Holder #447857 v. Jackson

Filing 12

OPINION; signed by District Judge Paul L. Maloney (Judge Paul L. Maloney, cmc)

UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
______
JAMES HOLDER,
Petitioner,

Case No. 1:17-cv-408

v.

Honorable Paul L. Maloney

SHANE JACKSON,
Respondent.

____________________________/
OPINION
This is a habeas corpus action brought by a state prisoner under 28 U.S.C. § 2254.
Promptly after the filing of a petition for habeas corpus, 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 28 U.S.C. § 2243. If so, the petition must be summarily
dismissed. Rule 4; see 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). After
undertaking the review required by Rule 4, the Court concludes that the petition must be dismissed
because it fails to raise a meritorious federal claim.

Discussion
I.

Factual allegations

Petitioner James Holder is presently incarcerated with the Michigan Department of
Corrections at the Carson City Correctional Facility. Petitioner is serving a sentence of 3 years to
5 years following his May 6, 2015, plea of guilty to a charge of domestic violence, third-offense,
MICH. COMP. L. § 750.81(5), in the Kent County Circuit Court. The court sentenced Petitioner on
June 15, 2015.
At Petitioner’s sentencing hearing, Judge George J. Quist reviewed the facts
relating to Petitioner’s offense to determine an Offense Variable score under the Michigan
Sentencing Guidelines. Some of the relevant facts had been admitted by Petitioner when he
entered his plea. Judge Quist made factual findings with respect to the other relevant facts.
Petitioner contends that, based on the facts that he admitted, his Guidelines minimum sentence
range would have been 10 to 23 months. With the additional facts found by Judge Quist, the
guidelines minimum sentence range increased to 19 to 38 months.
Six weeks after Petitioner was sentenced, the Michigan Supreme Court issued its
decision in People v. Lockridge, 870 N.W.2d 502 (Mich. 2015). In Lockridge, in a 5-2 decision,
the Michigan Supreme Court held that, because the “guidelines require judicial fact-finding
beyond facts admitted by the defendant or found by the jury to score offense variables (OVs) that
mandatorily increase the floor of the guidelines minimum sentence range,” they increase the
“mandatory minimum” sentence and are unconstitutional under Alleyne v. United States, 570 U.S.
___, 133 S. Ct. 2151 (2013). Lockridge, 870 N.W.2d at 506. As a consequence, the Lockridge
court held that the mandatory application of Michigan’s sentencing guidelines was
unconstitutional, and the remedy was to make them advisory only. Id. at 520-521.

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Petitioner raised the Lockridge issue on appeal. The Michigan Court of Appeals
denied leave to appeal on January 22, 2016. Petitioner sought leave to appeal in the Michigan
Supreme Court. On June 28, 2016, the supreme court remanded the case to the Kent County
Circuit Court to permit Judge Quist to determine whether he would impose a different sentence in
light of Lockridge’s elimination of the sentencing guidelines mandate. On September 21, 2016,
Judge Quist entered an opinion and order reaffirming the initial sentence. Petitioner has not sought
leave to appeal that decision. Instead, Petitioner has timely filed his habeas petition raising the
same issue he raised in the state appellate courts: Petitioner’s sentence violates the Sixth and
Fourteenth Amendment because it was enhanced by judicially-found facts that were not admitted
by Petitioner. (Am. Pet., ECF No. 8, PageID.24.)
II.

AEDPA standard

This action is governed by the Antiterrorism and Effective Death Penalty Act of
1996, Pub. L. 104-132, 110 Stat. 1214 (AEDPA). See Penry v. Johnson, 532 U.S. 782, 792 (2001).
The AEDPA “prevents federal habeas ‘retrials’” and ensures that state court convictions are given
effect to the extent possible under the law. Bell v. Cone, 535 U.S. 685, 693-94 (2002). The
AEDPA has “drastically changed” the nature of habeas review. Bailey v. Mitchell, 271 F.3d 652,
655 (6th Cir. 2001). An application for writ of habeas corpus on behalf of a person who is
incarcerated pursuant to a state conviction cannot be granted with respect to any claim that was
adjudicated on the merits in state court unless the adjudication: “(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
upon an unreasonable determination of the facts in light of the evidence presented in the state court

