OPINION AND ORDER DENYING (1) THE PETITION FOR WRIT OF HABEAS CORPUS; (2) A CERTIFICATE OF APPEALABILITY, AND (3) GRANTING LEAVE TO APPEAL IN FORMA PAUPERIS

ARTHUR J. TARNOW, Senior District Judge.

Adrian Gibson, ("Petitioner"), presently on parole supervision with the Michigan Department of Corrections through the Detroit Metro Parole Office, seeks the issuance of a writ of habeas corpus pursuant to 28 U.S.C. §2254. In his application, Petitioner challenges his conviction and sentence for (1) felon in possession of a firearm, M.C.L.A. 750.224f, and (2) possession of a firearm during the commission of a felony, M.C.L.A. 750.227b. Petitioner was acquitted of the additional charges of two counts of first-degree premeditated murder, M.C.L.A. 750.316 (1)(a), and assault with intent to commit murder, M.C.L.A. 750.83. For the reasons stated below, the petition for writ of habeas corpus is DENIED.

I. BACKGROUND

Petitioner, Adrian Gibson, was convicted of the above offenses following a bench trial in the Wayne County Circuit Court. This Court recites verbatim the relevant facts relied upon by the Michigan Court of Appeals, which are presumed correct on habeas review pursuant to 28 U.S.C. § 2254(e)(1). See Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009):

People v. Gibson, No. 283508, * 1-2 (Mich.Ct.App. May 21, 2009).

Petitioner's conviction was affirmed on appeal. Id., lv. den. 485 Mich. 898, 772 N.W.2d 424 (2009).

Petitioner seeks a writ of habeas corpus on the following grounds:

II. STANDARD OF REVIEW

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, 130 S.Ct. 1855, 1862 (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, 131 S.Ct. 770, 786 (2011)(citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).

III. DISCUSSION

A. Sufficiency of the Evidence and Inconsistent Verdict.

Petitioner first contends 1) that there was no evidence upon which a verdict of guilt on the firearm charges could have been based and 2) the trial court rendered an inconsistent verdict by acquitting him of two counts of first-degree premeditated murder and assault with intent to commit murder, but then convicting him of being a felon in possession of a firearm and felony firearm.

It is beyond question that "the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In Re Winship, 397 U.S. 358, 364 (1970). But the critical inquiry on review of the sufficiency of the evidence to support a criminal conviction is, "whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 318 (1979). This inquiry, however, does not require a court to "ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt." Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Id. at 318-19 (internal citation and footnote omitted)(emphasis in the original). Circumstantial evidence alone is sufficient to support a conviction, and it is not necessary for the evidence at trial to exclude every reasonable hypothesis except that of guilt. Johnson v. Coyle, 200 F.3d 987, 992 (6th Cir. 2000)(internal quotations omitted).

More importantly, a federal habeas court may not overturn a state court decision that rejects a sufficiency of the evidence claim simply because the federal court disagrees with the state court's resolution of that claim. Instead, a federal court may grant habeas relief only if the state court decision was an objectively unreasonable application of the Jackson standard. See Cavazos v. Smith, 132 S.Ct. 2, 4 (2011). "Because rational people can sometimes disagree, the inevitable consequence of this settled law is that judges will sometimes encounter convictions that they believe to be mistaken, but that they must nonetheless uphold." Id.

The elements of felony-firearm are that the defendant possessed a firearm while committing, or while attempting to commit, a felony offense. See Parker v. Renico, 506 F.3d 444, 448 (6th Cir. 2007). The elements of felon in possession of a firearm in Michigan include: (1) a previous felony conviction, (2) that the defendant possessed a firearm, and (3) that at the time of possession, less than three or five years, depending on the underlying felony, has passed since the defendant had completed his term of incarceration, satisfied all conditions of probation and parole, and paid all fines. Id.

Petitioner initially contends that this Court should set aside the verdict because the judge's decision to find him guilty of the firearm charges is inconsistent with her decision to acquit him of the murder and assault with intent to commit murder charges.

The Michigan Court of Appeals indicated in rejecting petitioner's claim, the trial judge's findings of fact and conclusions of law were not inconsistent:

The trial judge's factual findings determined that Moore's and Garrett's testimony established that they personally observed petitioner in possession of a MAC-11 weapon. Petitioner's identity as the shooter was not established beyond a reasonable doubt; however, the trial court could logically find that the witnesses' testimony was sufficient to establish that petitioner possessed a MAC-11 firearm during the commission of the crime beyond a reasonable doubt. The trial court's decision to acquit petitioner of the murder and assault charges while convicting him of the charges of felon in possession and felony firearm was not inconsistent.

