United States District Court, W.D. Michigan, Southern Division
L. Maloney United States District Judge.
a habeas corpus action brought by a state prisoner pursuant
to 28 U.S.C. § 2254. Promptly 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 Cir. 1999). After
undertaking the review required by Rule 4, the Court
concludes that the petition must be dismissed because it
fails to raise a meritorious federal claim.
Derwin Jerome Holt presently is incarcerated at the Bellamy
Creek Correctional Facility. Following a jury trial in the
Wayne County Circuit Court, Petitioner was convicted of one
count of armed robbery, Mich. Comp. Laws § 750.529, and
four counts of illegal use of a financial transaction device.
On March 13, 2014, Petitioner was sentenced to 8 years and 9
months to 45 years for the armed-robbery conviction and 2 to
4 years for each of the financial-transaction-device
appealed his convictions and sentences to the Michigan Court
of Appeals, asserting that the trial court had erred in
scoring offense variables (OVs) 7 and 8. Because no
contemporaneous objection was lodged against the scoring of
the variables, Petitioner also argued that his attorney was
ineffective in failing to object.
unpublished opinion issued on July 16, 2015, the Michigan
Court of Appeals rejected Petitioner's appellate
arguments and affirmed the convictions and sentences.
Petitioner sought leave to appeal to the Michigan Supreme
Court, raising the same claims. The supreme court denied
leave to appeal on February 2, 2016. Petitioner did not file
a petition for certiorari in the United States Supreme Court.
habeas application, Petitioner raises the following ground
THE STATE COURTS DID ERR IN FAILING TO CORRECT
PETITIONER'S SENTENCING GUIDELINE SCORES WHICH
WOULD'VE CORRECTED THE IMPROPER SENTENCING OF THE FINAL
SENTENCE OFFERED BY THE TRIAL JUDGE[.]
(Br. in Supp. of Pet., ECF No. 2, PageID.23.) As he did in
the state courts, Petitioner argues that trial counsel was
ineffective in failing to object to the scoring of 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). The
AEDPA has “drastically changed” the nature of
habeas review. Bailey v. Mitchell, 271 F.3d 652, 655
(6th Cir. 2001). 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');">135 S.Ct. 1372, 1376 (2015)
(quotation marks omitted).
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 “clearly established”
holdings, and not the dicta, of the Supreme Court.
Williams v. Taylor, 529 U.S. 362, 412 (2000);
Bailey, 271 F.3dat 655. In determining whether
federal law is clearly established, the Court may not
consider the decisions of lower federal courts. Lopez v.
Smith, 135 S.Ct. 1, 3 (2014); Bailey, 271 F.3d
at 655. 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, 132 S.Ct. 38 (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, 132 S.Ct. at 44).
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. 83, 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. ___, 134 S.Ct. 1697, 1705 (2014) (quotations marks
omitted). The court may grant relief under the
“unreasonable application” clause “if the
state court correctly identifies the governing legal
principle from our decisions but unreasonably applies it to
the facts of the particular . . . case.”
Williams, 529 U.S. at 407. A federal habeas court
may not find a state adjudication to be
“unreasonable” “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 411;
accord Bell, 535 U.S. at 699. Rather, the issue is
whether the state court's application of clearly
established federal law is “objectively
unreasonable.” Id. at 410. “[R]elief is
available under § 2254(d)(1)'s
unreasonable-application clause if, and only if, it is so
obvious that a clearly established rule applies to a given
set of facts that there could be no ‘fairminded
disagreement' on the question.” White, 134
S.Ct. at 1706-07 (quoting Harrington, 562 U.S. at
the state appellate court has issued a summary affirmance, it
is strongly presumed to have been made on the merits, and a
federal court cannot grant relief unless the state
court's result is not in keeping with the strictures of
the AEDPA. See Harrington, 562 U.S. at 99; see
also Johnson v. Williams, 133 S.Ct. 1088, 1094 (2013);
Werth v. Bell, 692 F.3d 486, 494 (6th Cir. 2012)
(applying Harrington and holding that a summary
denial of leave to appeal by a Michigan appellate court is
considered a decision on the merits entitled to AEDPA
deference). The presumption, however, is not irrebuttable.
Johnson, 133 S.Ct. at 1096. Where other
circumstances indicate that the state court has not addressed
the merits of a claim, the court conducts de novo
review. See Id. (recognizing that, among other
things, if the state court only decided the issue based on a
state standard different from the federal standard, the
presumption arguably might be overcome); see also
Harrington, 562 U.S. at 99-100 (noting that the
presumption that the state-court's decision was on the
merits “may be overcome when there is reason to think
some other explanation for the state court's decision is
more likely”); Wiggins v. Smith, 539 U.S. 510,
534 (2003) (reviewing habeas issue de novo where
state courts had not reached the question).
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).
contends that the trial court improperly scored OV 7 and OV 8
and that the scoring rendered his sentence one that was based
on misinformation of a constitutional magnitude, in violation
of Petitioner's right to due process.
argues that the court erred in scoring Plaintiff 50 points on
OV 7, because the offense conduct did not rise to the level
of aggravated physical abuse, as described in OV 7:
(1) Offense variable 7 is aggravated physical abuse. Score
offense variable 7 by determining which of the following
apply and by assigning the number of points attributable to