Stein v. MaCauley
Filing
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ORDER DENYING 1 Petition for Writ of Habeas Corpus. Signed by District Judge Terrence G. Berg. (AChu)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
2:18-cv-13959
ROGER STEIN,
Petitioner,
HON. TERRENCE G. BERG
v.
BRYAN MORRISON,1
Respondent.
ORDER DENYING PETITION
FOR WRIT OF HABEAS
CORPUS
Roger Stein, a state prisoner, filed a petition for a writ of habeas
corpus under 28 U.S.C. § 2254. Stein pled guilty in the St. Clair Circuit
Court to operating or maintaining a methamphetamine lab and delivery
or manufacture of methamphetamine. See Mich. Comp. Laws §§
333.7401c(2)(f), and 333.7401(2)(b)(i). He was sentenced to concurrent
terms of 6-20 years in prison.
Stein asserts that the trial court incorrectly scored the sentencing
guidelines and that both his trial and appellate counsel were
constitutionally ineffective. The Court will deny the petition because the
claims are without merit. The Court will also deny a certificate of
appealability and deny permission to appeal in forma pauperis.
The Court substitutes Bryan Morrison, the Warden at Petitioner’s current
correctional facility, as Respondent. See Rule 2(a), 28 U.S.C. § 2254.
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BACKGROUND
The charges against Stein arose when he assisted another man
living at his Port Huron house to manufacture methamphetamine. As a
result of this conduct, Stein was charged with five felony offenses: (1)
maintaining a lab involving methamphetamine – second offense, (2)
delivery or manufacture of methamphetamine – second offense, (3)
possession of methamphetamine – second offense, (4) operating a drug
house – second offense, and (5) possession of ammunition or a firearm by
a convicted felon. Stein was also notified that the prosecutor would seek
a sentencing enhancement because he was a third-time habitual felony
offender.
Stein entered into a plea agreement early in the proceedings. In the
state district court, he waived his preliminary examination and circuit
court arraignment, and he agreed to allow the district court judge to act
in place of the circuit court judge to accept his guilty plea. ECF No. 7-3,
at 3-8.
Stein’s trial counsel put the terms of the plea agreement onto the
record. He indicated that Stein would plead guilty to the first two counts
and in exchange, the prosecutor would amend them to remove the secondoffense designation, dismiss the later three counts, and dismiss the thirdtime habitual felony offender sentencing enhancement. The prosecutor
agreed to the recitation of the agreement.
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Stein, who was placed under oath, affirmed his understanding of
the terms of the plea agreement. Stein testified that he graduated from
high school and that he was born in 1964. He agreed that he had enough
time to consult with his attorney regarding the decision whether to plead
guilty.
The trial court informed Stein of the offenses to which he would be
pleading guilty, including the fact that the two charges carried a
maximum sentence of twenty years. Stein indicated his understanding,
and then he formally entered his plea of guilty to the two reduced
charges.
The court informed Stein of the constitutional rights that he would
be waiving by entering his guilty plea. Stein indicated his understanding
and agreement to waive each of the rights explained to him. Stein also
confirmed that no other promises were made to him in exchange for his
plea.
Stein confirmed that he was not threatened in any way to enter his
plea, and he agreed that although he received advice from his attorney,
it was his own decision to enter the guilty plea.
Stein testified to facts establishing a factual basis for his plea. He
testified that an individual named Robert Pelkey moved into his Port
Huron house of twenty years. Stein found Pelkey trying to manufacture
methamphetamine at the house. Stein allowed him to continue to
manufacture the drug, and in fact, he showed him how to make it
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correctly. Stein indicated that he did not have any questions about the
plea process. The trial court found that Stein’s guilty plea, made after
consultation with counsel, was entered freely and voluntarily. ECF No.
7-3, at 8-17.
At the sentencing hearing, the advisory sentencing guidelines were
scored to call for his minimum sentence term to be between 72 and 120
months. ECF No. 7-7, at 10. Defense counsel indicated that he did not
object to the guidelines score. ECF No. 7-4, at 4. The maximum term of
the sentence was set by statute at 20 years. See Mich. Comp. Laws §§
333.7401c(2)(f), and 333.7401(2)(b)(i). The court imposed a sentence at
the bottom of the advisory guidelines, sentencing Stein to 6-20 years in
prison. ECF No. 7-4, at 10.
