Robertson v. MacLaren
OPINION and ORDER Summarily Denying the Petition For Writ of Habeas Corpus, Declining to Issue a Certificate of Appealability, and Denying Petitioner Leave to Appeal In Forma Pauperis. Signed by District Judge Linda V. Parker. (RLou)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case No. 17-cv-11600
Honorable Linda V. Parker
OPINION AND ORDER SUMMARILY DENYING THE PETITION FOR
WRIT OF HABEAS CORPUS, DECLINING TO ISSUE A CERTIFICATE
OF APPEALABILITY, AND DENYING PETITIONER LEAVE TO
APPEAL IN FORMA PAUPERIS
Kereim Robertson, (“Petitioner”), confined at the Kinross Correctional
Facility in Kincheloe, Michigan, filed a pro se petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. Petitioner challenges his sentence for two counts of
armed robbery, MICH. COMP. LAWS ANN. § 750.529 (LexisNexis 2017), two counts
of possession of a firearm in the commission of a felony (felony-firearm), MICH.
COMP. LAWS ANN. § 750.227b (LexisNexis 2017); one count of carrying a
concealed weapon, MICH. COMP. LAWS ANN. § 750.227 (LexisNexis 2017); and
one count of resisting and opposing a police officer, MICH. COMP. LAWS ANN. §
750.81d(1) (LexisNexis 2017). For the reasons that follow, the petition for writ of
habeas corpus is summarily denied for failing to state a claim upon which relief
can be granted.
On October 19, 2012, Petitioner pleaded guilty to the above offenses in the
Oakland County Circuit Court. On March 27, 2013, Petitioner was sentenced to
one hundred and twenty six months to forty years on the armed robbery
convictions, one to five years on the carrying a concealed weapons conviction, one
to two years on the resisting and opposing a police officer conviction, and a
consecutive two year sentence on the felony-firearm convictions.
Petitioner filed a direct appeal with the Michigan Court of Appeals, which
was denied. People v. Robertson, No. 317083 (Mich. Ct. App. Nov. 5, 2013).
Petitioner did not file an application for leave to appeal with the Michigan
Supreme Court. 1
Petitioner filed a post-conviction motion for relief from judgment with the
trial court pursuant to M.C.R. 6.500, et seq., which was denied. People v.
Robertson, No. 12-241897-FC (Oakland Co. Cir. Ct. Sept. 15, 2015). The
Michigan appellate courts denied petitioner leave to appeal. People v. Robertson,
The Court obtained this information from the Michigan Court of Appeals’ website, coa.courts.mi.gov/, and from
Thomas Reuter’s Westlaw website, www.westlaw.com. Public records and government documents, including those
available from reliable sources on the Internet, are subject to judicial notice. See United States ex. rel. Dingle v.
BioPort Corp., 270 F. Supp. 2d 968, 972 (W.D. Mich. 2003). A federal district court is also permitted to take
judicial notice of another court’s website. See e.g. Graham v. Smith, 292 F. Supp. 2d 153, 155 n.2 (D. Me. 2003).
No. 332030 (Mich. Ct. App. July 25, 2016); People v. Robinson, 893 N.W. 2d 346
Petitioner seeks a writ of habeas corpus on the following grounds:
The Defendant’s federal constitutional due process rights to be
sentenced based on accurate information were violated and he
is entitled to resentencing because prior record variable two and
offense variable one were incorrectly scored, resulting in an
inappropriately inflated sentencing guidelines range.
The Defendant was denied his state and federal constitutional rights
to effective assistance of appellate counsel where counsel failed to
raise a claim on direct appeal that the defendant’s constitutional due
process rights to be sentenced based on accurate information were
Whether a retroactive change in the law pertaining to
Lockridge2 entitles Petitioner to resentencing.
(ECF No. 1 at Pg. ID 4, 5, 7.)
“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 Perez v.
Hemingway, 157 F. Supp. 2d 790, 796 (E.D. Mich. 2001) (Bordman, J.). A federal
district court has a duty to summarily dismiss a habeas corpus petition if it 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. “No response to a habeas
People v. Lockridge, 870 N.W. 2d 502 (Mich. 2015).
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 response by the state.” Herrington v. Bezotte, No. 14-cv-13395,
2015 U.S. Dist. LEXIS 6387, at *6 (E.D. Mich. Jan. 21, 2015) (Michelson, J.).
A. Michigan Sentencing Guidelines Claims
First, Petitioner claims that the trial court incorrectly scored or calculated his
sentencing guidelines range under the Michigan Sentencing Guidelines. Because
Petitioner’s claim is based in state law and not the unreasonable application of any
federal law, this is not a cognizable claim for federal habeas review.
State courts are the final arbiters of state law. See Bradshaw v. Richey, 546
U.S. 74, 76 (2005); White v. Steele, 629 F. App’x 690, 695 (6th Cir. 2015).
