while she moved her body. This happened on more than one
occasion.
Benjamin testified that he did not talk about any of these incidents
because he was too young to understand what was going on. He explained
that Petitioner never touched him, and that it was always Petitioner directing
him to touch her.
Benjamin’s father, Benjamin Mathis Sr., “Mathis,” testified that Benjamin
was diagnosed with “oppositional defiant disorder and severe manic
depressive,” and Austin suffered from developmental disabilities. Dkt. 9-7, at
284, 309-10. Benjamin did not start treatment for his mental health problems
until he was six or seven years old.
Mathis and Petitioner were married in 1996, when Benjamin was an

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infant. They divorced in 1999. After the divorce, Mathis and Petitioner had
joint custody of Benjamin. When Benjamin started school, they alternated
weeks having custody. On January 1, 2005, Mathis obtained full physical
custody of the boys by agreement with Petitioner. Mathis and his sons moved
to Tennessee in 2009.
Years before Benjamin disclosed the sexual abuse, Mathis and several
of his family members made complaints to Child Protective Services (CPS)
regarding Petitioner’s conduct with the boys. When CPS interviewed
Benjamin, he told them about physical abuse but not about any sexual abuse,
and Mathis was advised to file for sole custody. Benjamin did not see
Petitioner from February 2009, when the family moved to Tennessee until he
first testified in court in 2013.
When the family moved to Tennessee, Benjamin received counseling.
Mathis testified that on May 31, 2013, he was driving Benjamin to a therapy
appointment when Benjamin told him that he had been sexually abused.
Mathis asked Benjamin if Petitioner had ever touched him, and Benjamin
responded that she made him touch her. That night, Benjamin told Mathis he
decided to tell him about what happened because he was dating a girl, which
started to bring back memories.

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Mathis testified that Benjamin fell apart after making his disclosure. He
put on weight, was put on anti-depressants, and began additional counseling
for sexual abuse victims. He could no longer maintain relationships with
girlfriends. Prior to Benjamin’s disclosure, Mathis suspected that Petitioner
had physically abused the boys, but he did not suspect that any sexual abuse
occurred.
Detective Jody Kendrick of the Oakland County Sheriff’s Office testified
that she began her investigation into the allegations in early Summer of 2013.
A forensic interview was scheduled at a facility in Tennessee. Kendrick did
not attend the interview, but she received recordings of it.

During the

interview, Benjamin made disclosures of sexual assault. Kendrick also
received files on the CPS history involving Petitioner and Benjamin.
Paul Goffar testified that he was Brennan Elliott’s father, a daughter
from the brief relationship with Petitioner. Petitioner had full physical and legal
custody of Brennan until January of 2013. On several occasions, Goffar
made complaints to CPS about Petitioner. When the charges relating to
Benjamin were made, CPS transferred custody of Brennan from Petitioner to
Goffar. Brennan did not see Petitioner after that.
After Brennan starting living with him and his wife, they observed

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Brennan masturbating and trying to place their son’s hand down her pants.
Goffar also saw Brennan straddling his son’s back and looking down his pants
with a flashlight. On another occasion, Goffar and his family went to a family
barbecue where there were a lot of other children. Brennan came out of a
bedroom where she and the other children had been playing, and her dress
was tucked into the top of her tights. She was disheveled, and all the other
children appeared to be shaken up. After these incidents, Goffar spoke with
Brennan, and she described engaging in sexual activities with Petitioner.
Goffar then contacted CPS.

Brennan went to see her counselor and

disclosed the abuse to the counselor as well. She was later interviewed at
Care House.
Brennan testified that she was seven years old at the time of trial. She
testified that she lived with her father and step-mother, and that Petitioner was
her mother. When she used to live with her mother, Petitioner would tell her
that she hated her. Brennan testified that she used to see Petitioner rub her
own “private part” while laying naked in bed. Petitioner told Brennan that she
should try to do it. Petitioner then took Brennan’s arm and forced Brennan to
rub her own private area with her hand. After these incidents, Brennan would
sometimes join Petitioner in bed and they would both rub their own private

