ROBERT H. CLELAND, District Judge.
Petitioner Dante Deshawn Moore presently confined at the Parnall Correctional Facility in Jackson, Michigan, filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, in which he challenged his conviction for four counts of criminal sexual conduct in the first-degree.
Petitioner was convicted following a jury trial in the Macomb County Circuit Court.
Petitioner began sexually abusing his step-daughter, S.F., when she was eleven years old.
Petitioner testified at trial and denied sexually abusing his step-daughter. (Tr. 7/19/07, p. 14).
Following his conviction, Petitioner's appellate counsel filed a motion for a remand to the trial court for an evidentiary hearing pursuant to People v. Ginther, 212 N.W.2d 922 (Mich. 1973) on his ineffective assistance of counsel. People v. Moore, No. 281046 (Mich. Ct. App. Feb. 27, 2009). The motion was granted and an evidentiary hearing was held on June 4, 2010; the judge determined that counsel was not ineffective. Hr'g Tr. 12 June 4, 2010, ECF No. 10-12, 905.
After the remand proceedings, the Court of Appeals affirmed Petitioner's convictions and sentences. People v. Moore, No. 281046, 2011 WL 2140361 (Mich. Ct. App. May 31, 2011). Petitioner's motion for reconsideration also was denied. People v. Moore, No. 281046 (Mich. Ct. App. Aug. 19, 2011).
Petitioner subsequently filed an application for leave to appeal the Court of Appeals's decision with the Michigan Supreme Court. The Michigan Supreme Court, in lieu of granting leave to appeal, reversed the Court of Appeals's judgment in part and remanded the case to the Macomb County Circuit Court for resentencing, and in all other respects denied the application. People v. Moore, 806 N.W.2d 306 (Mich. 2011).
Petitioner was re-sentenced on September 12, 2012 to concurrent terms of 136 months to 30 years' imprisonment for each of his convictions.
In 2012, Petitioner filed his habeas petition, which was held in abeyance pending the resolution of Petitioner's re-sentencing appeal in the state courts. The court also administratively closed the case. Moore v. Bergh, No. 12-cv-14679; 2013 WL 2049136 (E.D. Mich. May 14, 2013). Petitioner's new sentence was affirmed on appeal. People v. Moore, No. 312909, 2014 WL 953571(Mich. Ct. App. Mar. 11, 2014); leave to appeal denied at 852 N.W.2d 178 (Mich. 2014).
On June 26, 2015, the court granted Petitioner's motion to lift the stay and to amend his habeas petition. In his original and amended petitions, Petitioner seeks relief on the following grounds:
28 U.S.C. § 2254(d), as amended by The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), imposes the following standard of review for habeas cases:
A decision of a state court is "contrary to" clearly established federal law if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if the state court decides a case differently than the Supreme Court has on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). An "unreasonable application" occurs when "a state court decision unreasonably applies the law of [the Supreme Court] to the facts of a prisoner's case." Id. at 409. A federal habeas court may not "issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Id. at 410-11.
The Supreme Court has explained that "[A] federal court's collateral review of a state-court decision must be consistent with the respect due state courts in our federal system." Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). The "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 v. Murphy, 521 U.S. 320, 333, n.7 (1997); Woodford v. Viscotti, 537 U.S. 19, 24 (2002) (per curiam)). "[A] state court's determination that a claim lacks merit precludes federal habeas relief so long as `fairminded jurists could disagree' on the correctness of the state court's decision." Harrington v. Richter, 562 U.S. 86, 101 (2011) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The Supreme Court has emphasized "that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Id. at 102 (citing Lockyer v. Andrade, 538 U.S. 63, 75 (2003). Furthermore, pursuant to § 2254(d), "a habeas court must determine what arguments or theories supported or . . . could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision" of the Supreme Court. Id. A habeas petitioner should be denied relief as long as it is within the "realm of possibility" that fairminded jurists could find the state court decision to be reasonable. See Woods v. Etherton, 136 S.Ct. 1149, 1152 (2016).
