Cummings v. Campbell
OPINION and ORDER Denying 1 Petition for Writ of Habeas Corpus; Denying a Certificate of Appealability; and Denying Permission to Appeal in forma pauperis, Signed by District Judge John Corbett O'Meara. (WBar)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case No. 5:17-cv-10255
Hon. John Corbett O'Meara
OPINION AND ORDER (1) SUMMARILY DENYING PETITION FOR WRIT OF
HABEAS CORPUS, (2) DENYING A CERTIFICATE OF APPEALABILITY, AND (3)
DENYING PERMISSION TO APPEAL IN FORMA PAUPERIS
Michigan prisoner Walter Cummings (“Petitioner”) filed this habeas case under 28 U.S.C.
§ 2254. On November 21, 2002, Petitioner was convicted in the Wayne Circuit Court after a jury
trial of armed robbery and commission of a felony with a firearm, and he was sentenced to 225
months to 60 years imprisonment.1 The petition raises a single claim: Petitioner’s constitutional
rights were violated by judicial fact-finding in scoring the sentencing guidelines. The Court finds
that Petitioner’s claim is without merit because it cannot be supported by clearly established
Supreme Court law. Therefore, the petition will be summarily denied. The Court will also deny
Petitioner a certificate of appealability and permission to proceed on appeal in forma pauperis.
The Court notes that according to the Michigan Department of Corrections website, Petitioner is
also serving four terms of 285 months to 60 years imprisonment for a June 26, 2002, judgment
of sentence entered by the Wayne Circuit Court for a different set of armed robbery convictions.
These sentences are not challenged in this action. The Court may take judicial notice of the
information provided by a search of the MDOC OTIS website with regard to Petitioner. See, i.e.
Carpenter v. Mich. Dep’t of Corr. Time Computation Unit, No. 1:13-cv-313, 2013 U.S. Dist.
LEXIS 65999, 2013 WL 1947249 *1 n.1 (W.D. Mich. May 9, 2013); Ward v. Wolfenbarger, 323
F. Supp. 2d 818, 821-22 n. 3 (E.D. Mich. 2004).
Following his conviction and sentence Petitioner was appointed appellate counsel who filed
an appeal of right. Petitioner’s brief on appeal challenged the jury instructions, argued that the trial
judge should have disqualified herself from presiding over his case, and asserted that the sentencing
guidelines were improperly scored. The Court of Appeals affirmed. People v. Cummings, No.
246883 (Mich. Ct. App. May 11, 2004). Petitioner appealed this decision to the Michigan Supreme
Court, but his application for leave to appeal was denied on December 29, 2004. People v.
Cummings, No. 126478 (Mich. Dec. 29, 2004).
Petitioner filed a motion for relief from judgment, asserting what now forms his habeas claim
sometime in 2015. The trial court denied the motion on January 12, 2016. Petitioner appealed, but
the Michigan Court of Appeals found “defendant has failed to establish that the trial court erred in
denying his motion for relief from judgment.” People v. Cummings, No. 332980 (Mich. Ct. App.
Aug. 22, 2016). The Michigan Supreme Court subsequently denied relief under Michigan Court
Rule 6.508(D). People v. Cummings, No. 154387 (Mich. Sup. Ct. Jan. 5, 2017).
II. Standard of Review
After a petition for habeas corpus is filed, the Court must undertake a preliminary review of
the petition to determine whether “it plainly appears from the face of the petition and any exhibits
annexed to it that the petitioner is not entitled to relief in the district court.” Rule 4, Rules Governing
§ 2254 Cases; see also 28 U.S.C. § 2243. If, after preliminary consideration, the Court determines
that the petitioner is not entitled to relief, the Court must summarily dismiss the petition. McFarland
v. Scott, 512 U.S. 849, 856 (1994); Carson v. Burke, 178 F.3d 434, 436 (6th Cir. 1999); Rule 4,
Rules Governing § 2254 Cases. No response to a habeas petition is necessary if the petition is
frivolous, obviously lacks merit, or if the necessary facts can be determined from the petition itself
without considering a response from the State. See Robinson v. Jackson, 366 F. Supp. 2d 524, 525
(E.D. Mich. 2005).
To qualify for relief under 28 U.S.C. § 2254, the petitioner must show that the state court
decision on a federal issue “was contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court,” or amounted to “an unreasonable
determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C.
§ 2254(d)(1)-(2); Franklin v. Francis, 144 F.3d 429, 433 (6th Cir. 1998). The analysis of a
petitioner’s claim is limited to consideration of “the law as it was ‘clearly established’ by [Supreme
Court] precedents at the time of the state court’s decision,’ Wiggins v. Smith, 539 U.S. 510, 520
(2003). Under that review standard, mere error by the state court does not justify issuance of the
writ; rather, the state court must have applied federal law in a way that is “objectively
unreasonable.” Wiggins, 539 U.S. at 520-21 (quoting Williams v. Taylor, 529 U.S. 362, 409 (2000)).
