Thomas v. Berghuis

Filing 11

OPINION and ORDER Denying the 1 Petition for Writ Of Habeas Corpus and Declining to Issue a Certificate of Appealability and Leave to Appeal In Forma Pauperis. Signed by District Judge Linda V. Parker. (SBur)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DEVANTE THOMAS,
Petitioner,
Case No. 14-13501
Honorable Linda V. Parker

v.
MARY BERGHUIS,
Respondent.
________________________________/

OPINION AND ORDER DENYING THE PETITION FOR WRIT OF
HABEAS CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF
APPEALABILITY AND LEAVE TO APPEAL IN FORMA PAUPERIS
Petitioner Devante Raheem Thomas (“Petitioner”), confined at the Newberry
Correctional Facility in Newberry, Michigan, has filed a pro se petition for a writ
of habeas corpus pursuant to 28 U.S.C. § 2254. In his application, Petitioner
challenges his convictions in the Circuit Court for Saginaw County, Michigan, in
2010, for the following: (a) carjacking in violation of Michigan Compiled Laws
§ 750.529a; (b) armed robbery in violation of Michigan Compiled Laws § 750.529;
(c) carrying a concealed weapon (CCW) in violation of Michigan Compiled Laws
§ 750.227; (d) third-degree fleeing and eluding in violation of Michigan Compiled
Laws § 750.479a(3)); (e) resisting and obstructing a police officer in violation of
Michigan Compiled Laws § 750.81d(1); and (f) three counts of possession of a
firearm during a felony (“felony-firearm”) in violation of Michigan Compiled

Laws § 750.227b. For the reasons stated below, the Court is denying Petitioner’s
application for the writ of habeas corpus.
I. Background
Petitioner pleaded guilty to the above offenses on October 12, 2010,
pursuant to a plea agreement. The convictions arose from an incident where
Petitioner forced a woman from her car at gunpoint and then stole the car and the
woman’s money and iPod. (10/12/10 Tr. at 7-8.) While driving the stolen car,
Petitioner led the police on a car chase and then a foot chase, before being
apprehended. (Id. at 8-10.) The state trial court sentenced Petitioner on November
18, 2010, to the following sentences: (1) a mandatory term of 24 months on the
felony firearm convictions, consecutive to a term of not less than 24 months and
not more than 60 months on the CCW conviction; (2) 180 to 360 months on the
carjacking and armed robbery convictions; (3) a term of 12 months on the resisting
and obstructing a police officer conviction , to be served in the Saginaw County
Jail concurrent with a term of 24 to 60 months on the fleeing and eluding
conviction and the sentences for carjacking and armed robbery. (11/18/10 Tr. at 34.)
Petitioner thereafter filed an application for leave to appeal in the Michigan
Court of Appeals, which the court denied for lack of merit in the grounds

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presented. (See ECF No. 9-7.) The Michigan Supreme Court denied Petitioner
leave to appeal in an order issued July 29, 2014. (ECF No. 9-9.)
Petitioner filed his application for a writ of habeas corpus pursuant to 28
U.S.C. § 2254 on September 9, 2014. Petitioner raises one ground in support of
his request for habeas relief:
[Petitioner] is entitled to a modification of his judgment for the
reason that he was prejudiced by the erroneous scoring of 10 points on
OV4, which thereby rendered his sentence invalid. Additionally, the
[Petitioner] has good cause to raise this issue do (sic) to the
ineffectiveness of both trial counsel and former appelate (sic) counsel.
(ECF No. 1 at 2.) Respondent filed an Answer to the Petition on March 4, 2015,
arguing that Petitioner’s ground for habeas relief is procedurally defaulted and that
his application is barred by the applicable statute of limitations. (ECF No. 8.)
Respondent also contends that Petitioner raises a non-cognizable claim. (Id.)
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
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(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 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.
III. Discussion
Petitioner contends that he is entitled to a modification of his sentence
because the trial court erroneously scored 10 points for offense variable 4, trial
counsel was ineffective for not objecting to trial court’s alleged error, and appellate
counsel was ineffective for not raising this issue on appeal.
As an initial matter, Petitioner agreed in his plea agreement to the minimum
sentence of 108 months. (10/12/12 Tr. at 3; 11/18/10 Tr. at 2, 4). The trial court
sentenced Petitioner to a minimum sentence of 108 months in accordance with the
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plea agreement and to the maximum of 360 months in accordance with Michigan
law. A defendant who consents to a specific sentence in a plea agreement and
receives the exact sentence he bargained for waives the right to challenge the
sentence on appeal or collateral review. See United States v. Livingston, 1 F.3d
723, 725 (8th Cir. 1993); Gill v. Berghuis, No. 06-10835, 2008 WL 1995096, *2
(E.D. Mich. May 6, 2008) (unpublished) (citing cases).
Petitioner’s sentences were within the statutory limit under Michigan law for
the enumerated offenses. A sentence imposed within the statutory limits is not
generally subject to habeas review. Townsend v. Burke, 334 U.S. 736, 741 (1948);
Cook v. Stegall, 56 F. Supp. 2d 788, 797 (E.D. Mich. 1999). Furthermore, a claim
that the state trial court incorrectly scored, calculated, or applied the state
legislative sentencing guidelines is not a cognizable claim for federal habeas
review because it is based solely on state law. See McPhail v. Renico, 412 F.
Supp. 2d 647, 656 (E.D. Mich. 2006) (citing Estelle v. McGuire, 502 U.S. 62, 67
(1991) (quoting Lewis v. Jeffers, 497 U.S. 764, 780 (1990) (“It is well-established
that ‘federal habeas corpus relief does not lie for errors of state law.’ ”). “A federal
court may not issue the writ [of habeas corpus disturbing a state-court judgment]
on the basis of a perceived error of state law.” Pulley v. Harris, 465 U.S. 37, 41,
(1984). Therefore, Petitioner’s claim that the trial court mis-scored offense

