Fuson v. MacLaren
OPINION AND ORDER DENYING 1 Petition for Writ of Habeas Corpus, Declining to Grant a Certificate of Appealability, and Granting Leave to Appeal in forma pauperis. Signed by District Judge Terrence G. Berg. (AChu)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case No. 15-cv-10089
HON. TERRENCE G. BERG
HON. ELIZABETH A. STAFFORD
OPINION AND ORDER
DENYING THE PETITION FOR WRIT OF HABEAS CORPUS,
DECLINING TO GRANT A CERTIFICATE OF APPEALABILITY,
AND GRANTING LEAVE TO APPEAL IN FORMA PAUPERIS
Petitioner Mikell Fuson, who is presently incarcerated at the Chippewa
Correctional Facility in Kincheloe, Michigan, has filed a petition for the writ of
habeas corpus under 28 U.S.C. § 2254. In his pro se application, Petitioner
challenges his state convictions and sentence for first-degree home invasion, Mich.
Comp. Laws § 750.110a(2), felon in possession of a firearm, Mich. Comp. Laws §
750.224f, and two counts of possession of a firearm during the commission of a
felony (felony firearm), Mich. Comp. Laws § 750.227b. For the reasons stated
below, the petition for writ of habeas corpus is DENIED WITH PREJUDICE.
The charges against Petitioner arose from the breaking and entering of a
house in Milford, Michigan on November 29, 2010. The homeowners arrived at the
house while the home invasion was in progress. They saw two armed suspects in
the house and one suspect outside the house. The homeowners left their property
without entering the house and contacted the police, who arrested Petitioner and
one of his accomplices within an hour of being dispatched to the area. A canine
handler and his dog tracked Petitioner’s scent back to an area near the victims’
On April 28, 2011, Petitioner pleaded guilty in Oakland County Circuit Court
to first-degree home invasion, felon in possession of a firearm, and two counts of
felony firearm. Petitioner also acknowledged being a habitual offender. In return,
the trial court agreed to sentence Petitioner at the bottom of the sentencing
guidelines, which were expected to be eighty-four months.1
On May 20, 2011, the trial court sentenced Petitioner, as promised, to eightyfour months (seven years) to forty years for the home-invasion conviction, fourteen
months to forty years for the felon-in-possession conviction, and two years in prison
for each of the felony-firearm convictions. The felony-firearm sentences were
In People v. Cobbs, 505 N.W.2d 208 (Mich. 1993), the Michigan Supreme Court recognized the
following manner in which trial court judges may participate in discussions about the potential
At the request of a party, and not on the judge’s own initiative, a judge may state on
the record the length of sentence that, on the basis of the information then available
to the judge, appears to be appropriate for the charged offense.
. . . The judge’s preliminary evaluation of the case does not bind the judge’s
sentencing discretion, since additional facts may emerge during later proceedings, in
the presentence report, through the allocution afforded to the prosecutor and the
victim, or from other sources. However, a defendant who pleads guilty or nolo
contendere in reliance upon a judge’s preliminary evaluation with regard to an
appropriate sentence has an absolute right to withdraw the plea if the judge later
determines that the sentence must exceed the preliminary evaluation.
Id. at 212 (emphasis omitted).
ordered to run concurrently with each other, but consecutively to the other
sentences, which ran concurrently with each other. All the sentences were ordered
to run consecutively to the sentence that Petitioner was serving for violating parole
in an unrelated case.
In an application for leave to appeal, Petitioner argued that he lacked a
rational and factual understanding of the proceedings against him and that both
the trial court and defense counsel erred by failing to raise the issue of his
competence. The Michigan Court of Appeals denied leave to appeal for lack of merit
in the grounds presented to it. See People v. Fuson, No. 310400 (Mich. Ct. App.
June 27, 2012). Petitioner apparently attempted to appeal the Court of Appeals’
decision, but his application was rejected as untimely. See Pet. at 2 and Brief in
Support of Pet. for Writ of Habeas Corpus, at ix; see also Affidavit of Larry Royster,
Clerk of the Michigan Supreme Court, stating that the decision in Michigan Court
of Appeals number 310400 was not appealed to the Michigan Supreme Court (ECF
Petitioner raised six of his seven habeas claims in a motion for relief from
judgment. The trial court denied his motion in a reasoned opinion, and the
Michigan Court of Appeals denied leave to appeal under Michigan Court Rule
6.508(D) and, more specifically, Rule 6.508(D)(3). See People v. Fuson, No. 319265
(Mich. Ct. App. Apr. 7, 2014). On November 25, 2014, the Michigan Supreme Court
also denied leave to appeal under Rule 6.508(D). See People v. Fuson, 856 N.W.2d
16 (Mich. 2014).
Finally, on January 5, 2015, Petitioner filed his habeas petition. He raises
seven claims about his sentence, his multiple convictions for firearm offenses, his
trial and appellate attorneys, and the lack of an evidentiary hearing in state court.