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areas at the same time.
Brennan went to a place called Care House twice. Brennan did not tell
the woman what happened with Petitioner until her second visit because she
was too embarrassed. Brennan’s father and stepmother did not talk about
Petitioner at all before Brennan told them what happened. No one had ever
told Brennan that Petitioner had done something to Benjamin.
Sarah Visker-Killips testified that she was a private consultant who does
trainings and consultations on child abuse. She worked as a forensic
interviewer at Care House. She reviewed police reports, CPS reports,
transcripts, and the Tennessee interview regarding Benjamin’s allegations of
sexual abuse. Visker-Killips explained the purpose and protocols for forensic
interviews. Because Benjamin was older there was less of a requirement to
ensure he understood the difference between telling the truth and a lie. She
did not recall any specifically leading or suggestive questioning in reviewing
Benjamin’s interview.
Visker-Killips testified regarding delayed disclosures, the reasons for
delay, and the characteristics of children who delay a disclosure of sexual
abuse. She opined that Benjamin’s behaviors were consistent with other
children who delayed disclosure of sexual abuse. She noted, however, that

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it was up for the jury to determine whether Benjamin was being truthful.
On cross examination, defense counsel asked Visker-Killips whether
she was aware of cases in which children were used as pawns in custody
disputes and manipulated to make false accusations of sexual abuse. The
witness testified on redirect that the research showed that the rate of such
false-reporting was between one and four percent.
Based on this evidence the jury returned found Petitioner guilty of the
charged offenses, and Petitioner was subsequently sentenced as indicated
above.
After her sentencing, Petitioner filed a claim of appeal in the Michigan
Court of Appeals and was appointed appellate counsel. Appellate counsel
filed a brief on appeal, and together with Petitioner’s own supplemental pro se
brief, the following eight claims were raised in the Michigan Court of Appeals:
I. As a matter of statutory interpretation, a defendant who causes
a victim to penetrate the defendant is not guilty of first-degree
criminal sexual conduct because no penetration “of another
person” occurred. The evidence is insufficient as a matter of law
and the conviction must be vacated and reduced to second
degree.
II. The trial court erred when it allowed a prosecution expert to
offer purported “statistics” on the likelihood of guilt. The “statistics”
violated MRE 403 and undermined the fairness of the trial. US
Const Am VI, XIV.

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III. The trial court erred when it denied a defense objection to the
testimony of Paul Goffar on the behavior of his daughter. It
violated MRE 401 or MRE 403, and undermined the fairness of
the trial. US Const Am VI, XIV.
IV. Prosecutorial error of prosecutorial misconduct, burden shifting
during the State’s rebuttal argument, compounded by trial court
error, deprived defendant of her due process right to a fair trial.
V. The sentencing guidelines offense variables (“OV”) 10, 11 and
13 are scored in error. The corrections change the guidelines
range. Resentencing is required.
VI. Defendant’s judgment of sentence imposes lifetime electronic
monitoring upon her release on parole. This sentencing term
violates the ex post facto clauses of the United States Constitution
and Michigan Constitution.
VII. Lockridge should not apply to a resentencing held in this
matter for the following reasons: (1) the language of Lockridge, (2)
the language of the guidelines statute, (3) the fact that the
prosecution does not have Sixth Amendment rights, (4) Michigan
law on retroactivity, and (5) the fact that no jurisdiction has applied
Alleyne retroactively.
VIII. The trial court erred when it allowed a prosecution witness to
offer purported “statistics” on the likelihood of guilt. The “statistics”
violated MRE 403 and undermined the fairness of the trial. US
Const Am VI, XIV.
The Michigan Court of Appeals affirmed Petitioner’s convictions, but it
remanded the matter to afford Petitioner an opportunity to seek resentencing,
to vacate the sentence of lifetime electronic monitoring as a violation of the Ex
Post Facto Clause, and to correct the judgment of sentence with respect to

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the second-degree criminal sexual conduct convictions. People v. Mathis, No.
323831, 2016 WL 191901 (Mich. Ct. App. Jan. 14, 2016).
Petitioner then filed an application for leave to appeal in the Michigan
Supreme Court, raising the same claims that she raised in the Michigan Court
of Appeals. The Michigan Supreme Court denied the application because it
was not persuaded that the questions presented should be reviewed. People
v. Mathis, 880 N.W.2d 547 (Mich. 2016) (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 if the claims were
adjudicated on the merits by the state courts. 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 ‘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), quoting
Williams v. Taylor, 529 U.S. 362, 405-06 (2000).