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variables in determining the state sentencing guidelines is not cognizable on habeas
corpus review.
Petitioner also alleges that his trial counsel was ineffective by failing to
object to the scoring of offense variable 4 and that appellate counsel was
ineffective in failing to raise this issue on appeal. Neither claim has merit.
A right to the effective assistance of counsel exists during sentencing in both
noncapital and capital cases. See Lafler v. Cooper, 132 S. Ct. 1376, 1385-86
(2012). “Even though sentencing does not concern the defendant’s guilt or
innocence, ‘ineffective assistance of counsel during a sentencing hearing can result
in Strickland prejudice because any amount of [additional] jail time has Sixth
Amendment significance.’ ” Lafler, 132 S. Ct. at 1386 (quoting Glover v. United
States, 531 U.S. 198, 203 (2001) (citing Strickland v. Washington, 466 U.S. 668
(1984)) (additional quotation marks omitted). To establish a claim of ineffective
assistance of counsel in the sentencing context, a defendant must show that: (1)
“counsel’s representation fell below the objective standard of reasonableness”; and
(2) “there is a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.” Strickland, 466 U.S. at
687-94.
The trial court sentenced Petitioner in conformity with his plea agreement
with the prosecution. In light of the fact that the trial court sentenced Petitioner to
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sentences to which he agreed, Petitioner cannot establish that his counsel was
ineffective for failing to object to the sentence or the scoring of the sentencing
guidelines. See Whitaker v. United States, 186 F. App’x. 571, 573-74 (6th Cir.
2006); see also United States v. Smith, 143 F. App’x. 559, 561 (5th Cir. 2005).
For the same reasons, appellate counsel was not ineffective for failing to raise this
claim on appeal.
IV. Conclusion
For the above reasons, the Court holds that Petitioner is not entitled to the
writ of habeas corpus pursuant to 28 U.S.C. § 2254. Therefore, the Court is
denying his application for the writ of habeas corpus. The Court also is denying
Petitioner a certificate of appealability.
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, 483-84
(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.
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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.
The Court is denying Petitioner a certificate of appealability because he has
failed to make a substantial showing of the denial of a federal constitutional right.
His claim that the trial court incorrectly scored or calculated his sentencing
guidelines range is not cognizable on federal habeas review. The trial court
sentenced Petitioner in accordance with his plea agreement. Therefore, trial
counsel and appellate counsel were not ineffective in failing to object to
Petitioner’s sentence or raise the issue on appeal. The Court also is denying
Petitioner leave to appeal in forma pauperis, because the appeal would be
frivolous. Id.
Accordingly,
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 and leave
to appeal in forma pauperis are DENIED.
s/ Linda V. Parker
LINDA V. PARKER
U.S. DISTRICT JUDGE
Dated: June 9, 2016
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I hereby certify that a copy of the foregoing document was mailed to counsel of
record and/or pro se parties on this date, June 9, 2016, by electronic and/or U.S.
First Class mail.
s/ Shawna Burns on behalf of Richard Loury
Case Manager

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