Wiggins v. Balcarcel

Filing 5

OPINION AND ORDER DISMISSING the Petition for a Writ of Habeas Corpus, DENYING a Certificate of Appealability, and DENYING Leave to Proceed In Forma Pauperis on Appeal. Signed by District Judge Judith E. Levy. (KJac)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Eric Bernard Wiggins,
Petitioner,
v.

Case No. 18-cv-10124
Judith E. Levy
United States District Judge

Erick Balcarcel,
Mag. Judge Elizabeth A. Stafford
Respondent.
________________________________/
OPINION AND ORDER DISMISSING THE PETITION
FOR A WRIT OF HABEAS CORPUS, DENYING A
CERTIFICATE OF APPEALABILITY, AND DENYING
LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
I.

Introduction
Petitioner filed the petition for a writ of habeas corpus pursuant to

28 U.S.C. § 2254. Michigan prisoner Eric Bernard Wiggins pleaded guilty
to first-degree criminal sexual assault (during the commission of a
felony), MICH. COMP. LAWS § 750.520b(1)(c), in the Berrien County Circuit
Court and was sentenced to 10 to 45 years imprisonment in 2015. In his
pleadings, petitioner challenges the validity of his sentence and the state
court’s application of Michigan’s sentencing guidelines.

Promptly after the filing of a habeas petition, 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. Id.,
Allen v. Perini, 424 F.2d 134, 141 (6th Cir. 1970) (district court has the
duty to “screen out” petitions that lack merit on their face). A dismissal
under Rule 4 includes those petitions which raise legally frivolous claims,
as well as those containing factual allegations that are palpably
incredible or false. Carson v. Burke, 178 F.3d 434, 436-37 (6th Cir. 1999).
Having conducted the requisite review, the Court finds that
petitioner fails to state a claim upon which habeas relief may be granted
and dismisses with prejudice the petition for a writ of habeas corpus. The
Court also denies a certificate of appealability and denies leave to proceed
in forma pauperis on appeal.

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II.

Procedural History
Following his conviction and sentencing, petitioner filed a delayed

application for leave to appeal with the Michigan Court of Appeals
challenging, in relevant part, his sentence.

In lieu of granting the

application, the Michigan Court of Appeals remanded the matter to the
trial court “for further proceedings consistent with the process set for
forth in People v. Lockridge, 498 Mich 358; 870 NW2d 502 (2015), United
States v. Crosby, 397 F3d 103 (CA 2, 2005), and People v. Steanhouse, _
Mich. App. _; _ N.W.2d (2015).” People v. Wiggins, No. 330863, 2016 WL
232311 (Mich. Ct. App. Feb. 16, 2016) (citation formatting unaltered from
original). The Michigan Court of Appeals also directed the trial court to
establish a factual basis for certain costs, or to alter that figure if
appropriate, and, in all other respects, denied leave to appeal for lack of
merit in the grounds presented. Id.
On remand, the trial court determined that resentencing was not
warranted. Petitioner then filed a delayed application for leave to appeal
with the Michigan Court of Appeals, which was denied for lack of merit
in the grounds presented. People v. Wiggins, No. 334909 (Mich. Ct. App.
Nov. 2, 2016). Petitioner also filed an application for leave to appeal with
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the Michigan Supreme Court, which was denied in a standard order.
People v. Wiggins, 500 Mich. 984, 894 N.W.2d 47 (2017).
Petitioner thereafter filed his pro se federal habeas petition with
this Court. He raises the following claim:
The trial court abused its discretion and committed clear error
in failing to follow the Court of Appeals decision (Docket No.
330863) remanding this matter for further proceedings
consistent with the process set forth in People v. Lockridge,
498 Mich 358 (2015), United States v. Crosby, 397 F.3d 103
(CA 2, 2005), and People v. Steanhouse, (Court of Appeals
Docket No. 318329, October 22, 2015), by denying Defendant
resentencing. The Court of Appeals erred in holding that the
trial court did not abuse its discretion and did not commit
clear error in failing to follow the Court of Appeals decision.
III. Standard of Review
The provisions of the Antiterrorism and Effective Death Penalty
Act of 1996 (“AEDPA”), codified at 28 U.S.C. § 2241 et seq., govern this
case because petitioner filed his habeas petition after the AEDPA’s
effective date. Lindh v. Murphy, 521 U.S. 320, 336 (1997). The AEDPA
provides:
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-4

