Moore v. Bell

Filing 9

REPORT AND RECOMMENDATION re 1 Petition for Writ of Habeas Corpus filed by William Moore Signed by Magistrate Judge Paul J Komives. (EBut)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION WILLIAM J. MOORE, Petitioner, v. THOMAS K. BELL, Respondent. / REPORT AND RECOMMENDATION I. corpus. II. A. REPORT: Procedural History 1. Petitioner William J. Moore is a state prisoner, currently confined at the Carson City RECOMMENDATION: The Court should deny petitioner's application for the writ of habeas CASE NO. 5:07-CV-13002 JUDGE JOHN CORBETT O'MEARA MAGISTRATE JUDGE PAUL J. KOMIVES

Correctional Facility in Carson City, Michigan. 2. On April 26, 2002, petitioner was convicted of assault with intent to commit murder,

MICH. COMP. LAWS § 750.83; and first degree home invasion, MICH. COMP. LAWS § 750.110a(2), following a jury trial in the Saginaw County Circuit Court. On June 14, 2002, he was sentenced to a term of 25-50 years' imprisonment on the assault conviction, and to a consecutive term of 13-20 years' imprisonment on the home invasion conviction. 3. Petitioner appealed as of right to the Michigan Court of Appeals raising, through

counsel, the following claim: WILLIAM MOORE IS ENTITLED TO RESENTENCING BECAUSE JUDGE

HEATHSCOTT DID NOT GIVE SUBSTANTIAL AND COMPELLING REASONS FOR EXCEEDING THE GUIDELINES FOR EITHER HOME INVASION OR ASSAULT WITH INTENT TO MURDER (THE SENTENCES FOR WHICH WERE CONSECUTIVE), OR, IN THE ALTERNATIVE, BECAUSE THE SENTENCES THE JUDGE IMPOSED WERE DISPROPORTIONATELY LONG. The court of appeals found no merit to petitioner's claim, and affirmed his conviction and sentence. See People v. Moore, No. 242744, 2004 WL 103125 (Mich. Ct. App. Jan. 22, 2004) (per curiam). 4. Petitioner, proceeding pro se, sought leave to appeal this issue to the Michigan

Supreme Court. The Supreme Court denied petitioner's application for leave to appeal in a standard order. See People v. Moore, 471 Mich. 867, 683 N.W.2d 674 (2004). 5. Petitioner subsequently filed a motion for relief from judgment in the trial court

pursuant to MICH. CT. R. 6.500-.508, raising the following claims: I. DEFENDANT MOORE WAS DENIED HIS RIGHTS UNDER BOTH THE US CONST AM 6, 14; MICH CONST ART 1, SEC 20; TO TRIAL BY JURY AND DUE PROCESS, WHERE THE SENTENCING COURT INCREASED THE PRESUMPTIVE GUIDELINES SENTENCING RANGE ON THE BASIS OF ITS OWN FINDINGS OF FACT. DEFENDANT MOORE WAS DENIED HIS RIGHTS UNDER BOTH THE US CONST AM 6, 8, 14; MICH CONST ART 1, SEC 16, 20; TO PROHIBITION OF CRUEL AND UNUSUAL PUNISHMENT, EFFECTIVE ASSISTANCE OF COUNSEL AND DUE PROCESS, WHERE HIS SENTENCE IS `GROSSLY' DISPROPORTIONATE FOR THE OFFENSE AND THE OFFENDER AND APPELLATE COUNSEL'S FAILURE TO RAISE.

II.

On May 20, 2005, the trial court denied petitioner's motion for relief from judgment. The Michigan Court of Appeals and Michigan Supreme Court denied petitioner's applications for leave to appeal in standard orders, based on petitioner's "failure to meet the burden of establishing entitlement to relief under MCR 6.508(D)." People v. Moore, 477 Mich. 973, 725 N.W.2d 42 (2006); People v. Moore, No. 267250 (Mich. Ct. App. June 22, 2006). 6. Petitioner, proceeding pro se, filed the instant application for a writ of habeas corpus 2

on July 19, 2007. As grounds for the writ of habeas corpus, he raises the two claims that he raised in his state court motion for relief from judgment. 7. Respondent filed his answer on February 6, 2008. He contends that petitioner's claims