Following his conviction and sentence, Stein filed a delayed
application for leave to appeal in the Michigan Court of Appeals, which
raised one claim:
I. Mr. Stein is entitled to resentencing for controlled
substance-operating/maintaining
a
lab
involving
methamphetamine
and
controlled
substancedelivery/manufacturing methamphetamine, where the
sentence is based on 10 points erroneously scored under
offense variable 13 and 5 points erroneously scored under
offense variable 15, and both trial court counsel and original
appointed appellate counsel were ineffective for failing to
correct the error.
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The Michigan Court of Appeals denied Stein’s application “for lack
of merit in the grounds presented.” ECF No. 7-7, at 1. Stein subsequently
filed a pro se application for leave to appeal in the Michigan Supreme
Court, but it was rejected because it was untimely filed. ECF. No. 7-8.
Stein returned to the trial court and filed a motion for relief from
judgment, raising seven claims:
I. Defendant’s current sentence is invalid where the erroneous
scoring of the offense variables and misapplication of
statutory law clearly rendered the sentence a product of a
violation of due process, by being sentenced on inaccurate
information and is contrary to, and an unreasonable
application of clearly established federal law.
II. Defendant was denied his Sixth Amendment right to
effective assistance of appellate counsel on his first appeal
and his Fourteenth Amendment right to the due process of
law by appellate counsel’s actions.
III. Trial counsel was ineffective to suppress the evidence,
where there was no probable cause to support the issuance of
a warrant.
IV. The cumulative errors in the proceedings denied
Defendant his constitutional right to a fair trial and due
process of law, and the right to effective assistance of counsel.
V. Defendant was denied his Sixth Amendment right to
effective assistance of counsel where there was a breakdown
in the attorney client relationship and where counsel failed to
file Defendant’s Standard Four appellate brief.
VI. The cumulative errors in the proceedings denied
Defendant his constitutional right to a fair trial and due
process of law, and the right to effective assistance of counsel.
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VII. Defendant submits that his appellate counsel was the
cause for any procedural default so the federal exhaustion
requirement should be excused.
The trial court denied the motion for relief from judgment because
Stein did not demonstrate good cause or actual prejudice for his failure
to raise the claims on direct appeal under Michigan Court Rule
6.508(D)(3). ECF No. 7-6, at 3.
After the trial court denied the motion for relief from judgment,
Stein filed an application for leave to appeal in the Michigan Court of
Appeals. The Michigan Court of Appeals denied the application for leave
to appeal “fail[ure] to establish that the trial court erred in denying the
motion for relief from judgment.” ECF No. 7-9, at 1. Stein then applied
for leave to appeal this decision in the Michigan Supreme Court, but he
was denied relief under Mich. Ct. R. 6.508(D). People v. Stein, 922 N.W.2d
352 (Mich. 2019) (Table).
STANDARD OF REVIEW
Section 2254(d) of Title 28 of the United States Code, as amended
by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),
Pub. L. No. 104-132, 110 Stat. 1214, places strict limits on federal courts’
authority to grant applications for a writ of habeas corpus by state
prisoners. Moore v. Mitchell, 708 F.3d 760, 781 (6th Cir. 2013). Section
2254(d) instructs that federal courts “shall not” grant a habeas petition
filed by a state prisoner with respect to any claim adjudicated on the
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merits by a state court, absent applicability of either of two specific
exceptions. The first exception occurs if the state-court judgment
“resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the
Supreme Court.” 28 U.S.C. § 2254(d)(1). The second exception applies if
the state court judgment “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.” 28 U.S.C. § 2254(d)(2). The statute
therefore requires a high degree of deference to state-court rulings and
demands those decisions be given the benefit of the doubt. Renico v. Lett,
559 U.S. 766, 773 (2010). Fundamentally, § 2254(d) casts federal habeas
review as a safeguard against “extreme malfunctions in the state
criminal justice systems, not a substitute for ordinary error correction
through appeal.” Harrington v. Richter, 562 U.S. 86, 103 (2011) (citation
omitted).
DISCUSSION
A. Sentencing Guidelines
Stein contends that the state court incorrectly calculated his
sentencing guideline range under the Michigan Sentencing Guidelines.
He asserts that he was erroneously assessed points for offense variables
related to displaying a pattern of committing three or more drug offenses
and for engaging in the delivery of drugs. He asserts that the three
dismissed charges should not have counted for the scoring, and that he
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did not admit as part of the plea hearing that he was engaged in the
distribution of methamphetamine.
