Hartman #718555 v. Berghuis

Filing 33

OPINION AND ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 31 ; Judgment to issue; signed by Judge Janet T. Neff (Judge Janet T. Neff, clb)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MARK D. HARTMAN,
Petitioner,

Case No. 1:12-cv-1015

v.

HON. JANET T. NEFF

MARY BERGHUIS,
Respondent.
_______________________________/

OPINION AND ORDER
This is a habeas corpus petition filed pursuant to 28 U.S.C. § 2254. Petitioner, who is
represented by counsel in this action, raised five grounds for relief. The matter was referred to the
Magistrate Judge, who issued a Report and Recommendation (R&R) recommending that this Court
deny the petition (Dkt 31). The matter is presently before the Court on Petitioner’s objections to the
Report and Recommendation (Dkt 32). In accordance with 28 U.S.C. § 636(b)(1) and FED. R. CIV.
P. 72(b)(3), the Court has performed de novo consideration of those portions of the Report and
Recommendation to which objections have been made. The Court denies the objections and issues
this Opinion and Order. The Court will also issue a Judgment in this § 2254 proceeding. See Gillis
v. United States, 729 F.3d 641, 643 (6th Cir. 2013) (requiring a separate judgment in habeas
proceedings).
I. OBJECTIONS
As a threshold matter, Petitioner objects to the Magistrate Judge’s statement of the standard
of review regarding the proper deference to lower federal court decisions pursuant to 28 U.S.C.

§ 2254(d) (Pet’r Obj., Dkt 32 at 2-3, citing Williams v. Wolfenbarger, 513 F. App’x 466, 469 (6th
Cir. 2013) (“[C]ourts may look to the decisions of lower federal courts to assess whether a principle
has been ‘clearly established’”); R&R, Dkt 3 at 8-10). However, other than merely opining that the
holding in Williams constitutes a “more accurate” statement of the standard of review, Petitioner
does not demonstrate how his argument reveals any analytical error by the Magistrate Judge.
Therefore, his objection is denied.
Second, Petitioner objects to the Magistrate Judge’s summary of the grounds raised in his
habeas corpus petition. Specifically, Petitioner complains that the Magistrate Judge recited the
questions presented from his brief in support of his petition rather than the grounds included in his
petition (Pet’r Obj., Dkt 32 at 3). However, Petitioner has again failed to demonstrate how his
argument reveals any analytical error by the Magistrate Judge. Therefore, this objection is also
denied.
Petitioner also proffers an objection to the recommended resolution of each of his five
grounds presented, which the Court examines in turn:
GROUND I: Scoring of PRV 7 and Imposition of Consecutive Sentences
Petitioner pleaded no contest in two separate criminal cases to unlawful imprisonment and
threatening a witness. The trial court sentenced Petitioner to consecutive prison terms of five to
fifteen years for the unlawful imprisonment charge and seven to fifteen years for the threatening-awitness charge. The threatening-a-witness charge concerns conduct by Petitioner while he was in
custody for the unlawful imprisonment charge. In his first ground presented for habeas relief,

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Petitioner asserted that the scoring of PRV 7 and imposition of cumulative sentences violated his due
process, double jeopardy, and equal protection rights.1
A.

Due Process
Petitioner challenges the Magistrate Judge’s due process analysis as inadequate. Specifically,

Petitioner argues that “[t]he legal analysis in the report and recommendation does not, even once,
reference the Due Process double-counting or rule of lenity Due Process arguments presented by
[Petitioner]” (Pet’r Obj., Dkt 32 at 7-8). However, the Magistrate Judge properly concluded that
neither Petitioner’s scoring claim nor his issue about whether he was properly sentenced to
consecutive terms are generally cognizable claims for purposes of habeas corpus review (R&R, Dkt
31 at 12). And Petitioner does not address the Magistrate Judge’s ultimate conclusion that his
sentence is not so disproportionate to the crime as to be arbitrary or shocking and thereby implicate
the Due Process Clause (id. at 13). Therefore, Petitioner’s objection is properly denied.
In any event, Petitioner’s arguments do not support the finding of a due process violation.
Petitioner has failed to show how his sentence is the product of “double counting” where his
sentence is based on two separate charges as a result of two separate, although related, instances of
conduct.