Therefore, claims which arise out of a state trial court’s sentencing decisions “are
not generally cognizable upon federal habeas review, unless the petitioner can
show that the sentence imposed exceeded the statutory limits or is wholly
unauthorized by law.” Vliet v. Renico, 193 F. Supp. 2d 1010, 1014 (E.D. Mich.
2002) (Roberts, J.); see Swarthout v. Cooke, 562 U.S. 216, 219 (2011)(quoting
Estelle v. McGuire, 502 U.S. 62, 67 (1991) (“We have stated many times that
‘federal habeas corpus relief does not lie for errors of state law.’”)); see also
Brumfield v. Cain, 135 S. Ct. 2269, 2296 n.12 (2015) (Thomas, J., dissenting)
(“And even if Brumfield could show a violation of state law, which he cannot . . . ,
such a violation would ‘provide no basis for federal habeas relief.’”). “State
sentencing law is ‘a matter of state concern only’ . . . .” Mattison v. Perry, No. 13cv-11026, 2017 U.S. Dist. LEXIS 119256, at *13-14 (E.D. Mich. July 31, 2017)
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. See Tironi v. Birkett, 252 F. App’x
724, 725 (6th Cir. 2007); Howard v. White, 76 F. App’x 52, 53 (6th Cir. 2003).
Errors in the application of state sentencing guidelines cannot independently
support Petitioner’s 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 Mitchell
v. Vasbinder, 644 F. Supp. 2d 846, 867 (E.D. Mich. 2009) (Battani, J.). In other
words, assuming the state court incorrectly scored or calculated Petitioner’s
sentence, such an error is not grounds for federal habeas relief because such a
departure does not violate any of Petitioner’s federal due process rights. Austin v.
Jackson, 213 F. 3d 298, 301 (6th Cir. 2000).
Next, Petitioner appears to argue that the trial judge violated his Sixth
Amendment right to a trial by jury by using factors that either had not been
submitted to a jury and proven beyond a reasonable doubt or admitted to by
Petitioner when scoring the guidelines variables under the Michigan Sentencing
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). 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. See 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 (“We have long recognized that broad
sentencing discretion, informed by judicial factfinding, does not violate the Sixth
Alleyne is 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
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, 256-57 (2003); MICH. COMP. LAWS § 769.34(2)
(LexisNexis 2017). The maximum sentence is prescribed by law and not determined by the trial judge. See People
v. Claypool, 684 N.W. 2d 278, 287 n.14 (2004) (citing MICH. COMP. LAWS § 769.8) (LexisNexis 2017).
States v. Cooper, 739 F.3d 873, 884 (6th Cir. 2014); see also United States v.
James, 575 F. App’x 588, 595 (6th Cir. 2014) (noting that at least four postAlleyne 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 F. 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, in
fact, ruled that Alleyne did not decide the question whether judicial factfinding
under Michigan’s indeterminate sentencing scheme violates the Sixth Amendment.
See Kittka v. Franks, 539 F. App’x 668, 673 (6th Cir. 2013).
Petitioner argues that he is entitled to relief because the Michigan Supreme
Court recently relied on the Alleyne decision in holding 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). However, Petitioner cannot rely on
Lockridge to obtain relief from this Court because § 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, 578-79 (6th Cir. 2002). “The Michigan Supreme Court’s
decision in Lockridge does not render the result ‘clearly established’ for purposes
of habeas review.” Haller v. Campbell, No. 16-cv-206, 2016 WL 1068744, at *5
(W.D. Mich. Mar. 18, 2016). The Sixth Circuit has ruled that Alleyne does not
apply to sentencing guidelines factors, and 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, No. 14-cv-12326, 2015
WL 3620426, at *12 (E.D. Mich. June 9, 2015) (Battani, J.) (denying habeas relief
on claim that sentencing guidelines scored in violation of Alleyne).
After undertaking the review required by Rule 4, this Court concludes that
Petitioner’s sentencing claims do not entitle him to habeas relief, and the petition is
summarily denied. See Allen v. Perini, 424 F.2d 134, 141 (6th Cir. 1970) (district
court has a duty to “screen out” petitions that lack merit on their face).
B. Ineffective Assistance of Counsel
Petitioner contends that his appellate counsel was ineffective for failing to
raise his sentencing guidelines claims on direct appeal. Petitioner raised his
sentencing guidelines scoring claim in his post-conviction motion for relief from
judgment, which was denied by the state trial court. The Michigan appellate courts
denied Petitioner leave to appeal the denial of his post-conviction motion.
To show ineffective assistance of counsel under federal constitutional
standards, a defendant must satisfy a two prong test. First, the defendant must
demonstrate, considering all of the circumstances, that counsel “made errors so
serious that counsel was not functioning as the ‘counsel’ guaranteed by the Sixth
Amendment.” Strickland v. Washington, 466 U.S. 668, 687 (1984). In doing so,
the defendant must overcome a strong presumption that counsel’s behavior lies
“within the wide range of reasonable professional assistance.” Id. at 689. In other
words, there is a presumption that the challenged action may be a result of “sound
trial strategy.” Id. Second, the defendant must show that such performance
prejudiced his defense. Id. at 687. To demonstrate prejudice, the defendant must
show that “there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Id. at 694. The
Strickland standard applies as well to claims of ineffective assistance of appellate
counsel. See Whiting v. Burt, 395 F. 3d 602, 617 (6th Cir. 2005).