This claim was raised in Petitioner’s direct appeal. The Michigan
Court of Appeals denied his application for leave to appeal “for lack of
merit in the grounds presented.” ECF No. 7-7, PageID.193. That decision,
though brief, constitutes an adjudication and rejection of Petitioner’s
claim on the merits. See Werth v. Bell, 692 F.3d 486, 492-94 (6th Cir.
2012).
Under Werth, the Court must presume that the state court rejected
Petitioner’s contention that the guidelines were incorrectly scored, and
this Court may not second-guess that determination of a state-law issue.
State courts are the final arbiters of state law. See Bradshaw v. Richey,
546 U.S. 74, 76 (2005); Sanford v. Yukins, 288 F.3d 855, 860 (6th Cir.
2002). “[E]rrors in the application of state sentencing guidelines like
those alleged [here] cannot independently support habeas relief.” Kissner
v. Palmer, 826 F.3d 898, 904 (6th Cir. 2016).
The Court notes that Petitioner relatedly asserted in his postconviction review proceeding that the scoring of the sentencing guidelines
violated his Sixth Amendment jury trial rights. Had Petitioner been
sentenced under the mandatory version of Michigan’s sentencing
guidelines, then this argument might have merit. See Robinson v. Woods,
901 F. 3d 710, 716-718 (6th. Cir. 2018). Petitioner was sentenced,
however, after the guidelines were made advisory. See ECF No. 7-4, at
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PageID.146. Petitioner’s Sixth Amendment rights were not implicated by
the exercise of the trial court’s discretion in scoring advisory guidelines.
See United States v. Booker, 543 U.S. 220, 232 (2005) (“If the Guidelines
as currently written could be read as merely advisory provisions that
recommended, rather than required, the selection of particular sentences
in response to differing sets of facts, their use would not implicate the
Sixth Amendment. We have never doubted the authority of a judge to
exercise broad discretion in imposing a sentence within a statutory
range.”). Petitioner’s first claim is therefore without merit.
B. Ineffective Assistance of Counsel
Stein raises a number of claims of ineffective assistance of trial
counsel. Several of these claims assert that his trial counsel should have
raised challenges in the trial court to challenge the charges. The properly
conducted plea colloquy, which reveals that Stein’s plea was voluntarily
and intelligently entered, belies his claim that the ineffectiveness of his
counsel induced his plea. See Ramos v. Rogers, 170 F.3d 560, 565 (6th
Cir. 1999). Stein’s challenges to his counsel’s pre-plea conduct are barred
by his valid, voluntary guilty plea. Tollett v. Henderson, 411 U.S. 258,
267 (1973).
Stein also asserts that his counsel failed to object to the scoring of
the sentencing guidelines. The failure to lodge a proper objection to
sentencing errors “can form the basis of ineffective-assistance claims.”
Kissner, 826 F.3d at 904. But to succeed on such a claim, Stein “must
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show both deficient performance and prejudice.” Knowles v. Mirzayance,
556 U.S. 111, 122 (2009). Because the Michigan Court of Appeals
determined that Stein’s guidelines claims were without merit, however,
his attorney cannot be faulted for not raising those arguments at the
sentencing hearing. Jalowiec v. Bradshaw, 657 F.3d 293, 321-22 (6th Cir.
2011).
Finally, Stein’s claims of ineffective assistance of appellate counsel
fail for similar reasons. Stein claims that his appellate counsel was
ineffective for failing to properly preserve and present his other claims.
But at bottom here are claims that, for the reasons discussed above, lack
merit. It is well-established that “appellate counsel cannot be ineffective
for a failure to raise an issue that lacks merit,” Greer v. Mitchell, 264 F.3d
663, 676 (6th Cir. 2001).
As none of Stein’s claims merit relief, the petition will be denied.
CONCLUSION
For these reasons, the Court DENIES the petition for a writ of
habeas corpus in part.
Furthermore, because reasonable jurists would not debate this
result, the Court DENIES a certificate of appealability. See 28 U.S.C. §
2253(c)(2). Finally, because any appeal would be frivolous, leave to
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appeal in forma pauperis is DENIED. See 28 U.S.C. § 1915(a)(3).
DATED: September 22, 2020.
BY THE COURT:
/s/Terrence G. Berg
TERRENCE G. BERG
United States District Judge
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