To show that he was denied the effective assistance of counsel under federal constitutional standards, Petitioner must satisfy a two prong test. First, he must demonstrate that, considering all of the circumstances, counsel's performance was so deficient that the attorney was not functioning as the "counsel" guaranteed by the Sixth Amendment. Strickland v. Washington, 466 U.S. 668, 687 (1984). In so doing, Petitioner must overcome a strong presumption that counsel's behavior lies within the wide range of reasonable professional assistance. Id. In other words, Petitioner must overcome the presumption that, under the circumstances, the challenged action might be sound trial strategy. Strickland, 466 U.S. at 689. Second, Petitioner must show that such performance prejudiced his defense. Id. To demonstrate prejudice, he must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. "Strickland's test for prejudice is a demanding one. `The likelihood of a different result must be substantial, not just conceivable.'" Storey v. Vasbinder, 657 F.3d 372, 379 (6th Cir. 2011) (quoting Harrington, 562 U.S. at 112). The Supreme Court's holding in Strickland places the burden on the defendant who raises a claim of ineffective assistance of counsel, and not the state, to show a reasonable probability that the result of the proceeding would have been different, but for counsel's allegedly deficient performance. See Wong v. Belmontes, 558 U.S. 15, 27 (2009).
More importantly, on habeas review, "the question `is not whether a federal court believes the state court's determination' under the Strickland standard `was incorrect but whether that determination was unreasonable-a substantially higher threshold.'" Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (quoting Schriro v. Landrigan, 550 U.S. 465, 473 (2007)). "The pivotal question is whether the state court's application of the Strickland standard was unreasonable. This is different from asking whether defense counsel's performance fell below Strickland's standard." Harrington v. Richter, 562 U.S. at 101. Indeed, "because the Strickland standard is a general standard, a state court has even more latitude to reasonably determine that a defendant has not satisfied that standard." Knowles, 556 U.S. at 123 (citing Yarborough v. Alvarado, 541 U.S. at 664). Pursuant to the § 2254(d)(1) standard, a "doubly deferential judicial review" applies to a Strickland claim brought by a habeas petitioner. Id. This means that on habeas review of a state court conviction, "[A] state court must be granted a deference and latitude that are not in operation when the case involves review under the Strickland standard itself."Harrington, 562 U.S. at 101.
Petitioner initially appears to argue that he was constructively denied the assistance of counsel because his trial attorney failed to subject the prosecutor's case to "meaningful adversarial testing."
Where defense counsel entirely fails to subject the prosecution's case to "meaningful adversarial testing," there has been a constructive denial of counsel, and a defendant need not make a showing of prejudice to establish ineffective assistance of counsel. Moss v. Hofbauer, 286 F.3d 851, 860 (6th Cir. 2002) (quoting United States v. Cronic, 466 U.S. 648, 659 (1984)). However, in order for a presumption of prejudice to arise based on an attorney's failure to test the prosecutor's case—such that reversal based on ineffective assistance of counsel is warranted with no inquiry into prejudice— the attorney's failure to test the prosecutor's case "must be complete." Bell v. Cone, 535 U.S. 685, 697 (2002).
Counsel's alleged errors here came nowhere close to "constructive denial of counsel." Counsel actively represented Petitioner at his trial. Moss, 286 F. 3d at 860-62. Petitioner's counsel actively participated in jury voir dire. (Tr. 7/17/07, pp. 11-12, 31-47, 50, 53). Petitioner's counsel made an opening statement. (Id., pp. 73-81). Counsel extensively cross-examined the prosecution's witnesses. (Tr. 7/17/07, pp. 118-60, Tr. 7/18/07, pp. 4-11, 47-80, 84-87, 89, 120-39, 144-46). Counsel made numerous objections. (Tr. 7/17/07, pp. 3-4, 104, 110, 162, 164, 167-69; Tr. 7/18/07, pp. 32, 38, 83, 92-95, 97, 102-104, 106-07, 109, 113, 116, 120, 140). Counsel questioned Petitioner on the witness stand. (Tr. 7/18/07, pp. 149-74, Tr. 7/19/07, pp. 3-17). Counsel made an extensive closing argument. (Tr. 7/19/07, pp. 58-73).
The Cronic presumption "applies only where defense counsel completely or entirely fails to oppose the prosecution throughout the guilt or penalty phase as a whole." Benge v. Johnson, 474 F.3d 236, 247 (6th Cir. 2007) (citing Bell, 535 U.S. at 697). In this case, counsel's alleged failures do not approach a "complete" failure to provide a defense. The presumption of prejudice therefore does not apply and Petitioner would be required to show that he was actually prejudiced by counsel's alleged omissions in order to obtain habeas relief. Id.