(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,
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
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court 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. “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 factual determinations are presumed correct on
federal habeas review. See 28 U.S.C. § 2254(e)(1). A petitioner may
rebut this presumption with clear and convincing evidence. Warren v.
Smith, 161 F.3d 358, 360-61 (6th Cir. 1998). In addition, habeas review
is “limited to the record that was before the state court.” Cullen v.
Pinholster, 563 U.S. 170, 181 (2011).
IV. Discussion
Petitioner

primarily

challenges

the

resentencing

decision.

However, “errors in the application of state sentencing guidelines . . .
cannot independently support habeas relief.” Kissner v. Palmer, 826
6

F.3d 898, 904 (6th Cir. 2016). A habeas petitioner must, instead, identify
a violation of a “specific federal constitutional protection[]” to prevail on
such a claim. Cook v. Stegall, 56 F. Supp. 2d 788, 797 (E.D. Mich. 1999).
A petitioner may nevertheless prevail on sentencing claims in the rare
circumstances where 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). This is so because
a “claim that the state trial court incorrectly scored, calculated, or
applied the state legislative sentencing guidelines . . . is based solely on
state law.” Paris v. Rivard, 105 F. Supp. 3d 701, 724 (E.D. Mich. 2015)
(citing McPhail v. Renico, 412 F. Supp. 2d 647, 656 (E.D. Mich. 2006));
see also 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.”).
Here, petitioner’s sentence is within the statutory maximum of life
imprisonment for first-degree criminal sexual conduct. See Mich. Comp.
Laws § 750.520b(1)(c). Consequently, his sentence is insulated from
habeas review absent a violation of a “specific federal constitutional
protection[] . . .” See Cook, 56 F. Supp. 2d at 797.
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Moreover, to the extent petitioner contests the state court’s
interpretation of state law relative to his sentence and the application of
that law, he is not entitled to relief. It is well-settled that state courts
are the final arbiters of state law and the federal courts will not
intervene in such matters. Lewis v. Jeffers, 497 U.S. 764, 780 (1990);
Mullaney v. Wilbur, 421 U.S. 684, 691 (1975) (noting the Supreme Court
“repeatedly has held” that state courts are the final arbiters of state law).
“[A] state court's interpretation of state law, including one announced on
direct appeal of the challenged conviction, binds a federal court sitting
in habeas corpus,” and federal habeas relief is not available for errors of
state law. Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (per curiam).
Accordingly, petitioner fails to state a claim upon which relief may be
granted as to this issue.
Petitioner also asserts that his sentence violates his federal due
process rights.

A sentence may violate federal due process 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); United States v. Sammons, 918 F.2d 592, 603 (6th Cir.
8

1990) (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.
He admits that he had sentencing hearings before the state trial court
with an opportunity to challenge the scoring of the guidelines. He also
presented his sentencing issues to the state appellate courts. Petitioner
fails to establish that the trial court relied upon materially false or
inaccurate information in imposing his sentence or that he had no
opportunity to correct it. No due process violation occurred.
Petitioner further asserts that the state trial court erred in relying
upon facts neither proven by the prosecution nor admitted by him in
imposing his sentence in violation of his Sixth Amendment rights.
Claims such as these arise 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, _ U.S. _,
133 S. Ct. 2151 (2013). In Apprendi, the Supreme Court held that,
“[o]ther than the fact of a prior conviction, any fact that increases the
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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, 133 S. Ct. at 2158
(Thomas J., plurality opinion).
Those cases, however, are inapplicable to the case at hand.
Petitioner was sentenced to an indeterminate sentence within the
statutory limits for his conviction and his sentence does not include a
mandatory minimum. The Supreme Court’s holding in Alleyne dealt
with judge-found facts which raised the mandatory minimum sentence
under a statute, not judge-found facts that trigger an increased
guidelines range, which is what occurred in petitioner’s case. See United
States v. Cooper, 739 F.3d 873, 884 (6th Cir. 2014). Unlike the laws at
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issue in Apprendi and Alleyne, the Michigan Sentencing Guidelines
neither require nor allow a judge to impose a more severe sentence than
was previously available.