See United States v. Farrow, 198 F.3d 179, 193 (6th Cir. 1990) (holding that

“impermissible ‘double counting’ occurs when precisely the same aspect of a defendant’s conduct
factors into his sentence in two separate ways”). Nor has Petitioner shown that the relevant
sentencing provisions were sufficiently ambiguous or vague in order to give rise to a rule of lenity
claim. See United States v. Batchelder, 442 U.S. 114, 123 (1979) (holding that “[s]o long as
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Petitioner also asserts that there are discrepancies in the Report and Recommendation’s
“historical factual statements” (Pet’r Obj., Dkt 32 at 22-23). However, the purported discrepancies
do not affect the analysis or outcome in this case.
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overlapping criminal provisions clearly define the conduct prohibited and the punishment authorized,
the notice requirements of the Due Process Clause are satisfied”).
B.

Double Jeopardy
Petitioner next objects to the Magistrate Judge’s conclusion that the trial court’s imposition

of consecutive sentences and scoring of points under PRV 7 did not violate the Double Jeopardy
Clause (Pet’r Obj., Dkt 32 at 8-9). However, Petitioner’s objection essentially reiterates the same
argument he presented in his petition. Petitioner’s objection fails to demonstrate any factual or legal
error in the Magistrate Judge’s analysis, only Petitioner’s dissatisfaction with, and general objection
to, the Magistrate Judge’s recommendation. Therefore, Petitioner’s objection is properly denied.
See W.D. Mich. LCivR 72.3(b) (requiring an objecting party to “specifically identify the portions
of the proposed findings, recommendations or report to which objections are made and the basis for
such objections”).
C.

Equal Protection
Petitioner also objects to the Magistrate Judge’s conclusion that Petitioner is not entitled to

relief pursuant to the Equal Protection Clause (Pet’r Obj., Dkt 32 at 9-10). However, again,
Petitioner’s objection essentially reiterates the argument presented in his petition. Petitioner’s
objection fails to demonstrate any factual or legal error in the Magistrate Judge’s analysis.
Therefore, Petitioner’s objection is properly denied. See W.D. Mich. LCivR 72.3(b) (requiring an
objecting party to “specifically identify the portions of the proposed findings, recommendations or
report to which objections are made and the basis for such objections”).

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GROUND II: Apprendi/Blakely
Petitioner objects to the Magistrate Judge’s conclusion that Petitioner’s sentence does not
violate the Sixth Amendment and the Due Process Clause pursuant to Apprendi v. New Jersey, 530
U.S. 466 (2000), and Blakely v. Washington, 542 U.S. 296 (2004). Specifically, Petitioner argues
that
(a) for purposes of Blakely, the maximum sentence is based on the longest sentence the trial
court may impose without additional factfinding (regardless of whether the factfinding is
based on a sentencing guideline or a statute--and regardless of how Michigan labels a
sentence as “maximum”); (b) in each case, under the Michigan scheme, [Petitioner] could
not be sentenced beyond a one-year flat sentence (either 11 or 12 months) without additional
factfinding if PRV 7 had been scored at zero; and (c) the Sixth Circuit specifically indicated,
in one of the cases cited by the report and recommendation on pg. 19, that it was not reaching
the issue that [petitioner] presents herein and that the issue remains an open one in the Sixth
Circuit.
(Pet’r Obj., Dkt 32 at 11). However, as discussed supra, Petitioner has failed to establish that PRV
7 was improperly scored at ten points, which renders the rest of his argument moot. Therefore,
Petitioner’s objection is properly denied.
GROUND III: Sixth Amendment Right to Retained Counsel of Choice
Petitioner also objects to the Magistrate Judge’s conclusion that Petitioner’s Sixth
Amendment right to counsel of choice was not violated when the trial court judge refused to grant
a continuance for substitution of counsel on the day of the sentencing hearing (Pet’r Obj., Dkt 32 at
21). Petitioner argues that the reason the Magistrate Judge suggested—“possible indefinite delay”
(R&R, Dkt 31 at 26)—was “not part of the trial court’s reasons for denying the adjournment” and
that the trial court’s reasons for denying a continuance were impermissible (Pet’r Obj., Dkt 32 at 1821).
Petitioner’s argument is without merit.
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The Magistrate Judge correctly analyzed the trial court’s denial of a continuance of the
sentencing hearing for substitution of counsel (R&R, Dkt 31 at 25-26). The Magistrate Judge
considered not only the delay but also additional factors, including: (1) Petitioner’s failure to request
substitute counsel until the day of the sentencing hearing; (2) no appearance yet filed by substitute
counsel on behalf of Petitioner; (3) Petitioner’s current attorney’s readiness to proceed with
sentencing and Petitioner’s failure to express any dissatisfaction with his attorney at any prior point
of the proceedings; and (4) the trial court’s possession of information about Petitioner’s bipolar
disorder, including that Petitioner was not taking his medication at the time of the offenses (id.). As
a result, the Magistrate Judge properly concluded that the trial court’s denial of a continuance for
substitution of counsel was not unreasonable and did not violate Petitioner’s Sixth Amendment
rights. See United States v. Gonzalez-Lopez, 548 U.S. 140, 152 (2006) (indicating that the Supreme
Court has recognized a trial court’s “wide latitude in balancing the right to counsel of choice against
the needs of fairness, ... and against the demands of its calendar”) (citing Morris v. Slappy, 461 U.S.
1, 11-12 (1983)). Therefore, Petitioner’s objection is properly denied.
GROUND IV: Due Process
Petitioner objects to the Magistrate Judge’s treatment of his fourth ground presented that his
due process rights were also violated when the trial court judge “prejudged” the proposed assessment
report (Pet’r Obj., Dkt 32 at 14-15). Petitioner argued that he is entitled to resentencing before a
different judge (id. at 15). The Magistrate Judge rejected Petitioner’s argument, concluding that
Petitioner was not entitled to resentencing before a different judge as “there was no constitutional
violation that would warrant resentencing” (R&R, Dkt 31 at 26).