Respondent Duncan MacLaren argues through counsel that the majority of
Petitioner’s claims (one through four and seven) are procedurally defaulted because
Petitioner raised those claims for the first time in his post-conviction motion and
the Michigan Court of Appeals relied on that fact to deny relief. Respondent also
argues that, even if the Court considers the claims, they are meritless or not
cognizable on habeas review.
A procedural default is “a critical failure to comply with state procedural
law.” Trest v. Cain, 522 U.S. 87, 89 (1997). It “is not a jurisdictional matter,” id.,
and to obtain habeas relief on procedurally defaulted claims, a petitioner “must
establish cause and prejudice for the defaults” and “also show that the claims are
meritorious.” Babick v. Berghuis, 620 F.3d 571, 576 (6th Cir. 2010).
Petitioner denies that his claims are procedurally defaulted and also blames
his appellate attorney for not raising all his claims on direct appeal. The Court has
determined that it is more efficient to address the merits of Petitioner’s claims than
to consider whether they are procedurally defaulted and whether Petitioner has
established “cause” for the alleged defaults and resulting prejudice. Accordingly,
the Court “cut[s] to the merits here,” as “the cause-and-prejudice analysis adds
nothing but complexity to the case.” Id.
II. LEGAL STANDARD
28 U.S.C. § 2254(d) provides that:
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 law if the state
court arrives at a conclusion opposite to that reached by the Supreme Court of the
United States on a question of law, or if the state court decides a case differently
from the Supreme Court on a set of materially indistinguishable facts. See 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. Rather, that application must also be unreasonable.” Id. at 411.
“A federal court’s collateral review of a state-court decision must be
consistent with the respect due state courts in our federal system.” Miller-El v.
Cockrell, 537 U.S. 322, 340 (2003). Section 2254(d) “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) (quoting Lindh v. Murphy, 521 U.S. 320, 333 n.7 (1997), and Woodford v.
Visciotti, 537 U.S. 19, 24 (2002)). “[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)). “[E]ven a
strong case for relief does not mean the state court’s contrary conclusion was
unreasonable.” Id. at 102 (citing Lockyer v. Andrade, 538 U.S. 63, 75 (2003)).
Furthermore, “[u]nder § 2254(d), a habeas court must determine what arguments or
theories supported or . . . could have supported, the state court’s decision . . . and
then it must ask whether it is possible fairminded jurists could disagree that those
arguments or theories are inconsistent with the holding in a prior decision of [the
Supreme] Court.” Id.
Section 2254(d)(1) limits a federal habeas court’s review to a determination of
whether the state court’s decision comports with “the governing legal principle or
principles set forth by the Supreme Court at the time the state court renders its
decision.” Andrade, 538 U.S. at 71-72 (citing Williams, 529 U.S. at 405, 413); see
also Knowles v. Mirzayance, 556 U.S. 111, 122 (2009) (noting that the Supreme
Court “has held on numerous occasions that it is not ‘an unreasonable application
of’ ‘clearly established Federal law’ for a state court to decline to apply a specific
legal rule that has not been squarely established by [the Supreme] Court”).
Further, “‘a determination of a factual issue made by a State court shall be
presumed to be correct,’ unless rebutted by ‘clear and convincing evidence.’”
Holland v. Rivard, 800 F.3d 224, 242 (6th Cir. 2015) (quoting 28 U.S.C. §
2254(e)(1)), cert. denied, 136 S. Ct. 1384 (2016). Finally, “review under § 2254(d)(1)
is limited to the record that was before the state court that adjudicated the claim on
the merits.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011).
A. Jail Credit
In his first claim, Petitioner alleges that the trial court erred by failing to
grant him sentencing credit for the time that he spent in jail prior to being
sentenced. This claim is not cognizable on habeas review because “[a] state court’s
alleged misinterpretation of state sentencing guidelines and crediting statutes is a
matter of state concern only,” Howard v. White, 76 F. App’x 52, 53 (6th Cir. 2003),
and “federal habeas corpus relief does not lie for errors of state law.” Lewis v.
Jeffers, 497 U.S. 764, 780 (1990). “In conducting habeas review, a federal court is
limited to deciding whether a conviction violated the Constitution, laws, or treaties
of the United States.” Estelle v. McGuire, 502 U.S. 62, 68 (1991).
Petitioner’s claim also lacks merit. Michigan’s jail credit statute provides
[w]henever any person is hereafter convicted of any crime within this
state and has served any time in jail prior to sentencing because of
being denied or unable to furnish bond for the offense of which he is
convicted, the trial court in imposing sentence shall specifically grant
credit against the sentence for such time served in jail prior to
Mich. Comp. Laws § 769.11b.