are barred by petitioner's procedural default and without merit. B. Factual Background Underlying Petitioner's Conviction The factual background underlying petitioner's conviction was accurately summarized by the Michigan Court of Appeals on petitioner's direct appeal: This case represents one of the rare instances when a jury and sentencing judge are made completely aware of the brutal and heinous nature of the crimes committed. During defendant's romantic relationship with the victim, defendant did not display any violent or abusive propensities and the relationship progressed relatively normally. When the victim's daughter drove her home on the night of the crimes, however, the victim noticed a light on in her apartment. She went up to her apartment and found defendant inside. An argument ensued about whether the victim left her apartment door open. The victim asked defendant to leave, and he acquiesced, allowing the victim to escort him out peaceably. The victim's daughter met the victim downstairs and walked her back to her apartment. After the victim grew comfortable again, however, the victim's daughter left. The victim decided to call her landlord about her locks and picked up the phone, but a presentiment struck her and she dialed 911 instead. Moments later, while speaking to the emergency operator, the victim heard a large boom. Defendant, who had burst through the building's outer door, then knocked at the victim's apartment door. When the victim did not answer his knock, defendant kicked in the door and spotted the victim on the phone. Approaching the victim, he asked her whom she was talking to, but punched her in the chest before she answered. The phone flew from her hands, but the emergency operator continued to record the events as they transpired. Defendant began stabbing the victim with a screwdriver first in the back and then in the inside of her ear. She asked him why he was stabbing her, but he did not answer her. She covered her face, fell to the ground, and feigned death, but defendant continued to stab her. He stabbed her in her arms, legs, stomach, shoulder, head, neck, and groin. When she asked again why he was doing it, he answered, "Bitch, you ain't dead yet," and continued to stab her. Because the victim was talking to police before defendant broke into her apartment, they quickly arrived and defendant escaped from the scene. Police soon found him, however, with the bloody screwdriver still in his possession. The victim lost half her blood supply and barely survived defendant's attack. But for the fortuitous telephone call to the police, the crime would have been murder. A recording of that call, with the accompanying sounds of defendant's brutal and vicious attack, 3

was played for the jury and judge. Moore, 2004 WL 103125, at *1, slip op. at 1-2. C. Standard of Review Because petitioner's application was filed after April 24, 1996, his petition is governed by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104132, 110 Stat. 1214 (Apr. 24, 1996). See Lindh v. Murphy, 521 U.S. 320, 326-27 (1997). Amongst other amendments, the AEDPA amended the substantive standards for granting habeas relief by providing: (d) 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). "[T]he `contrary to' and `unreasonable application' clauses [have] independent meaning." Williams v. Taylor, 529 U.S. 362, 405 (2000); see also, Bell v. Cone, 535 U.S. 685, 694 (2002). "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 [this] precedent.'" Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003) (per curiam) (quoting Williams, 529 U.S. at 405-06); see also, Early v. Packer, 537 U.S. 3, 8 (2002); Bell, 535 U.S. at 694. "[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] 4

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. By its terms, § 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." Thus, "§ 2254(d)(1) restricts the source of clearly established law to [the Supreme] Court's jurisprudence." Williams, 529 U.S. at 412. Further, the "phrase `refers to the holdings, as opposed to the dicta, of [the] Court's decisions as of the time of the relevant state-court decision.' In other words, `clearly established Federal law' under § 2254(d)(1) is the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision." Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003) (citations omitted) (quoting Williams, 529 U.S. at 412). Although "clearly established Federal law as determined by the Supreme Court" is the benchmark for habeas review of a state court decision, the standard set forth in § 2254(d) "does not require citation of [Supreme Court] cases­indeed, 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, 537 U.S. at 8; see also, Mitchell, 540 U.S. at 16. Further, although the requirements of "clearly established law" are to be determined solely by the holdings of the Supreme Court, the decisions of lower federal courts are useful in assessing the reasonableness of the state court's resolution of an issue. See Williams v. Bowersox, 340 F.3d 667, 671 (8th Cir. 2003); Phoenix v. Matesanz, 233 F.3d 77, 83 n.3 (1st Cir. 2000); Dickens v. Jones, 203 F. Supp.2d 354, 359 (E.D. Mich. 5

2002) (Tarnow, J.). D. Analysis Petitioner's claims raise two challenges to his sentence. First, he contends that the trial judge's determination of facts in imposing sentence violated his right to a jury determination of guilt. Second, petitioner contends that his sentence was disproportionate to his offense, and thus violates the Eight Amendment. Finally, petitioner contends that his appellate attorney rendered

constitutionally inadequate assistance by failing to raise the proportionality claim on direct appeal. 1. Judicial Fact-Finding at Sentencing

