Hibbler v. Howard

Filing 10

OPINION and ORDER Denying 1 , 4 Petition for Writ of Habeas Corpus, Denying Certificate of Appealability, and Granting Petitioner Permission to Proceed in Forma Pauperis on Appeal Signed by District Judge Terrence G. Berg. (TMcg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
HOLLY KAYE HIBBLER,
Petitioner,
vs.
J. HOWARD,
Respondent.

2:21-CV-10291-TGB-PTM
HON. TERRENCE G. BERG
OPINION AND ORDER
DENYING PETITION FOR
WRIT OF HABEAS
CORPUS (ECF NO.1),
DENYING CERTIFICATE OF
APPEALABILITY, AND
GRANTING PETITIONER
PERMISSION TO PROCEED IN
FORMA PAUPERIS ON APPEAL

Holly Kaye Hibbler, a Michigan state prisoner proceeding pro se,
has petitioned for a writ of habeas corpus. 28 U.S.C. § 2254. Hibbler
pleaded no contest to reckless driving causing death. MCL § 257.6264.
She argues that her 10 to 15-year sentence violates the Sixth and
Fourteenth Amendment because it was based on judicially found facts,
violates her right to a proportionate and individualized sentence, and is
unreasonable. Hibbler’s petition is DENIED. Additionally, the Court
declines to issue a certificate of appealability. Should Hibbler wish to
appeal, she is GRANTED leave to proceed in forma pauperis.
I. BACKGROUND
Hibbler’s conviction arises from the death of nine-year-old Samuel

Myers. The trial court summarized the facts as follows:1
[O]n Wednesday, August the 8th, at about 7:45[a.m.], the
Defendant struck nine-year-old Samuel Myers as he was
walking his bike with his mother Sharon along the side of
Maxwell Road. Sharon was also hit and seriously injured by
Defendant’s car.
This violent collision caused massive injuries to Samuel. He
was transported to McLaren Hospital[,] and then airlifted to
DeVos Hospital in Grand Rapids where unfortunately he
passed away just a few hours later.
Instead of stopping her car immediately to render aid and
summon emergency assistance, the Defendant continued on
down the road and around a corner. Then when she thought
she was out of sight, she stopped and attempted to hide
evidence of her wrongdoing by getting rid of an open beer can
and the floor mats of her car that had beer spilled on them.
Then she sent and received several text messages, and only
sometime later did she return to the scene of the collision.
Luckily there were others in the vicinity that heard the
sounds of the collision and came to render aid and called 911[.]
***
On the date of the incident, [Defendant] had a medical
marijuana card, and she now admits that she was smoking
marijuana on that day as well as drinking beer. The officers
on the scene observed that she was slurring her words, had
the odor of alcohol on her breath. Her eyes were droopy. She
couldn’t accurately recount to them what time of day it was,
and she displayed other signs and indications of intoxication
to the officers. They took a PBT at the scene that showed her
The parties stipulated that the trial court could rely on the probable
cause affidavit and police report to provide the factual basis for the plea
and for sentencing purposes. (ECF No. 9-2, PageID.112, ECF No. 9-3,
PageID.143.)

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blood-alcohol level at .067, and a later blood test showed that
she was at .04.
Testing also showed that she had morphine in her system. She
told the officers that she was taking a variety of other
prescription medications. According to the presentence
report, those included, I believe, morphine and aripiprazole,
cyclobenzaprine—cyclobenzaprine—I’ve got the common
names of several of these—but again, she had morphine in her
system, and morphine and alcohol are both depressants, and
the combination of these two drugs can and does cause
drowsiness, lack of coordination, motor skill impairment and
delayed responsiveness. Morphine together with marijuana
can cause fatigue, blurred vision, hallucinations and mental
confusion.
She was taking something called Pristiq, an anti-depressant
that also causes or would exacerbate drowsiness. She was also
on Flexeril, a prescription muscle relaxant with effects like
narcotics, in other words causing relaxation and drowsiness.
She was also taking Abilify, another antidepressant that
causes or would contribute to drowsiness.
All this together, with the observations of the officers on the
scene, who are trained to detect the signs of intoxication,
confirmed their conclusion which are in the police reports that
I reviewed; that is[,] that the Defendant was significantly
impaired or intoxicated when she struck the victims.
She initially told the officers that she’d consumed just one
beer. Later on she admitted to consuming two. A case of beer
was found in her trunk, and just six of them [were] left. She
told the officers she’d smoked marijuana saying “just enough
to get a little buzz.” She said the effect on her was one on a
scale of one to ten. Later on she admitted that she had smoked
marijuana twice that day and rated herself as a five out of ten.
She initially presented the officers with the claim that her
cruise control had somehow malfunctioned and that this was