Petitioner first contends that trial counsel was ineffective for failing to obtain records of the victim's arrest for assault and her psychological records from Harbor Oaks Hospital. Petitioner argues that this evidence would have impeached the victim's credibility and established a motive for her to fabricate the charges against Petitioner because it was only after the victim was arrested for the assault charge against her mother and taken to Harbor Oaks that she disclosed the sexual abuse.
The Michigan Court of Appeals rejected petitioner's claim:
People v. Moore, 2011 WL 2140361, at * 3 (internal citation omitted).
Petitioner is not entitled to relief on his claim because there is no evidence that the victim was arrested for assault or that the psychiatric records contained any references to the sexual abuse charges. Conclusory allegations of ineffective assistance of counsel, without any evidentiary support, do not provide a basis for habeas relief. See Workman v. Bell, 178 F.3d 759, 771 (6th Cir. 1998).
Moreover, defense counsel extensively cross-examined the victim and the other witnesses in this case and brought out a wealth of information to impeach the victim's credibility and to support the defense theory that the victim fabricated these charges. Counsel elicited testimony from Anitra Moore, Petitioner's ex-wife and S.F.'s mother, that Ms. Moore had been charged with the crime of assault with intent to commit murder in 2005, for shooting at Petitioner, although the charge was dismissed when Petitioner failed to appear in court. S.F. admitted that this made her angry against Petitioner. (Tr. 7/17/07, pp. 118-19, Tr. 7/18/07, pp. 75-78). Ms. Moore admitted that she called the police to her home after S.F. had gotten angry and thrown lotion and food all over the basement. Ms. Moore indicated that the police offered to file an incorrigibility charge, a juvenile status offense, against S.F. Ms. Moore testified that the police took S.F. from their home to Harbor Oaks Hospital for a psychiatric evaluation, and that S.F. was crying during the initial intake. (Tr. 7/17/07, pp. 130-40). Ms. Moore admitted that S.F. never told her about the sexual abuse allegations or being threatened by Petitioner with a knife until she was hospitalized. (Id., pp. 141, 146). Ms. Moore testified that although Petitioner was no longer living with them in 2005 and the two were seeking a divorce, S.F. did not tell her at that point about the abuse allegations. (Id., pp. 158-59).
S.F. admitted on cross-examination that she never liked Petitioner and would tell him that he was not her father. (Tr. 7/18/07, pp. 47, 52-53). S.F. admitted that she had been kicked out of school twice. (Id., pp. 50-51). Although acknowledging that she told her uncles about the fights between Petitioner and her mother, S.F. admitted she never informed them about the sexual abuse. (Id., pp. 53-54, 86-87). S.F. admitted that the police took her to Harbor Oaks in handcuffs because she had been disrespecful to her mother. S.F. admitted to being scared. (Id., pp. 65-69). S.F. was confronted with several inconsistencies between her trial testimony and her preliminary examination testimony concerning the details of the assaults. (Id., pp. 65, 74-75). S.F. never told her mother about the assaults even after her mother and Petitioner had divorced and he was no longer living with them. (Id., pp.76-78).
Petitioner was not prejudiced by counsel's failure to introduce S.F.'s psychological records or any additional arrest records because such evidence was cumulative of other evidence and witnesses presented at trial in support of Petitioner's claim that the victim had falsely accused Petitioner of sexually assaulting her. Wong, 558 U.S. at 22-23; see also United States v. Pierce, 62 F.3d 818, 833 (6th Cir. 1995). In this case, the jury had significant evidence presented to it that the victim had delayed reporting the alleged abuse, that the police had been called to her house because the victim had created a disturbance, that the police had taken her to a psychiatric hospital, that these were motives for the victim to fabricate sexual assault charges against Petitioner, and inconsistencies in her testimony. Because the jury was "well acquainted" with evidence that would have supported Petitioner's claim that the victim fabricated these charges, additional evidence in support of Petitioner's defense "would have offered an insignificant benefit, if any at all." Wong, 558 U.S. at 23. Petitioner has failed to overcome the presumption that counsel's decision not to present additional evidence concerning the victim's motive to fabricate a sexual assault charge against Petitioner was sound trial strategy. See Robinson v. Lafler, 643 F.Supp.2d 934, 939 (W.D. Mich. 2009) (finding defense counsel was not ineffective in failing to call additional witnesses to testify about victim's motive to lie; decision was reasonable and within the range of professionally competent assistance.).
