Washington #203240 v. McQuiggin

Filing 5

OPINION ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)

UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION

SYLVESTER WASHINGTON,
Petitioner,
v.

Case No. 2:11-cv-212
Honorable Robert Holmes Bell

GREG McQUIGGIN,
Respondent.
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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 Sylvester Washington presently is incarcerated at the Chippewa
Correctional Facility. Petitioner pleaded guilty in the Jackson County Circuit Court to one count of
armed robbery, MICH . COMP . LAWS § 750.529, and one count of third-offense domestic violence,
MICH . COMP . LAWS § 750.814. On March 21, 2007, he was sentenced to respective prison terms of
23 years and 9 months to 30 years and 1 year and 4 months to 2 years.
Petitioner sought leave to appeal his sentences to both the Michigan Court of Appeals
and the Michigan Supreme Court, raising two issues: (1) the trial court erred in scoring Offense
Variable (OV) 7; and (2) the trial court erred in assessing of attorney fees as part of the judgment.
The court of appeals denied leave to appeal on May 8, 2008, for lack of merit in the grounds
presented. On February 4, 2009, the supreme court ordered Petitioner’s application for leave to
appeal held in abeyance pending issuance of a decision in People v. Jackson, 769 N.W.2d 630 (Mich.
2009). After issuance of the Jackson decision, the supreme court denied leave to appeal on
September 28, 2009.
Petitioner filed a motion for relief from judgment in the Jackson County Circuit Court
in November 2009. In that motion, Petitioner raised three new arguments: (1) whether he was
entitled to resentencing based on the improper scoring of Prior Record Variable (PRV) 1;
(2) whether appellate counsel was ineffective with regard to post-sentencing issues; and (3) whether
the trial court abused its discretion by violating the two-thirds rule of People v. Tanner, 199 N.W.2d
202 (Mich. 1972). On May 17, 2010, the circuit court denied the motion on the merits. Petitioner
sought leave to appeal to both the Michigan Court of Appeals and the Michigan Supreme Court. The
courts denied leave to appeal on September 21, 2010 and April 8, 2011, respectively.
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In his habeas application, Petitioner raises all five issues presented to and rejected by
the Michigan courts on direct and collateral review.
Discussion
This action is governed by the Antiterrorism and Effective Death Penalty Act, 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). 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 proceeding.” 28 U.S.C. § 2254(d).
I.

Sentencing Claims

Petitioner raises a series of state-law sentencing claims. In Ground I of his habeas
application, Petitioner asserts that the state court improperly scored PRV 1, MICH . COMP . LAWS
§ 777.50, at 50 points by considering convictions that were more than 10 years old. In Ground III,
Petitioner contends that the state court abused its discretion by violating Tanner, 199 N.W.2d 202,
which held that the minimum sentence could not exceed two-thirds of the maximum sentence. In
Ground IV, Petitioner argues that the trial court improperly scored OV 7, MICH . COMP . LAWS §
777.37(1)(a), at 50 points by concluding that the victim was subjected to sadism, torture or excessive

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brutality or that Petitioner’s conduct was designed to substantially increase the fear and anxiety of
a victim of the offense.
Petitioner’s sentencing claims are not cognizable on habeas review. 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.”). Since Petitioner has no federal right to an individualized sentence, this
ground presents an issue of state law only. Petitioner has not alleged grounds for the Court to
conclude that this is one of those rare instances where an alleged state-law sentencing error was so
egregious that it led to a fundamentally unfair outcome. See Koras v. Robinson, 123 F. App’x 207,
213 (6th Cir. 2005) (citing Bowling v. Parker, 344 F.3d 487, 521 (6th Cir. 2003)). Grounds I, III,
and IV of the petition therefore fail to present a meritorious federal claim.
II.