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somehow the cause of the collision. She said, “my cruise
control got stuck. I wasn’t looking up because the cruise
control must have goop in it.” She estimated her speed at 35;
said she couldn’t stop until she just got around the corner,
which makes no sense. Later on she put her speed up to 50
miles an hour. She said she was using her cruise control
because she got tired due to her intoxicants that she had
ingested, but it makes no sense that one would use cruise
control a short distance between where she had to stop at the
corner of Maxwell Road and Newsom Road, and the 90 degree
corner where Maxwell Road goes from westbound to
northbound—a 90 degree corner—it just makes no sense.
[N]ot only do the facts show that she left the scene and
attempted to hide evidence, but she was trying to avoid
responsibility by giving false information to the investigating
officers at the scene.
Now the weather was clear; it was daylight. The road in
question is a straight section of the road with good visibility.
There were no visual obstructions that would have prevented
her from seeing and avoiding the victims. One of the officers
said there was at least a hundred yards of clear visibility as
she approached the bicyclists from the east. In short, there
was no reason if she was sober and paying attention for her
having failed to see and avoid the victims.
ECF No. 9-3, PageID.144–48.
Hibbler was charged in Emmet County Circuit Court with reckless
driving causing death. Hibbler entered a no contest plea, and, on January
8, 2019, she was sentenced to 10 to 15 years imprisonment.
Hibbler filed an application for leave to appeal in the Michigan
Court of Appeals claiming that the trial court abused its discretion by
departing upward from the sentencing guidelines and that her sentence

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was disproportionate. The Michigan Court of Appeals denied leave to
appeal “for lack of merit in the grounds presented.” People v. Hibbler, No.
350122 (Mich. Ct. App. Sept. 13, 2019).
Hibbler filed an application for leave to appeal in the Michigan
Supreme Court, raising the same claims presented to the Michigan Court
of Appeals. The Michigan Supreme Court denied leave to appeal. People
v. Hibbler, 939 N.W.2d 687 (Mich. 2020).
Hibbler then filed the pending petition for a writ of habeas corpus.
She argues that her sentence violates the Sixth and Fourteenth
Amendment given the following:
i.

The sentence was based on judicially found facts in violation of
Apprendi v. New Jersey, 530 U.S. 466 (2000) and Alleyne v.
United States, 570 U.S. 99 (2013),

ii.

The sentence violates her right to a proportionate and
individualized sentence, and

iii.

The sentence is unreasonable.
II. Legal Standard
A § 2254 habeas petition is governed by the heightened standard of

review set forth in the Anti-Terrorism and Effective Death Penalty Act
(“AEDPA”). 28 U.S.C. § 2254. To obtain relief, habeas petitioners who
challenge “a matter ‘adjudicated on the merits in State court’ [must] show
that the relevant state court ‘decision’ (1) ‘was contrary to, or involved an
unreasonable application of, clearly established Federal law,’ or (2) ‘was
based on an unreasonable determination of the facts in light of the
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evidence presented in the State court proceedings.’” Wilson v. Sellers, 548
U.S. 122, 125 (2018) (quoting 28 U.S.C. § 2254(d)). The focus of this
standard “is not whether a federal court believes the state court’s
determination was incorrect but whether that determination was
unreasonable — a substantially higher threshold.” Schriro v. Landrigan,
550 U.S. 465, 473 (2007). “AEDPA thus imposes a highly deferential
standard for evaluating state-court rulings and demands that state-court
decisions be given the benefit of the doubt.” Renico v. Lett, 559 U.S. 766,
773 (2010) (cleaned up).
“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)). Also, a state court’s factual determinations are presumed correct
on federal habeas review, 28 U.S.C. § 2254(e)(1), and review is “limited
to the record that was before the state court.” Cullen v. Pinholster, 563
U.S. 170, 181 (2011).
III. DISCUSSION
Hibbler challenges her sentence of 10 to 15 years, which exceeded
the minimum sentencing guidelines range of 36 to 71 months. The
Michigan Court of Appeals denied Hibbler’s claims in a one-sentence
summary order, stating that leave to appeal was denied “for lack of merit
in the grounds presented.” See People v. Hibbler, No. 350122 (Mich. Ct.
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App. Sept. 13, 2019). Without some indication to the contrary, this type
of summary order is considered an adjudication on the merits to which
AEDPA deference applies. See Harrington v. Richter, 562 U.S. 86, 99–
100 (2011). Because Hibbler offers no basis for rebutting that
presumption and the Court finds none, AEDPA’s deferential standard of
review is appropriate.
First,