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In his objections, Petitioner asserts that the “prejudging of the proposed medical assessment
... is a stand[-]alone claim that entitles him to relief” (Pet’r Obj, Dkt 32 at 15). According to
Petitioner, “[w]hile the prejudging of the proposed assessment is ... relevant to the Sixth Amendment
right to retained counsel issue, it is [also] an independent Due Process claim” (id. at 14-15).
Petitioner’s objection does not demonstrate that a result other than the Magistrate Judge’s
recommendation is warranted. The trial court’s reasons for denying Petitioner a continuance,
delineated supra, serve equally to demonstrate that the denial was not so arbitrary as to deny
Petitioner due process of law. See generally Ungar v. Sarafite, 376 U.S. 575, 590-91 (1964)
(instructing that whether the denial of a continuance is so arbitrary as to violate due process depends
on the circumstances present in each particular case and observing that “the fact that something is
arguable does not make it unconstitutional”). Therefore, Petitioner’s objection is denied.
GROUND V: Apprendi/Blakely
Last, Petitioner argues that the Magistrate Judge incorrectly concluded that Petitioner’s
sentence did not “violate the Apprendi line of cases and, more specifically Alleyne [v. United States,
133 S. Ct. 2151 (2013)], as [Petitioner] was unconstitutionally subjected to mandatory minimums
under the Michigan sentencing guidelines based on judicial factfinding under the preponderance of
the evidence standard” (Pet’r Obj., Dkt 32 at 12). However, the Magistrate Judge correctly
concluded that because Alleyne had not been decided when Petitioner’s case was decided in the state
courts, that decision does not constitute “clearly established” Supreme Court precedent relevant to
habeas review (R&R, Dkt 31 at 20, citing Onifer v. Tyszkiewicz, 255 F.3d 313, 317-18 (6th Cir.
2001) (“our inquiry is limited to an examination of the legal landscape as it would have appeared to

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the Michigan state courts in light of Supreme Court precedent at the time [the] conviction became
final”)).
II. CERTIFICATE OF APPEALABILITY
Having determined Petitioner’s objections lack merit, the Court must further determine
pursuant to 28 U.S.C. § 2253(c) whether to grant a certificate of appealability as to the issues raised.
See RULES GOVERNING § 2254 CASES, Rule 11 (requiring the district court to “issue or deny a
certificate of appealability when it enters a final order”). The Court must review the issues
individually. Slack v. McDaniel, 529 U.S. 473 (2000); Murphy v. Ohio, 263 F.3d 466, 466-67 (6th
Cir. 2001).
“Where a district court has rejected the constitutional claims on the merits, the showing
required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable
jurists would find the district court’s assessment of the constitutional claims debatable or wrong.”
Slack, 529 U.S. at 484. Upon review, this Court finds that reasonable jurists would not find the
Court’s assessment of Petitioner’s claims debatable or wrong. A certificate of appealability will
therefore be denied.
Accordingly:
IT IS HEREBY ORDERED that the Objections (Dkt 32) are DENIED and the Report and
Recommendation (Dkt 31) is APPROVED and ADOPTED as the Opinion of the Court.
IT IS FURTHER ORDERED that the petition for habeas corpus relief (Dkt 1) is DENIED
for the reasons stated in the Report and Recommendation.

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IT IS FURTHER ORDERED that a certificate of appealability pursuant to 28 U.S.C.
§ 2253(c) is DENIED as to each issue asserted.

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Dated: September ___, 2015

/s/ Janet T. Neff
JANET T. NEFF
United States District Judge

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