Assessment of Attorney Fees

In his fifth habeas ground, Plaintiff contends that the judgment of sentence improperly
assessed attorney fees against him, in violation of People v. Dunbar, 690 N.W.2d 476 (Mich. Ct.
App. 2004). In Dunbar, the Michigan Court of Appeals held that a sentencing court must determine
a defendant’s foreseeable ability to pay presentencing, that is, before imposing a fee to recoup fees
for court-appointed attorneys. Id. at 486. The Michigan Supreme Court held Petitioner’s application
for leave to appeal in abeyance pending its decision in Jackson, 769 N.W.2d 630. In Jackson, the
Michigan Supreme Court considered the constitutionality of Michigan’s statutory scheme for
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recouping fees for court-appointed attorneys. Id. at 633. The state supreme court examined existing
United States Supreme Court precedent regarding the imposition of fees on indigent defendants. Id.
at 635-36 (discussing James v. Strange, 407 U.S. 128 (1972); Fuller v. Oregon, 417 U.S. 40 (1974);
and Bearden v. Georgia, 461 U.S. 660 (1983)). Overruling Dunbar, 690 N.W.2d 476, the Jackson
court concluded that criminal defendants do not have a constitutional right to a presentence
determination of their ability to pay fees. Instead, the Jackson court concluded that Michigan’s
statutory scheme for recouping court-appointed attorney fees, MICH . COMP . LAWS §§ 769.1k-769.1l,
was constitutional because it required that, before a trial court could enforce any fee imposed at
sentencing, the defendant must be advised of the enforcement action and be given an opportunity to
contest enforcement based on his indigency. Jackson, 769 N.W.2d at 642-43. On the basis of the
its decision in Jackson, the state supreme court reconsidered and denied Petitioner’s application for
leave to appeal.
The state court’s determination was an entirely reasonable application of established
Supreme Court precedent. In James, 407 U.S. 128, the Supreme Court found unconstitutional a
Kansas recoupment statute that permitted the state to recoup court-appointed attorney fees without
permitting the defendant to raise any of the defenses permitted to other civil judgments. Most
importantly, the recoupment provision did not permit the defendant to defend the execution of the
recoupment based on an inability to pay. Id. at 135-36. As a consequence, the Court found that the
Kansas statute violated the Equal Protection Clause. Id. at 141-42.
In Fuller, 417 U.S. 40, the Supreme Court considered the Oregon statutory scheme
for recouping court-appointed attorney fees. The Fuller Court distinguished the Oregon statutory
model from the one at issue in James. Id. at 47. The Court held that the Oregon statute, unlike the
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Kansas statute, treated debt for court-appointed attorney fees the same as other civil judgments,
allowing the same exemptions to collection. In addition, unlike in James, the Oregon statute was
not mandatory, and required the sentencing court to consider at sentencing the likelihood that the
defendant would have a future ability to pay. Id. at 45-46. Based on these distinctions, the Court
upheld the constitutionality of the Oregon recoupment scheme.
In Bearden v. Georgia, 461 U.S. 660 (1983), the Supreme Court again considered a
state attempt to recoup court-appointed attorney fees. In Bearden, a Georgia defendant was ordered,
as a condition of his three-year term of probation, to pay a $500.00 fine and $250.00 in restitution.
When the petitioner lost his job and was unable to pay the balance of the fine and restitution, his
probation was revoked and he was sentenced to prison for the remainder of the probationary term.
The Supreme Court held that, absent a finding of intentional failure to pay or other fault by the
probationer, a sentencing court may not revoke an indigent defendant’s probation because he is
unable to pay his court-ordered debt. Id. at 668-69.
As the Michigan Supreme Court recognized, James, Fuller, and Bearden do not
endorse a single model for state recoupment of court-appointed attorney fees. Jackson, 769 N.W.2d
at 636 (citing Alexander v. Johnson, 742 F.2d 117, 124 (4th Cir. 1984)). Although the Fuller Court
held the Oregon scheme constitutional and that scheme required a presentence determination of
future ability to pay, nothing in the Fuller decision suggests that a presentence determination is
constitutionally mandatory. Further, in Bearden, the Court held only that a defendant had a right to
an ability-to-pay hearing before having his probation revoked for failure to pay the fee. It therefore
was entirely reasonable for the Jackson court to interpret Fuller and Bearden as fully consistent with
Michigan law, which requires an ability-to-pay hearing only when the order of restitution is to be
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enforced. Indeed, as the Jackson court observed, pre-enforcement timing of the ability-to-pay
hearing is more likely to produce a superior assessment to one conducted presentencing:
Despite our deepest wishes to the contrary, no judge is so clairvoyant, and the state
should not be forever precluded from seeking repayment from a defendant who has
later gained the ability to pay, simply because at the time of sentencing it wrongly
concluded that the defendant would never rise above indigency.
Id. at 641. Because the Michigan statute requires an ability-to-pay hearing before enforcement of
the fee begins, the statute meets the constitutional concerns addressed by the Supreme Court.
Accordingly, the state court’s determination is neither contrary to nor an unreasonable application
of established Supreme Court precedent.
III.

Ineffective Assistance of Appellate Counsel

Finally, in Ground II of his habeas application, Petitioner contends that he was denied
the effective assistance of counsel when his attorney failed to raise the “dead bang winner”
arguments presented by Petitioner in his motion for relief from judgment. Specifically, he argues
that appellate counsel committed constitutional error in failing to challenge the scoring of PRV 1 and
failing to challenge Petitioner’s minimum sentence under the two-thirds rule of Tanner, 199 N.W.2d
202.
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