Petitioner, however, was on parole when he committed the crimes at issue
here, and the Michigan Supreme Court has held that
the jail credit statute does not apply to a parolee who is convicted and
sentenced to a new term of imprisonment for a felony committed while
on parole because, once arrested in connection with the new felony, the
parolee continues to serve out any unexpired portion of his earlier
sentence unless and until discharged by the Parole Board.
People v. Idziak, 773 N.W.2d 616, 624 (Mich. 2009). In other words,
the parolee is “liable, when arrested, to serve out the unexpired portion
of his or her maximum imprisonment” and actually resumes serving
that term of imprisonment on the date of his availability for return to
the [Department of Corrections], which in this case is synonymous
with the date of his arrest. . . . Because the parolee is required to
remain in jail pending the resolution of the new criminal charge for
reasons independent of his eligibility for or ability to furnish bond for
the new offense, the jail credit statute does not apply.
Id. at 626–27.
Petitioner acknowledges the holding in Idziak, but argues that it does not
apply to him because, in his opinion, the majority decision was based on an
erroneous and incomplete reading of Michigan statutes. Petitioner contends that
the trial court should have relied on Justice Markman’s dissenting opinion, which
states that, after a new conviction, the Michigan Parole Board is “required to make
an affirmative determination as to whether the defendant is required to serve any
remaining portion on his original sentence.” Id. at 654. The trial court, however,
was required to follow the Michigan Supreme Court’s majority opinion in Idziak.
See Solomon v. Civil Serv. Commission, City of Highland Park, 236 N.W.2d 94, 95
(1975) (noting that the Court of Appeals was bound by a majority opinion of the
Michigan Supreme Court).
Petitioner also claims that Idziak does not apply to him because the trial
court denied him jail credit before the court revoked his parole. Petitioner contends
that this sequence of events violated his right to notice and due process of law. The
record, however, indicates that Petitioner was informed before he pleaded guilty
that his sentence likely would run consecutively to the sentence for which he was on
parole. (4/28/11 Plea Tr. at 7-8.) The implication was that he was serving time on
his prior conviction and would begin serving his new sentence after the expiration of
his prior sentence. His right to notice was not violated, and his jail-credit claim
B. Calculation of the Sentencing Guidelines
Petitioner alleges next that the trial court incorrectly scored offense variables
9 and 19 the Michigan sentencing guidelines. Petitioner received ten points for both
offense variables. He maintains that subtracting ten points from either one of those
offense variables would decrease the sentencing guidelines range, and because the
trial court agreed to sentence him at the low end of the guidelines, the trial court’s
errors prejudiced him. The trial court reviewed Petitioner’s claim during postconviction proceedings and determined that Petitioner had failed to show the
sentencing guidelines were improperly scored.
This Court rejects Petitioner’s claim because, like his first claim, a challenge
to the state court’s application and interpretation of state sentencing guidelines is
“a matter of state concern only.” Howard, 76 F. App’x at 53. Consequently, his
claim is not cognizable on habeas review. Tironi v. Birkett, 252 F. App’x 724, 725
(6th Cir. 2007); McPhail v. Renico, 412 F. Supp. 2d 647, 656 (E.D. Mich. 2006);
Robinson v. Stegall, 157 F. Supp. 2d 802, 823 (E.D. Mich. 2001). And even though
Petitioner argues that the trial court relied on inaccurate information in violation of
his constitutional rights, the following discussion demonstrates that the trial court
did not rely on “extensively and materially false” information in violation of
Petitioner’s right to due process. Townsend v. Burke, 334 U.S. 736, 741 (1948).
1. Offense Variable 9
Offense variable 9 addresses the number of victims involved in the case
under consideration. Mich. Comp. Laws § 777.39(1). Petitioner was assessed ten
points, which would be correct if two to nine victims “were placed in danger of
physical injury or death” or four to nineteen victims “were placed in danger of
property loss.” Mich. Comp. Laws § 777.39(1)(c).
There were two victims in this case: the homeowners, Mr. and Mrs. Huszti.
Petitioner points out that Mrs. Huszti was not inside the house when the home
invasion occurred, and he claims there is no mention of where Mr. Huszti was at the
time. Thus, according to Petitioner, there were no facts to support the conclusion
that two or more victims were placed in danger of physical injury or death.
Although Mr. Huszti did not testify at the preliminary examination, Mrs.
Huszti testified that she and her husband drove into their driveway about 11:00
a.m. on November 29, 2010. They noticed a rusty minivan parked there, and when
she looked through the front glass door of their house, she saw two men running
through the house with large guns. At the time, she and her husband were seated
in their car about twenty to thirty feet away from the men. (12/15/10 Prelim.
Examination at 4-9, 11, 24.)
Continuing, Mrs. Huszti testified that, after she pulled a phone out of her
purse to call 911, she saw a third person enter the minivan parked next to the
couple’s garage. Although she did not notice whether the third suspect was armed,
two police officers established at the preliminary examination that there was a
loaded long gun in the minivan. (Id. at 9-10, 19, 26; 2/16/11 Prelim. Examination
at 18-19, 25, 30.)