Petitioner next claims that trial counsel was ineffective for failing to call an expert witness to testify on the issues of delayed disclosure and false disclosure of sexual abuse allegations, particularly after Detective Michael Gagnon testified regarding his experiences with child disclosure of sexual abuse.
The Michigan Court of Appeals discussed at great length Petitioner's claim before rejecting it:
People v. Moore, 2011 WL 2140361, at *4-5 (internal citation omitted).
Although Petitioner's counsel did not call an expert witness on delayed or false disclosures of sexual abuse, trial counsel cross-examined the victim and her mother extensively about S.F.'s failure to promptly disclose the sexual abuse allegations, even after Ms. Moore and Petitioner had gotten a divorce and he was no longer living with them. Counsel also questioned the victim about her hatred for Petitioner. Counsel elicited from both the victim and her mother the fact that the sexual abuse disclosures were made only after the victim was taken in handcuffs by the police to a psychiatric hospital after the victim created a disturbance at home. Counsel argued in closing argument the victim reported the sexual abuse two and a half years after it happened. Counsel noted that although the victim reported fights between her mother and Petitioner to her uncles, she never mentioned the sexual abuse. Counsel argued that the victim had many opportunities to report the sexual abuse after Petitioner no longer lived with them, but failed to do so. Counsel also argued that the victim's disclosure to the psychological evaluator may have been motivated by the victim attempting to refocus attention on Petitioner to escape from her own bad situation. (Tr. 7/19/07, pp. 58-73). Moreover, contrary to the Michigan Court of Appeals' findings, defense counsel did appear to challenge Detective Gagnon's opinion in several ways. On crossexamination, counsel obtained an admission from Detective Gagnon that he was assigned to the Youth Bureau and not to a division assigned to specifically investigate sex offenses. Gagnon further admitted that he had been involved in investigating only about 20 criminal sexual conduct cases involving children. (Tr. 7/18/07, pp. 121-22, 136-37). Gagnon further admitted that he did not tape the interview with the victim, nor did he ask her questions, but simply asked the victim to write down in a narrative fashion what happened. (Id., pp. 130-31).
The Michigan Court of Appeals reasonably determined that Petitioner was not prejudiced by counsel's failure to present expert psychiatric testimony on delayed or false sexual abuse disclosures in light of the fact that trial counsel subjected the victim and her mother to a lengthy cross-examination regarding the victim's motives, her recall of the sexual abuse, and the consistency, reliability, and timing of her disclosures. See Piontek v. Palmer, 546 Fed. App'x. 543, 551 (6th Cir. 2013). Accordingly, Petitioner is not entitled to relief on his claim. Id.
In his second claim, Petitioner argues that the state trial court should have permitted him to conduct post-conviction discovery concerning the victim's arrest report, her psychological records, the victim's school records, and any child protective services investigations regarding the victim's other siblings.
To the extent that Petitioner alleges that his rights were violated by the trial court's refusal to order discovery before conducting the Ginther hearing as part of Petitioner's appeal, he is not entitled to relief. There is no federal constitutional right to an appeal. See Abney v. U. S., 431 U.S. 651, 656 (1977); see also Smith v. Robbins, 528 U.S. 259, 270, n. 5 (2000) (The Constitution does not require states to create appellate review in criminal cases). The right of appeal, as presently known to exist in criminal cases, "is purely a creature of statute," and "in order to exercise that statutory right, one must come within the terms of the applicable statute" with regards to that right to appeal. Abney, 431 U.S. at 656. In addition, violations of state law and procedure which do not infringe specific federal constitutional protections are not cognizable claims under Section 2254. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Whether the trial court erred in failing to order discovery before conducting Petitioner's evidentiary hearing on his ineffective assistance of counsel claims is a question of state law that cannot be reviewed in a federal habeas petition. See e.g. Hayes v. Prelesnik, 193 Fed. App'x. 577, 584 (6th Cir. 2006). Moreover, there is no clearly established Supreme Court law which recognizes a constitutional right to a state court evidentiary hearing to develop a claim of ineffective assistance of counsel on appeal. Id. at 585. The trial court's refusal to order discovery before conducting the Ginther hearing does not entitle Petitioner to relief. To the extent that Petitioner asks this court to order discovery of this information, his request is denied.