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counsel’s conduct falls within the wide range of reasonable professional assistance.” Id. at 689. The
defendant bears the burden of 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.
An appellant has no constitutional right to have every non-frivolous issue raised on
appeal. “‘[W]innowing out weaker arguments on appeal and focusing on’ those more likely to
prevail, far from being evidence of incompetence, is the hallmark of effective appellate advocacy.”
Smith v. Murray, 477 U.S. 527, 536 (1986) (quoting Jones v. Barnes, 463 U.S. 745, 751-52 (1983)).
To require appellate counsel to raise every possible colorable issue “would interfere with the
constitutionally protected independence of counsel and restrict the wide latitude counsel must have
in making tactical decisions.” Strickland, 466 U.S. at 688. As the Supreme Court recently has
observed, it is difficult to demonstrate that an appellate attorney has violated the performance prong
where the attorney presents one argument on appeal rather than another. Smith v. Robbins, 528 U.S.
259, 289 (2000). In such cases, the petitioner must demonstrate that the issue not presented “was
clearly stronger than issues that counsel did present.” Id. at 289. Appellate counsel may be found
to be ineffective for failing to raise a meritorious state-law claim. See Goff v. Bagley, 601 F.3d 445,
464 (6th Cir. 2010). The underlying issue need not be constitutional. Id.
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Here, the state circuit court directly addressed Petitioner’s claim of ineffective
assistance of counsel as it applied to Petitioner’s claim regarding the two-thirds rule:
Counsel is ineffective if (1) counsel’s performance falls below an objective
standard of reasonableness under the prevailing professional norms, and (2) there is
a reasonable probability that the outcome of the proceeding would have been
different if counsel had not erred. People v Uphaus, 278 Mich.App. 174, 185; 748
N.W.2d 899, 906 (2008). Here, Defendant’s appellate counsel did not commit such
an error.
MCL 769.34(2)(b) states, “The court shall not impose a minimum sentence,
including a departure, that exceeds 2/3 of the statutory maximum sentence.” As the
Prosecutor points out in the Answer to this motion, the law regarding the 2/3 Rule
was settled when Defendant’s appeal was argued. “MCL 769.34 does not apply
when a defendant is convicted of an offense punishable by a prison sentence of ‘life
or any term of years’ because the minimum will never exceed 2/3 of the statutory
maximum sentence of life authorized by the jury verdict.” People v Harper, 479
Mich. 599, 617; 739 N.W.2d 523, 534 (2007). Armed robbery is such an offense.
MCL 750.529. In People v. Floyd, 481 Mich. 938; 751 N.W.2d 34, the Michigan
Supreme Court did order resentencing under MCL 769.34(2)(b). While that decision
may cast some doubt on this rule, it is important to note that some of the offenses in
that case did not permit a sentence of “life or any term of years.” That is not the case
here. In fact, the court did not even mention the rule stated in Harper. Absent some
clearer statement from the Michigan Supreme Court, this Court finds that the rule
state in Harper still applies, and Defendant’s sentence is appropriate under that rule.
Because Defendant’s appellate counsel acted in accordance with the law as
it stood at the time the appeal was filed and argued, this Court finds that counsel’s
performance was reasonable. Further, because the sentence is proper under Harper,
this Court also finds no actual prejudice.
(Br. in Supp. of Compl., App’x C, docket #2-3, Page ID#44.)
As the Supreme Court recently has observed, when a federal court reviews a state
court’s application of Strickland under § 2254(d), the deferential standard of Strickland is “doubly”
deferential. Harrington v. Richter, 131 S. Ct. 770, 788 (2011) (citing Knowles v. Mirzayance, 129
S. Ct. 1411, 1420 (2009)); see also Premo v. Moore, 131 S. Ct. 733, 740 (2011). In those
circumstances, the question before the habeas court is “whether there is any reasonable argument that
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counsel satisfied Strickland’s deferential standard.” Id. Here, the state court concluded that, because
the claim was without merit, appellate counsel neither rendered deficient performance nor prejudiced
Petitioner in any way by failing to raise the claim. That determination constituted a patently
reasonable application of established Supreme Court precedent. See Willis v. Smith, 351 F.3d 741,
745 (6th Cir. 2003) (holding that a failure to raise a meritless issue cannot amount to ineffective
assistance of appellate counsel) (citing Greer v. Mitchell, 264 F.3d 663, 676 (6th Cir. 2001)); see
also Smith v. Bradshaw, 591 F.3d 517, 523 (6th Cir. 2010).
Moreover, although the trial court did not directly discuss whether counsel was
ineffective in failing to raise the scoring of PRV 1 on appeal, the court addressed the scoring of
PRV 1 on the merits. The trial court found that PRV 1 was properly scored at 50 points because,
although Petitioner’s 1989 burglary convictions were older than ten years, they remained relevant
at sentencing because they were committed within ten years of another offense that itself was
committed within ten years of the offenses of conviction. The court held that, under MICH . COMP .
LAWS § 777.50, the 1989 burglary offenses were properly scored. The Michigan Court of Appeals
and the Michigan Supreme Court both denied leave to appeal, which must be presumed to be meritbased affirmances. See Guilmette v. Howes, 624 F.3d 286, 289-90 (6th Cir. 2010) (holding that
unexplained orders of state appellate courts are presumed to uphold the last reasoned decision
below). Because the state courts found the sentencing claim to be meritless and that decision is not
cognizable on habeas review, appellate counsel cannot be considered ineffective in failing to raise
the claim on appeal. See Willis, 351 F.3d at 745; Bradshaw, 591 F.3d at 523.

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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) (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 the State 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
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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: June 23, 2011

/s/ Robert Holmes Bell
ROBERT HOLMES BELL
UNITED STATES DISTRICT JUDGE

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