Woodland v. Winn
Filing
11
OPINION and ORDER (1) Denying Petition for Writ of Habeas Corpus; (2) Denying Certificate of Appealability; & (3) Denying Leave to Proceed In Forma Pauperis. Signed by District Judge Linda V. Parker. (RLou)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
AUNDRE WOODLAND, #881703,
Petitioner,
CASE NO. 4:17-CV-13152
HONORABLE LINDA V. PARKER
v.
THOMAS WINN,
Respondent.
__________________________________/
OPINION & ORDER (1) DENYING PETITION FOR WRIT OF HABEAS
CORPUS; (2) DENYING CERTIFICATE OF APPEALABILITY;
& (3) DENYING LEAVE TO PROCEED IN FORMA PAUPERIS
This is a habeas case brought pursuant to 28 U.S.C. ' 2254. Michigan
prisoner Aundre Rashad Woodland (APetitioner@) was convicted of conspiracy to
commit assault with intent to commit murder, MICH. COMP. LAWS '' 750.157a,
750.83, following a jury trial in the Wayne County Circuit Court and was
sentenced to 10 to 20 years imprisonment in 2013. In his pleadings, he raises
claims concerning the state trial court’s jurisdiction, the validity of his sentence,
and the sufficiency of the trial evidence. For the reasons stated herein, the Court
denies the petition for a writ of habeas corpus, denies a certificate of appealability,
and denies leave to proceed in forma pauperis on appeal.
FACTS AND PROCEDURAL HISTORY
Petitioner=s conviction arises from a shooting that occurred at an apartment
in Detroit, Michigan in July of 2010. The Michigan Court of Appeals described
the relevant facts, which are presumed correct on habeas review, 28 U.S.C.
' 2254(e)(1); Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009), as follows:
The jury convicted defendant of conspiring with an
unidentified gunman to assault the victim, with the intent
to murder him, after the victim and two other individuals
(“the Starks”) confronted defendant in the apartment of the
victim’s girlfriend. The victim testified that he had an
on-again, off-again relationship with his girlfriend, who
was also the mother of his child. During the early
morning hours of July 4, 2010, the victim went to his
girlfriend’s apartment with the Starks to pick up some
clothes. He found defendant inside the apartment and
assaulted him. Defendant left the apartment, but returned
approximately 15 to 20 minutes later and knocked on the
front door. After the victim answered the door, defendant
backed away from the door in a fighting stance. As the
victim walked toward him, a man with a shotgun emerged
from some bushes and shot the victim multiple times.
At trial, the jury heard testimony from the victim, his
erstwhile girlfriend, and police officers involved in the
investigation. Neither of the Starks testified at trial. The
victim and a Detroit Police officer both testified that they
attempted to locate the Starks, but were not able to do so.
People v. Woodland, No. 317384, 2014 WL 7441163, *1 (Mich. Ct. App. Dec. 30,
2014) (unpublished).
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Following his conviction and sentencing, Petitioner filed an appeal of right
with the Michigan Court of Appeals raising claims concerning the effectiveness of
trial counsel regarding the failure to produce the Starks to testify and the failure to
request a missing witness instruction. The court denied relief on those claims and
affirmed Petitioner’s conviction and sentence. Id. at *1-2. Petitioner also filed an
application for leave to appeal with the Michigan Supreme Court, which was
denied in a standard order. People v. Woodland, 498 Mich. 854, 864 N.W.2d 574
(2015).
Petitioner then filed an initial pro se habeas petition with this Court, which
was dismissed without prejudice on exhaustion grounds. Woodland v. Winn, No.
4:16-CV-10289, 2016 WL 695597 (E.D. Mich. Feb. 22, 2016).
Petitioner returned to the state courts and filed a motion for relief from
judgment with the state trial court raising the claims contained in his current
petition. The trial court denied relief pursuant to Michigan Court Rule
6.508(D)(3), finding that Petitioner failed to establish actual prejudice because the
claims lacked merit. People v. Woodland, No. 12-010753-01-FC (Wayne Co. Cir.
Ct. April 1, 2016). Petitioner filed an application for leave to appeal with the
Michigan Court of Appeals, which was denied because he “failed to establish that
the trial court erred in denying the motion for relief from judgment.” People v.
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Woodland, No. 334929 (Mich. Ct. App. Nov. 29, 2016). Petitioner also filed an
application for leave to appeal with the Michigan Supreme Court, which was
denied because he “failed to meet the burden of establishing entitlement to relief
under MCR 6.508(D).” People v. Woodland, 501 Mich. 860, 900 N.W.2d 629
(2017).
Petitioner thereafter filed his current pro se habeas petition with this Court.
He raises the following claims:
(1)
The trial court lacked jurisdiction to find him guilty of an
uncharged offense “per the magistrate’s return to circuit
court[.]”
