Cummings v. Campbell

Filing 3

OPINION and ORDER Summarily Denying the 1 Petition for Writ of Habeas Corpus and Declining to Issue a Certificate of Appealability or Leave to Proceed In Forma Pauperis on Appeal. Signed by District Judge Robert H. Cleland. (SBur)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

WALTER CUMMINGS,
Petitioner,
v.

Case No. 17-10523

SHERMAN CAMPBELL,
Respondent.
/
OPINION AND ORDER SUMMARILY DENYING THE PETITION FOR WRIT OF
HABEAS CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF
APPEALABILITY OR LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
Walter Cummings, (“Petitioner”), incarcerated at the Carson City Correctional
Facility in Carson City, Michigan, seeks the issuance of a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. In his pro se application, Petitioner challenges his
sentence for four counts of armed robbery, Mich. Comp. Laws § 750.529, and one
count of felony-firearm, Mich. Comp. Laws § 750.227(b). For the reasons that follow,
the court will summarily deny the petition.
I. BACKGROUND
Petitioner was convicted following a jury trial in the Wayne County Circuit Court.
Petitioner was sentenced to concurrent terms of two hundred and eighty-five months to
sixty years on the armed robbery convictions and received a consecutive two-year
sentence on the felony-firearm conviction.
Direct review of Petitioner’s conviction ended in the Michigan courts on March
29, 1995, when the Michigan Supreme Court denied Petitioner leave to appeal following

the affirmance of his conviction on his direct appeal by the Michigan Court of Appeals.
People v. Cummings, 693 N.W.2d 818 (Mich. 1995). Petitioner later filed a postconviction motion for relief from judgment, which was denied. People v. Cummings, No.
01-012985-FC (Wayne Cty. Cir. Ct. Jan. 12, 2016). The Michigan appellate courts
denied leave to appeal. People v. Cummings, No. 332981 (Mich. Ct. App. Aug. 22,
2016); lv. den. 889 N.W. 2d 252 (Mich. 2017).
Petitioner now seeks a writ of habeas corpus on the following ground:
Contrary to the Michigan Supreme Court in applying a procedural bar of
MCR 6.508(D), the Michigan Supreme Court employed an irrebutable (sic)
presumption that Petitioner[’s] constitutional claim can be denied by
forfeiture that caused a fundamental miscarriage of justice, thus denied
(sic) the due process of law.
(Dkt. # 1, Pg. ID 3-4.)
II. STANDARD
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 differently than the Supreme Court

2

has on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 40506 (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
‘fair[-]minded 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)).
A petition for a writ of habeas corpus must set forth facts that give rise to a cause
of action under federal law or it may summarily be dismissed. See, e.g., Edwards v.
Johns, 450 F.Supp.2d 755, 756 (E.D. Mich. 2006) (Gadola, J.); Perez v. Hemingway,
157 F. Supp. 2d 790, 796 (E.D. Mich. 2001) (Borman, J.). Federal courts are also
authorized to dismiss any habeas petition that appears legally insufficient on its face.
See McFarland v. Scott, 512 U.S. 849, 856 (1994). A federal district court is
authorized to summarily dismiss a habeas corpus petition if it plainly appears from the
face of the petition or the exhibits that are attached to it that the petitioner is not entitled
to federal habeas relief. See Carson v. Burke, 178 F.3d 434, 436 (6th Cir. 1999); Rules
Governing § 2254 Cases, Rule 4, 28 U.S.C. foll. § 2254. The Sixth Circuit, in fact, long
ago indicated that they “disapprove the practice of issuing a show cause order [to the
respondent] until after the District Court first has made a careful examination of the
petition.” Allen v. Perini, 424 F.3d 134, 140 (6th Cir. 1970). A district court therefore

3

has the duty to screen out any habeas corpus petition which lacks merit on its face. Id.
at 141. No return to a habeas petition is necessary when the petition is frivolous, or
obviously lacks merit, or where the necessary facts can be determined from the petition
itself without consideration of a return by the state. Id.
After undertaking the review required by Rule 4, this Court concludes, for
reasons stated in greater detail below, that Petitioner’s claim does not entitle him to
habeas relief, such that the petition must be summarily denied. See McIntosh v.
Booker, 300 F. Supp.2d 498, 499 (E.D. Mich. 2004).
III. DISCUSSION
Petitioner claims that the trial judge violated his Sixth Amendment right to trial by
jury by using factors that had not been proven beyond a reasonable doubt or admitted
to by Petitioner in scoring the sentencing guidelines range for the armed robbery
convictions. Petitioner further argues that the state courts erred in applying the
procedural bar contained in Michigan Court Rule 6.508(D) to deny him post-conviction
relief on his sentencing claim.
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 Fed. App’x. 724, 725 (6th Cir. 2007); Howard v. White, 76
Fed. 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

4

Mitchell v. Vasbinder, 644 F. Supp. 2d 846, 867 (E.D. Mich. 2009). Petitioner thus
“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). To the extent Petitioner asserts a violation of the Michigan Constitution or
Michigan Court Rules, or alleges an error of state sentencing law, his claim is not
cognizable on federal habeas review. See, e.g., Estelle v. McGuire, 502 U.S. 62, 67-68
(1991); Pulley v. Harris, 465 U.S. 37, 41 (1984). Any error by the trial court in
calculating his guideline score would not merit habeas relief. See Doyle, 347 F.
Supp.2d at 485.
Petitioner argues that the trial court judge violated his Sixth Amendment right to a
trial by jury by using factors that had not been submitted to a jury and proven beyond a
reasonable doubt or admitted to by Petitioner when scoring these guidelines variables
under the Michigan Sentencing Guidelines.1
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
1

Under Michigan law, only the minimum sentence must presumptively be set within the
appropriate sentencing guidelines range. See People v. Babcock, 666 N.W.2d 231, 237,
n.7 (Mich. 2003) (citing Mich. Comp. Laws § 769.34(2)). The maximum sentence is not
determined by the trial judge but is set by law. See People v. Claypool, 684 N.W. 2d
278, 286, n. 14 (Mich. 2004) (citing Mich. Comp. Laws § 769.8).