The Sixth Amendment guarantees a defendant the right to the effective
assistance of appellate counsel both on appeals of right, see Evitts v. Lucey, 469
U.S. 387, 396-97 (1985), and on first-tier discretionary appeals. See Halbert v.
Michigan, 545 U.S. 605, 609–10 (2005). However, there is no constitutional duty
for appointed counsel to raise every nonfrivolous issue defendant requests. Jones
v. Barnes, 463 U.S. 745, 751 (1983).
In this case, the state trial and appellate courts appeared to conclude that
there was a factual basis for the scoring of Petitioner’s sentencing guidelines and
have rejected Petitioner’s claims. Petitioner is, therefore, unable to show that he
was prejudiced by his appellate counsel’s purported ineffectiveness in failing to
challenge the scoring of his sentencing guidelines. See e.g. Coleman v. Curtin, 425
F. App’x 483, 484-85 (6th Cir. 2011). If “one is left with pure speculation on
whether the outcome of . . . the penalty phase could have been any different,” then
there is no prejudice. Baze v. Parker, 371 F. 3d 310, 322 (6th Cir. 2004). Because
Petitioner has offered no evidence to show that the state trial judge would have
been inclined to impose a lesser sentence or that the Michigan appellate courts
were inclined to reverse his sentence, Petitioner is unable to show that he was
prejudiced by his counsel’s purported ineffectiveness in failing to challenge the
scoring of his sentencing guidelines. See Spencer v. Booker, 254 F. App’x 520,
525-26 (6th Cir. 2007).
Additionally, Petitioner is unable to show that he was prejudiced by
appellate counsel’s failure to raise his sentencing guidelines claim on direct appeal,
even in light of the fact that this claim was presented to the Michigan appellate
courts on Petitioner’s post-conviction motion and rejected. See Hollin v. Sowders,
710 F. 2d 264, 267 (6th Cir. 1983) (“[I]t is clear that the failure of counsel to
perfect a direct appeal has not prevented Hollin from challenging his conviction in
state court. The Kentucky Supreme Court ruled on his claims in the Rule 11.42
proceeding.”); see also Bair v. Phillips, 106 F. Supp. 2d 934, 938, 943 (E.D. Mich.
2000) (Duggan, J.). The state courts’ rulings on Petitioner’s post-conviction
motion on his sentencing claim was “an adequate substitute for direct appellate
review,” and, therefore, his appellate counsel’s failure to raise this claim on
petitioner’s direct appeal caused him no prejudice. Bair, 106 F. Supp. 2d at 943
(citing Gardner v. Ponte, 817 F. 2d 183, 189 (1st Cir. 1987)). Remanding the case
to the state courts would be fruitless as they have already decided this issue.
The Court concludes that Petitioner’s ineffective assistance of counsel claim
is meritless, and the petition is summarily denied. See Mathews v. United States,
11 F. 3d 583, 585 (6th Cir. 1993) (affirming the summary dismissal of an
ineffective assistance of counsel claim raised in a § 2255 motion to vacate sentence
pursuant to Rule 4, where there was no merit to the claim).
C. Certificate of Appealability and Leave to Appeal In Forma Pauperis
The Court will also deny the certificate of appealability. In order to obtain a
certificate of appealability, an applicant 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, for that matter, 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, 484 (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.”
Id. “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. § 2254; see also Strayhorn v. Booker, 718 F. Supp. 2d 846, 875
(E.D. Mich. 2010) (Zatkoff, J.). Because Petitioner failed to make a substantial
showing of the denial of a federal constitutional right, the Court denies Petitioner a
certificate of appealability. Accordingly, leave to appeal in forma pauperis is
denied because the appeal would be frivolous. See Allen v. Stovall, 156 F. Supp.
2d 791, 798 (E.D. Mich. 2001) (O’Meara, J.).
For the reasons stated in this opinion, the Court summarily denies with
prejudice (1) the petition for writ of habeas corpus, (2) the certificate of
appealability, and (3) leave to appeal in forma pauperis.
IT IS ORDERED that the petition for writ of habeas corpus is DENIED
IT IS FURTHER ORDERED, that Petitioner is DENIED a certificate of
appealability and leave to proceed in forma pauperis on appeal.
s/ Linda V. Parker
LINDA V. PARKER
U.S. DISTRICT JUDGE
Dated: October 11, 2017
I hereby certify that a copy of the foregoing document was mailed to counsel of
record and/or pro se parties on this date, October 11, 2017, by electronic and/or
U.S. First Class mail.
s/ R. Loury
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