Fitzgerald #473917 v. Trierweiler

Filing 4

OPINION; Order and Judgment to issue; signed by Judge Janet T. Neff (Judge Janet T. Neff, clb)

UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
GREGORY JOSEPH FITZGERALD,
Petitioner,
v.

Case No. 1:17-cv-435
Honorable Janet T. Neff

TONY TRIERWEILER,
Respondent.
_______________________________/
OPINION
This is a habeas corpus action brought by a state prisoner pursuant to 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.

Factual Allegations
Petitioner Gregory Joseph Fitzgerald is presently incarcerated with the Michigan
Department of Corrections at the Bellamy Creek Correctional Facility in Ionia, Michigan. Petitioner
is serving concurrent sentences of 5 years, 10 months to 22 years following his August 28, 2015 plea
of nolo contendere to one count of second-degree fleeing and eluding, MICH. COMP. LAWS
§ 750.479a(4), and one count of operating while intoxicated, third-offense, MICH. COMP. LAWS
§257.625, in Muskegon County Circuit Court case #15066365-FH-F; and one count of seconddegree fleeing and eluding, MICH. COMP. LAWS § 750.479a(4), in Muskegon County Circuit Court
case #15066366-FH-F. On September 28, 2015, the court sentenced Petitioner as a habitual
offender, fourth-offense, MICH. COMP. LAWS § 769.12, pursuant to a Cobbs agreement1 that
Petitioner’s minimum sentence would not exceed 71 months.
Petitioner, with the assistance of appointed appellate counsel, filed an application for
leave to appeal his sentence in the Michigan Court of Appeals. He raised two issues:
I.

THE TRIAL COURT UNLAWFULLY DEPRIVED THE DEFENDANT OF
HIS DUE PROCESS, EQUAL PROTECTION, AND OTHER PROTECTED
RIGHTS UNDER THE UNITED STATES AND MICHIGAN
CONSTITUTIONS WHEN IT SCORED 10 POINTS ON OV-9, 10 POINTS
ON OV-18, AND 10 POINTS ON OV-19; ON PLAIN ERROR AND/OR
INEFFECTIVE ASSISTANCE OF COUNSEL GROUNDS THIS COURT
SHOULD REVIEW THIS ISSUE.

II.

THE TRIAL COURT UNLAWFULLY VIOLATED THE UNITED
STATES AND MICHIGAN CONSTITUTIONS IN SENTENCING THE
DEFENDANT TO A PRISON TERM OF 70 MONTHS TO 22 YEARS ON
A HABITUAL OFFENDER 4th SUPPLEMENT ARISING OUT OF THE
2d-DEGREE FLEEING AND ELUDING A POLICE OFFICER

1

In People v. Cobbs, 505 N.W.2d 208 (Mich. 1993), the Michigan Supreme Court approved a process under
which a judge conducts a preliminary evaluation of the case and makes a tentative offer of the sentence prior to a
defendant’s entry of a plea. The supreme court held that such an agreement was lawful, if the defendant was given the
right to withdraw the plea when and if the judge on full review decided not to honor the earlier agreement.

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CONVICTION; ON PLAIN ERROR AND/OR INEFFECTIVE
ASSISTANCE OF COUNSEL GROUNDS THIS COURT SHOULD
REVIEW THIS ISSUE.
(Pet’r’s Mich. Ct. App. Br., ECF No. 1-1, PageID.22.) The Michigan Court of Appeals denied leave
initially on May 5, 2016 (Mich. Ct. App. Ord., ECF No. 1-1, PageID.62), and upon reconsideration
on June 13, 2016 (Mich. Ct. App. Ord., ECF No. 1-1, PageID.61), for lack of merit in the grounds
presented. Petitioner then filed a pro per application for leave to appeal in the Michigan Supreme
Court raising the same issues. The supreme court denied leave by order entered April 4, 2017
(Mich. Ord., ECF No. 1-1, PageID.86). Petitioner did not file a petition for writ of certiorari in the
United States Supreme Court. (Pet., ECF No. 1, PageID.3.) Instead, he filed his habeas petition in
this Court raising the same issues he raised in the Michigan appellate courts.
Discussion
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 their adjudication of a

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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).
Petitioner provides no detail with respect to his constitutional arguments beyond
attaching his state court appellate briefs. Although this petition and Petitioner’s appellate briefs
purport to raise two issues, an examination of Petitioner’s arguments reveal he has raised several
more, all relating to his sentence.
I.