Petitioner further claims that the evidence was insufficient because the witnesses were not credible. Attacks on witness credibility are simply challenges to the quality of the prosecution's evidence, and not to the sufficiency of the evidence. Martin v. Mitchell, 280 F.3d 594, 618 (6th Cir. 2002). An assessment of the credibility of witnesses is therefore generally beyond the scope of federal habeas review of sufficiency of evidence claims. Gall v. Parker, 231 F.3d 265, 286 (6th Cir. 2000). The mere existence of sufficient evidence to convict therefore defeats a petitioner's claim. Id. To the extent that petitioner's insufficiency of evidence claim rests on an allegation of the witnesses' credibility, which is the province of the finder of fact, petitioner would not be entitled to habeas relief. See Tyler v. Mitchell, 416 F.3d 500, 505 (6th Cir. 2005).

B. The Right of Confrontation.

Petitioner next contends that his right to confrontation was violated when the prosecutor was permitted to read Jeffrey Moore's preliminary examination testimony after Moore claimed at trial that he had no recollection of the events of the night in question and Kareem Garrett's preliminary examination testimony into evidence after the prosecutor was unable to obtain his presence at trial.

When prosecutors seek to admit a nontestifying witness' preliminary hearing testimony, the Confrontation Clause requires two things: first, the prosecution must establish that the declarant is "unavailable" by showing that prosecutorial authorities have made a good-faith effort to obtain the declarant's presence at trial, and, second, to satisfy the "indicia of reliability" requirement, the prosecution must demonstrate that the defendant had an adequate opportunity to cross-examine the declarant at the preliminary examination. See Pillette v. Berghuis, 630 F.Supp.2d 791, 804 (E.D. Mich. 2009); overruled on other grounds at 408 Fed Appx 873 (6th Cir. 2010); cert. den. 132 S.Ct. 125 (2011)(citing McCandless v. Vaughn, 172 F.3d 255, 265 (3rd Cir. 1999)).

The Michigan Court of Appeals concluded that Moore's preliminary examination testimony was admissible because Moore stated numerous times at trial that he did not recall any facts from the night of the shooting, his testimony at the preliminary examination, or the statement he made to the police. The prosecutor attempted to refresh Moore's memory with the contents of his statement, but Moore continued to profess that he had no recollection. Moore's claimed lack of memory brought his preliminary examination testimony within the scope of M.R.E. 804(a)(3) and M.R.E. 804(b)(1). Moore's lack of memory qualified him as an unavailable witness under rule 804(a)(3). See U.S. v. Rodgers, 4 F.3d 995 (Table); 1993 WL 330642, * 3 (6th Cir. August 30, 1993).

With respect to Garrett's preliminary examination testimony, as the Michigan Court of Appeals indicated in rejecting petitioner's claim, See Gibson, Slip. Op. at * 5-6, the record establishes that the prosecution made diligent good-faith efforts to secure Garrett's presence at petitioner's trial:

In the present case, the police made numerous attempts to locate Garrett. When the police finally caught up with Garrett, he ran away from the police, thus, demonstrating an intent to make himself unavailable for trial. This Court concludes that the prosecution and law enforcement made a good faith effort to locate Garrett and present him at trial. See Winn v. Renico, 175 Fed.Appx. 728, 739 (6th Cir. 2006); See also Pillette, 630 F. Supp. 2d at 804.

Next, the trial court must satisfy the "indicia of reliability" requirement in order to admit the preliminary examination testimony of the witnesses. In order to satisfy this requirement, the prosecution must demonstrate that the defendant had an adequate opportunity to cross-examine the declarant at the preliminary examination. Moore's and Garrett's former preliminary examination testimony bore adequate indicia of reliability because it was made under oath, petitioner and his counsel were present, and the witnesses were subject to cross-examination. California v. Green, 399 U.S. 149, 165-66 (1970); Pillette, 630 F. Supp. 2d at 804; Eastham v. Johnson, 338 F.Supp. 1278, 1280 (E.D. Mich. 1972). Counsel's cross-examination at the preliminary examination successfully attacked Moore's and Garrett's testimony, rendering it almost completely incredible, thereby limiting its use later by the trial court judge. Moreover, even if counsel did not take full advantage of the opportunity to cross-examine Moore and Garrett at the preliminary examination, he had an unlimited opportunity to do so. Therefore, the admission of the preliminary examination testimony at petitioner's trial did not violate his right to confrontation. See Glenn v. Dallman, 635 F.2d 1183, 1187 (6th Cir. 1980); Havey v. Kropp, 458 F.2d 1054, 1057 (6th Cir. 1972).

C. Sentencing.

Petitioner finally brings a number of challenges to his sentencing.