(2)
The trial court erred in scoring offense variables contrary
to the facts of the trial or his own admissions and contrary
to the legislative intent of the scoring guidelines. Trial
counsel was ineffective for failing to object to the scoring.
(3)
The prosecution failed to produce legally sufficient
evidence to identify him as a conspirator to assault with
intent to murder beyond a reasonable doubt. Appellate
counsel was ineffective for failing to raise an insufficient
evidence claim and other grounds on direct appeal.
(ECF No. 1 at Pg. ID 8.)
Respondent filed an answer to the petition contending that it should be denied
because the claims are procedurally defaulted and lack merit.
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STANDARD OF REVIEW
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),
codified at 28 U.S.C. ' 2241 et seq., sets forth the standard of review that federal
courts must use when considering habeas petitions brought by prisoners
challenging their state court convictions. The AEDPA provides in relevant part:
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.
28 U.S.C. ' 2254(d) (1996).
“A state court’s decision is ‘contrary to’ . . . clearly established law if it
‘applies a rule that contradicts the governing law set forth in [Supreme Court
cases]’ or if it ‘confronts a set of facts that are materially indistinguishable from a
decision of [the Supreme] Court and nevertheless arrives at a result different from
[that] precedent.’” Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003) (per curiam)
(quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000)); see also Bell v. Cone,
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535 U.S. 685, 694 (2002). “[T]he ‘unreasonable application’ prong of '
2254(d)(1) permits a federal habeas court to ‘grant the writ if the state court
identifies the correct governing legal principle from [the Supreme] Court but
unreasonably applies that principle to the facts of petitioner’s case.” Wiggins v.
Smith, 539 U.S. 510, 520 (2003) (quoting Williams, 529 U.S. at 413); see also
Bell, 535 U.S. at 694. However, “[i]n order for a federal court to find a state
court’s application of [Supreme Court] precedent ‘unreasonable,’ the state court’s
decision must have been more than incorrect or erroneous. The state court’s
application must have been ‘objectively unreasonable.’” Wiggins, 539 U.S. at
520-21 (citations omitted); see also Williams, 529 U.S. at 409. The “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) (quoting Lindh, 521 U.S. at 333, n.7); Woodford v.
Viscotti, 537 U.S. 19, 24 (2002) (per curiam)).
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)
(citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The Supreme Court
has emphasized “that even a strong case for relief does not mean the state court’s
contrary conclusion was unreasonable.” Id. (citing Lockyer v. Andrade, 538 U.S.
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63, 75 (2003)). Pursuant to ' 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. Thus, in order to obtain habeas relief
in federal court, a state prisoner must show that the state court’s rejection of his
claim “was so lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fairminded
disagreement.” Id; see also White v. Woodall, 572 U.S. 415, 419-20 (2014).
Federal judges “are required to afford state courts due respect by overturning their
decisions only when there could be no reasonable dispute that they were wrong.”
Woods v. Donald, _ U.S. _, 135 S. Ct. 1372, 1376 (2015). A habeas petitioner
cannot prevail as long as it is within the “realm of possibility” that fairminded
jurists could find the state court decision to be reasonable. Woods v. Etherton, _
U.S. _, 136 S. Ct. 1149, 1152 (2016).
Section 2254(d)(1) limits a federal habeas court’s review to a determination
of whether the state court’s decision comports with clearly established federal law
as determined by the Supreme Court at the time the state court renders its
decision. Williams, 529 U.S. at 412; see also Knowles v. Mirzayance, 556 U.S.
111, 122 (2009) (noting that the Supreme Court “has held on numerous occasions
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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 this Court”) (quoting Wright v. Van Patten, 552 U.S. 120, 125-26
(2008) (per curiam)); Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). Section
2254(d) “does not require a state court to give reasons before its decision can be
deemed to have been ‘adjudicated on the merits.’” Harrington, 562 U.S. at 100.
Furthermore, it “does not require citation of [Supreme Court] cases—indeed, it
does not even require awareness of [Supreme Court] cases, so long as neither the
reasoning nor the result of the state-court decision contradicts them.” Early v.
Packer, 537 U.S. 3, 8 (2002); see also Mitchell, 540 U.S. at 16. The
requirements of clearly established law are to be determined solely by Supreme
Court precedent. Thus, “circuit precedent does not constitute ‘clearly established
Federal law as determined by the Supreme Court’” and it cannot provide the basis
for federal habeas relief. Parker v. Matthews, 567 U.S. 37, 48-49 (2012) (per
curiam); see also Lopez v. Smith, 574 U.S. 1, _, 135 S. Ct. 1, 2 (2014) (per
curiam). The decisions of lower federal courts, however, may be useful in
assessing the reasonableness of the state court’s resolution of an issue. Stewart v.