Petitioner first contends that his sentence violated his Sixth Amendment right to a jury trial because it was based on facts not found beyond a reasonable doubt by a jury. The Court should conclude that this claim is without merit. Petitioner's claim is based on the Supreme Court's Apprendi line of cases. In Apprendi v. New Jersey, 530 U.S. 466 (2000), the 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." Id. at 490. In Blakely, the Court considered the applicability of Apprendi to a state sentencing guidelines scheme similar to the United States Sentencing Guidelines. The state in that case argued that guidelines findings were not prohibited by Apprendi because Apprendi prohibited only factual findings at sentencing which increased the statutory maximum penalty to which the defendant was exposed. The Court in Blakely rejected this argument and struck down the state guidelines scheme, explaining 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. In other words, the relevant "statutory maximum" is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings. When a judge inflicts punishment that the 6

jury's verdict alone does not allow, the jury has not found all the facts "which the law makes essential to the punishment," and the judge exceeds his proper authority. Blakely, 542 U.S. at 303-04 (citations omitted) (emphasis in original). Finally, in United States v. Booker, 543 U.S. 220 (2005), the Court took the step logically suggested by Blakely, concluding that the United States Sentencing Guidelines are unconstitutional under Apprendi because they allow federal judges to impose sentences based on facts not found by a jury beyond a reasonable doubt. Two separate majorities formed the Court's decision. Justice Stevens delivered the opinion of the Court on the substantive question of whether the Guidelines are unconstitutional under Apprendi. Noting that there was no difference of constitutional significance between the Guidelines and the state guideline system at issue in Blakely, see Booker, 543 U.S. at 233, and rejecting the government's attempts to distinguish the two, see id. at 237-43, the merits majority concluded that the Guidelines violate the Sixth Amendment as interpreted in Apprendi. A separate majority joined an opinion authored by Justice Breyer, which contained the Court's decision on the remedial issue. The remedial majority concluded that the appropriate remedy for the constitutional violation was not to strike the Guidelines in their entirety, but to excise two statutory provisions which make the Guidelines mandatory. See id. at 245. Thus, under Booker the Guidelines remain advisory, and a federal district judge must consult the Guidelines before imposing sentence, but the judge is not bound to follow the Guidelines. Petitioner contends that, because the trial court made the necessary findings on the sentencing guidelines, his sentence violates Blakely. The Court should conclude that petitioner is not entitled to habeas relief on this claim. Michigan law provides for an indeterminate sentencing scheme, unlike the determinate sentencing schemes at issue in Blakely and Booker. Under Michigan law the defendant is given a sentence with a minimum and a maximum sentence. The maximum sentence is

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not determined by the trial judge but is set by law. See People v. Drohan, 475 Mich. 140, 160-61, 715 N.W.2d 778, 789-90 (2006); People v. Claypool, 470 Mich. 715, 730 n.14, 684 N.W.2d 278, 286 n.14 (2004); MICH. COMP. LAWS § 769.8. "[M]ichigan's sentencing guidelines, unlike the Washington guidelines at issue in Blakely, create a range within which the trial court must set the minimum sentence." Drohan, 475 Mich. at 161, 715 N.W.2d at 790. Under Michigan law, only the minimum sentence must presumptively be set within the appropriate sentencing guidelines range. See People v. Babcock, 469 Mich. 247, 255 n.7, 666 N.W.2d 231, 236 n.7 (2003) (discussing MICH. COMP. LAWS § 769.34(2)). Under Michigan law, the trial judge sets the minimum sentence, but can never exceed the maximum sentence. See Claypool, 470 Mich. at 730 n.14, 684 N.W.2d at 286 n.14. Blakely is inapplicable here because Blakely is concerned only with the maximum penalty which is authorized by a jury's findings or a defendant's plea: if some additional factor increases the defendant's penalty beyond that which could be imposed solely on the basis of the jury's findings or the defendant's plea, Blakely requires that those facts be found by a jury beyond a reasonable doubt (or be themselves pleaded to by a defendant). As explained above, unlike the guidelines scheme at issue in Blakely, the Michigan sentence guidelines help determine only the minimum portion of a defendant's indeterminate sentence. The maximum is, in every case, the statutory maximum authorized by law. See Claypool, 470 Mich. at 730 n.14, 684 N.W.2d at 286 n.14; MICH. COMP. LAWS § 769.8. Petitioner's conviction, therefore, contained all of the factual findings necessary to impose the statutory maximum on that charge. See Drohan, 475 Mich. at 162, 715 N.W.2d at 790 ("Thus, the trial court's power to impose a sentence is always derived from the jury's verdict, because the `maximum-minimum' sentence will always fall within the range authorized by the jury's verdict."). This being the case, petitioner's sentence did not violate Blakely even though the trial court 8