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“[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). “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.” Harrington, 562 U.S. at
103 (internal quotation omitted).
III. Analysis
A. Sufficiency of the Evidence

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Petitioner first claims that there was insufficient evidence to sustain her
fist-degree criminal sexual conduct conviction because the evidence showed
that she had the victim sexually penetrate her, whereas the statute requires
sexual penetration “of another person.” This claim fails because it hinges on
a misinterpretation of state law that was conclusively resolved against
Petitioner by the Michigan Court of Appeals:
Defendant was convicted of CSC I pursuant to MCL
750.520b(1), which states in relevant part: “A person is guilty of
criminal sexual conduct in the first degree if he or she engages in
sexual penetration with another person.” MCL 750.520a(r) defines
“sexual penetration” as “sexual intercourse, cunnilingus, fellatio,
anal intercourse, or any other intrusion, however slight, of any part
of a person’s body or of any object into the genital or anal
openings of another person’s body, but emission of semen is not
required.”
Defendant argues that the words “with another person” and
“another person’s body” indicate that the perpetrator must
penetrate another person. However, the statutory language
indicates only that two persons must be involved. MCL
750.520b(1) requires that the perpetrator “engage[] in” sexual
penetration. When a statute does not define a word, the Court
may consult dictionary definitions. People v. Morey, 461 Mich.
325, 330 (1999). To engage means to “employ or involve oneself;
to take part in; to embark on.” Black’s Law Dictionary (7th ed).
Thus, the perpetrator must be a part of or involved in a sexual
penetration, which could be accomplished by penetrating a victim
or by having a victim penetrate the perpetrator. In People v. Hack,
219 Mich. App. 299, 302-303(1996), the Court found that the
defendant committed sexual penetration “by causing the
three-year-old girl to perform fellatio on the one-year-old boy”
while the defendant videotaped the activity. In Hack v. Elo, 38 F
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App’x 189, 193 (6th Cir. 2002) the court affirmed that the statutory
definition of sexual penetration unambiguously included acts of
penetration that were by means “other than direct touching by the
accused individual.” This interpretation is supported by the
statutory context in which the words are used. See People v.
Couzens, 480 Mich. 240, 249 (2008).
Here, complainant explained that he entered defendant’s
bedroom to find her without her clothes on and that defendant
commanded him to approach and then arranged his fingers so as
to extend his middle and pointer fingers from his fist. Defendant
then told him to put his fingers in her vagina and that she moaned
and moved until she told him to stop. This evidence established
that defendant engaged in sexual penetration with complainant
because she caused him to penetrate her with his fingers.
Mathis, No. 323831, 2016 WL 191901, *1-2.
The 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). A federal court on habeas review must distinguish a due processbased constitutional sufficiency of evidence claim from state law claims which

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are disguised as cognizable sufficiency claims. Id. (citing Bates v.
McCaughtry, 934 F.2d 99, 103 (7th Cir. 1991)).
Here, as noted by the state appellate court, Petitioner’s first claim does
not actually challenge the constitutional sufficiency of the evidence. She does
not allege that there was insufficient evidence offered to prove beyond a
reasonable doubt that she had the victim sexually penetrate her. Rather, she
asserts that the acts described by the victim did not constitute first-degree
criminal sexual conduct under Michigan law. The state court’s determination
that her conduct was in fact covered by the statute involves a determination
of a state-law issue that cannot be second-guessed on federal habeas review.
Accordingly, Petitioner’s first claim does not present a cognizable issue.
B. Evidence Regarding Rate of False Reporting of Sexual Abuse
Petitioner’s second claim asserts that the trial court erred in allowing the
prosecutor’s expert, Visker-Killips, to testify that the rate of false reporting of
sexual abuse in cases involving a custody dispute is between one and four
percent.
Generally, “‘[e]rrors by a state court in the admission of evidence are not
cognizable in habeas proceedings unless they so perniciously affect the
prosecution of a criminal case as to deny the defendant the fundamental right

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to a fair trial.’” Biros v. Bagley, 422 F.3d 379, 391 (6th Cir. 2005), quoting Roe
v. Baker, 316 F.3d 557, 567 (6th Cir.2002). It is “not the province of a federal
habeas court to reexamine state-court determinations on state-court
questions.” Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). A federal court is
limited on federal habeas review to deciding whether a state court conviction
violates the Constitution, laws, or treaties of the United States. Id. Errors in the
application of state law, especially rulings regarding the admissibility of
evidence, are usually not questioned by a federal habeas court. Seymour v.
Walker, 224 F. 3d 542, 552 (6th Cir. 2000).
The Michigan Court of Appeals rejected this claim on the grounds that
defense counsel opened the door to the disputed testimony by asking ViskerKillips on cross-examination whether she was aware of children being used
as pawns in custody disputes and manipulated to make false allegations.
Mathis, No. 323831, 2016 WL 191901, *2-3. Although Visker-Killips testified
in response to the low statistical rate of false reporting, she also testified that
those statistics did not pertain to circumstances where the custody dispute
had occurred in the past - such as the present case. She also testified that it
was up for the jury to determine whether Benjamin was being truthful.
“[T]he Supreme Court has defined ‘very narrowly’ the category of