First-degree home invasion is considered a continuing offense, because it “is
not necessarily completed at the time of entry into a dwelling, but rather can be
completed by commission of the final element of the crime while the person is
present in (or leaving) the dwelling.” People v. Shipley, 662 N.W.2d 856, 863 (Mich.
Ct. App. 2003). Further, in People v. Baker, No. 302784, 2012 WL 1415159, at *6
(Mich. Ct. App. Apr. 24, 2012) the Michigan Court of Appeals upheld the trial
court’s scoring of offense variable 9 where the homeowner and her five-year-old son
arrived in their driveway during the home invasion. The Court of Appeals
concluded that, because the homeowner and her son were in proximity to the
defendant and his accomplices, they were placed in danger of physical injury or
This case is similar to the facts in Baker, in that the Husztis arrived in their
driveway as the home invasion was occurring. A reasonable inference from their
close proximity to the armed suspects is that they were placed in danger of physical
injury or death. “A trial court’s scoring decision ‘for which there is any evidence in
support will be upheld.’ ” People v. Steele, 769 N.W.2d 256, 269 (Mich. Ct. App.
2009) (quoting People v. Endres, 711 N.W.2d 398, 400 (Mich. Ct. App. 2006)).
Thus, the score of ten points for offense variable 9 was justified, and the state trial
court did not rely on materially false information when scoring the offense variable.
2. Offense Variable 19
Petitioner challenges the trial court’s scoring of offense variable 19, which
assesses whether there was a “threat to the security of a penal institution or court
or interference with the administration of justice or the rendering of emergency
services.” Mich. Comp. Laws § 777.49. Petitioner was assessed ten points on the
basis that he “interfered with or attempted to interfere with the administration of
justice.” Mich. Comp. Laws § 777.49(c).
Petitioner maintains that offense variable 19 is not applicable to his case
because he left the scene before the police were notified and because he did nothing
to hinder law enforcement officials. He concedes there may be evidence that he fled
the area after the crime, but he contends that he did not try to prevent the victims
from reporting the crime, nor keep the police from investigating the crime or
arresting him. He also claims that he did not change his appearance after the
crime, provide a false name to the police at his arrest, nor try to conceal evidence
from the authorities.
In People v. Barbee, 681 N.W.2d 348 (Mich. 2004), the Michigan Supreme
Court stated “that the phrase ‘interfered with or attempted to interfere with the
administration of justice’ encompasses more than just the actual judicial process”
because “[l]aw enforcement officers are an integral component in the administration
of justice, regardless of whether they are operating directly pursuant to a court
order.” Id. at 350-51. The state supreme court concluded that conduct which
“occurs before criminal charges are filed can form the basis for interference, or
attempted interference, with the administration of justice, and [offense variable] 19
may be scored for this conduct where applicable.” Id. at 351. Decisions of the
Michigan Court of Appeals and the Michigan Supreme Court
have held the following conduct to constitute an interference or
attempted interference with the administration of justice: providing a
false name to the police, threatening or intimidating a victim or
witness, telling a victim or witness not to disclose the defendant’s
conduct, fleeing from police contrary to an order to freeze, attempting to
deceive the police during an investigation, interfering with the efforts
of store personnel to prevent a thief from leaving the premises without
paying for store property, and committing perjury in a court
People v. Hershey, 844 N.W.2d 127, 136–37 (2013), leave to appeal dismissed, 858
N.W.2d 461 (Mich. 2015) (emphasis added).
The record in this case reveals that Petitioner discarded clothing and a gun in
the woods after a police officer observed him and then ran from the officer and
continued to run after the officer ordered him to stop. (1/26/11 Prelim. Examination
Tr. at 4-13.) Although the officer lost track of Petitioner at that point, he was
ultimately captured about forty-five minutes after the home invasion was broadcast
to law enforcement officers. (Id. at 24-32.)
Given this testimony, the trial court reasonably concluded that Petitioner
hindered the administration of justice. The trial court did not rely on materially
false information when scoring ten points for offense variable 19.
Petitioner alleges that the facts used to score offense variables 9 and 19 were
not admitted by him, nor found a jury beyond a reasonable doubt, and, therefore,
he was sentenced in violation of Alleyne v. United States, 133 S. Ct. 2151 (2013).
The Supreme Court held in Apprendi v. New Jersey, 530 U.S. 466 (2000),
that, “[o]ther than the fact of a prior conviction, any fact that increases the penalty
for a crime beyond the prescribed statutory maximum must be submitted to a jury,
and proved beyond a reasonable doubt.” Id. at 490. The Supreme Court
subsequently held in Alleyne: “Any fact that, by law, increases the penalty for a
crime is an ‘element’ that must be submitted to the jury and found beyond a
reasonable doubt.” Id. at 2155.
