HUGH W. BRENNEMAN, Jr., Magistrate Judge.
Petitioner, a prisoner currently incarcerated at a Michigan correctional facility, has filed a petition for writ of habeas corpus, pursuant to 28 U.S.C. § 2254.
The crimes in this case occurred on the evening of July 3, 2007 and continued over into the early morning hours of July 4, 2007, in Berrien County, Michigan. During that period of time, petitioner fractured one victim's skull with a hammer, tried to attack another victim with a blade and stole a car. The events were fairly summarized by respondent as follows:
Respondent's Brief at pp. 4-5.
Following a jury trial in the Berrien County Circuit Court, petitioner was convicted of assault with intent to do great bodily harm less than murder, M.C.L. § 750.84; unlawfully driving away an automobile (UDAA), M.C.L. § 750.413; and two counts of assault with a dangerous weapon (felonious assault), M.C.L. § 750.82. People v. Valdez, No. 285962, slip op. at p. 1(Mich. App. Nov. 19, 2009) (docket no. 12). He was sentenced as an habitual offender, fourth offense, M.C.L. § 769.12, to concurrent terms of 10 to 30 years imprisonment for assault with intent to do great bodily harm less than murder, 76 months to 30 years imprisonment for UDAA, and 58 months to 180 months imprisonment for each count of felonious assault. Id.
Petitioner, through counsel, raised three issues in his direct appeal to the Michigan Court of Appeals:
Petitioner's Brief (docket no. 12). The Michigan Court of Appeals affirmed the conviction and sentences. Valdez, No. 285962 (Mich. App. Nov. 19, 2009).
Petitioner raised the same three issues in his pro per application for leave to appeal to the Michigan Supreme Court. See Application for leave (docket no. 13). The Michigan Supreme Court denied the application because it was "not persuaded that the questions presented should be reviewed by this Court." People v. Valdez, No. 140325 (Mich. March 29, 2010) (docket no. 18).
Petitioner raised the same three issues in his habeas petition filed in this Court and relies on the arguments set forth in his appellate brief. See Petition at pp. 4-5 (docket no. 1); Brief (docket no. 1-3).
Petitioner seeks relief under 28 U.S.C. §2254, which provides that "a district judge shall entertain an application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." Before petitioner may seek such relief in federal court, she must first fairly present the substance of her claims to all available state courts, thereby exhausting all state remedies. Picard v. Connor, 404 U.S. 270, 277-78 (1981); Clemmons v. Sowders, 34 F.3d 352, 354 (6th Cir. 1994); see 28 U.S.C. §2254(b)(1)(A). In the present case, petitioner has exhausted his state remedies with respect to his habeas claims.
Where the state court has adjudicated a claim on its merits, the federal district court's habeas corpus review is limited by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which provides in pertinent part that:
28 U.S.C. § 2254(d).
The AEDPA "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. 776, 773 (2010) (internal quotation marks and citations omitted). "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, ___ U.S. ___, 131 S.Ct. 770, 786 (2011). "Section 2254(d) reflects the view that habeas corpus is a `guard against extreme malfunctions in the state criminal justice systems,' not a substitute for ordinary error correction through appeal." Id. The AEDPA's deferential standard "requires Petitioner to show `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 [Supreme Court precedent] beyond any possibility for fairminded disagreement.'" Blackmon v. Booker, 696 F.3d 536, 538 (6th Cir. 2012), quoting Harrington, 131 S. Ct. at 786-87. "It bears repeating that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Harrington, 131 S. Ct. at 786. "If this standard is difficult to meet, that is because it was meant to be." Id.
Under the "contrary to" clause of § 2254(d)(1), "a federal habeas court may grant the writ only if the state court arrived at a conclusion opposite to that reached by the Supreme Court on a question of law, or if the state court decided the case differently than the Supreme Court has on a set of materially indistinguishable facts." Jalowiec v. Bradshaw, 657 F.3d 293, 301 (6th Cir. 2011), citing Williams v. Taylor, 529 U.S. 362, 412-13 (2000). Under the "unreasonable application" clause of § 2254(d)(1), "a federal court may grant the writ only if the state court identified the correct governing legal principle from the Supreme Court's decisions but unreasonably applied that principle to the facts of the petitioner's case." Id. A court may not issue a writ of habeas corpus "simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Williams, 529 U.S. at 411. Rather, to grant habeas relief, the state court's application of the law must be found to be "objectively unreasonable." Id. at 409.