Erwin, 503 F.3d 488, 493 (6th Cir. 2007) (citing Williams v. Bowersox, 340 F.3d
667, 671 (8th Cir. 2003)); Dickens v. Jones, 203 F. Supp. 354, 359 (E.D. Mich.
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2002).
A state court’s factual determinations are presumed correct on federal
habeas review. See 28 U.S.C. ' 2254(e)(1). A habeas petitioner may rebut this
presumption only with clear and convincing evidence. Warren v. Smith, 161 F.3d
358, 360-61 (6th Cir. 1998). Moreover, habeas review is “limited to the record
that was before the state court.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011).
ANALYSIS
Procedural Default
As an initial matter, Respondent argues that Petitioner’s habeas claims are
barred by procedural default because he first raised the issues on state collateral
review and the state courts denied relief based upon Michigan Court Rule
6.508(D). On habeas review, however, federal courts “are not required to address
a procedural-default issue before deciding against the petitioner on the merits.”
Hudson v. Jones, 351 F.3d 212, 215 (6th Cir. 2003) (citing Lambrix v. Singletary,
520 U.S. 518, 525 (1997)). The Supreme Court has explained the rationale
behind such a policy: “[j]udicial economy might counsel giving the [other]
question priority, for example, if it were easily resolvable against the habeas
petitioner, whereas the procedural-bar issue involved complicated issues of state
law.” Lambrix, 520 U.S. at 525. Such is the case here. The procedural issues
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are somewhat complex and the substantive claims are more readily decided on the
merits. Accordingly, the Court need not address the procedural default issue and
shall proceed to the merits of Petitioner’s claims.
Merits
(i) Jurisdiction Claim
Petitioner first asserts that he is entitled to habeas relief because the state
trial court lacked subject matter jurisdiction due to alleged defects in the charging
documents. Petitioner raised this issue on collateral review in the state courts and
the state trial court denied relief finding that the court had subject matter and
personal jurisdiction in Petitioner’s criminal case.
See Woodland, No. 12-
010753-01-FC, at *3-5.
The state court’s decision is neither contrary to Supreme Court precedent
nor an unreasonable application of federal law or the facts. The determination of
whether a particular state court is vested with jurisdiction under state law and is
the proper venue to hear a criminal case is a “function of the state courts, not the
federal judiciary.” Wills v. Egeler, 532 F.2d 1058, 1059 (6th Cir. 1976); see also
Hamby-Bey v. Bergh, No. 08-CV-13284, 2008 WL 3286227, *2 (E.D. Mich. Aug.
7, 2008); Chandler v. Curtis, No. 05-CV-72608-DT, 2005 WL 1640083, *2 (E.D.
Mich. July 13, 2005); Groke v. Trombley, No. 01-CV-10045-BC, 2003 WL
10
1798109, *5 (E.D. Mich. April 1, 2003); accord Wright v. Angelone, 151 F.3d
151, 157-58 (4th Cir. 1998); Rhode v. Olk-Long, 84 F.3d 284, 287 (8th Cir. 1996).
It is well-settled that state courts are the final arbiters of state law and
federal courts will not intervene in such matters. Lewis v. Jeffers, 497 U.S. 764,
780 (1990); see also Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (“[A] state
court’s interpretation of state law, including one announced on direct appeal of the
challenged conviction, binds a federal court on habeas review.”); Sanford v.
Yukins, 288 F.3d 855, 860 (6th Cir. 2002). Habeas relief does not lie for
perceived errors of state law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991)
(“[I]t is not the province of a federal habeas court to reexamine state-court
determinations on state-law questions.”). A state court’s interpretation of state
jurisdictional issues conclusively establishes jurisdiction for purposes of federal
habeas review. Strunk v. Martin, 27 F. App=x 473, 475 (6th Cir. 2001).
Petitioner thus fails to state a claim upon which habeas relief may be granted as to
this issue.
Additionally, to the extent that Petitioner asserts that trial counsel was
ineffective for failing to challenge the state court’s jurisdiction, he is not entitled
to relief.
To prevail on an ineffective assistance of counsel claim, a habeas
petitioner must show that counsel’s performance was deficient and that the
deficient performance prejudiced the defense. Strickland v. Washington, 466
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U.S. 668, 687 (1984). As to the performance prong, a petitioner must identify
acts that were “outside the wide range of professionally competent assistance” in
order to prove deficient performance. Id. at 690. There is a strong presumption
that trial counsel rendered adequate assistance and made all significant decisions
in the exercise of reasonable professional judgment. Id. The petitioner bears the
burden of overcoming the presumption that the contested actions were sound trial
strategy. A reviewing court’s scrutiny of counsel’s performance is highly
deferential. Id. at 689.