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infractions that violates ‘fundamental fairness.’” Bey v. Bagley, 500 F.3d 514,
522 (6th Cir. 2007) (quoting Dowling v. United States, 493 U.S. 342, 352
(1990)). Petitioner has failed to demonstrate the existence of clearly
established Supreme Court law that prohibited the trial court from admitting
evidence regarding studies of false allegations of sexual abuse after a
defense attorney opens the door by asking whether a custody dispute created
the likelihood of a false report. And any tendency for unfair prejudice was
diminished by the witness’s concession that the truthfulness of the victim was
a matter for the jury to decide. This claim is without merit.
C. Evidence of Brennan’s Conduct
Petitioner next claims that the trial court erred in admitting evidence from
Goffar regarding their daughter’s age-inappropriate conduct and testimony
that Petitioner sexually assaulted Brennan as well. As with Petitioner’s
previous claim, this claim also fails because it cannot be supported by clearly
established Supreme Court law.
Petitioner's argument that the state court violated Michigan Rule of
Evidence 404(b) or any other provision of state law by admitting evidence of
her prior bad acts against Brennan is non-cognizable on habeas review. See
Bey, 500 F. 3d at 519; Estelle, 502 U.S. at 72 (Supreme Court’s habeas

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powers did not permit Court to reverse state court conviction based on their
belief that the state trial judge erred in ruling that prior injury evidence was
admissible as bad acts evidence under California law); Dowling v. United
States, 493 U.S. 342, 352-53 (1990)(admission at defendant’s bank robbery
trial of “similar acts” evidence that he had subsequently been involved in a
house burglary for which he had been acquitted did not violate due process).
The Michigan Court of Appeals reasonably applied the law and properly
held that Petitioner’s due process rights were not violated by the admission
of evidence to establish the petitioner’s propensity to commit criminal acts was
reasonable. See Wright v. Van Patten, 552 U.S. 120, 126 (2008); Bugh v.
Mitchell, 329 F.3d 496, 512 (6th Cir. 2003).
D. Prosecutorial Misconduct
Petitioner next asserts that the prosecutor committed misconduct in
closing argument by making improper burden-shifting arguments. The
Michigan Court of Appeals summarized the factual background for this claim
as follows:
The prosecutor made the following comments on the
testimonies of complainant and defendant’s daughter:
[H]ow do you explain the very visceral, raw reaction
that these two had when they came into court and
talked about it? How do you explain that? How do you
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explain crying, throwing up? How do you explain [the
daughter] who was crying, sitting here like this, didn’t
even want to look up? How do you explain their
reaction about having to talk about this? How do you
explain that? Now that -- we had some pretty good
actors here. If that’s the case these kids are
phenomenal.
It is noted that the complainant took a break during his testimony
so that he could vomit. Following defendant’s closing argument,
the prosecutor commented, “I was right, she couldn’t explain it. I
said I want to see how defense counsel explains the visceral
reaction from [complainant] throwing;” defendant interjected with
an objection, arguing that the prosecutor’s comments were
shifting the burden of proof by suggesting that defendant had to
prove something. The trial court overruled the objection. The
prosecutor completed the argument, stating, “No explanation. No
explanation for getting physically ill.”
Mathis, No. 323831, 2016 WL 191901, *3-4.
To be entitled to habeas relief on a prosecutorial misconduct claim, the
petitioner must show that the prosecutor’s conduct so infected the trial so as
to render the conviction fundamentally unfair. Parker v. Matthews, 567 U.S.
37 (2012); Gillard v. Mitchell, 445 F.3d 883, 897 (6th Cir. 2006) (citing
Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). If the misconduct was
harmless, then as a matter of law, there was no due-process violation. See
Greer v. Miller, 483 U.S. 756, 765 & n.7 (1987). In federal habeas, this means
asking whether the error “had substantial and injurious effect or influence in
determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 623,
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637-38 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946));
see also Fry v. Pliler, 551 U.S. 112, 121-22 (2007).
The decision by the Michigan Court of Appeals that the above-described
arguments did not constitute misconduct rendering Petitioner’s entire trial
fundamentally unfair was not unreasonable. Petitioner’s defense was that the
testimony of the victim and his sister was not credible. Though the
prosecutor’s response to the argument was couched in terms of “how can
Petitioner explain,” this was little more than a rhetorical device to direct the
jury’s attention to the apparent emotional manner in which the victim testified.
It is well-settled that a prosecutor may not shift the burden of proof to a
defendant. See, e.g., United States v. Clark, 982 F.2d 965, 968-69 (6th
Cir.1993). A prosecutor may, however, highlight inadequacies in the defense,
see Bates v. Bell, 402 F.3d 635, 646 (6th Cir. 2005), and point out the lack of
evidence supporting the defense theory. See United States v. Forrest, 402
F.3d 678, 686 (6th Cir. 2005). The prosecutor here was highlighting the
inadequacy of Petitioner’s defense by noting that it failed to account for the
manner in which the victim testified. The claim was reasonably rejected by the
state courts.
E. Sentencing Guidelines