State law sentencing claims

“[A] federal court may issue the writ to a state prisoner ‘only on the ground that he
is in custody in violation of the Constitution or laws or treaties of the United States.’” Wilson v.
Corcoran, 131 S. Ct. 13, 16 (2010) (quoting 28 U.S.C. § 2254(a)). A habeas petition must “state
facts that point to a ‘real possibility of constitutional error.’” Blackledge v. Allison, 431 U.S. 63, 75
n.7 (1977) (quoting Advisory Committee Notes on Rule 4, RULES GOVERNING HABEAS CORPUS
CASES). The federal courts have no power to intervene on the basis of a perceived error of state law.

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Wilson, 131 S. Ct. at 14; Bradshaw v. Richey, 546 U.S. 74, 76 (2005); Estelle v. McGuire, 502 U.S.
67-68 (1991); Pulley v. Harris, 465 U.S. 37, 41 (1984).2
A.

Improper scoring and application of the sentencing guidelines

Many of Petitioner’s challenges are based on perceived errors of state law and, thus,
are not cognizable on habeas review. For example, claims concerning the improper application of
sentencing guidelines or improper scoring of guidelines variables are state-law claims and typically
are not cognizable in habeas corpus proceedings. See Hutto v. Davis, 454 U.S. 370, 373-74 (1982)
(federal courts normally do not review a sentence for a term of years that falls within the limits
prescribed by the state legislature); Austin v. Jackson, 213 F.3d 298, 301-02 (6th Cir. 2000) (alleged
violation of state law with respect to sentencing is not subject to federal habeas relief). Moreover,
a criminal defendant has “no federal constitutional right to be sentenced within Michigan’s guideline
minimum sentence recommendations.” Doyle v. Scutt, 347 F. Supp. 2d 474, 485 (E.D. Mich. 2004);
accord Austin, 213 F.3d at 300; Lovely v. Jackson, 337 F. Supp. 2d 969, 977 (E.D. Mich. 2004);
Thomas v. Foltz, 654 F. Supp. 105, 106-07 (E.D. Mich. 1987).
B.

Proportionality

Similarly, Petitioner raises the issue of proportionality under People v. Milbourn, 461
N.W.2d 1 (Mich. 1990). In Milbourn, the Michigan Supreme Court held that a sentencing court
must exercise its discretion within the bounds of Michigan’s legislatively prescribed sentence range

2

Moreover, with respect to Petitioner’s state law claims, the Michigan Court of Appeals has ruled against
Petitioner, concluding that Petitioner’s arguments lack merit. It is not the province of a federal habeas court to reexamine state-law determinations on state-law questions. Bradshaw, 546 U.S. at 76; Estelle, 502 U.S. at 68. The
decision of the state courts on a state-law issue is binding on a federal court. See Wainwright v. Goode, 464 U.S. 78,
84 (1983). The Sixth Circuit repeatedly has recognized “‘that 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.’” Stumpf v.
Robinson, 722 F.3d 739, 746 n.6 (6th Cir. 2013) (quoting Bradshaw, 546 U.S. at 76). Thus, this Court must accept that
Petitioner’s state law arguments are simply meritless.

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and pursuant to the intent of Michigan’s legislative scheme of dispensing punishment according to
the nature of the offense and the background of the offender. Milbourn, 461 N.W.2d at 9-10; People
v. Babcock, 666 N.W.2d 231, 236 (Mich. 2003). It is plain that Milbourn was decided under state,
not federal, principles. See Lunsford v. Hofbauer, No. 94-2128, 1995 WL 236677, at * 2 (6th Cir.
Apr. 21, 1995); Atkins v. Overton, 843 F. Supp. 258, 260 (E.D. Mich. 1994).
Federal constitutional principles do not support Milbourn’s mandate for
individualized sentencing.

There is no constitutional right to individualized sentencing in

non-capital cases. Harmelin v. Michigan, 501 U.S. 957, 995 (1991); United States v. Thomas, 49
F.3d 253, 261 (6th Cir. 1995); see also Lockett v. Ohio, 438 U.S. 586, 604-05 (1978) (in a case
holding that mitigating factors must be fully considered in death penalty cases, the Court
“recognize[d] that, in noncapital cases, the established practice of individualized sentences rests not
on constitutional commands, but on public policy enacted into statutes.”). Because Petitioner was
convicted of non-capital offenses, the federal constitution does not guarantee him a right to
individualized sentencing or consideration of mitigating factors. Thus, Petitioner’s claim based on
Milbourn is only a state-law claim and it is not cognizable in a habeas corpus action.
II.