To satisfy the prejudice prong, a petitioner 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. A reasonable probability
is one sufficient to undermine confidence in the proceeding’s outcome. Id. “On
balance, the benchmark for judging any claim of ineffectiveness must be whether
counsel’s conduct so undermined the proper functioning of the adversarial process
that the [proceeding] cannot be relied on as having produced a just result.” Id. at
686.
The Supreme Court has confirmed that a federal court’s consideration of an
ineffective assistance of counsel claim arising from state criminal proceedings is
quite limited on habeas review due to the deference accorded trial attorneys and
state appellate courts reviewing their performance. “The standards created by
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Strickland and ' 2254(d) are both ‘highly deferential,’ and when the two apply in
tandem, review is ‘doubly’ so.’ Harrington, 562 U.S. at 105 (internal and end
citations omitted). When ' 2254(d) applies, the question is not whether counsel’s
actions were reasonable. Rather, the question is whether there is any reasonable
argument that counsel satisfied Strickland’s deferential standard. Id.1
In this case, the state trial court ruled that Petitioner’s jurisdictional issues
lacked merit. See Woodland, 12-010753-01-FC, at *3-5. Trial counsel cannot
be deemed ineffective for failing to make futile or meritless objections. See
Coley v. Bagley, 706 F.3d 741, 752 (6th Cir. 2014) (“Omitting meritless
arguments is neither professionally unreasonable nor prejudicial.”); United States
v. Steverson, 230 F.3d 221, 225 (6th Cir. 2000). Consequently, Petitioner cannot
establish that trial counsel erred and/or that Petitioner was prejudiced by counsel’s
conduct.
(ii) Sentencing Claim
Petitioner next asserts that he is entitled to habeas relief because the state
trial court erred in scoring the offense variables of the state sentencing guidelines.
Specifically, he asserts that the state trial court erred in scoring Offense Variables
1
The state trial court did not specifically address trial counsel’s effectiveness in
this regard. See Woodland, 12-010753-01-FC, at *3-5. Accordingly, the Court
shall review the issue de novo.
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1 (aggravated use of a weapon), 2 (possession or use of a gun or knife), 3 (degree
of physical injury to the victim), 6 (intent to kill or injure), and 14 (leader of a
multiple offender situation) of the state sentencing guidelines. Petitioner raised
this issue on collateral review and the state trial court denied relief finding that the
Offense Variables 1, 3, 6, and 14 were properly scored and that any scoring error
with respect to Offense Variable 2, if corrected, would not affect the applicable
sentencing guideline range. See Woodland, No. 12-010753-01-FC, at *7-10.
The state court’s decision is neither contrary to Supreme Court precedent
nor an unreasonable application of federal law or the facts. A sentence imposed
within the statutory limits is generally not subject to federal habeas review.
Townsend v. Burke, 334 U.S. 736, 741 (1948); Cook v. Stegall, 56 F. Supp. 2d
788, 797 (E.D. Mich. 1999). Claims which arise out of a state trial court’s
sentencing decision are not cognizable upon habeas review unless the petitioner
can show that the sentence imposed exceeded the statutory limits or is wholly
unauthorized by law. Lucey v. Lavigne, 185 F. Supp. 2d 741, 745 (E.D. Mich.
2001). Petitioner’s sentence of 10 to 20 years imprisonment is well within the
statutory maximum of life imprisonment. See MICH. COMP. LAWS '' 750.157a,
750.83. Consequently, his sentence is insulated from habeas review absent a
federal constitutional violation.
14
Petitioner’s claim that the trial court erred in scoring the offense variables
of the Michigan sentencing guidelines is not cognizable on habeas review because
it is a state law claim. 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) (“A state court’s
alleged misinterpretation of state sentencing guidelines and crediting statutes is a
matter of state concern only.”); Cheatham v. Hosey, 12 F.3d 211, 1993 WL
478854, *2 (6th Cir. Nov. 19, 1993) (explaining that departure from state
sentencing guidelines is a state law issue not cognizable on federal habeas
review); see also Kissner v. Palmer, 826 F.3d 898, 904 (6th Cir. 2016); McPhail
v. Renico, 412 F. Supp. 2d 647, 656 (E.D. Mich. 2006). Alleged errors in scoring
the offense variables and determining the sentencing guideline range do not
warrant federal habeas relief.
Petitioner also alleges, in a conclusory fashion, that trial counsel was
ineffective for failing to object to the scoring of the offense variables. The state
trial court denied relief on this claim finding that trial counsel objected to the
scoring of Offense Variables 2, 6, and 14 and that Offense Variables 1, 3, 6 and 14
were properly scored and any error in scoring Offense Variable 2 would not affect
the guideline range. See Woodland, 12-010753-01-FC at *7 n. 4, *7-9.
