United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER (1) SUMMARILY DENYING PETITION FOR
WRIT OF HABEAS CORPUS, (2) DENYING A CERTIFICATE OF
APPEALABILITY, AND (3) DENYING PERMISSION TO APPEAL IN FORMA
Corbett O'Meara United States District Judge.
prisoner Walter Cummings (“Petitioner”) filed
this habeas case under 28 U.S.C. § 2254. On November 21,
2002, Petitioner was convicted in the Wayne Circuit Court
after a jury trial of armed robbery and commission of a
felony with a firearm, and he was sentenced to 225 months to
60 years imprisonment. The petition raises a single claim:
Petitioner's constitutional rights were violated by
judicial fact-finding in scoring the sentencing guidelines.
The Court finds that Petitioner's claim is without merit
because it cannot be supported by clearly established Supreme
Court law. Therefore, the petition will be summarily denied.
The Court will also deny Petitioner a certificate of
appealability and permission to proceed on appeal in forma
his conviction and sentence Petitioner was appointed
appellate counsel who filed an appeal of right.
Petitioner's brief on appeal challenged the jury
instructions, argued that the trial judge should have
disqualified herself from presiding over his case, and
asserted that the sentencing guidelines were improperly
scored. The Court of Appeals affirmed. People v.
Cummings, No. 246883 (Mich. Ct. App. May 11, 2004).
Petitioner appealed this decision to the Michigan Supreme
Court, but his application for leave to appeal was denied on
December 29, 2004. People v. Cummings, No. 126478
(Mich. Dec. 29, 2004).
filed a motion for relief from judgment, asserting what now
forms his habeas claim sometime in 2015. The trial court
denied the motion on January 12, 2016. Petitioner appealed,
but the Michigan Court of Appeals found “defendant has
failed to establish that the trial court erred in denying his
motion for relief from judgment.” People v.
Cummings, No. 332980 (Mich. Ct. App. Aug. 22, 2016). The
Michigan Supreme Court subsequently denied relief under
Michigan Court Rule 6.508(D). People v. Cummings,
No. 154387 (Mich. Sup. Ct. Jan. 5, 2017).
Standard of Review
petition for habeas corpus is filed, 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 also 28 U.S.C. §
2243. If, after preliminary consideration, the Court
determines that the petitioner is not entitled to relief, the
Court must summarily dismiss the petition. McFarland v.
Scott, 512 U.S. 849, 856 (1994); Carson v.
Burke, 178 F.3d 434, 436 (6th Cir. 1999); Rule 4, Rules
Governing § 2254 Cases. No response to a habeas petition
is necessary if the petition is frivolous, obviously lacks
merit, or if the necessary facts can be determined from the
petition itself without considering a response from the
State. See Robinson v. Jackson, 366 F.Supp.2d 524,
525 (E.D. Mich. 2005).
qualify for relief under 28 U.S.C. § 2254, the
petitioner must show that the state court decision on a
federal issue “was contrary to, or involved an
unreasonable application of, clearly established Federal law,
as determined by the Supreme Court, ” or amounted to
“an unreasonable determination of the facts in light of
the evidence presented in the State court proceeding.”
28 U.S.C. § 2254(d)(1)-(2); Franklin v.
Francis, 144 F.3d 429, 433 (6th Cir. 1998). The analysis
of a petitioner's claim is limited to consideration of
“the law as it was ‘clearly established' by
[Supreme Court] precedents at the time of the state
court's decision, ' Wiggins v. Smith, 539
U.S. 510, 520 (2003). Under that review standard, mere error
by the state court does not justify issuance of the writ;
rather, the state court must have applied federal law in a
way that is “objectively unreasonable.”
Wiggins, 539 U.S. at 520-21 (quoting Williams v.
Taylor, 529 U.S. 362, 409 (2000)).
claims that the trial judge violated his Sixth Amendment
right to a jury trial by using facts that had not been proven
beyond a reasonable doubt or admitted by Petitioner to score
the offense variables of the Michigan 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 (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 conviction and sentence,
Harris was the law, and Alleyne has not
been 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
Petitioner's conviction, that facts which increase a
criminal defendant's minimum sentence be proven beyond a
reasonable doubt, Petitioner cannot demonstrate entitlement
to habeas relief. 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 the Supreme Court's holding in
“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 Circui
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. . . .”). The same thing occurred in
this case. 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 F. App'x 668, 673 (6th Cir. 2013)
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 (Mich. 2015). 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 U.S. Dist. LEXIS 35151, 2016 WL 1068744, at
*5 (W.D. Mich. Mar. 18, 2016). “Alleyne
therefore did not clearly establish the unconstitutionality
of the Michigan sentencing scheme and cannot form the basis