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Petitioner asserts that the trial court incorrectly scored the sentencing
guidelines and relied on facts not admitted by Petitioner or found beyond a
reasonable doubt by the jury in determining her sentence.
With respect to the correctness of the scoring of the guideline factors
themselves, Petitioner fails to state a claim for federal-habeas relief because
it is a state-law claim and is non-cognizable. See Austin v. Jackson, 213 F.3d
298, 300-01 (6th Cir. 2000).
With respect to Petitioner’s related Sixth Amendment claim, the United
States Supreme Court held that any fact which 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, 186 L. Ed. 2d 314 (2013). Alleyne does not apply to
Petitioner’s claim 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 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

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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 fact-finding under Michigan’s
indeterminate sentencing scheme violates the Sixth Amendment. See Kittka
v. Franks, 539 F. App’x. 668, 673 (6th Cir. 2013).
Although 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 in People v. Lockridge, 498 Mich. 358 (2015),
Lockridge does not provide a basis for habeas relief for Petitioner.“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 U.S. Dist. LEXIS 35151, 2016 WL 1068744, at * 5 (W.D.
Mich. Mar. 18, 2016). Alleyne therefore did not clearly establish the
unconstitutionality of the Michigan sentencing scheme and cannot form the
basis for habeas corpus relief. Perez v. Rivard, No. 2:14-CV-12326, 2015 U.S.
Dist. LEXIS 74211, 2015 WL 3620426, at *12 (E.D. Mich. June 9, 2015).

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Petitioner’s sentencing guideline claims are without merit.
F. Ex Post Facto Clause
Petitioner finally asserts that the condition in her sentence that she be
subject to lifetime electronic monitoring violates the Ex Post Facto Clause
because it was not part of Michigan’s criminal sexual conduct statute at the
time of the offenses. This claim is moot because the Michigan Court of
Appeals agreed with Petitioner and ordered this part of her sentence to be
vacated. Mathis, No. 323831, 2016 WL 191901, *7.
Because none of Petitioner’s claims merit relief, the petition will be
denied.
IV. Certificate of Appealability
Before Petitioner may appeal this Court’s dispositive decision, “a circuit
justice or judge” must issue a certificate of appealability. See 28 U.S.C. §
2253(c)(1)(A); Fed. R. App. P. 22(b). 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).To satisfy § 2253(c)(2), Petitioner
must show “that reasonable jurists could debate whether (or, for that matter,
agree that) the petition should have been resolved in a different manner or
that the issues presented were adequate to deserve encouragement to

22

proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (citation and
internal quotation marks omitted). The Court finds that reasonable jurists
would not debate the resolution of her claims. The Court will therefore deny
a certificate of appealability with respect all of Petitioner’s claims.
Furthermore, if Petitioner chooses to appeal the Court’s decision, she may
proceed in forma pauperis because an appeal could be taken in good faith.
28 U.S.C. § 1915(a)(3).
V. Conclusion
Accordingly, the Court 1) DENIES WITH PREJUDICE the petition for a
writ of habeas corpus, 2) DENIES a certificate of appealability, and 3)
GRANTS permission to appeal in forma pauperis.
SO ORDERED.

S/Denise Page Hood
Denise Page Hood
Chief Judge, United States District Court
Dated: November 30, 2017
I hereby certify that a copy of the foregoing document was served upon
counsel of record on November 30, 2017, by electronic and/or ordinary mail.
S/LaShawn R. Saulsberry
Case Manager

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