Federal law sentencing claims
A.

Eighth Amendment

Petitioner also contends that his sentence violates the federal constitution. For
example, Petitioner argues that his sentence is excessive under the Eighth Amendment. (Pet. Mich.
Ct. App. Br., ECF No. 1-1, PageID.58-59.) The United States Constitution does not require strict
proportionality between a crime and its punishment. Harmelin, 501 U.S. at 965; United States v.
Marks, 209 F.3d 577, 583 (6th Cir. 2000). “Consequently, only an extreme disparity between crime

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and sentence offends the Eighth Amendment.” Marks, 209 F.3d at 583; see also Lockyer v.
Andrade, 538 U.S. 63, 77 (2003) (gross disproportionality principle applies only in the extraordinary
case); Ewing v. California, 538 U.S. 11, 36 (2003) (principle applies 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’”) (quoting Rummel v. Estelle, 445 U.S. 263, 285 (1980)). A sentence that
falls within the maximum penalty authorized by statute “generally does not constitute ‘cruel and
unusual punishment.’” Austin, 213 F.3d at 302 (quoting United States v. Organek, 65 F.3d 60, 62
(6th Cir. 1995)). Ordinarily, “[f]ederal courts will not engage in a proportionality analysis except
in cases where the penalty imposed is death or life in prison without possibility of parole.” United
States v. Thomas, 49 F.3d 253, 261 (6th Cir. 1995). Petitioner was not sentenced to death or life in
prison without the possibility of parole, and his sentence falls within the maximum penalty under
state law. Petitioner’s sentence, therefore, does not present the extraordinary case that runs afoul
of the Eighth Amendment’s ban of cruel and unusual punishment. The court of appeals’ conclusion
that Petitioner’s Eighth Amendment argument had no merit was neither contrary to, nor an
unreasonable application of, clearly established federal law.
B.

Fourteenth Amendment

Petitioner also challenges his sentence as a due process violation under the
Fourteenth Amendment.

A sentence may violate due process if it is based upon material

“misinformation of constitutional magnitude.” Roberts v. United States, 445 U.S. 552, 556 (1980),
quoted in Koras v. Robinson, 123 F. App’x 207, 213 (6th Cir. Feb. 15, 2005); see also United States
v. Tucker, 404 U.S. 443, 447 (1972); Townsend v. Burke, 334 U.S. 736, 741 (1948). To prevail on
such a claim, the petitioner must show (1) that the information before the sentencing court was

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materially false, and (2) that the court relied on the false information in imposing the sentence.
Tucker, 404 U.S. at 447;United States v. Polselli, 747 F.2d 356, 358 (6th Cir. 1984); Koras, 123 F.
App’x at 213 (quoting United States v. Stevens, 851 F.2d 140, 143 (6th Cir. 1988)). A sentencing
court demonstrates actual reliance on misinformation when the court gives “explicit attention” to
it, “found[s]” its sentence “at least in part” on it, or gives “specific consideration” to the information
before imposing sentence. Tucker, 404 U.S. at 444, 447.
Petitioner does not identify any facts found by the court at sentencing that were either
materially false or based on false information. Instead, he claims that the evidence before the trial
court was insufficient or incomplete.
The factual findings of the trial court with regard to the offense variables are
presumed to be correct. To overcome that presumption, Petitioner must provide clear and
convincing evidence to the contrary. Petitioner cannot simply claim the evidence relied upon by the
trial court was insufficient. Petitioner, therefore, has failed to demonstrate that his sentence violated
due process. Tucker, 404 U.S. at 447; United States v. Lanning, 633 F.3d 469, 477 (6th Cir. 2011)
(rejecting due process claim where the petitioner failed to point to specific inaccurate information
relied upon by the court). The Michigan Court of Appeals’ conclusion that Petitioner’s Fourteenth
Amendment claim was meritless is neither contrary to, nor an unreasonable application of, clearly
established federal law.
C.

Sixth Amendment

Finally, Petitioner challenges his sentence under the Sixth Amendment. Petitioner
contends that the sentence is unconstitutional because it is based on facts found by the judge when

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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).3

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
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

3

Although not cited by Petitioner, this line of cases also includes Ring v. Arizona, 536 US 584 (2002).