Petitioner first alleges that the trial court judge incorrectly scored several of the sentencing guidelines variables. Article III, § 2 of the United States Constitution requires the existence of a case or controversy through all stages of federal judicial proceedings. This means that, throughout the litigation, the petitioner "must have suffered, or be threatened with, an actual injury traceable to the defendant and likely to be redressed by a favorable judicial decision." Lewis v. Continental Bank Corp., 494 U.S. 472, 477 (1990). An incarcerated habeas petitioner's challenge to the validity of his or her conviction satisfies the case-or-controversy requirement because the incarceration constitutes a concrete injury which can be redressed by the invalidation of the conviction. See Spencer v. Kemna, 523 U.S. 1, 7 (1998). Once the convict's sentence has expired, however, some concrete and continuing injury other than the now-ended incarceration or parole — some "collateral consequence" of the conviction — must exist if the suit is to be maintained in federal court and not considered moot. Id. The scoring of the minimum range of Petitioner's sentence would effect Petitioner's eligibility for parole. Petitioner is already on parole. Being that Petitioner is currently on parole, his sentencing guideline claim is now moot.

Even if Petitioner's guideline claim were not moot, a challenge to an incorrectly scored or calculated sentencing guidelines range under the Michigan Sentencing Guidelines is not a cognizable claim for federal habeas review, because it is a state law claim. See Tironi v. Birkett, 252 Fed. Appx. 724, 725 (6th Cir. 2007); Howard v. White, 76 Fed. Appx. 52, 53 (6th Cir. 2003); Whitfield v. Martin, 157 F.Supp.2d 758, 762 (E.D. Mich. 2001). "Petitioner has 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). "[I]n short, petitioner 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 further argues that he was erroneously scored for the two pre-meditated murder charges and intent to commit murder charge of which he had been acquitted. At sentencing, the trial court specifically stated that although there was insufficient evidence to prove the murder and assault offenses beyond a reasonable doubt, "by a preponderance of the evidence, [it] believed that [defendant is] the person who shot these people, based on all of the testimony together."

This conclusion may be inconsistent with the rational of the new Supreme Court Case. That is, to increase a sentence, the facts relied upon must be proven beyond a reasonable doubt.

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, ___ U.S. ___; 2013 WL 2922116, * 4 (U.S. June 17, 2013). In so holding, 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. Id. at * 6. At the time of petitioner's conviction and sentence, Harris was good law. In addition, there is no indication that the Supreme Court made their holding in Alleyne retroactive to cases on collateral review. A federal district court "may only grant habeas relief [if it finds] that the [state] trial court's decision was `contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States' or `was based on an unreasonable determination of the facts in light of the evidence that was presented in the State court proceeding.'" Peak v. Webb, 673 F.3d 465, 472 (6th Cir. 2012) (quoting 28 U.S.C. § 2254(d)). In addition, "[t]he law in question must have been clearly established at the time the state-court decision became final, not after." Id. (citing Williams v. Taylor, 529 U.S. at 380). Because the Supreme Court at the time of petitioner's conviction did not require that facts that increase a criminal defendant's minimum sentence be proven beyond a reasonable doubt, petitioner is not entitled to habeas relief on his claim. Any error by the trial court in calculating his guideline score does not merit habeas relief. Furthermore, petitioner's sentencing issue is moot and not subject to habeas relief.

4. A Certificate of Appealability.

A habeas petitioner must receive a certificate of appealability ("COA") in order to appeal the denial of a habeas petition for relief from either a state or federal conviction.1 28 U.S.C. § 2253(c)(1)(A), (B). A court may issue a COA "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 federal district court rejects a habeas claim on the merits, the substantial showing threshold is met if the petitioner demonstrates that reasonable jurists would find the district court's assessment of the constitutional 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. 322, 327 (2003). In applying this standard, a district court may not conduct a full merits review, but must limit its examination to a threshold inquiry into the underlying merit of the petitioner's claims. Id. at 336-37.

The Court will deny a certificate of appealability, because jurists of reason would not find the Court's resolution of the claims to be debatable.

Although this Court will deny a certificate of appealability to petitioner, the standard for granting an application for leave to proceed in forma pauperis (IFP) 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)(citing United States v. Youngblood, 116 F.3d 1113, 1115 (5th Cir. 1997)). 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 IFP status if it finds that an appeal is being taken in good faith. Id. at 764-65; 28 U.S.C. § 1915(a)(3); Fed. R.App.24 (a). "Good faith" requires a showing that the issues raised are not frivolous; it does not require a showing of probable success on the merits. Foster, 208 F. Supp. 2d at 765. Although jurists of reason would not debate this Court's resolution of Petitioner's claims, the issues are not frivolous; therefore, an appeal could be taken in good faith and Petitioner may proceed in forma pauperis on appeal. Id.

IV. CONCLUSION

For the reasons stated above, this Court concludes that Petitioner Gibson is not entitled to federal-habeas relief on the claims presented in his petition.

Accordingly, IT IS ORDERED that the petition for writ of habeas corpus is DENIED WITH PREJUDICE. (Dkt.# 1).

IT IS FURTHER ORDERED that a certificate of appealability is DENIED.

IT IS FURTHER ORDERED that Petitioner will be granted leave to appeal in forma pauperis.