The state court’s denial of relief on this issue is neither contrary to Supreme
Court precedent nor an unreasonable application of federal law or the facts. First,
15
Petitioner’s ineffective assistance of trial counsel claim is partially belied by the
record, which indicates that counsel objected to the scoring of Offense Variables
2, 6, and 14. See Sent. Tr., pp. 8-9, 11, 15. Second, given the state trial court’s
ruling that the disputed offense variables were properly scored and that any error
in scoring Offense Variable 2 would not affect the sentencing guideline range,
Petitioner cannot establish that trial counsel erred and/or that he was prejudiced by
counsel’s conduct so as to establish that counsel was ineffective under Strickland.
As discussed above, trial counsel cannot be deemed ineffective for failing to make
futile or meritless objections. Coley, 706 F.3d at 752; Steverson, 230 F.3d at
225.
Additionally, to the extent that Petitioner challenges the state court’s
interpretation of state law regarding the scoring of the offense variables and the
application of state law (including People v. Lockridge, 870 N.W.2d 502 (Mich.
2015)), he is not entitled to relief. As explained, “a state court’s interpretation of
state law, including one announced on direct appeal of the challenged conviction,
binds a federal court sitting on habeas review.” Bradshaw, 546 U.S. at 76;
Sanford, 288 F.3d at 860. State courts are the final arbiters of state law and the
federal courts will not intervene in such matters. Lewis, 497 U.S. at 780; Oviedo,
809 F.2d at 328. Petitioner fails to state a claim upon which relief may be
granted as to any such state law issues.
16
A sentence may violate federal due process, however, if it is carelessly or
deliberately pronounced on an extensive and materially false foundation which the
defendant had no opportunity to correct. Townsend, 334 U.S. at 741; see also
United States v. Tucker, 404 U.S. 443, 447 (1972) (citing Townsend); United
States v. Sammons, 918 F.2d 592, 603 (6th Cir. 1990) (explaining that a defendant
must have a meaningful opportunity to rebut contested sentencing information).
To prevail on such a claim, a petitioner must show that the court relied upon the
allegedly false information. United States v. Polselli, 747 F.2d 356, 358 (6th Cir.
1984); Draughn v Jabe, 803 F. Supp. 70, 81 (E.D. Mich. 1992). Petitioner makes
no such showing. Rather, the record shows that he had a sentencing hearing
before the state trial court with an opportunity to challenge the sentencing
information. He also challenged his sentence on collateral review in the state
courts. Petitioner fails to establish that the state trial court relied upon materially
false or inaccurate information in imposing his sentence which he had no
opportunity to correct.
Petitioner further seems to assert that the trial court relied upon facts not
proven beyond a reasonable doubt at trial nor admitted by him in scoring the
guidelines and imposing his sentence in violation of his Sixth Amendment rights.
Petitioner cites Lockridge, 870 N.W.2d 502 and references federal cases in his
17
petition.2 Such a claim arises from the United States Supreme Court’s decisions
in Apprendi v. New Jersey, 530 U.S. 466 (2000); Blakely v. Washington, 542 U.S.
296 (2004); and Alleyne v. United States, 570 U.S. 99 (2013). In Apprendi, the
Supreme Court held 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.” Apprendi, 530
U.S. at 490. In Blakely, the Supreme Court clarified “that the ‘statutory
maximum’ for Apprendi purposes is the maximum sentence a judge may impose
solely on the basis of the facts reflected in the jury verdict or admitted by the
defendant.” Blakely, 542 U.S. at 303. In Alleyne, the Supreme Court extended
Apprendi to mandatory minimum sentences, ruling that any fact that increases a
mandatory minimum sentence is an “element” of the offense that must be
submitted to the jury and proven beyond a reasonable doubt. Alleyne, 570 U.S. at
111-12.
In Lockridge, the Michigan Supreme Court held that, under Alleyne, the
Michigan sentencing guidelines violate the Sixth Amendment because the
2
The state trial court ruled that Petitioner was not entitled to relief on this issue on
collateral review under Lockridge, but did not discuss federal law with respect to
this issue. See Woodland, 12-010753-01-FC, at *9-10. Accordingly, the Court
shall review this particular issue de novo.
18
guidelines “require judicial fact-finding beyond facts admitted by the defendant or
found by the jury to score offense variables that mandatorily increase the floor of
the guidelines minimum sentence range.” Lockridge, 870 N.W.2d at 506. The
court’s remedy was to make the guidelines advisory only. Id. at 520-21. The
Sixth Circuit recently issued a decision agreeing with Lockridge and ruling that
Alleyne clearly established that Michigan’s pre-Lockridge mandatory minimum
sentencing guidelines scheme violated the Sixth Amendment. Robinson v.
Woods, 901 F.3d 710, 716-18 (6th Cir. 2018). The Sixth Circuit explained that
“[a]t bottom, Michigan’s sentencing regime violated Alleyne’s prohibition on the
use of judge-found facts to increase mandatory minimum sentences.” Id. at 716.