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proceeding.” 28 U.S.C. § 2254(d). This standard is “intentionally difficult to meet.” Woods v.
Donald, 575 U.S. __, 135 S. Ct. 1372, 1376 (2015) (internal quotation marks omitted).
The AEDPA limits the source of law to cases decided by the United States Supreme
Court. 28 U.S.C. § 2254(d). This Court may consider only the “clearly established” holdings, and
not the dicta, of the Supreme Court. Williams v. Taylor, 529 U.S. 362, 412 (2000); Bailey, 271
F.3d at 655. In determining whether federal law is clearly established, the Court may not consider
the decisions of lower federal courts. Lopez v. Smith, 135 S. Ct. 1, 3 (2014); Bailey, 271 F.3d at
655. Moreover, “clearly established Federal law” does not include decisions of the Supreme Court
announced after the last adjudication of the merits in state court. Greene v. Fisher, 132 S. Ct. 38
(2011). Thus, the inquiry is limited to an examination of the legal landscape as it would have
appeared to the Michigan state courts in light of Supreme Court precedent at the time of the statecourt adjudication on the merits. Miller v. Stovall, 742 F.3d 642, 644 (6th Cir. 2014) (citing
Greene, 132 S. Ct. at 44).
A federal habeas court may issue the writ under the “contrary to” clause if the state
court applies a rule different from the governing law set forth in the Supreme Court’s cases, or if
it decides a case differently than the Supreme Court has done on a set of materially
indistinguishable facts. Bell, 535 U.S. at 694 (citing Williams, 529 U.S. at 405-06). “To satisfy
this high bar, a habeas petitioner is required to ‘show that the state court’s ruling on the claim being
presented in federal court was so lacking in justification that there was an error well understood
and comprehended in existing law beyond any possibility for fairminded disagreement.’” Woods,
2015 WL 1400852, at *3 (quoting Harrington v. Richter, 562 U.S. 86, 103 (2011)). In other words,
“[w]here the precise contours of the right remain unclear, state courts enjoy broad discretion in

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their adjudication of a prisoner’s claims.” White v. Woodall, 572 U.S. ___, 134 S. Ct. 1697, 1705
(2014) (quotations marks omitted).
The AEDPA requires heightened respect for state factual findings. Herbert v. Billy,
160 F.3d 1131, 1134 (6th Cir. 1998). A determination of a factual issue made by a state court is
presumed to be correct, and the petitioner has the burden of rebutting the presumption by clear and
convincing evidence. 28 U.S.C. § 2254(e)(1); Lancaster v. Adams, 324 F.3d 423, 429 (6th Cir.
2003); Bailey, 271 F.3d at 656. This presumption of correctness is accorded to findings of state
appellate courts, as well as the trial court. See Sumner v. Mata, 449 U.S. 539, 546 (1981); Smith
v. Jago, 888 F.2d 399, 407 n.4 (6th Cir. 1989).
III.

Petitioner’s sentence does not violate the Sixth or Fourteenth Amendments

Petitioner contends that the sentence is unconstitutional because it is based on facts
found by the judge when the Sixth Amendment requires that it be based only on facts found by the
jury or admitted by Petitioner. Petitioner misconstrues the constitutional requirement.
Petitioner bases his argument on a line of cases beginning with Apprendi v. New
Jersey, 530 U.S. 466 (2000), continuing with Blakely v. Washington, 542 U.S. 296 (2004), and
United States v. Booker, 543 U.S. 220 (2005), then ending with Alleyne v. United States, 570 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 penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490.
Apprendi enunciated a new rule of Sixth Amendment jurisprudence. In the subsequent case of
Blakely, the Court applied the rule of Apprendi to a state sentencing guideline scheme, under which
the maximum penalty could be increased by judicial fact-finding. The Blakely Court held that the
state guideline scheme violated Sixth Amendment rights, and reiterated the rule that any fact that