made additional factual findings in imposing the minimum term of petitioner's imprisonment. The Supreme Court has repeatedly made clear that the Apprendi rule is concerned only with the maximum sentence which is authorized by a jury's verdict or a defendant's plea. As the Supreme Court explained in Harris v. United States, 536 U.S. 545 (2002): Apprendi said that any fact extending the defendant's sentence beyond the maximum authorized by the jury's verdict would have been considered an element of an aggravated crime­and thus the domain of the jury­by those who framed the Bill of Rights. The same cannot be said of a fact increasing the mandatory minimum (but not extending the sentence beyond the statutory maximum), for the jury's verdict authorized the judge to impose the minimum with or without the finding. Harris, 536 U.S. at 557. This distinction is important because the only issue under the Sixth Amendment is whether the judge is impinging on the role of the jury. For this reason, the Court explicitly excepted indeterminate sentencing schemes such as Michigan's from its holding in Blakely. Rejecting an argument raised by Justice O'Connor in dissent, the Court explained: Justice O'Connor argues that, because determinate sentencing schemes involving judicial factfinding entail less judicial discretion than indeterminate schemes, the constitutionality of the latter implies the constitutionality of the former. This argument is flawed on a number of levels. First, the Sixth Amendment by its terms is not a limitation on judicial power, but a reservation of jury power. It limits judicial power only to the extent that the claimed judicial power infringes on the province of the jury. Indeterminate sentencing does not do so. It increases judicial discretion, to be sure, but not at the expense of the jury's traditional function of finding the facts essential to lawful imposition of the penalty. Of course indeterminate schemes involve judicial factfinding, in that a judge (like a parole board) may implicitly rule on those facts he deems important to the exercise of his sentencing discretion. But the facts do not pertain to whether the defendant has a legal right to a lesser sentence­and that makes all the difference insofar as judicial impingement upon the traditional role of the jury is concerned. Blakely, 542 U.S. at 309 (citation omitted). Under this reasoning, it is clear that Michigan's indeterminate sentencing guideline scheme, under which the maximum is established by statute and only the minimum term is based on judicial factfinding, does not violate the Sixth Amendment. See Bellamy v. Curtin, No. 1:06-CV-599, 2007 9

WL 527988, at *4 (W.D. Mich. Feb. 14, 2007); Mays v. Trombley, No. 2:06-CV-14043, 2006 WL 3104656, at *3 (E.D. Mich. Oct. 31, 2006) (Hood, J.); Worley v. Palmer, No. 2:06-CV-13467, 2006 WL 2347615, at *2 (E.D. Mich. Aug. 11, 2006) (Cohn, J.); Toothman v. Davis, No. 05-CV-74561, 2006 WL 2190515, at *2 (E.D. Mich. Aug. 1, 2006) (Edmunds, J.); Drohan, 475 Mich. at 164, 715 N.W.2d at 791-92; Claypool, 470 Mich. at 730 n.14, 684 N.W.2d at 286 n.14. Accordingly, the Court should conclude that petitioner is not entitled to habeas relief on this claim. 2. Proportionality

Petitioner also contends that his sentence constitutes cruel and unusual punishment because the sentence was disproportionate to the offense. The Court should conclude that petitioner is not entitled to habeas relief on this claim.1 In Solem v. Helm, 463 U.S. 277 (1983), the Supreme Court held that the Eighth Amendment requires that "a criminal sentence be proportionate to the crime for which the defendant has been convicted." Id. at 290. In considering whether a sentence is proportionate, the Court identified three objective factors which are relevant: "(I) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for the same crime in other jurisdictions." Id. at 292. Applying this test to the facts before it, the Court found that the defendant's sentence of life imprisonment without possibility of parole under a habitual

As a general matter, a habeas petitioner's claim that the trial court violated state law when sentencing him is not cognizable in habeas corpus proceedings. Branan v. Booth, 861 F.2d 1507, 1508 (11th Cir. 1988); Haynes v. Butler, 825 F.2d 921, 924 (5th Cir. 1987). Federal habeas courts have no authority to interfere with perceived errors in state law unless the petitioner is denied fundamental fairness in the trial process. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Serra v. Michigan Dep't of Corrections, 4 F.3d 1348, 1354 (6th Cir. 1993). To the extent that petitioner relies on the Michigan proportionality rule established in People v. Milbourn, 435 Mich. 630, 461 N.W.2d 1 (1990), his claim is solely one of state law which is not cognizable on federal habeas review. See Welch v. Burke, 49 F. Supp. 2d 992, 1009 (E.D. Mich. 1999) (Cleland, J.). 10

