United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER (1) SUMMARILY DENYING THE PETITION
FOR WRIT OF HABEAS CORPUS, (2) DENYING PETITIONER'S
MOTION TO STAY, (3) DECLINING TO ISSUE A CERTIFICATE OF
APPEALABILITY, AND (4) DENYING LEAVE TO APPEAL IN FORMA
VICTORIA A. ROBERTS JUDGE
Kirk Elledge, (“Petitioner”), filed a petition
for writ of habeas corpus challenging his Wayne Circuit Court
jury trial convictions for first-degree home invasion,
unarmed robbery, assault with intent to commit great bodily
harm, and larceny from a building. Petitioner's
convictions arise from a June 29, 2011, incident where
Petitioner attacked, beat, and robbed a 70-year-old woman at
the entrance of her apartment building. See People v.
Elledge, 2013 Mich.App. LEXIS 567 (Mich. Ct. App. Mar.
26, 2013). Petitioner was sentenced as a fourth habitual
felony offender to 40 to 60 years for the home invasion
conviction, 20 to 40 years for the robbery and assault
convictions, and 10 to 15 years for the larceny conviction.
The sentences for robbery, assault, and larceny are
concurrent to each other but consecutive to the sentence for
home invasion, resulting in an effective sentence of 60 to
100 years. The petition will be summarily denied because
Petitioner's sole sentencing claim cannot be supported by
clearly established Supreme Court law as required by 28
U.S.C. § 2254(d). The Court will also deny
Petitioner's motion to stay the petition, deny a
certificate of appealability, and deny leave to appeal in
after the filing of a petition for habeas corpus, the Court
must undertake a preliminary review of the petition to
determine whether “it plainly appears from the face of
the petition and any exhibits annexed to it that the
petitioner is not entitled to relief in the district
court.” Rule 4, RULES GOVERNING § 2254 CASES; see
28 U.S.C. § 2243. If so, the petition must be summarily
dismissed. Rule 4; see Allen v. Perini, 424 F.2d
134, 141 (6th Cir. 1970) (district court has the duty to
“screen out” petitions that lack merit on their
face). A dismissal under Rule 4 includes those petitions
which raise legally frivolous claims, as well as those
containing factual allegations that are palpably incredible
or false. Carson v. Burke, 178 F.3d 434, 436-37 (6th
sole habeas claim asserts that the sentencing court violated
his Sixth Amendment rights when it considered facts not
proven beyond a reasonable doubt in scoring the sentencing
guidelines to determine his minimum sentence range.
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, 186 L.Ed.2d 314 (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 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 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.
time of Petitioner's December 19, 2011, sentencing
proceeding, Harris was the law. Alleyne was
not made retroactive to cases on collateral review. See
In re Mazzio, 756 F.3d 487, 489-90 (6th Cir. 2014).
Because the Supreme Court did not require at the time of the
Petitioner's conviction and sentence that facts which
increase a criminal defendant's minimum sentence be
proven beyond a reasonable doubt, Petitioner is not entitled
to habeas relief on his claim. See Gibson v.
Tribley, No. 10-13364, 2013 U.S. Dist. LEXIS 93404, 2013
WL 3353905, at * 8 (E.D. Mich. July 3, 2013).
Alleyne is inapplicable to Petitioner's case
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.” See United States v. Cooper, 739 F.3d
873, 884 (6th Cir. 2014); see also United States v.
James, 575 F.App'x 588, 595 (6th Cir. 2014)
(unpublished) (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
F.App'x 483, 485 (6th Cir. 2014) (unpublished)
(“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. . . .”).
Petitioner's claim concerns judicial findings that set
the guideline range for his minimum sentence. The Sixth
Circuit 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 F.App'x 668, 673 (6th
Cir. 2013) (unpublished).
Court is aware that the Michigan Supreme Court 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, 498
Mich. 358 (2015). Petitioner cannot rely on a state court
decision, however, to obtain federal habeas corpus relief.
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 U.S. Dist. LEXIS 35151, 2016 WL 1068744, at
*5 (W.D. Mich. Mar. 18, 2016).
motion to stay his petition and hold the case in abeyance
while he exhausts his Lockridge claim is likewise
without merit. A federal district court has discretion to
stay a petition to allow a petitioner to present unexhausted
claims to the state courts and then return to federal court
on a perfected petition. See Rhines v. Weber, 544
U.S. 269, 276 (2005). Stay and abeyance is not available,
however, where a petitioner's unexhausted claim is
“plainly meritless.” Id. at 277. Aside
from the fact that Lockridge cannot form the basis
of granting federal habeas relief as explained above, it does
not appear that that it will even be applied to
Petitioner's case by the state courts. The Michigan
Supreme Court “made its holding [in Lockridge]
applicable only to cases still pending on direct
review.” Hawkins v. Napel, No. 2:13CV43, 2016
U.S. Dist. LEXIS 34435, 2016 WL 1055755, at *2, n.1 (W.D.
Mich. Mar. 17, 2016) (unpublished) (emphasis added).
Petitioner's case was no longer pending on direct review
when Lockridge was decided. The Court therefore
denies petitioner's motion for a stay.
Rule of Appellate Procedure 22 provides that an appeal may
not proceed unless a certificate of appealability
(“COA”) is issued under 28 U.S.C. § 2253. A
COA may be issued “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 district
court denies a habeas petition on the merits of the claims
presented, a certificate may issue if the petitioner
demonstrates that reasonable jurists would find the district
court's assessment of the constitutional claims debatable
or wrong. Slack v. McDaniel, 529 U.S. 473, 484
(2000). In this case, the Court concludes that reasonable
jurists would not debate the Court's conclusion that the
petition should be summarily denied because the claim it
raises is ...