A determination of a factual issue by a state court is presumed to be correct. 28 U.S.C. § 2254(e)(1). A habeas petitioner has the burden of rebutting the presumption of correctness by clear and convincing evidence that the state court's determination was erroneous. Magana v. Hofbauer, 263 F.3d 542, 546-47 (6th Cir. 2001). The presumption of correctness accorded to a state court's findings of fact on federal habeas review also applies to the factual findings of a state appellate court based on the state trial record. Brumley v. Winegard, 269 F.3d 629 (6th Cir. 2001).
Petitioner contends that his trial counsel was ineffective for failing to investigate and raise an insanity defense. The Michigan Court of Appeals addressed this issue as follows:
Valdez, No. 285962, slip op. at pp.1-2.
In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court set forth a twoprong test to determine whether counsel's assistance was so defective as to require reversal of a conviction: (1) the defendant must show that counsel's performance was deficient and (2) the defendant must show that counsel's deficient performance prejudiced the defense, i.e., "that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland, 466 U.S. at 687. In making this determination, the court "must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." Id. at 690. "[T]he threshold issue is not whether [petitioner's] attorney was inadequate; rather, it is whether he was so manifestly ineffective that defeat was snatched from the hands of probable victory." United States v. Morrow, 977 F.2d 222, 229 (6th Cir. 1992) (emphasis in original), cert. denied 508 U.S. 975 (1993). Under Strickland, the reviewing court's scrutiny of counsel's performance is highly deferential, and the court is to presume that counsel rendered adequate assistance and made decisions with reasonable professional judgment. Strickland, 466 U.S. at 689-690.
As the Michigan Court of Appeals aptly noted, petitioner "has provided no evidence, affidavits or documentation to support the claim that he may have been, or had the potential to be, pathologically intoxicated such that he was insane or temporarily insane at the time of the incidents leading to his arrest." Contrary to petitioner's position on appeal, the trial testimony indicates that petitioner was aware of his actions and the consequences of those actions. After attacking Alvarado with a hammer, petitioner threatened him and Priscilla Obregaon in an effort to prevent Alvarado from reporting the incident to the police. Petitioner also tried to prevent Alvarado from getting to the hospital. When Alvarado eventually left for the hospital, petitioner stole a car and fled the area.
The Michigan Court of Appeals determined that the evidence presented at trial or during the appeal did not support a viable insanity defense under state law. Give this record, defense counsel was not ineffective for failing to raise such a claim. The Supreme Court "has never required defense counsel to pursue every claim or defense, regardless of its merit, viability, or realistic chance for success." Knowles v. Mirzayance, 556 U.S. 111, 123 (2009). Defense counsel is not ineffective for failing to raise a meritless argument. See Coley v. Bagley, 706 F.3d 741, 752 (6th Cir. 2013) ("[o]mitting meritless arguments is neither professionally unreasonable nor prejudicial"); United States v. Sanders, 165 F.3d 248, 253 (3rd Cir. 1999) ("[t]here can be no Sixth Amendment deprivation of effective counsel based on an attorney's failure to raise a meritless argument"); Ludwig v. United States, 162 F.3d 456, 459 (6th Cir. 1998) ("[c]ounsel was not required to raise meritless arguments to avoid a charge of ineffective assistance of counsel"); Lilly v. Gilmore, 988 F.2d 783, 786 (7th Cir. 1993) ("[t]he Sixth Amendment does not require counsel . . . to press meritless issues before a court"). Accordingly, petitioner's claim should be denied.
Petitioner contends that the trial court sentenced petitioner without taking into account all of the mitigating evidence in violation of due process, equal protection, "and other protected rights under the United States and Michigan Constitutions." Petitioner's Brief at p. 18. The Michigan Court of Appeals addressed this issue as follows:
Valdez, No. 285962, slip op. at p. 2.
Petitioner's brief does not address any particular mitigating factor that existed in this case, other that stating that "[t]he record discloses that [petitioner] was never evaluated by a medical professional to support an insanity or temporary insanity defense in light of the offense(s) and his substance abuse history (i.e., alcohol and cocaine), as disclosed on page 2 of the Presentence Investigation Report." Petitioner's Brief at pp. 10-11. While petitioner refers to the Presentence Investigation Report, that report is not in the Court file. The undersigned agrees with the Michigan Court of Appeals' observation that petitioner has merely announced a position on this issue leaving it to this Court "to discover and rationalize" the basis for his claim. "[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived. It is not sufficient for a party to mention a possible argument in a most skeletal way, leaving the court to. . . put flesh on its bones." McPherson v. Kelsey, 125 F.3d 989, 995-96 (6th Cir. 1997).