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offender statute was disproportionate where the three underlying felonies were nonviolent crimes involving small sums of money, the final felony being for uttering a false check. See id. at 303. However, the reach of Solem has been limited by the Supreme Court's more recent decisions. In Harmelin v. Michigan, 501 U.S. 957 (1991), the Court held that Michigan's mandatory sentence of life imprisonment for possession of over 650 grams of a controlled substance did not violate the Eighth Amendment. Justice Scalia, joined by Chief Justice Rehnquist, reasoned that Solem was wrongly decided and should be overruled, and concluded that the Eighth Amendment contains no proportionality requirement outside the capital punishment context. See Harmelin, 501 U.S. at 965 (Scalia, J.). Justice Kennedy, joined by Justices O'Connor and Souter, concluded that the Eighth Amendment contains a very narrow proportionality principle, which prohibits only those punishments which are `grossly' disproportionate to the crime. See id. at 1001 (Kennedy, J.). Further, Justice Kennedy's opinion distinguished Solem, essentially limiting application of the Solem objective criteria test to the facts in that case. See id. at 1001-05. Specifically, Justice Kennedy concluded that the objective analysis required in Solem is "appropriate only in the rare case in which a threshold comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality." Id. at 1005-06.2 Thus, it is unclear whether, and to what extent, Solem remains good law. See McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir. 1992) ("By applying a head-count analysis, we find that seven members of the Court supported a continued Eighth Amendment guaranty against disproportional sentences. Only four justices, however, supported the continued application of all three factors in Solem, and five justices rejected it. Thus, this much is clear: disproportionality

Justices White, Blackmun, Stevens, and Marshall all concluded that Solem should be upheld, and the three factor test applied to the sentencing scheme at issue. See Harmelin, 501 U.S. at 1016 (White, J., dissenting). 11

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survives; Solem does not."). As the Sixth Circuit has summarized, under Harmelin, "although only two Justices [Rehnquist and Scalia] would have held that the eighth amendment has no proportionality requirement, five Justices [Kennedy, O'Connor, and Souter, along with Rehnquist and Scalia] agree that there is no requirement of strict proportionality." United States v. Hopper, 941 F.2d 419, 422 (6th Cir. 1991). At most, then, the Eighth Amendment "forbids only extreme sentences that are `grossly disproportionate' to the crime." Harmelin, 501 U.S. at 1001; Hopper, 941 F.2d at 422 ("the eighth amendment is offended only by an extreme disparity between crime and sentence"). Thus, as a general matter, "one could argue without fear of contradiction by any decision of the [Supreme] Court that for crimes concededly classified and classifiable as felonies, that is, as punishable by significant terms of imprisonment in a state penitentiary, the length of sentence actually imposed is purely a matter of legislative prerogative." Rummel v. Estelle, 445 U.S. 263, 274 (1980); see Harmelin, 501 U.S. at 962-65 (Scalia, J.); id. at 997-1001 (Kennedy, J.) More recently, the Supreme Court again considered the proportionality issue under the Eighth Amendment, resulting in a split similar to that reached in Harmelin. In Ewing v. California, 538 U.S. 11 (2003), a three-justice plurality reaffirmed Justice Kennedy's approach in Harmelin, concluding that the Eighth Amendment contains a narrow proportionality principle which forbids sentences which are grossly disproportionate to the offense. See id. at 23-24 (opinion of O'Connor, J.) Justice O'Connor was joined in this position by Justice Kennedy, who had authored the plurality opinion in Harmelin, and by Chief Justice Rehnquist, who in Harmelin had joined Justice Scalia in concluding that the Eighth Amendment contains no proportionality requirement outside of the capital sentencing context. Justice Scalia, now joined by Justice Thomas (who was not on the Court when Harmelin was decided), reaffirmed his view that the Eighth Amendment contains no proportionality guaranty. See 12