This Court is bound by the Sixth Circuit’s decision.
Alleyne applies to Petitioner’s case. Petitioner was sentenced on July 11,
2013 just after Alleyne was decided on June 17, 2013. Alleyne was thus clearly
established law before Petitioner’s conviction and sentence became final and,
therefore, governs his sentencing. Alleyne, however, does not afford Petitioner
habeas relief. Petitioner fails to sufficiently allege and/or establish that the trial
court relied upon judicially found facts that were not proven beyond a reasonable
doubt or admitted by him. Conclusory allegations, without evidentiary support,
do not provide a basis for habeas relief. Cross v. Stovall, 238 F. App=x 32, 39-40
(6th Cir. 2007); Prince v. Straub, 78 F. App=x 440, 442 (6th Cir. 2003); Workman
19
v. Bell, 178 F.3d 759, 771 (6th Cir. 1998) (finding that conclusory allegations of
ineffective assistance of counsel do not justify federal habeas relief); see also
Washington v. Renico, 455 F.3d 722, 733 (6th Cir. 2006) (finding that bald
assertions and conclusory allegations do not provide sufficient basis to hold an
evidentiary hearing in habeas proceedings).
Petitioner essentially objects to the scoring of the variables at issue because
(i) the state trial court scored the variables as reflecting a multiple offender
situation and (ii) he was not found guilty of a firearm violation. Notably, as the
state trial court explained, “the plain language of the [relevant] statute requires
assessment of points where ‘a firearm was discharged at or toward a human being’
[and] it does not require that [a] defendant himself discharged the firearm.” See
Woodland, No. 12-010753-01-FC, at *7. Thus, the jury’s verdict finding
Petitioner guilty of conspiracy to commit assault with intent to commit murder,
establishes that he engaged in a multiple offender situation and negates his
argument. The jury’s verdict was reasonable and supported by sufficient
evidence, and a review of the state trial court’s decision indicates that the scoring
of the disputed offense variables was supported by the victim’s trial testimony and
the jury’s verdict. See Woodland, No. 12-010753-01-FC, at *7-9. Petitioner
fails to show that the state trial court violated his constitutional rights at
sentencing. Thus, habeas relief is not warranted on this claim.
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(iii) Sufficiency of the Evidence Claim
Lastly, Petitioner asserts that he is entitled to habeas relief because the
prosecution failed to present sufficient evidence to support his conviction. The
Due Process Clause “protects the accused against conviction except upon proof
beyond a reasonable doubt of every fact necessary to constitute the crime with
which he is charged.” In re Winship, 397 U.S. 358, 364 (1970). The relevant
question is whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19
(1979). The sufficiency of the evidence standard “must be applied with explicit
reference to the substantive elements of the criminal offense as defined by state
law,” Jackson, 443 U.S. at 324 n.16, and through the framework of 28 U.S.C. '
2254(d). Martin v. Mitchell, 280 F.3d 594, 617 (6th Cir. 2002). Thus, under the
AEDPA, challenges to the sufficiency of the evidence “must survive two layers of
deference to groups who might view facts differently” than a reviewing court on
habeas review—the factfinder at trial and the state court on appellate review—as
long as those determinations are reasonable. Brown v. Konteh, 567 F.3d 191, 205
(6th Cir. 2009).
Additionally, “it is the responsibility of the jury—not the court—to decide
what conclusions should be drawn from the evidence admitted at trial.” Cavazos
21
v. Smith, 565 U.S. 1, 2 (2011) (per curiam). A federal court may not re-weigh the
evidence or re-determine the credibility of the witnesses. Marshall v. Lonberger,
459 U.S. 422, 434 (1983); Matthews v. Abramajtys, 319 F.3d 780, 788 (6th Cir.
2003). A habeas court must defer to the factfinder at trial for its assessment of
the credibility of witnesses. Id.
Under Michigan law, the elements of assault with intent to commit murder
are: (1) an assault (2) with an actual intent to kill (3) which if successful, would
make the killing murder. See Warren v. Smith, 161 F.3d 358, 361 (6th Cir. 1998)
(citing Michigan law); People v. Ericksen, 793 N.W.2d 120 (Mich. Ct. App.
2010); MICH. COMP. LAWS ' 750.83. A conspiracy under Michigan law involves
the mutual agreement or understanding, express or implied, between two or more
persons to commit a criminal act or a legal act by unlawful means. People v.
Anderson, 340 N.W.2d 634 (Mich. 1983); MICH. COMP. LAWS ' 750.157a. A
conspiracy may be established by circumstantial evidence and may be based on
inference. People v. McKenzie, 522 N.W.2d 661 (Mich. Ct. App. 1994). Direct
proof of agreement is not required, nor is it necessary that a formal agreement be
proven. It is sufficient if the circumstances, acts, and conduct of the parties
establish an agreement in fact. People v. Justice, 562 N.W.2d 652 (Mich. 1997).