Habeas petitioners have no automatic right to discovery. Stanford v. Parker, 266 F.3d 442, 460 (6th Cir. 2001). A district court has the discretion, under Rule 6 of the Rules Governing § 2254 Cases, 28 U.S.C. foll. § 2254, to grant discovery to a petitioner in a habeas case upon a fact specific showing of good cause, such as if a petitioner presents specific allegations which give the court reason to conclude that, if fully developed, the facts may lead the district court to believe that federal habeas relief is appropriate. See Johnson v. Mitchell, 585 F.3d 923, 934 (6th Cir. 2009); see also Lott v. Coyle, 261 F.3d 594, 602 (6th Cir. 2001). However, Rule 6 of the Habeas Rules does not "sanction fishing expeditions based on a petitioner's conclusory allegations." Williams v. Bagley, 380 F.3d 932, 974 (6th Cir. 2004) (internal quotation omitted). A habeas petitioner's conclusory allegations are insufficient to warrant discovery under Rule 6. Id. Instead, the petitioner must set forth specific allegations of fact. Id.
As mentioned above relative to Petitioner's ineffective assistance of counsel claim, his counsel extensively impeached the victim's credibility and highlighted the motives for her sexual abuse allegations. Counsel particularly elicited information that the victim disclosed the sexual abuse only after she had been arrested and investigated for a possible incorrigibility charge and had been taken to a psychiatric hospital. Petitioner does no more than to speculate that these additional records would contain exculpatory information. In light of the extensive impeachment evidence presented in this case, Petitioner cannot show that he was prejudiced by counsel's failure to impeach S.F. with such mental health or school records or any child protective services investigations. Petitioner is not entitled to discovery of S.F.'s mental health or school records or any child protective services investigations because Petitioner has failed to show that the requested discovery could resolve any factual disputes that could entitle him to relief on his ineffective assistance of counsel claim. Williams, 380 F. 3d at 975. Petitioner is not entitled to relief on his second claim.
Petitioner next claims that his right to a fair trial was violated when Detective Gagnon was permitted to offer opinion testimony regarding various characteristics of child sex abuse victims without first being qualified as an expert on the subject.
The Michigan Court of Appeals rejected Petitioner's claim. Although ruling that the trial court erred in permitting Detective Gagnon to testify without first determining whether he would be qualified as an expert witness, the Michigan Court of Appeals concluded that Detective Gagnon would have qualified as an expert witness for the purpose of testifying about the behavioral tendencies of sex abuse victims because it was based on his experiences and training as a police officer, in which he had worked on over 100 similar cases involving both children and adult victims and "had significant training on issues relating to sexual assault cases, including interviewing child victims." People v. Moore, 2011 WL 2140361, at *6.
Errors in the application of state law, especially rulings regarding the admissibility of evidence, are usually not questioned by a federal habeas court. Seymour v. Walker, 224 F.3d 542, 552 (6th Cir. 2000). In addition, federal habeas courts "`must defer to a state court's interpretation of its own rules of evidence and procedure' when assessing a habeas petition." Miskel v. Karnes, 397 F.3d 446, 453 (6th Cir. 2005) (quoting Allen v. Morris, 845 F.2d 610, 614 (6th Cir. 1988)).
The admission of expert testimony in a state trial presents a question of state law which does not warrant federal habeas relief, unless the evidence violates due process or some other federal constitutional right. See Keller v. Larkins, 251 F.3d 408, 419 (3rd Cir. 2001). Thus, a federal district court cannot grant habeas relief on the admission of an expert witness' testimony in the absence of Supreme Court precedent which shows that the admission of that expert witness' testimony on a particular subject violates the federal constitution. See Wilson v. Parker, 515 F.3d 682, 705-06 (6th Cir. 2008). In light of the deferential standard afforded to state courts under the AEDPA, the trial court's decision to permit Detective Gagnon to offer opinion evidence concerning the behavioral tendencies of child sex abuse victims was not contrary to clearly established federal law. Petitioner cannot claim habeas relief on this basis. See e.g. Schoenberger v. Russell, 290 F.3d 831, 835 (6th Cir. 2002).