The Michigan Supreme Court has considered whether Michigan’s sentencing
guidelines violate a defendant’s Sixth Amendment right to a jury trial and
concluded that the rule from Apprendi, as extended by Alleyne,
applies to Michigan’s sentencing guidelines and renders them
constitutionally deficient. That deficiency is the extent to which the
guidelines require judicial fact-finding beyond facts admitted by the
defendant or found by the jury to score offense variables (OVs) that
mandatorily increase the floor of the guidelines minimum sentence
range, i.e., the “mandatory minimum” sentence under Alleyne.
People v. Lockridge, 870 N.W.2d 502, 506 (Mich. 2015) (emphasis in original), cert.
denied sub nom. Michigan v. Lockridge, 136 S. Ct. 590 (2015).
The state trial court in this case sentenced Petitioner pursuant to the Cobbs
agreement, and, in the words of one Michigan Court of Appeals judge,
[w]hen a sentencing judge imposes a legal sentence pursuant to the
terms of a plea agreement bargained for and accepted by the
defendant, the sentence is not affected by the judge’s perception of the
mandatory or advisory nature of the sentencing guidelines and, thus,
the defendant’s Sixth Amendment jury trial right is not implicated. See
United States v. Cieslowski, 410 F3d 353, 356–357, 363–364 (CA 7,
2005), cert den 456 U.S. 1097 (2006). Stated another way, because
defendant agreed to a sentence within the guidelines range, the
sentence imposed by the trial court “arose directly from the plea
agreement and was not based on any facts found only by the trial
court.” Amezcue v. Almager, unpublished order of the United States
District Court for the Central District of California, issued May 25,
2009 WL 1513427), p. 5, aff’d 577 Fed Appx 699 (CA 9, 2014).
Moreover, by expressly and voluntarily bargaining for and agreeing to
a guidelines sentence, defendant voluntarily waived his Sixth
Amendment right and any related concerns. Amezcue, 577 Fed App’x
People v. Velez, No. 315209, 2015 WL 5945364, at *4 (Mich. Ct. App. Oct. 13,
2015)(unpublished) (Boonstra, P.J., concurring). As in Velez, “there are no Sixth
Amendment concerns [here], and the rule of Alleyne and Lockridge is not
C. Double Jeopardy
The third habeas claim alleges that Petitioner’s two convictions for felon in
possession of a firearm violate the Double Jeopardy Clause because the convictions
were based on the same firearm. Petitioner actually was convicted of only one count
of felon in possession of a firearm. His supporting brief, however, indicates that his
real concern is having been convicted and punished for two counts of felonyfirearm, where one of the underlying convictions was felon in possession of a
Petitioner asserts that the two felony-firearm convictions violate the
prohibition against being twice convicted and sentenced for the same offense,
because the same firearm was used throughout the criminal incident. In other
words, the firearm was possessed at the same time, in the same location, and
during the commission of one continuous event. The state trial court disagreed with
Petitioner’s argument and concluded that Petitioner was not entitled to relief from
judgment on the basis of this issue.
1. Legal Framework
The Double Jeopardy Clause of the Fifth Amendment states that “[n]o person
shall be . . . subject for the same offence to be twice put in jeopardy of life or limb . . .
.” U.S. CONST. amend. V. The Clause is “applicable to the States through the
Fourteenth Amendment,” and “it protects against successive prosecutions for the
same offense after acquittal or conviction and against multiple criminal
punishments for the same offense.” Monge v. California, 524 U.S. 721, 727–28
(1998) (citing North Carolina v. Pearce, 395 U.S. 711, 717 (1969)).
What determines whether the constitutional prohibition against
multiple punishments has been violated is the state legislature’s intent
concerning punishment. Specifically, “[w]ith respect to cumulative
sentences imposed in a single trial, the Double Jeopardy Clause does
no more than prevent the sentencing court from prescribing greater
punishment than the legislature intended.” Missouri v. Hunter, 459
U.S. 359, 366, 103 S. Ct. 673, 74 L. Ed.2d 535 (1983).
Jackson v. Smith, 745 F.3d 206, 211 (6th Cir. 2014).
Michigan’s felony-firearm statute prohibits the possession of a firearm during
the commission of, or attempt to commit, a felony. Mich. Comp. Laws § 750.227b(1).
“The Legislature intended the felony-firearm statute to reduce the possibility of
injury to victims, passersby, and police officers posed by a criminal’s utilization of a
firearm and to deter the underlying felony itself.” People v. Dillard, 631 N.W.2d
755, 760 (2001).