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increased the maximum sentence must be “admitted by the defendant or proved to a jury beyond
a reasonable doubt.” See Booker, 543 U.S. at 232 (citing Blakely, 542 U.S. at 303).
Unlike the State of Washington’s determinate sentencing system at issue in Blakely,
the State of Michigan has an indeterminate sentencing system in which the defendant is given a
sentence with a minimum and a maximum term. The maximum sentence is not determined by the
trial judge, but is set by law. See People v. Drohan, 715 N.W.2d 778, 789-91 (Mich. 2006) (citing
MICH. COMP. LAWS § 769.8). Only the minimum sentence is based on the applicable sentencing
guideline range. Id.; and see People v. Babcock, 666 N.W.2d 231, 236 n.7 (Mich. 2003) (citing
MICH. COMP. LAWS § 769.34(2)). The Sixth Circuit authoritatively has held that the Michigan
indeterminate sentencing system does not run afoul of Blakely. See Chontos v. Berghuis, 585 F.3d
1000, 1002 (6th Cir. 2009) (affirming district court’s dismissal of prisoner’s claim under Blakely
v. Washington because it does not apply to Michigan’s indeterminate sentencing scheme); Tironi
v. Birkett, 252 F. App’x 724, 725 (6th Cir. 2007).
The Supreme Court expanded the Blakely reasoning to mandatory minimum
sentences in Alleyne v. United States, 570 U.S. ___, 133 S. Ct. 2151 (2013). Shortly thereafter,
the Michigan Court of Appeals concluded that Alleyne only prohibited judicial factfinding used to
determine a mandatory minimum sentence, but had no impact on judicial factfinding in scoring
the sentencing guidelines producing a minimum range for an indeterminate sentence, the
maximum of which is set by law. See People v. Herron, 845 N.W.2d 533, 539 (Mich. App. 2013),
rev’d 870 N.W.2d 561 (2015). The Sixth Circuit also concluded that Alleyne did not decide the
question whether judicial factfinding under Michigan’s indeterminate sentencing scheme violated
the Sixth Amendment. See Kittka v. Franks, 539 F. App’x 668, 673 (6th Cir. 2013). As a
consequence, the Sixth Circuit held, the question is not a matter of clearly established Supreme

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Court precedent. Id. (citing Montes v. Trombley, 599 F.3d 490, 498 (6th Cir. 2010)); see also
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 . . . .) (quoting Alleyne, 133 S. Ct. at 2161 (emphasis added)).
Shortly after Petitioner was sentenced, however, Lockridge, 870 N.W.2d at 502 the
Michigan Supreme Court considered the question the Michigan Court of Appeals had faced in
Herron and reached the opposite conclusion.

The Michigan Supreme Court’s decision in

Lockridge does not render the result “clearly established” for purposes of habeas review. This
Court may consider only the “clearly established” holdings of the United States Supreme Court.
Williams v. Taylor, 529 U.S. 362, 412 (2000); Bailey, 271 F.3d at 655. In determining whether
federal law is clearly established, the Court may not consider the decisions of lower federal courts.
Lopez v. Smith, 135 S. Ct. 1, 3 (2014); Bailey, 271 F.3d at 655. For the same reasons, it may not
consider the holdings of state courts. Instead, this Court may only grant relief on habeas review if
the state court’s application of clearly established federal law is “objectively unreasonable.” Id. at
410. “[R]elief is available under § 2254(d)(1)’s unreasonable-application clause if, and only if, it
is so obvious that a clearly established rule applies to a given set of facts that there could be no
‘fairminded disagreement’ on the question.” White v. Woodall, 572 U.S. ___, 134 S. Ct. 1697,
1706-07 (2014) (quoting Harrington v. Richter, 562 U.S. 86, 103 (2011)).
As is apparent from the reasoned decisions of the Michigan Court of Appeals in
Herron, 845 N.W.2d at 539, and the Sixth Circuit in Kittka, 539 F. App’x at 673, and Saccoccia,
573 F. App’x at 485, as well as the decision of the dissenting justices in Lockridge itself, reasonable
jurists could and did disagree about whether Alleyne applied to the calculation of Michigan’s

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minimum sentencing guidelines. Alleyne therefore did not clearly establish the unconstitutionality
of the Michigan sentencing scheme and cannot form the basis for habeas corpus relief.
Even if it could be said that the decision in Alleyne, as applied to the Michigan
sentencing scheme, and as that scheme was interpreted by the Lockridge court, represented “clearly
established” federal authority for purposes of collateral habeas corpus review, Petitioner could not
prevail.