5

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.
At the time of Petitioner’s conviction and sentence, Harris was good law. In
addition, Alleyne has not been made retroactive to cases on collateral review. See In re
Mazzio, 756 F.3d 487, 489-90 (6th Cir. 2014). Although the Michigan Supreme Court
recently relied on Alleyne to hold that Michigan’s Sentencing Guidelines scheme
violates the Sixth Amendment right to a jury trial, See People v. Lockridge, 870 N.W.2d
502 (Mich. 2015), a federal district court may only grant habeas relief if it finds that the
state court’s decision was “‘contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court of the United
States’ or ‘was based on an unreasonable determination of the facts in light of the
evidence that was presented in the State court proceeding.’” Peak v. Webb, 673 F.3d
465, 472 (6th Cir. 2012) (quoting 28 U.S.C. § 2254(d)) (emphasis added). In addition,
“[t]he law in question must have been clearly established at the time the state-court
decision became final, not after.” Id. (citing Williams v. Taylor, 529 U.S. at 380).
Because the Supreme Court at the time of Petitioner’s conviction did not require that
facts which increase a criminal defendant’s minimum sentence be proven beyond a

6

reasonable doubt, Petitioner is not entitled to habeas relief on his claim. See also
Gibson v. Tribley, 2013 WL 3353905, at * 8 (E.D. Mich. July 3, 2013) (Tarnow, J.).
Alleyne is also 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 United States v. James, 575 Fed. 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 Fed. 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, albeit in an unreported case, 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 Fed. App’x. 668, 673 (6th Cir. 2013).
Although the Michigan Supreme Court in People v. Lockridge held that
Michigan’s Sentencing Guidelines scheme violates the Sixth Amendment right to a jury
trial, 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

7

Lockridge does not render the result ‘clearly established’ for purposes of habeas
review.” Haller v. Campbell, 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, 2015 WL 3620426, at * 12 (E.D. Mich. June 9,
2015) (Battani, J.) (petitioner not entitled to habeas relief on claim that his sentencing
guidelines scored in violation of Alleyne). Petitioner is not entitled to relief on his
sentencing claim.
Petitioner’s related claim that the Michigan courts wrongfully denied him postconviction relief on his sentencing claim is non-cognizable. “[T]he Sixth Circuit has
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). This is because states have no constitutional obligation to provide postconviction 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.’”

8

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 at 853 (quoting Kirby, 794 F. 2d at 247). The “‘scope of the writ’” does not
encompass a “‘second tier of complaints about deficiencies in state post-conviction
proceedings.’” Id. (quoting Kirby, 794 F.2d at 248).
A certificate of appealability.
Before Petitioner may appeal this decision, a certificate of appealability must
issue. 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). When a court denies a habeas
claim on the merits, the substantial showing threshold is met if the petitioner
demonstrates that reasonable jurists would find the court’s assessment of the claim
debatable or wrong. See Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). Having
considered the matter, the court concludes that Petitioner has not made a substantial
showing of the denial of a constitutional right as to his habeas claim. The court will
deny Petitioner a certificate of appealability.
The standard for granting an application for leave to proceed in forma pauperis is
a lower standard than the standard for certificates of appealability. See Foster v.
Ludwick, 208 F. Supp.2d 750, 764 (E.D. Mich. 2002) (Rosen, J.). Whereas a
certificate of appealability may only be granted if petitioner makes a substantial

9

showing of the denial of a constitutional right, a court may grant leave to proceed in
forma pauperis if it finds that an appeal is being taken in good faith. 28 U.S.C. §
1915(a)(3); Fed. R.App. P. 24(a); Foster, 208 F.Supp.2d at 764-65. “Good faith”
requires a showing that the issues raised are not frivolous; it does not require a
showing of probable success on the merits. Id. at 765. Although this is a decidedly
lower standard, the court will nonetheless deny leave to proceed in forma pauperis on
appeal because appeal would be frivolous for the reasons stated above.
IV. CONCLUSION
IT IS ORDERED that Petitioner Walter Cummings’ petition for writ of habeas
corpus (Dkt. # 1) is SUMMARILY DENIED.
IT IS FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
DENIED.
The court DECLINES to issue a certificate of appealability.

s/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE

/

Dated: March 13, 2017
I hereby certify that a copy of the foregoing document was mailed to counsel of record
on this date, March 13, 2017, by electronic and/or ordinary mail.

s/Shawna C. Burns
Case Manager Generalist
[phone]

S:\Cleland\TLH\Habeas\17-10523.CUMMINGS.habeas.2254.TLH.docx

10

/