The felon-in-possession statute generally prohibits persons previously
convicted of a felony from possessing a firearm until a few years after the person
has paid all fines, served all terms of imprisonment, successfully completed all
conditions of probation or parole, and has had his or her right to possess a firearm
restored. Mich. Comp. Laws § 750.224f. “[T]he felon in possession statute focuses
on the criminal status of a possessor of a firearm,” whereas,” [t]he felony-firearm
statute . . . focuses on the act of utilizing a firearm to facilitate the commission of a
felony.” Dillard, 631 N.W.2d at 759-60.
The two statutes (§§ 750.224f and 750.227b) “have distinct purposes that
address different social norms.” Id. at 760. Therefore, the two offenses “should be
viewed as separate and amenable to permitting multiple punishments.” Id. In
other words, a “defendant could constitutionally be given cumulative punishments
when charged and convicted of both felon in possession, M.C.L. § 750.224f, and
felony-firearm, M.C.L. § 750.227b.” People v. Calloway, 671 N.W.2d 733, 735 (Mich.
2003). Furthermore, a defendant can be convicted of one count of felony-firearm for
each felony committed during a single sequence of events. People v. Morton, 377
N.W.2d 798, 798, 801 (Mich. 1985).
Petitioner was convicted of, and sentenced for, two counts of felony firearm:
one for the underlying crime of home invasion and one for the underlying crime of
felon in possession of a firearm. This was proper under state law. Id.
Sentencing Petitioner for both felon in possession of a firearm and felony
firearm also was proper because the Michigan Legislature intended the two offenses
to be punished separately. Calloway, 671 N.W.2d at 735. The state court,
therefore, did not violate Petitioner’s double jeopardy rights by sentencing
Petitioner to two counts of felony firearm, because the sentencing court did not
punish Petitioner to more than the legislature intended. Hunter, 459 U.S. at 366.
D. Trial Counsel
The fourth claim alleges ineffective assistance of trial counsel. Petitioner
contends that his trial counsel failed to: (1) ensure that Petitioner’s plea was
knowing and the plea agreement understood; (2) challenge the two felony-firearm
convictions; and (3) object to the scoring of offense variables 9 and 19 of the
sentencing guidelines. The trial court rejected Petitioner’s claims about trial
counsel because the underlying claims lacked merit.
1. Clearly Established Federal Law
To prevail on a claim of ineffective assistance of counsel, a habeas petitioner
must show that “counsel’s performance was deficient” and that “the deficient
performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687
(1984). In the context of a guilty plea, a deficient performance is one that falls
below an objective standard of reasonableness or is outside the range of competence
demanded of attorneys in criminal cases. Hill v. Lockhart, 474 U.S. 52, 56-57
The “prejudice” prong “focuses on whether counsel’s constitutionally
ineffective performance affected the outcome of the plea process.” Id. at 59. In
other words, the defendant must show “a reasonable probability that, but for
counsel’s errors, he would not have pleaded guilty and would have insisted on going
to trial.” Id. “[C]ounsel should be ‘strongly presumed to have rendered adequate
assistance and made all significant decisions in the exercise of reasonable
professional judgment.’ ” Burt v. Titlow, 134 S.Ct. 10, 17 (2013) (quoting Strickland,
466 U.S. at 690).
a. The Plea
Petitioner contends that his trial attorney failed to ensure that he knew and
understood the charges to which he pleaded guilty. He states that the trial court’s
description of the charges was confusing, and that trial counsel should have
objected or asked for clarification because the trial court’s comments were beyond
To be valid, a guilty plea must be a voluntary, knowing, and intelligent act
“done with sufficient awareness of the relevant circumstances and likely
consequences.” Brady v. United States, 397 U.S. 742, 748 (1970)). Among the
factors to be considered are whether the defendant appreciated the consequences of
his waiver of constitutional rights, waived his rights without being coerced to do so,
and understood the rights that he was surrendering by pleading guilty. Ruelas v.
Wolfenbarger, 580 F.3d 403, 408 (6th Cir. 2009). Additional factors to be considered
are whether the defendant understood the essential elements of the offenses to
which he was pleading guilty and whether he was aware of the maximum sentence
for his crimes. Id. at 408-09.
The record indicates that Petitioner was thirty years old at the plea
proceeding and that he could read, write, and understand the English language. He
stated that he understood he was pleading guilty to first-degree home invasion,
possession of a firearm by a felon, and two counts of possession of a firearm during
the commission of a felony. (4/28/11 Plea Hr’g at 5-6; Pg IDs 398-399) He also
stated that he understood (1) his sentence could be as much as life imprisonment
because he was a fourth habitual offender, (2) his sentence for possessing a firearm
during the commission of a felony would be consecutive, and (3) the Court would
sentence him at the low end of the guidelines, which were approximately 84
months. (Id. at 5-6, 8-9; Pg IDs 398-399, 401-402).