id. at 32 (opinion of Scalia, J.); id. at 32 (opinion of Thomas, J.). Justice Stevens likewise reaffirmed his view from Harmelin that the three-factor test of Solem guides the proportionality inquiry under the Eighth Amendment. Justice Stevens was joined in this view by Justice Souter, who had joined the plurality opinion of Justice Kennedy in Harmelin, as well as by Justices Ginsburg and Breyer, who were not on the Court when Harmelin was decided. See id. at 33-35 (opinion of Stevens, J.); id. at 3637 (opinion of Breyer, J.). Thus, although the particular Justices attached to each position have changed somewhat, the numbers and rationales in Ewing break down precisely as they did in Harmelin. Thus, for purposes of habeas review, the Sixth Circuit's analysis of Harmelin, in which this Court asks only whether the sentence is grossly disproportionate to the offense, see Coleman v. DeWitt, 282 F.3d 908, 915 (6th Cir. 2002); United States v. Baker, 197 F.3d 211, 217 (6th Cir. 1999), remains controlling under Ewing. Here, the Harmelin plurality's "threshold comparison" of petitioner's crime and the sentence imposed, does not "lead to an inference of gross disproportionality," Harmelin, 501 U.S. at 1005, and thus the Court should conclude that petitioner is not entitled to habeas relief on this ground. Petitioner was convicted of assault with intent to commit murder, an offense carrying a maximum sentence of life imprisonment. See MICH. COMP. LAWS § 750.83. The evidence showed that petitioner rushed into the victim's home and brutally assaulted her, repeatedly stabbing her with a screwdriver and unequivocally expressing his desire to kill her. In these circumstances, petitioner's combined sentence of 38-70 years' imprisonment is not disproportionate to his offense. See Bryant v. Yukins, No. 01-CV-70657, 2001 WL 1218778, at *3 (E.D. Mich. Aug. 17, 2001) (Tarnow, J.) (upholding sentence of 22-60 years' imprisonment on assault with intent to commit murder); Carter v. Henderson, 602 F. Supp. 1186, 1188-89 (S.D.N.Y. 1985) (upholding sentence of 15 years' to life imprisonment for attempted murder). Accordingly, the Court should conclude that petitioner is not 13

entitled to habeas relief on this claim. 3. Ineffective Assistance of Appellate Counsel

Finally, petitioner contends that his appellate counsel was ineffective for failing to raise his proportionality claim on direct appeal. To establish the ineffective assistance of counsel, petitioner must show that: (1) counsel's errors were so serious that "counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment;" and (2) counsel's deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). In the appellate counsel context, a showing of prejudice requires a showing that petitioner's claims would have succeeded on appeal. See Smith v. Robbins, 528 U.S. 259, 285-86 (2000); McCleese v. United States, 75 F.3d 1174, 1180 (7th Cir. 1996). As explained in this Report, all of petitioner's claims are without merit, and thus petitioner cannot show that counsel was ineffective for failing to raise them on direct appeal. Accordingly, the Court should conclude that petitioner is not entitled to habeas relief on this claim. E. Conclusion In view of the foregoing, the Court should conclude that the state courts' resolution of petitioner's claims did not result in a decision which was contrary to, or which involved an unreasonable application of, clearly established federal law. Accordingly, the Court should deny petitioner's application for the writ of habeas corpus. III. NOTICE TO PARTIES REGARDING OBJECTIONS: The parties to this action may object to and seek review of this Report and Recommendation, but are required to act within ten (10) days of service of a copy hereof as provided for in 28 U.S.C. § 636(b)(1) and E.D. Mich. LR 72.1(d)(2). Failure to file specific objections constitutes a waiver of any further right of appeal. See Thomas v. Arn, 474 U.S. 140 (1985); Howard v. Secretary of Health & Human Servs., 932 F.2d 505 (6th Cir. 1991); United States v. Walters, 638 F.2d 947 (6th Cir. 14

1981). Filing of objections which raise some issues but fail to raise others with specificity, will not preserve all the objections a party might have to this Report and Recommendation. See Willis v. Secretary of Health & Human Servs., 931 F.2d 390, 401 (6th Cir. 1991). Smith v. Detroit Federation of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). Pursuant to E.D. Mich. LR 72.1(d)(2), a copy of any objections is to be served upon this Magistrate Judge. Within ten (10) days of service of any objecting party's timely filed objections, the opposing party may file a response. The response shall be not more than five (5) pages in length unless by motion and order such page limit is extended by the Court. The response shall address specifically, and in the same order raised, each issue contained within the objections.

s/Paul J. Komives PAUL J. KOMIVES UNITED STATES MAGISTRATE JUDGE Dated: 11/10/08
The undersigned certifies that a copy of the foregoing order was served on the attorneys of record by electronic means or U.S. Mail on November 10, 2008. s/Eddrey Butts Case Manager

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