Petitioner lastly contends that the prosecutor committed misconduct when she repeatedly mentioned Petitioner's post-arrest silence.
The Michigan Court of Appeals discussed, and rejected, Petitioner's claim at length:
Next, the prosecutor asked:
People v. Moore, 2011 WL 2140361, at * 7 (internal citations omitted).
It is a violation of the Due Process clause of the Fourteenth Amendment for the prosecution to use a defendant's post-arrest silence to impeach exculpatory testimony given by the defendant at trial. Doyle v. Ohio, 426 U.S. 610, 619 (1976); See also Gravley v. Mills, 87 F.3d 779, 786 (6th Cir. 1996). However, isolated references to a defendant's exercise of his right to remain silent do not deprive a criminal defendant of a fair trial when the prosecution does not use the defendant's silence to prove his guilt. U.S. v. Weinstock, 153 F.3d 272, 280-81 (6th Cir. 1998); See also U.S. v. Robinson, 357 Fed. Appx. 677, 683 (6th Cir. 2009) (both citing Greer v. Miller, 483 U.S. 756 (1987)).
In the present case, although there were several brief and improper references to Petitioner's post-Miranda silence, the Michigan Court of Appeals' decision that there was no due process violation remains a reasonable application of Supreme Court precedent, in light of the fact that the references to Petitioner's post-Miranda silence were infrequent and the prosecutor never used Petitioner's silence in her closing argument to prove his guilt. See e.g. Shaieb v. Burghuis, 499 Fed. App'x. 486, 498-99 (6th Cir. 2012). Petitioner is not entitled to relief on his fourth claim.
The court considers Petitioner's two sentencing claims together for better clarity. Petitioner first claims that the trial court improperly scored his sentencing guidelines.
Petitioner's claim under the Michigan Sentencing Guidelines regime that the state trial court incorrectly scored or calculated his range is not a cognizable claim for federal habeas review. It is basically a state law claim. See Tironi v. Birkett, 252 Fed. App'x. 724, 725 (6th Cir. 2007); Howard v. White, 76 Fed. App'x. 52, 53 (6th Cir. 2003). Petitioner had "no state-created interest in having the Michigan Sentencing Guidelines applied rigidly in determining his sentence." See Mitchell v. Vasbinder, 644 F.Supp.2d 846, 867 (E.D. Mich. 2009). Petitioner thus "had 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). Any error by the trial court in calculating his guideline score would not merit habeas relief. Id. Petitioner's claim that the state trial court improperly departed above the correct sentencing guidelines range would thus not entitle him to habeas relief, because such a departure does not violate any of Petitioner's federal due process rights. Austin v. Jackson, 213 F.3d 298, 301 (6th Cir. 2000).
Petitioner further appears to argue that the trial court judge violated his Sixth Amendment right to a trial by jury by using factors that had not been submitted to a jury and proven beyond a reasonable doubt or admitted to by Petitioner when scoring these guidelines variables under the Michigan Sentencing Guidelines.
On June 17, 2013, the United States Supreme Court ruled that any fact that increases the mandatory minimum sentence for a crime is an element of the criminal offense that must be proven beyond a reasonable doubt. See Alleyne v. United States, 133 S.Ct. 2151, 2155 (2013). Alleyne is an extension of the Supreme Court's holdings in Apprendi v. New Jersey, 530 U.S. 466 (2000) and Blakely v. Washington, 542 U.S. 296 (2004), in which the U.S. Supreme Court held that any fact that increases or enhances a penalty for a crime beyond the prescribed statutory maximum for the offense must be submitted to the jury and proven beyond a reasonable doubt. In reaching this conclusion, the Supreme Court overruled Harris v. United States, 536 U.S. 545 (2002), in which the Supreme Court had held that only factors that increase the maximum, as opposed to the minimum, sentence must be proven beyond a reasonable doubt to a factfinder. Alleyne, 133 S. Ct. at 2157-58. The Supreme Court, however, indicated that its decision did not mean that every fact influencing judicial discretion in sentencing must be proven to a jury beyond a reasonable doubt. Id. at 2163.