Although Petitioner claims in an affidavit attached to his petition that his
plea was coerced and that his trial counsel did not explain the rights he was
forfeiting by pleading guilty, the trial court enumerated those rights at the plea
proceeding. Petitioner assured the Court that he understood the rights he was
waiving by pleading guilty. He also stated that it was his choice to plead guilty and
that no one had threatened him to make him plead guilty. (Id. at 10-12, Pg IDs
403-405.) He subsequently acknowledged his prior convictions and the factual basis
for his plea. (Id. at 12-14; Pg IDs 405-407.)
Petitioner consulted and communicated with his attorney a few times during
the plea proceeding (id. at 3-4, 7-8), but he appeared to understand the plea
agreement and the crimes for which he was pleading guilty. The only questions he
voiced on the record dealt with restitution and whether he could appeal his
convictions if he pleaded guilty. The attorneys and the trial court appear to have
answered his questions satisfactorily. (Id. at 9-10, 12.) Furthermore, Petitioner
stated that he was satisfied with his attorney’s advice (id. at 5), and when the trial
court asked him at sentencing whether he wanted to make a statement, Petitioner
simply apologized for his conduct and said that his actions toward the community
were “preposterous and selfish.” (5/20/11 Sentencing Tr. at 4; Pg ID 413)
To conclude, there is no factual support in the record for Petitioner’s claim
that his plea was not knowing and voluntary or that defense counsel failed to
ensure the plea was voluntary and knowing. Even if trial counsel’s performance
was deficient, Petitioner has not alleged that, but for counsel’s deficient
performance, he would not have pleaded guilty and would have chosen to go to trial.
Therefore, he has not established that he was prejudiced by counsel’s performance.
b. Failure to Object to the Double Jeopardy Violation and to
the Scoring of the Offense Variables
Petitioner also claims that his trial attorney’s performance was deficient
because the attorney failed to challenge the two counts of felony firearm and failed
to object to the scoring of offense variables 9 and 19. As pointed out above, however,
there was no violation of the Double Jeopardy Clause, and the scores for offense
variables 9 and 19 were supported by the facts. See supra, Section III.B. and III.C.
Because Petitioner’s underlying claims lack merit, defense counsel was not
ineffective for failing to object to the scoring of the guidelines or to the alleged
double jeopardy violation. See Hoffner v. Bradshaw, 622 F.3d 487, 509 (6th Cir.
E. Appellate Counsel
The fifth claim alleges ineffective assistance of appellate counsel. Petitioner
asserts that his appellate attorney’s failure to raise his habeas claims on direct
appeal was deficient performance. Petitioner also asserts that his current issues
are “dead bang winners” and that he stood a good chance of having his case
remanded for trial if appellate counsel had raised the issues on direct appeal. The
trial court, however, rejected Petitioner’s claims about appellate counsel because
the underlying claims lacked merit.
1. Clearly Established Federal Law
Claims of ineffective assistance of appellate counsel are governed by the same
Strickland standard as claims of ineffective assistance of trial counsel. Shaneberger
v. Jones, 615 F.3d 448, 452 (6th Cir. 2010). To prevail on these claims, Petitioner
“must show that his [appellate] counsel’s performance was deficient and that he was
prejudiced as a result.” Id. (citing Strickland, 466 U.S. at 687). This requires
demonstrating (1) that his attorney acted unreasonably in failing to discover and
raise nonfrivolous issues on appeal; and (2) there is a reasonable probability he
would have prevailed on appeal if his attorney had raised the issues. Smith v.
Robbins, 528 U.S. 259, 285 (2000) (citing Strickland, 466 U.S. at 687-91, 694).
For the reasons set forth above, Petitioner’s underlying claims about his plea
and sentence, his trial attorney, and the lack of an evidentiary hearing in state
court are meritless. Therefore, appellate counsel’s performance was not deficient.
“[B]y definition, 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).
Petitioner also has failed to show that his appellate attorney’s performance
prejudiced him. He raised all his claims, with the exception of his sixth claim about
being denied an evidentiary hearing, in his motion for relief from judgment, which
the trial court rejected at least in part for lack of merit. Consequently, there is not
a reasonable probability that Petitioner would have prevailed if his attorney had
raised the issues on direct appeal. The state courts’ rejection of Petitioner’s claim
about appellate counsel was neither contrary to, nor an unreasonable application of,
F. The Lack of an Evidentiary Hearing
The sixth claim alleges that the state courts erred and violated Petitioner’s
right to due process by not holding an evidentiary hearing on Petitioner’s claims
about his trial attorney. Petitioner contends that, without a hearing and further
development of the facts, the state courts could not appreciate the significance of
the alleged Sixth Amendment violations and his trial attorney’s failures and
To the extent Petitioner contends that the Michigan courts unconstitutionally
denied him a forum in which to develop the factual record for his ineffectiveassistance-of-counsel claims, his claim is meritless. Hayes v. Prelesnik, 193 F. App’x
577, 584 (6th Cir. 2006). And “[w]hether or not the Michigan courts complied with
the procedural requirements of Michigan law is not a matter for this court to decide
on a petition for habeas corpus relief.” Id. (citing Baze v. Parker, 371 F.3d 310, 32223 (6th Cir. 2004)).