Even if the Court considered this claim, petitioner is not entitled to relief. Contrary to petitioner's claim, the sentencing transcript reflects that the trial judge was aware of mitigating factors and presumably took those into account. At the sentencing, defense counsel told the judge that petitioner did not "commit these crimes out of any sort of malice," but that "[h]e was intoxicated at the time and I suspect does not fully recall even wanting to injure this person." Sent. Trans. at p. 13. In his statement to the trial judge, however, petitioner appeared to contradict defense counsel's attempt at mitigation, claiming that he planned "to come back on appeal," that he did not have a fair trial, and that "this Michael Alvarado guy" that he attacked "ain't no good guy like you guys think he is," and that from what petitioner heard Alvarado had "just been involved in a murder that happened in Lansing." Id.
Before handing down the sentence, the trial judge examined a number of factors, including matters raised in the Presentence Investigation Report:
Id. at pp. 14-15.
In reviewing this report, the trial judge noted that petitioner had been to jail five times in the past and prison once. Id. at pp. 15-16. The trial judge also noted that petitioner had been involved in four other offenses which involved assaultive type activities, which she found "very troubling," and the testimony in the present case petitioner committed "an extremely violent act" which was "completely and totally inexcusable, without justification." Id. at p. 16. Based on this record, the trial judge found that "for the safety of this community, it's appropriate that you be incarcerated for a significant period of time," with the purpose of the sentence to be "punishment, protection of the community, deterrence, reformation, as well as, restitution." Id. Based on this record, the trial judge appropriately considered a variety of factors in determining petitioner's sentence, including those set out in the Presentence Investigation Report.
To the extent that petitioner claims the trial judge violated Michigan law, such claims are not issues cognizable under § 2254. Federal habeas review is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States. Estelle v. McGuire, 502 U.S. 62, 68 (1991). "A federal court may not issue the writ on the basis of a perceived error of state law." Pulley v. Harris, 465 U.S. 37, 41 (1984). Federal habeas corpus relief does not lie for errors of state law, which includes the state's computation of petitioner's prison term. Kipen v. Renico, 65 Fed. Appx. 958, 959 (6th Cir. 2003), citing Estelle, 502 U.S. at 68. See Austin v. Jackson, 213 F.3d 298, 300 (6th Cir. 2000) (alleged violation of state law with respect to sentencing is not subject to federal habeas relief). "As long as the sentence remains within the statutory limits, trial courts have historically been given wide discretion in determining `the type and extent of punishment for convicted defendants.'" Id. at 301, quoting Williams v. New York, 337 U.S. 241, 245 (1949).
To the extent that petitioner attempts to raise a federal constitutional issue, his attempt fails. "The Eighth Amendment does not require consideration of mitigating factors at sentencing in non-capital cases." Engle v. United States, 26 Fed.Appx. 394, 397 (6th Cir. 2001), citing Harmelin v. Michigan, 501 U.S. 957, 995-96 (1991) ("We have drawn the line of required individualized sentencing at capital cases, and see no basis for extending it further"). See also, Alvarado v. Hill, 252 F.3d 1066, 1069 (9th Cir. 2001) (observing that the "Supreme Court has limited its holdings concerning mitigating evidence to capital cases").
The only arguable federal constitutional claim that petitioner could raise under these facts would involve a due process violation in the sentencing. Criminal defendants have a due process right to a sentence based on accurate information. United States v. Tucker, 404 U.S. 443, 447 (1972); see also, Townsend v. Burke, 334 U.S. 736, 740-41(1948). In this regard, the Supreme Court has sustained due process objections to sentences imposed on the basis of "misinformation of constitutional magnitude." Roberts v. United States, 445 U.S. 552, 556 (1980), quoting Tucker, 404 U.S. at 447; see also, Townsend, 334 U.S. at 740-41.
United States v. Jones, 40 Fed. Appx. 15, 17 (6th Cir. 2002).
However, petitioner cannot show a due process violation in this case. The record reflects that the trial judge reviewed petitioner's Presentence Investigation Report, heard defense counsel's attempt to mitigate the sentence based on petitioner's lack of malice and intoxication, and also heard petitioner's comments in which he apparently sought to justify his attack because the victim, Alvarado, was not a "good guy." Petitioner has not established that the trial judge sentenced him based upon materially false or unreliable evidence. Petitioner's claim should be denied.
Finally, petitioner relies on his appellate brief to support this generalized claim of error. From this brief, the Michigan Court of Appeals was able to identify three issues, i.e., petitioner was given a disproportionate sentence, the trial court failed to conduct an assessment under MCR 6.425(A)(5), and the sentence violated Blakely v. Washington. This Court will address those same three issues.
