ELLEN S. CARMODY, Magistrate Judge.
This is a habeas corpus action brought by a state prisoner under 28 U.S.C. § 2254. Petitioner Kenneth Edward Bolton, III, is incarcerated with the Michigan Department of Corrections at the Michigan Reformatory (RMI) in Ionia, Michigan. Following a jury trial in the Kent County Circuit Court, Petitioner was convicted of one count of first-degree criminal sexual conduct, Mich. Comp. Laws § 750.520b. On March 13, 2014, the court sentenced Petitioner as a habitual offender-second offense, Mich. Comp. Laws § 769.10, to a prison term of 28 to 90 years, to be served consecutively to a sentence of 3 years, 6 months to 20 years. The latter sentence was for an armed robbery offense to which Petitioner entered a plea of guilty in the Kent County Circuit Court during 2005. Petitioner was on parole for the armed robbery offense when he committed the first-degree criminal sexual conduct offense.
On July 21, 2017, Petitioner filed his habeas corpus petition which raises two grounds for relief, as follows:
(Pet., ECF No. 1, PageID.7, 9.) Respondent has filed an answer to the petition (ECF No. 14) stating that the grounds should be denied because they are without merit or procedurally defaulted. Upon review and applying the standards of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. 104-132, 110 Stat. 1214 (AEDPA), I find that the grounds are utterly without merit. Accordingly, I recommend that the petition be denied.
On Sunday night, September 29, 2013, Petitioner and Brenda Sue Hammons had sexual intercourse in a courtyard near the St. James school in Grand Rapids, Michigan. According to Ms. Hammons, Petitioner had beaten her, dragged her to that location, and then, without her consent, penetrated her mouth and vagina with his penis. (Trial Tr. II, ECF No. 15-4, PageID.390-437.) According to Petitioner, he had paid Ms. Hammons $15.00 for consensual oral and vaginal sex. (Id., PageID.474-520.) Petitioner testified that Ms. Hammons had pulled down her pants, leaned forward against a wall, and assisted Petitioner in penetrating her vaginally. (Id.)
Petitioner's story did not match up with the testimony of other witnesses. Two nearby neighbors testified that they heard blood-curdling screams. (Id., PageID.329-339.) One of the neighbors called a seminarian living at the St. James rectory. (Id.) The seminarian investigated and came upon Petitioner on top of Ms. Hammons on the ground, thrusting into her. (Id., PageID.340-358.) The seminarian called the police. (Id.) The first officer on the scene also saw Petitioner thrusting into Ms. Hammons as he laid on top of her on the ground. (Id., PageID.361.)
When the police arrived, Petitioner attempted to flee, but he was caught and detained. (Id., PageID.362-364.) He told the officer several different stories regarding the events that led up to his sexual encounter with Ms. Hammons before settling on the prostitution story that he presented at trial. (Id., PageID.364-368, 375.)
The trial judge was shocked by the brutality of Petitioner's rape of Ms. Hammons. At Petitioner's sentencing hearing, the judge stated he had some issues with the sentencing guidelines. (Sentencing Tr., ECF No. 15-6, PageID.598-599.) He raised them with counsel in chambers. (Id.) When they went on the record, the court raised issues with the scoring of Offense Variable 7. (Id., PageID.599-601.) That variable addresses aggravated physical abuse. The judge indicated: "[that variable] scores 50 points as a victim was treated with sadism, torture or excessive brutality, or conduct designed to significantly increase the fear and anxiety of a victim suffered during the offense." (Sentencing Tr., ECF No. 15-6, PageID.598-599.) The presentence report scored the variable at 0. The judge, after raising the issue, invited comment from defense counsel and then the prosecutor. Not surprisingly, defense counsel opposed scoring the variable at 50 and the prosecutor supported it. The court scored the variable at 50 points noting that this case presented "one of the most brutal rapes" he had ever seen. (Id., PageID.600.)
Next, the judge raised the issue of OV 10 regarding the exploitation of vulnerable victims. The presentence report also scored this variable at 0. The court invited comment from defense counsel and the prosecutor and then scored the variable at 5 points because of the difference in size and age between Petitioner and his victim. (Id., PageID.602.) The court also invited comment on OV 12. The court changed that variable from 5 to 0. Thus, the net result of the court's rescoring of the variable increased Petitioner's total OV points from 65 to 115. That changed his guidelines minimum range from 126 to 262 months to 171 to 356 months. (Sentencing Information Report, ECF No. 15-7, PageID.613.) The court then sentenced Petitioner as described above.