Petitioner relies on Massaro v. United States, 538 U.S. 500 (2003), in which
the Supreme Court stated that “ineffective-assistance claims ordinarily will be
litigated in the first instance in the [federal] district court, the forum best suited to
developing the facts necessary to determining the adequacy of representation
during an entire trial.” Id. at 505. But the Supreme Court did not hold that state
courts are required, as a matter of constitutional law, to hold an evidentiary
hearing on claims of ineffective assistance of counsel. In fact, Massaro is not a
constitutional decision. Sweet v. Bennett, 353 F.3d 135, 140 (2d Cir. 2003); Gomez v.
Jaimet, 350 F.3d 673, 678 (7th Cir. 2003).
Massaro holds that a defendant in a federal criminal prosecution need
not raise a claim of ineffective-assistance on direct appeal but always
may reserve it for a collateral proceeding under 28 U.S.C. § 2255. This
is a rule of practice for federal judges in federal criminal cases . . .
Hayes v. Battaglia, 403 F.3d 935, 937 (7th Cir. 2005).
Furthermore, if Petitioner’s concern is the state court’s handling of his
motion for relief from judgment during the post-conviction proceedings, his claim is
“outside the scope of federal habeas corpus review” because:
[T]he 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. 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 v. Palmer, 484 F.3d 844, 853 (6th Cir. 2007) (quotation marks and citations
it would be an unusual intrusion for federal courts to second-guess
state procedures for resolving motions once they have been presented.
States are independent sovereigns, and the federal government
generally speaking should respect their choices about how to
. . . [Federal courts] must instead presume that, once a federal claim
comes before a state court, the state judge will use a fair procedure to
achieve a just resolution of the claim – resolving some motions with
neither an evidentiary hearing nor an oral argument, some with an
oral argument alone, some with both.
Good v. Berghuis, 729 F.3d 636, 639 (6th Cir. 2013), cert. denied, 135 S. Ct. 1174
(2015). Petitioner’s challenge to the state courts’ refusal to hold an evidentiary
hearing is not cognizable on habeas corpus review and also lacks merit.
G. The Cobbs Agreement
In his seventh and final claim, Petitioner alleges that he should be permitted
to withdraw his guilty plea because the trial court failed to comply with the
sentencing agreement. The agreement, however, called for a sentence at the low
end of the sentencing guidelines, which were estimated at 84 months (4/28/11 Plea
Tr. at 6-8), and the trial court sentenced Petitioner to a minimum of 84 months,
which was the bottom end of the sentencing guidelines (5/20/11 Sentencing Tr. at 45; Pg IDs 413-414). There was no breach of the Cobbs agreement and no unfulfilled
promise. Petitioner got precisely what he bargained for in the plea agreement.
Thus, habeas relief is not warranted on his claim.
IV. CERTIFICATE OF APPEALABILITY
When a federal district court issues an adverse ruling on a habeas petition,
the court “must issue or deny a certificate of appealability.” Rules Governing § 2254
Cases, Rule 11(a), 28 U.S.C. foll. § 2254. A certificate of appealability may be issued
“only if the applicant has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this standard by
demonstrating that jurists of reason could disagree with the district court’s
resolution of his constitutional claims or that jurists could conclude the issues
presented are adequate to deserve encouragement to proceed further.” Miller-El,
537 U.S. at 327 (citing Slack v. McDaniel, 529 U.S. 473, 484 (2000)). When, as here,
“a district court has rejected the constitutional claims on the merits, the showing
required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate
that reasonable jurists would find the district court’s assessment of the
constitutional claims debatable or wrong.” Slack, 529 U.S. at 484.
Petitioner’s claims lack merit for the reasons given above, and reasonable
jurists would not find the Court’s assessment of the claims debatable or wrong.
Accordingly, Petitioner is denied a certificate of appealability. The Court
nevertheless grants leave to appeal in forma pauperis because Petitioner was
granted in forma pauperis status in this Court, and an appeal would not be
frivolous. Fed. R. App. P. 24(a)(3)(A).
Based on the foregoing, it is ORDERED that the Petition for a Writ of
Habeas Corpus is DENIED, and this case is hereby closed.
It is FURTHER ORDERED that a certificate of appealability is DENIED.
It is FURTHER ORDERED that in forma pauperis status on appeal is
GRANTED because leave to proceed in forma pauperis was granted in this case,
and an appeal could be taken in good faith.
s/Terrence G. Berg
TERRENCE G. BERG
UNITED STATES DISTRICT JUDGE
Dated: August 30, 2017
Certificate of Service
I hereby certify that this Order was electronically submitted on August 30,
2017, using the CM/ECF system, which will send notification to each party.
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