Petitioner contends that his sentences were disproportionate to his offenses in violation of the Eight Amendment's prohibition on cruel and unusual punishment. The Michigan Court of Appeals addressed this issue as follows:
Valdez, No. 285962, slip op. at pp. 2-3.
"Federal courts will not engage in a proportionality analysis except in cases where the penalty imposed is death or life in prison without possibility of parole." United States v. Thomas, 49 F.3d 253, 261 (6th Cir. 1995). See United States v. LeClear, 365 Fed. Appx. 656, 657 (6th Cir. 2010) (same, quoting Thomas). See also, United States v. Hopper, 941 F.2d 419, 422 (6th Cir. 1991) (adopting the "narrow proportionality principle" articulated by Justice Kennedy in Harmelin, 501 U.S. at 996-1009, who concluded "that petitioner's sentence of life imprisonment without parole for his crime of possession of more than 650 grams of cocaine does not violate the Eighth Amendment"). Because petitioner's sentence was neither a death penalty nor life in prison without possibility of parole, he is not entitled to federal habeas relief based upon the proportionality of his sentence claim.
Petitioner contends that the state court failed to comply with the requirements of MCR 6.425(A)(5). At the time of petitioner committed his crimes, MCR 6.425(A)(5) provided that prior to sentencing, the probation officer must investigate, among other things, "the defendant's background and character" and prepare a written report that "must be succinct and, depending on the circumstances, include:... (5) the defendant's medical history, substance abuse history, if any, and, if indicated, a current psychological or psychiatric report." MCR 6.425(A)(5) (2007). The Michigan Court of Appeals addressed this issue as follows:
Valdez, No. 285962, slip op. at p. 3.
Petitioner's alleged error with respect to MCR 6.425(A)(5) involves a matter of state law. The Michigan Court of Appeals found that petitioner's presentence report complied with the requirements of state court rule. Petitioner's claim is not cognizable on federal habeas review. Estelle, 502 U.S. at 68.
Petitioner contends that his sentence violated the Supreme Court's decision in Blakely because petitioner's "plea or verdict" did not encompass all of the findings made by the trial judge at sentencing and petitioner did not "acknowledge the truth" of the facts used in scoring the sentencing guidelines. Petitioner's Brief at pp. 35-36. The Michigan Court of Appeals addressed this issue as follows:
Valdez, No. 285962, slip op. at p. 3.
The Michigan Court of Appeals correctly concluded that the constitutional rights referred to in Blakely do not apply in this case. Blakely concerned the State of Washington's determinate sentencing system, which allowed a trial judge to elevate the maximum sentence permitted by law on the basis of facts not found by the jury but by the judge. Applying the Washington mandatory sentencing guidelines, the trial judge found facts that increased the maximum sentence faced by the defendant. The Supreme Court found that this scheme offended the Sixth Amendment, because any fact that increases or enhances a penalty for the crime beyond the prescribed statutory maximum for the offense must be submitted to the jury and proven beyond a reasonable doubt. Blakely, 542 U.S. at 301.
Unlike the State of Washington's determinate sentencing system, the State of Michigan has an indeterminate sentencing system in which the defendant is given a sentence with a minimum and a maximum term. The Sixth Circuit has determined that Blakely does not apply to Michigan's sentencing system, provided that the sentence does not exceed the statutory maximum. See Montes v. Trombley, 599 F.3d 490, 496-98 (6th Cir. 2010) (Michigan's indeterminate sentencing scheme did not violate the defendant's due process rights or right to a jury trial under Blakely); Chontos v. Berghuis, 585 F.3d 1000, 1002 (6th Cir. 2009) (affirming district court's dismissal of prisoner's claim under Blakely and Apprendi v. New Jersey, 530 U.S. 466 (2000) because it does not apply to Michigan's indeterminate sentencing system, and stating that "Apprendi's rule does not apply to judicial factfinding that increases a minimum sentence so long as the sentence does not exceed the applicable statutory maximum"); Tironi v. Birkett, 252 Fed. Appx. 724, 725 (6th Cir. 2007) (Blakely does not apply to Michigan's indeterminate sentencing system).
Here, petitioner was convicted as an habitual offender, fourth offense, M.C.L. § 769.12, and sentenced to concurrent terms of 10 to 30 years imprisonment for assault with intent to do great bodily harm less than murder, 58 months to 180 months imprisonment for each count of assault with a dangerous weapon (felonious assault), and 76 months to 30 years imprisonment for UDAA. Each of these sentences fell within the statutory maximum under Michigan law. See Valdez, No. 285962, slip op. at pp. 1 and 3. Accordingly, petitioner's claim should be denied.
I respectfully recommend that petitioner's habeas petition be