Hibbler

argues

that

she

was

sentenced

based

on

impermissible judicial fact-finding. Under the Sixth Amendment, any
fact that increases the maximum penalty for a crime must be submitted
to a jury and proved beyond a reasonable doubt. Apprendi v. New Jersey,
530 U.S. 466, 490 (2000). The same requirement applies to any fact that
increases a mandatory minimum. Alleyne v. United States, 570 U.S. 99,
111–12 (2013). In People v. Lockridge, the Michigan Supreme Court held
that, under Alleyne, the mandatory application of Michigan’s sentencing
guidelines was unconstitutional. 498 Mich. 358, 388–89 (2015). To
remedy this violation, the Michigan Supreme Court made the sentencing
guidelines advisory. Id. at 391–92.
Hibbler was sentenced after Lockridge was decided and the state
sentencing guidelines were made advisory. Purely advisory applications
of the sentencing guidelines do not violate the Sixth Amendment. United
States v. Booker, 543 U.S. 220, 233 (2005). Here, the state trial court
departed upwards from the sentencing guidelines. Thus, the guidelines
range is immaterial; the Supreme Court has never suggested that
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judicial fact-finding in support of a court’s exercise of sentencing
discretion, as happened here, violates the Sixth Amendment. See id. at
232 (“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.”); see also Reign v. Gidley, 929 F.3d
777, 781 (6th Cir. 2019) (“But the constitutional error here was the
mandatory application of the guidelines, not merely the consideration of
judge-found facts.”). Hibbler’s claim is without merit.
Second, Hibbler argues that her sentence is disproportionate and
not individualized. The Supreme Court has held that “the Eighth
Amendment does not require strict proportionality between crime and
sentence. Rather, it forbids only extreme sentences that are ‘grossly
disproportionate’ to the crime.” Harmelin v. Michigan, 501 U.S. 957, 1001
(1991) (quoting Solem v. Helm, 463 U.S. 277, 288 (1983)). Courts
reviewing Eighth Amendment proportionality must remain highly
deferential

to

the

legislatures

in

determining

the

appropriate

punishments for crimes. United States v. Layne, 324 F.3d 464, 473–74
(6th Cir. 2003) (citing Harmelin, 501 U.S. at 999). “In implementing this
‘narrow proportionality principle,’ the Sixth Circuit has recognized that
‘only an extreme disparity between crime and sentence offends the
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Eighth Amendment.’” Cowherd v. Million, 260 F. App’x 781, 785 (6th Cir.
2008) (quoting United States v. Marks, 209 F.3d 577, 583 (6th Cir. 2000)).
If the sentence remains within the statutory limits, trial courts have
historically been given wide discretion in determining “the type and
extent of punishment for convicted defendants.” Williams v. New York,
337 U.S. 241, 245 (1949).
Hibbler’s sentence was not grossly disproportionate or excessive.
The statutory maximum for reckless driving causing death under
Michigan law is 15 years. MCL § 257.626. Her sentence, therefore, did
not exceed the statutory maximum; as such, it was not unreasonable.
Hibbler also claims that her right to an individualized sentence was
denied. There is no clearly established federal law establishing a right to
individualized sentencing in non-capital cases. See United States v.
Odeneal, 517 F.3d 406, 415 (6th Cir. 2008); Hynes v. Birkett, 526 F. App’x
515, 522 (6th Cir. 2013); cf. United States v. Corum, 354 F. App’x 957,
963 (6th Cir. 2009) (recognizing it is “not fully settled” where there is a
constitutional right to an individualized sentence for a non-capital
defendant). Because there is no clearly established constitutional right to
individualized sentencing, Hibbler cannot show that the state court’s
decision denying this claim was contrary to, or an unreasonable
application of, federal law.
Finally, Hibbler argues that her sentence was unreasonable
because the state court considered facts already accounted for in the
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sentencing guidelines. A state court’s interpretation and application of
sentencing guidelines present issues only of state law that are not
cognizable on habeas review. “It is not the province of a federal habeas
court to reexamine state-court determinations on state-law questions.”
Estelle v. McGuire, 502 U.S. 62, 63 (1991). Hibbler points to no clearly
established federal law limiting a trial court’s discretion to rely on factors
already accounted for in the guidelines scoring to justify an upward
departure. Cf. United States v. Tristan-Madrigal, 601 F.3d 629, 636 n.1.
(6th Cir. 2010) (declining, in the context of the Federal Sentencing
Guidelines, to adopt a bright-line rule rendering a sentence unreasonable
whenever a court considers conduct in imposing a variance that was
already used to calculate the guidelines range).
IV. CONCLUSION
Hibbler’s petition for a writ of habeas corpus is DENIED. Further,
the Court finds that reasonable jurists would not debate this Court’s
resolution of Hibbler’s claims, so the Court DENIES a certificate of
appealability. See Slack v. McDaniel, 529 U.S. 473, 483–84 (2000). If
Hibbler still chooses to appeal, she may proceed in forma pauperis. See
28 U.S.C. § 1915(a)(3).
IT IS SO ORDERED.

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BY THE COURT:
Dated: April 9, 2024

s/Terrence G. Berg
HON. TERRENCE G. BERG
UNITED STATES DISTRICT JUDGE

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