As with any crime, the prosecution must prove beyond a reasonable doubt
that the defendant committed the charged offense. People v. Oliphant, 250
22
N.W.2d 443 (Mich. 1976); People v. Yost, 749 N.W.2d 753 (Mich. Ct. App.
2008); People v. Kern, 149 N.W.2d 216 (Mich. Ct. App. 1967). Direct or
circumstantial evidence and reasonable inferences arising from that evidence may
constitute satisfactory proof of the elements of an offense, People v. Nowack, 614
N.W.2d 78 (Mich. 2000); People v. Jolly, 502 N.W.2d 177 (Mich. 1993),
including the identity of the perpetrator, Dell v. Straub, 194 F. Supp. 2d 629, 647
(E.D. Mich. 2002); Kern, 149 N.W.2d at 218, and intent or state of mind. People
v. Dumas, 563 N.W.2d 31 (Mich. 1997).
Petitioner raised this claim on collateral review in the state courts and the
state trial court applied the Jackson standard and denied relief finding that the
prosecution presented sufficient evidence to support Petitioner’s conspiracy to
commit assault with intent to commit murder conviction. Woodland, No. 12010753-01-FC, at *5-7. The court explained in relevant part:
The testimony at trial established that on the night/early
morning of the incident, defendant was beaten by the
victim while at the home of the victim’s girlfriend.
Defendant rushed out of the home and fifteen to twenty
minutes later returned, knocking on the door. The door
was answered by the victim, who testified that when he
opened the door, defendant assumed a ‘fighting stance’
and backed up off the porch. The victim exited the home,
following defendant. It was then that the victim was
approached and shot by the unknown assailant who had
been hiding in some bushes. From the testimony, a
rational trier of fact could have inferred that there was an
agreement between the defendant and the unknown
23
assailant to draw the victim out of the house and assault
him with the shotgun in retaliation for the beating that
defendant had suffered at the hand of the victim. Based
upon the record, there is sufficient evidence of a
conspiracy to commit assault with the intent to murder.
Woodland, No. 12-010753-01-FC, at *6-7.
The state court’s decision is neither contrary to Supreme Court precedent
nor an unreasonable application of federal law or the facts. The testimony of the
shooting victim provided sufficient evidence to establish that Petitioner engaged
in a conspiracy to commit assault with intent to commit murder. The victim
testified that on the night of the shooting, he went to his girlfriend=s apartment and
found Petitioner and his girlfriend in bed naked, that he confronted Petitioner and
beat him (while the Stark brothers observed), and that Petitioner eventually fled
the apartment. 5/29/13 Trial Tr., pp. 63-80. About 15 to 20 minutes later, the
victim heard someone knocking on the door, when he opened the door, Petitioner
backed off the porch, assumed a fighting stance in the parking lot, and was yelling
something like “come on man.” Id. at 96-98. The victim went outside and an
unidentified and unknown man came out of the bushes with a shotgun pointed at
him. Id. at 101. The victim attempted to grab the gun, and the unknown
assailant shot him in the hand, then the wrist, and then in the chest/area under his
right side, with a total of five gunshots. Id. at 101-10. The unknown assailant
did not take any of Petitioner’s belongings nor shoot at anyone else. Id. at 11124
12. The victim had to have his arm, from before the elbow and down, amputated
as a result of the shooting. Id. at 117. Such evidence, and reasonable inferences
therefrom, establish that Petitioner conspired with the unknown assailant to
commit an assault with intent to commit murder. To be sure, a victim’s
testimony alone can be constitutionally sufficient to sustain a conviction. See
Tucker v. Palmer, 541 F.3d 652, 658 (6th Cir. 2008) (citing cases).
Petitioner challenges the credibility determinations and inferences the jury
drew from the testimony presented at trial. However, it is the job of the
fact-finder at trial, not a federal habeas court, to resolve evidentiary conflicts.
Cavazos, 565 U.S. at 7; Jackson, 443 U.S. at 326; Martin, 280 F.3d at 618; see
also Walker v. Engle, 703 F.2d 959, 969-70 (6th Cir. 1983) (“A federal habeas
corpus court faced with a record of historical facts that supports conflicting
inferences must presumeCeven if it does not affirmatively appear in the
recordCthat the trier of fact resolved any such conflicts in favor of the
prosecution, and must defer to that resolution.”). The jury’s verdict was
reasonable. The evidence presented at the trial, viewed in a light favorable to the
prosecution, established beyond a reasonable doubt that Petitioner committed the
crime of conspiracy to commit assault with intent to commit murder.