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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).4 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 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 before Petitioner was sentenced, however, in People v. Lockridge, 870
N.W.2d 502 (Mich. 2015), in a 5-2 decision, the Michigan Supreme Court considered the question
the Michigan Court of Appeals had faced in Herron and reached the opposite conclusion. The
4
Herron was reversed following the decision in People v. Lockridge, 870 N.W.2d 502 (Mich. 2015). Lockridge
is discussed in detail below.

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Lockridge court reasoned 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 under Alleyne. 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.
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

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minimum[,]” Alleyne, 133 S.Ct. at 1260, and therefore need not “be submitted to a jury, [or be]
proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490. Petitioner’s sentence was imposed
after the decision in Lockridge.5 The sentencing guidelines were no longer mandatory at that time.
The trial court’s sentence was an exercise of discretion. 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 Michigan Court of Appeals rejection of his Sixth Amendment claim is contrary
to, or an unreasonable application of, clearly established federal law. Accordingly, he is not entitled
to habeas relief.
III.

Ineffective assistance of trial counsel

In his appellate court briefs, the Petitioner contends that his trial counsel was
constitutionally ineffective for failing to raise the sentencing issues discussed above. In Strickland
v. Washington, 466 U.S. 668, 687-88 (1984), the Supreme Court established a two-prong test by
which to evaluate claims of ineffective assistance of counsel. To establish a claim of ineffective
assistance of counsel, the petitioner must prove: (1) that counsel’s performance fell below an
objective standard of reasonableness; and (2) that counsel’s deficient performance prejudiced the
defendant resulting in an unreliable or fundamentally unfair outcome. A court considering a claim
of ineffective assistance must “indulge a strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance.” Id. at 689. The defendant bears the burden of

5

Petitioner’s arguments in the Michigan Court of Appeals were based on the premise that he had been sentenced
before Lockridge and, thus, required that his sentence be evaluated as if the guidelines had been mandatory. That
premise is inaccurate. Petitioner was sentenced on September 28, 2015 (Judgments of Sentence, ECF No. 1-1,
PageID.17-20). Lockridge was decided July 29, 2015. Lockridge, 870 N.W.2d at 502. The Michigan Supreme Court
indicated its decision would certainly apply to all cases thereafter. Id., at 521 (“Because sentencing courts will hereafter
not be bound by the applicable sentencing guidelines range, this remedy cures the Sixth Amendment flaw in our
guidelines scheme by removing the unconstitutional constraint on the court’s discretion.”)

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overcoming the presumption that the challenged action might be considered sound trial strategy.
Id. (citing Michel v. Louisiana, 350 U.S. 91, 101 (1955)); see also Nagi v. United States, 90 F.3d
130, 135 (6th Cir. 1996) (holding that counsel’s strategic decisions were hard to attack). The court
must determine whether, in light of the circumstances as they existed at the time of counsel’s
actions, “the identified acts or omissions were outside the wide range of professionally competent
assistance.” Strickland, 466 U.S. at 690. Even if a court determines that counsel’s performance was
outside that range, the defendant is not entitled to relief if counsel’s error had no effect on the
judgment. Id. at 691.
As set forth fully above, all of Petitioner’s sentencing arguments are meritless.
Counsel’s failure to raise a meritless issue does not constitute ineffective assistance of counsel. See
Smith v. Bradshaw, 591 F.3d 517, 523 (6th Cir. 2010); O’Hara v. Brigano, 499 F.3d 492, 506 (6th
Cir. 2007); Chegwidden v. Kapture, 92 F. App’x 309, 311 (6th Cir. 2004); Harris v. United States,
204 F.3d 681, 683 (6th Cir. 2000). “Omitting meritless arguments is neither professionally
unreasonable nor prejudicial.” Coley v. Bagley, 706 F.3d 741, 752 (6th Cir. 2013). Accordingly,
the Michigan Court of Appeals decision rejecting Petitioner’s ineffective assistance of counsel
claims is neither contrary to, nor an unreasonable application of, Strickland.
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.

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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) (it is “somewhat
anomalous” for the court to summarily dismiss under Rule 4 and grant a certificate); Hendricks v.
Vasquez, 908 F.2d 490 (9th Cir. 1990) (requiring reversal where court summarily dismissed under
Rule 4 but granted certificate); Dory v. Comm’r of Corr. of New York, 865 F.2d 44, 46 (2d Cir.
1989) (it was “intrinsically contradictory” to grant a certificate when habeas action does not warrant
service under Rule 4); Williams v. Kullman, 722 F.2d 1048, 1050 n.1 (2d Cir. 1983) (issuing
certificate would be inconsistent with a summary dismissal).
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

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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: June 28, 2017

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

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