Petitioner takes issue with the sentence that was imposed because, to him, it seems inconsistent with a discussion regarding sentencing that took place before the trial began. When the parties gathered in the courtroom on the first day of trial, before the jury venire was brought in, Petitioner moved to replace his attorney. The court denied the motion and then asked if there was a plea offer on the table. The following exchange ensued:
(Trial Tr. I, ECF No. 15-3, PageID.168-170.)
That exchange forms the foundation of the issues Petitioner raises in this Court and for two of the three issues he raised, with the assistance of counsel, on his direct appeal.
Petitioner then filed his petition in this Court raising the first two issues from his direct appeal.
This action is governed by the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. 104-132, 110 Stat. 1214 (AEDPA). 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). This standard is "intentionally difficult to meet." Woods v. Donald, 575 U.S. ___, 135 S.Ct. 1372, 1376 (2015) (internal quotation 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 holdings, and not the dicta, of the Supreme Court. Williams v. Taylor, 529 U.S. 362, 412 (2000); Bailey v. Mitchell, 271 F.3d 652, 655 (6th Cir. 2001). In determining whether federal law is clearly established, the Court may not consider the decisions of lower federal courts. Williams, 529 U.S. at 381-382; Miller v. Straub, 299 F.3d 570, 578-79 (6th Cir. 2002). 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, 565 U.S. 34 (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 state-court adjudication on the merits. Miller v. Stovall, 742 F.3d 642, 644 (6th Cir. 2014) (citing Greene, 565 U.S. at 38).
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, 135 S. Ct at 1376 (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 prisoner's claims." White v. Woodall, 572 U.S. 415, 424 (2014) (internal quotations 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 contends that his trial counsel effectively told him that, if Petitioner should lose at trial, the range from which his minimum sentence would be selected would be 108 to 225 months. Because Petitioner lost at trial and the range from which his minimum sentence was selected was much higher—171 to 356 months—Petitioner contends his counsel rendered ineffective assistance.
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 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.
Moreover, as the Supreme Court repeatedly has recognized, 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, 562 U.S. 86, 105 (2011) (citing Knowles v. Mirzayance, 556 U.S. 111, 123 (2009)); see also Burt v. Titlow, 571 U.S. 12, 13 (2013); Cullen v. Pinholster, 563 U.S. 170, 190 (2011); Premo v. Moore, 562 U.S. 115, 122 (2011). In those circumstances, the question before the habeas court is "whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Id.; Jackson v. Houk, 687 F.3d 723, 740-41 (6th Cir. 2012) (stating that the "Supreme Court has recently again underlined the difficulty of prevailing on a Strickland claim in the context of habeas and AEDPA . . . .") (citing Harrington, 562 U.S. at 102).
The two-part Strickland test applies to challenges to guilty pleas based on ineffective assistance of counsel. Hill v. Lockhart, 474 U.S. 52, 58 (1985). Regarding the first prong, the court applies the same standard articulated in Strickland for determining whether counsel's performance fell below an objective standard of reasonableness. Id. In analyzing the prejudice prong, the focus is on whether counsel's constitutionally deficient performance affected the outcome of the plea process. "[I]n order to satisfy the `prejudice' requirement, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Id. at 59.
Here, Petitioner does not claim that his counsel's ineffective assistance resulted in accepting a plea offer and foregoing a trial, he claims that counsel's ineffective assistance caused him to reject a plea offer and go to trial when he should have accepted the offer. In Lafler v. Cooper, 566 U.S. 156 (2012), the Supreme Court held that, in a claim alleging that counsel was ineffective in advising a defendant about a plea offer, the Strickland standard continues to apply. As in Hill v. Lockhart, 474 U.S. 52, 58 (1985), the prejudice prong of Strickland turns on whether, absent counsel's errors, the result of the plea process would have been different. See Lafler, 566 U.S. at 163-67. In such circumstances, "defendants must demonstrate a reasonable probability they would have accepted the earlier plea offer had they been afforded effective assistance of counsel." Missouri v. Frye, 132 S.Ct. 1399, 1409 (2012).
The Michigan Court of Appeals rejected Petitioner's argument:
(Mich. Ct. App. Op., ECF No. 15-8, PageID.615-616.) The state appellate court expressly relied on the clearly established federal law regarding ineffective assistance of counsel in the context of plea advice: Strickland and Lafler. Moreover, as set forth fully below, the court of appeals' application of that clearly established federal law and its determination of facts was entirely reasonable.
First, as the Michigan Court of Appeals recognized, Petitioner's argument mischaracterizes the record plea discussion.