Alleyne is inapplicable here because "Alleyne dealt with judge-found facts that raised the mandatory minimum sentence under a statute, not judge-found facts that trigger an increased guidelines range," which is what happened to Petitioner. See United States v. Cooper, 739 F.3d 873, 884 (6th Cir. 2014); See also United States v. James, 575 Fed. 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 Fed. 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 the question whether judicial factfinding under Michigan's indeterminate sentencing scheme violates the Sixth Amendment. See Kittka v. Franks, 539 Fed. App'x. 668, 673 (6th Cir. 2013).
The court is aware that the Michigan Supreme Court recently relied on the Alleyne decision in holding that Michigan's Sentencing Guidelines scheme violates the Sixth Amendment right to a jury trial. See People v. Lockridge, 870 N.W.2d 502 (Mich. 2015).
However, Petitioner cannot rely on Lockridge to obtain relief with this 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 the state court decision is contrary to, or an unreasonable application of, clearly established federal law. See 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. 1:16-CV-206, 2016 WL 1068744, at * 5 (W.D. Mich. Mar. 18, 2016). In light of the fact that the Sixth Circuit has ruled that Alleyne does not apply to sentencing guidelines factors, reasonable jurists at a minimum could disagree about whether Alleyne applies to the calculation of Michigan's minimum sentencing guidelines. Id. at * 6. "Alleyne therefore did not clearly establish the unconstitutionality of the Michigan sentencing scheme and cannot form the basis for habeas corpus relief." Id.; See also Perez v. Rivard, No. 2:14-CV-12326, 2015 WL 3620426, at * 12 (E.D. Mich. June 9, 2015) (petitioner not entitled to habeas relief on claim that his sentencing guidelines scored in violation of Alleyne). Petitioner is not entitled to relief on his fifth claim.
Petitioner in his sixth claim argues that the trial court on re-sentencing should have applied the law-of-the-case doctrine to determine the appropriate sentencing guidelines range. "As a general matter, a habeas petitioner's claim that the trial court violated state law when sentencing him is not cognizable in habeas corpus proceedings." Bridinger v. Berghuis, 429 F.Supp.2d 903, 908 (E.D. Mich.,2006). A federal court cannot review a state court's alleged failure to adhere to its own sentencing procedures. See e.g. Draughn v. Jabe, 803 F.Supp. 70, 81 (E.D. Mich. 1992). To the extent that Petitioner challenges the Michigan Courts' interpretation of the scope of the remand order, this is also non-cognizable on habeas relief. See Norwood v. Bell, No. 06-429, 1009 WL 1525989, * 7 (W.D. Mich. June 1, 2009). Petitioner is not entitled to relief on his sixth claim.
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 a habeas claim on the merits, the substantial showing threshold is met if the petitioner demonstrates that reasonable jurists would find the court's assessment of the claim debatable or wrong. See 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. at 327. In applying this standard, a court may not conduct a full merits review, but must limit its examination to a threshold inquiry into the underlying merits of the claim. Id. at 336-37.
Having considered the matter, the court concludes that Petitioner has not made a substantial showing of the denial of a constitutional right as to his habeas claims. Accordingly, the Court will deny Petitioner a certificate of appealability.
The standard for granting an application for leave to proceed in forma pauperis is a lower standard than the standard for certificates of appealability. See Foster v. Ludwick, 208 F.Supp.2d 750, 764 (E.D.Mich.2002). Whereas a certificate of appealability may only be granted if petitioner makes a substantial showing of the denial of a constitutional right, a court may grant leave to proceed in forma pauperis if it finds that an appeal is being taken in good faith. 28 U.S.C. § 1915(a)(3); Fed. R.App. P. 24(a); Foster, 208 F.Supp.2d at 764-65. "Good faith" requires a showing that the issues raised are not frivolous; it does not require a showing of probable success on the merits. Id. at 765. Although this is a decidedly lower standard, the court will nonetheless deny leave to proceed in forma pauperis on appeal because the appeal would be frivolous for the reasons stated above.
IT IS ORDERED that Petitioner Dante DeShawn Moore's petition for writ of habeas corpus [Dkt. # 1] and the amended petition for writ of habeas corpus [Dkt. # 14] are DENIED.
IT IS FURTHER ORDERED that the court DECLINES to issue a certificate of appealability.