Rather, they serve to guide a judge in

exercising his or her sentencing discretion. Id.; see also United States v.
James, 575 F. App'x 588, 595 (6th Cir. 2014) (collecting cases and noting
that at least four post-Alleyne 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, has ruled that Alleyne did not decide whether judicial
fact-finding under Michigan's indeterminate sentencing scheme violates
the Sixth Amendment. See Kittka v. Franks, 539 F. App’x 668, 673 (6th
Cir. 2013). As such, Alleyne does not afford petitioner relief.
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 in People v. Lockridge, 498 Mich. 358,
870 N.W.2d 502 (2015). Petitioner, however, cannot rely on Lockridge
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to obtain relief. A federal court may only grant habeas relief if it finds
that the state court’s decision was “‘contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States’ or ‘was based on
an unreasonable determination of the facts in light of the evidence that
was presented in the State court proceeding.’” Peak v. Webb, 673 F.3d
465, 472 (6th Cir. 2012) (quoting 28 U.S.C. § 2254(d)) (emphasis added).
Lockridge is a decision of the Michigan Supreme 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 a state court decision is
contrary to, or an unreasonable application of, clearly established
federal law. 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. 16-CV-206, 2016 WL 1068744, *5 (W.D. Mich. March 18,
2016); see also Matthis v. Stewart, No. 16-CV-14292, 2017 WL 5903460,
*8

(E.D.

Mich.

Nov.

30,

2017)

(denying

habeas

relief

on

Alleyne/Lockridge sentencing claim); Lott v. Haas, No. 17-CV-13059,
2017 WL 5192349, *2-3 (E.D. Mich. Nov. 9, 2017) (same); Grace v. Gidley,
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No. 16-CV-14243, 2017 WL 2798391, *5-7 (E.D. Mich. June 28, 2017)
(denying habeas relief on similar sentencing claim after Lockridge
remand); Cummings v. Campbell, No. 17-CV-10523, 2017 WL 957688,
*3 (E.D. Mich. March 13, 2017) (denying habeas relief on Alleyne claim
challenging scoring of sentencing guidelines); Perez v. Rivard, No. 14CV-12326, 2015 WL 3620426, *12 (E.D. Mich. June 9, 2015) (same).
Lastly, the Court notes that the trial court’s affirmation of
petitioner’s sentence after the remand under Lockridge was based upon
the trial court’s discretion. “Facts that the trial court may have found in
support of its exercise of discretion do not implicate the Sixth
Amendment.” Holder v. Jackson, No. 17-CV-408, 2017 WL 3205762, *4
(W.D. Mich. July 28, 2017) (summarily dismissing habeas petition
raising similar sentencing claim). Petitioner thus fails to state a claim
upon which habeas relief may be granted in his pleadings and his
petition must be dismissed.

V.

Conclusion

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For the reasons stated above, the Court concludes that petitioner
fails to state a claim upon which federal habeas relief can be granted in
his petition. Accordingly, the Court DISMISSES WITH PREJUDICE
the petition for a writ of habeas corpus.
Before petitioner may appeal this decision, a certificate of
appealability must issue. See 28 U.S.C. § 2253(c)(1)(a); FED. R. APP. P.
22(b). A certificate of appealability may issue “only if the applicant has
made a substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2).

When a court denies 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 constitutional
claim debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484-85
(2000). “A petitioner satisfies this standard by demonstrating that . . .
jurists could conclude the issues presented are adequate to deserve
encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322,
327 (2003).

The Court concludes that petitioner fails to make a

substantial showing of the denial of a constitutional right as to his
habeas claim.

Accordingly, the Court DENIES a certificate of

appealability. The Court also concludes an appeal cannot be taken in
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good faith. See FED. R. APP. P. 24(a). Accordingly, the Court DENIES
petitioner leave to proceed in forma pauperis on appeal.
IT IS SO ORDERED.
Dated: February 1, 2018
Ann Arbor, Michigan

s/Judith E. Levy
JUDITH E. LEVY
United States District Judge

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served
upon counsel of record and any unrepresented parties via the Court’s
ECF System to their respective email or First Class U.S. mail addresses
disclosed on the Notice of Electronic Filing on February 1, 2018.
s/Keisha Jackson
for SHAWNA BURNS
Case Manager

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