Petitioner claims that the trial judge violated his Sixth Amendment right to a jury trial by
using facts that had not been proven beyond a reasonable doubt or admitted by Petitioner to score
the offense variables of the Michigan Sentencing Guidelines to determine his minimum sentence
On June 17, 2013, 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). Alleyne is
Under Michigan law, only the minimum sentence of an indeterminate sentence is determined by
the sentencing guidelines. See People v. Babcock, 469 Mich. 247, 255, n. 7 (2003). The
maximum term of an indeterminate sentence is set by statute. See People v. Claypool, 470 Mich.
715, 730, n. 14 (2004).
an extension of the Supreme Court’s holdings in Apprendi v. New Jersey, 530 U.S. 466 (2000) and
Blakely v. Washington, 542 U.S. 296 (2004), in which the Supreme Court held that any fact that
increases or enhances a penalty for a crime beyond the prescribed statutory maximum for the offense
must be submitted to the jury and proven beyond a reasonable doubt. In reaching this conclusion,
the Supreme Court overruled Harris v. United States, 536 U.S. 545 (2002), in which the Supreme
Court held that only factors that increase the maximum, as opposed to the minimum, sentence must
be proven beyond a reasonable doubt to a factfinder. Alleyne, 133 S. Ct. at 2157-58.
At the time of Petitioner’s conviction and sentence, Harris was the law, and Alleyne has not
been made retroactive to cases on collateral review. See In re Mazzio, 756 F.3d 487, 489-90 (6th Cir.
2014). Because the Supreme Court did not require, at the time of Petitioner’s conviction, that facts
which increase a criminal defendant's minimum sentence be proven beyond a reasonable doubt,
Petitioner cannot demonstrate entitlement to habeas relief. See Gibson v. Tribley, No. 10-13364,
2013 U.S. Dist. LEXIS 93404, 2013 WL 3353905, at * 8 (E.D. Mich. July 3, 2013).
Moreover, 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.” See United 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) (unpublished) (collecting cases and noting that at least four post-Alleyne unanimous
panels of the Sixth Circui 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) (unpublished)
(“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 same thing
occurred in this case. The Sixth Circuit, in fact, has 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) (unpublished).
The Court is aware that the Michigan Supreme Court 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, 498 Mich. 358 (Mich. 2015). Petitioner cannot rely on Lockridge to
obtain relief with this Court. The AEDPA standard of review found in 28 U.S.C. § 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, 578-579 (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.
1:16-CV-206, 2016 U.S. Dist. LEXIS 35151, 2016 WL 1068744, at *5 (W.D. Mich. Mar. 18, 2016).
“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.
2:14-CV-12326, 2015 U.S. Dist. LEXIS 74211, 2015 WL 3620426, at *12 (E.D. Mich., June 9,
2015) (petitioner not entitled to habeas relief on claim that his sentencing guidelines scored in
violation of Alleyne).
Accordingly, Petitioner cannot demonstrate entitlement to habeas relief as a result of the
scoring of his sentencing guidelines by the trial court, and his petition will therefore by summarily
IV. Certificate of Appealability
In order to appeal the Court’s decision, Petitioner must obtain a certificate of appealability.
To obtain a certificate of appealability, a prisoner must make a substantial showing of the denial of
a constitutional right. 28 U.S.C. § 2253(c)(2). To demonstrate this denial, the applicant is required
to show that reasonable jurists could debate whether the petition should have been resolved in a
different manner, or that the issues presented were adequate to deserve encouragement to proceed
further. Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). A federal district court may grant or deny
a certificate of appealability when the court issues a ruling on the habeas petition. Castro v. United
States, 310 F.3d 900, 901 (6th Cir. 2002).
Here, jurists of reason would not debate the Court’s conclusion that Petitioner has not met
the standard for a certificate of appealability because his claim is completely devoid of merit. The
Court will therefore deny a certificate of appealability.
The Court will also deny permission to appeal in forma pauperis because any appeal of this
decision could not be taken in good faith. 28 U.S.C. § 1915(a)(3).
Accordingly, the Court 1) DENIES WITH PREJUDICE the petition for a writ of habeas
corpus, 2) DENIES a certificate of appealability, and 3) DENIES permission to appeal in forma
s/John Corbett O’Meara
United States District Judge
Date: January 31, 2017
I hereby certify that a copy of the foregoing document was served upon the parties of record
on this date, January 31, 2017, using the ECF system and/or ordinary mail.
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