The judicial fact-finding to which Petitioner now objects had no bearing on the

determination of Petitioner’s guidelines minimum range. Thus, Alleyne does not apply here. From
the inception of this line of authority in Apprendi to its most recent refinement in Alleyne, the
United States Supreme Court has never suggested that judicial fact-finding in support of the
sentencing court’s exercise of discretion violates the Sixth Amendment.
The distinction is apparent in the remedy adopted to correct the constitutional
infirmity in mandatory minimum guidelines sentencing schemes. In Lockridge, the Michigan
Supreme Court determined it could eliminate the Sixth Amendment problem by making the
guideline minimum range advisory and the minimum sentence a matter for the court’s discretion.
That was the same remedy the United States Supreme Court had adopted previously in Booker,
543 U.S. at 245. The Booker court reasoned that if the sentencing rules were not mandatory and
did not impose binding requirements on sentencing judges “the statute falls outside the scope of
Apprendi’s requirement.” Booker, 543 U.S. at 259.
After Lockridge, a trial court’s imposition of a sentence, no matter how it may be
guided by the sentencing guidelines, represents an exercise of the court’s discretion. The facts
found to support the exercise of that discretion do not “increase[ ] the penalty for the crime beyond
the prescribed statutory maximum[,]” Apprendi, 530 U.S. at 490, or “increas[e] the mandatory
minimum[,]” Alleyne, 133 S.Ct. at 1260, and therefore need not “be submitted to a jury, [or be]

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proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490. Petitioner’s sentence following
remand was imposed after the decision in Lockridge for the express purpose of overcoming the
Sixth Amendment problem recognized in Lockridge. The trial court decided that it would, in the
free exercise of its discretion, impose the same sentence. Facts the trial court may have found in
support of its exercise of discretion do not implicate the Sixth Amendment. Petitioner has failed
to demonstrate that the state court’s decision with regard to his discretionary sentence is contrary
to, or an unreasonable application of, clearly established federal law. Accordingly, he is not
entitled to habeas relief.
Conclusion
In light of the foregoing, the Court will summarily dismiss Petitioner’s application
pursuant to Rule 4 because it fails to raise a meritorious federal claim.
Certificate of Appealability
Under 28 U.S.C. § 2253(c)(2), the Court must determine whether a certificate of
appealability should be granted. A certificate should issue if Petitioner has demonstrated a
“substantial showing of a denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This Court’s
dismissal of Petitioner’s action under Rule 4 of the Rules Governing § 2254 Cases is a
determination that the habeas action, on its face, lacks sufficient merit to warrant service. It would
be highly unlikely for this Court to grant a certificate, thus indicating to the Sixth Circuit Court of
Appeals that an issue merits review, when the Court has already determined that the action is so
lacking in merit that service is not warranted. See Love v. Butler, 952 F.2d 10 (1st Cir. 1991);
Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990; Dory v. Comm’r of Corr. of New York, 865
F.2d 44, 46 (2d Cir. 1989; Williams v. Kullman, 722 F.2d 1048, 1050 n.1 (2d Cir. 1983).

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The Sixth Circuit Court of Appeals has disapproved issuance of blanket denials of
a certificate of appealability. Murphy v. Ohio, 263 F.3d 466 (6th Cir. 2001). Rather, the district
court must “engage in a reasoned assessment of each claim” to determine whether a certificate is
warranted. Id. at 467. Each issue must be considered under the standards set forth by the Supreme
Court in Slack v. McDaniel, 529 U.S. 473 (2000). Murphy, 263 F.3d at 467. Consequently, this
Court has examined each of Petitioner’s claims under the Slack standard. Under Slack, 529 U.S.
at 484, to warrant a grant of the certificate, “[t]he petitioner must demonstrate that reasonable
jurists would find the district court’s assessment of the constitutional claims debatable or wrong.”
Id. “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). In applying this standard, the Court may not conduct a full merits review,
but must limit its examination to a threshold inquiry into the underlying merit of Petitioner’s
claims. Id.
The Court finds that reasonable jurists could not conclude that this Court’s
dismissal of Petitioner’s claims was debatable or wrong. Therefore, the Court will deny Petitioner
a certificate of appealability.
A Judgment and Order consistent with this Opinion will be entered.

Dated: July 28, 2017

/s/ Paul L. Maloney
Paul L. Maloney
United States District Judge

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