Moreover, the estimate offered by defense counsel and the prosecutor (108 to 180 months) was fairly accurate. The change that resulted in the dramatic increase of the guidelines minimum range was the testimony that was elicited during trial regarding the severity of the beating the victim suffered at the hands of Petitioner. That testimony permitted the trial court to conclude this rape was the most brutal he had ever encountered. That testimony would not have been in the record if Petitioner had entered the plea.
Moreover, by opting for trial Petitioner was subject to an additional risk: that he would be convicted of two acts of penetration. Petitioner survived that risk—he was convicted of one penetration and acquitted of the other—but it was a risk that a higher guidelines range would result and a risk that precluded perfectly accurate estimation of Petitioner's sentence in the event of conviction.
The state court of appeals relied on state authority to support the proposition that miscalculation of a possible sentence does not rise to the level of ineffective assistance of counsel, but federal courts have reached the same conclusion. United States v. Gordon, 4 F.3d 1567, 1570-1571 (10th Cir. 1993); Doganiere v. United States, 914 F.2d 165 (9th Cir. 1990); United States v. Arvinitis, 902 F.2d 489, 494 (7th Cir. 1990); Mix v. Robinson, 64 F. App'x 952, 956-57 (6th Cir. 2003). Indeed, incorrectly estimating parole eligibility was the error that the Supreme Court concluded was not sufficiently prejudicial to constitute ineffective assistance of counsel in Hill, 474 U.S. at 59-60.
Finally, the state appellate court's determination that Petitioner would not have accepted the plea offer even if Petitioner enjoyed perfect prescience with respect to his sentence following conviction was reasonable on the record. Petitioner's refusal to accept any responsibility for the events of September 29, 2013, is apparent from the record, particularly from his statements at sentencing that he expected an apology for what had happened to him. Indeed, Petitioner rejected the prosecutor's offer, an offer he had heard before, without even consulting with his attorney.
The Michigan Court of Appeals' determination that Petitioner's counsel had not rendered ineffective assistance was not contrary to, or an unreasonable application of clearly established federal law. Moreover, the factual determinations upon which the court relied to reach that conclusion are reasonable on the record. Accordingly, Petitioner is not entitled to habeas relief on his ineffective assistance claim.
Petitioner next attempts to blame the prosecutor for his decision to reject the plea offer. The Michigan Court of Appeals rejected this claim as well:
(Mich. Ct. App. Op., ECF No. 15-8, PageID.616-617.)
The appellate court's statement that Petitioner's "fraud" argument fails because there is no "factual predicate," is a kind way of stating that it is utterly frivolous. Petitioner's argument consists of the following statements:
(Pet'r's Appeal Br., ECF No. 15-8, PageID.648-650; Pet'r's Appl. for Leave to Appeal, ECF No. 15-9, PageID.750-752.) The argument is specious. There is absolutely no record support for Petitioner's claim that the prosecutor told him that rejecting the plea offer put him at risk for an additional 45 months—
Plaintiff's claim that these circumstances demonstrate prosecutorial vindictiveness is also frivolous. The record is entirely devoid of any support for the Petitioner's foundational premise that the prosecutor told Petitioner that he risked only 45 months of additional minimum term imprisonment by foregoing the plea deal. Absent that representation, the only possible basis for interpreting the prosecutor's guideline arguments as vindictive would be to compare the resulting number to the offered plea. It is ludicrous to suggest that a prosecutor should be deemed unconstitutionally vindictive because he or she seeks a higher sentence upon conviction after trial than the prosecutor offered in plea negotiations.
In Bordenkircher v. Hayes, 434 U.S. 357 (1978), the Supreme Court considered the difficulties of identifying prosecutorial vindictiveness in the context of plea negotiations. The Court's analysis is instructive here:
Bordenkircher, 434 U.S. at 362-64. For the reasons set forth in Bordenkircher, the fact that the prosecutor here sought a greater sentence following conviction than was discussed at the plea negotiation table cannot be interpreted as unconstitutional vindictiveness.
The state appellate court's decision rejecting Petitioner's prosecutorial fraud and vindictiveness claims is neither contrary to, nor an unreasonable application of, clearly established federal law. Accordingly, Petitioner is not entitled to habeas relief on his prosecutorial misconduct claims.
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). 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, I have 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.
I find that reasonable jurists could not conclude that this Court's denial of Petitioner's claims would be debatable or wrong. Therefore, I recommend that the Court deny Petitioner a certificate of appealability.
For the foregoing reasons, I recommend that the habeas corpus petition be denied. I further recommend that a certificate of appealability be denied.