As part of this claim, Petitioner also asserts that appellate counsel was
ineffective for failing to raise the insufficient evidence claim, and the other
25
collateral review claims, on direct appeal. The right to the effective assistance of
counsel includes the right to the effective assistance of appellate counsel on direct
appeal. Evitts v. Lucey, 469 U.S. 387, 396 (1985). To prevail on a claim of
ineffective assistance of appellate counsel, a petitioner must demonstrate that
appellate counsel’s performance was deficient and that the deficient performance
prejudiced the appeal. Strickland, 466 U.S. at 687.
It is well-established,
however, that a criminal defendant does not have a constitutional right to have
appellate counsel raise every non-frivolous issue on appeal. Jones v. Barnes, 463
U.S. 745, 751 (1983). The Supreme Court has explained:
For judges to second-guess reasonable professional
judgments and impose on appointed counsel a duty to raise
every “colorable” claim suggested by a client would
disserve the . . . goal of vigorous and effective advocacy .
. . . Nothing in the Constitution or our interpretation of that
document requires such a standard.
Id. at 754. Strategic and tactical choices regarding which issues to pursue on
appeal are “properly left to the sound professional judgment of counsel.” United
States v. Perry, 908 F.2d 56, 59 (6th Cir. 1990). In fact, “the hallmark of
effective appellate advocacy” is the Aprocess of ‘winnowing out weaker arguments
on appeal and focusing on’ those more likely to prevail.” Smith v. Murray, 477
U.S. 527, 536 (1986) (quoting Barnes, 463 U.S. at 751-52). “Generally, only
when ignored issues are clearly stronger than those presented will the presumption
26
of effective assistance of appellate counsel be overcome.” Monzo v. Edwards,
281 F.3d 568, 579 (6th Cir. 2002). Appellate counsel may deliver deficient
performance and prejudice a defendant by omitting a “dead-bang winner,” defined
as an issue which was obvious from the trial record and would have resulted in
reversal on appeal. Meade v. Lavigne, 265 F. Supp. 2d 849, 870 (E.D. Mich.
2003).3
In this case, the record reveals that appellate counsel raised reasonable,
albeit unsuccessful, claims concerning the missing witnesses and the jury
instructions on direct appeal. Petitioner fails to show that by raising those claims,
and omitting the collateral review claims, appellate counsel’s conduct fell below
an objective standard of reasonableness. As noted above, a defendant does not
have a constitutional right to raise every non-frivolous issue on appeal. Jones,
463 U.S. at 751. Moreover, given the state court’s ruling and this Court’s ruling
that the habeas claims lack merit, Petitioner cannot establish that appellate counsel
erred and/or that he was prejudiced by counsel’s conduct as required by
Strickland. See Shaneberger v. Jones, 615 F.3d 448, 452 (6th Cir. 2010) (citing
3
The state trial court did not rule on the ineffective assistance of appellate counsel
claim directly, and declined to address it as part of the procedural default analysis
because it found that Petitioner failed to show actual prejudice. See Woodland,
12-010753-01-FC at *3 fn. 1, *3-10. Accordingly, the Court shall review the
issue de novo.
27
Greer v. Mitchell, 264 F.3d 663, 676 (6th Cir. 2001)). Therefore, habeas relief is
not warranted on this claim.
CONCLUSION
For the reasons stated, the Court concludes that Petitioner is not entitled to
federal habeas relief on his claims.
Accordingly,
IT IS ORDERED that the Court DENIES and DISMISSES WITH
PREJUDICE the petition for a writ of habeas corpus;
IT IS FURTHER ORDERED that the Court DENIES a certificate of
appealability because Petitioner has not made a substantial showing of the denial
of a constitutional right and has not demonstrated that reasonable jurists would
find the Court’s assessment of the claim debatable or wrong. See 28 U.S.C. '
2253(c)(2) (stating that a certificate of appealability may issue “only if the
applicant has made a substantial showing of the denial of a constitutional right”);
Slack v. McDaniel, 529 U.S. 473, 484-85 (2000) (explaining that, when a court
denies habeas relief on the merits, the substantial showing threshold is met if the
petitioner demonstrates that reasonable jurists would find the court’s assessment
of the claim debatable or wrong); Miller-El v. Cockrell, 537 U.S. 322, 327 (2003)
(explaining that the substantial showing threshold is met if the petitioner shows
28
that “jurists could conclude the issues presented are adequate to deserve
encouragement to proceed further”);
IT IS FURTHER ORDERED that the Court DENIES Petitioner leave to
proceed in forma pauperis on appeal as an appeal cannot be taken in good faith.
See FED. R. APP. P. 24(a).
s/ Linda V. Parker
LINDA V. PARKER
U.S. DISTRICT JUDGE
Dated: June 25, 2020
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 25, 2020, by electronic and/or U.S.
First Class mail.
s/ R. Loury
Case Manager
29
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