United States District Court, W.D. Michigan, Southern Division
Ronald J. McLean, Jr., #275421, Petitioner,
Kenneth McKee, Respondent.
L. Maloney, United States District Judge.
a habeas corpus proceeding brought pro se by a state
prisoner pursuant to 28 U.S.C. § 2254. Petitioner is
currently serving three concurrent sentences of eleven years
and ten months to forty years' imprisonment following his
guilty pleas in Muskegon County Circuit Court to three counts
of second-degree home invasion, Mich. Comp. Laws §
750.110a(3). After unsuccessful attempts to overturn his
sentences in state court, petitioner filed this habeas corpus
petition. Petitioner seeks federal habeas corpus relief on
the following grounds:
I. Petitioner's Fifth and Fourteenth Amendment rights
against double jeopardy were violated because his prior
felonies were used to score a prior offense variable (PRV2)
under Michigan's sentencing guidelines and to enhance his
sentence as an habitual offender.
II. Petitioner was denied effective assistance of appellate
counsel in connection with his application for leave to
III. Petitioner was denied his Fifth and Sixth Amendment
rights to counsel during critical stages of the proceedings
and he did not knowingly and intelligently waive those
IV. Petitioner's trial counsel was ineffective in
violation of his Sixth Amendment rights.
V. The trial court violated petitioner's Fourteenth
Amendment rights to due process and equal protection when it
sentenced petitioner based on constitutionally infirm
convictions which were obtained in violation of Gideon v.
Wainwright, 372 U.S. 335 (1963) and Douglas v.
California, 372 U.S. 353 (1963) to score his sentencing
guidelines, thereby resulting in a 28 month increase in his
minimum sentencing exposure.
VI. The trial court violated petitioner's Fourteenth
Amendment right to due process to be sentenced according to
accurate information where the trial court considered
misdemeanors as felony convictions when scoring his
sentencing guidelines and determining his habitual offender
(Amended Petition, ECF No. 11, PageID.234-41). Respondent
argues in his answer that the petition should be denied for
lack of merit in the grounds raised. (Answer, 2, 25-54, ECF
No. 17, PageID.264, 287-316). In addition, respondent argues
that Grounds V and VI are barred by procedural defaults and
petitioner has not established grounds to overcome those
procedural defaults. (Id. at 52-55, PageID.314-17).
review of the state-court record, the Court finds that the
petition fails to establish grounds for federal habeas corpus
relief. The petition will be denied.
Court's review of this petition is governed by the
provisions of the Antiterrorism and Effective Death Penalty
Act, Pub. L. No. 104-132, 110 Stat. 1214 (AEDPA). See
Penry v. Johnson, 532 U.S. 782, 792 (2001). AEDPA
“dictates a highly deferential standard for evaluating
state-court rulings which demands the state court decisions
be given the benefit of the doubt.” Bell v.
Cone, 543 U.S. 447, 455 (2005) (citations omitted).
“AEDPA requires heightened respect for state court
factual and legal determinations.” Lundgren v.
Mitchell, 440 F.3d 754, 762 (6th Cir. 2006).
“State-court factual findings  are presumed correct;
the petitioner has the burden of rebutting the presumption by
clear and convincing evidence.” Davis v.
Ayala, 135 S.Ct. 2187, 2199-2200 (2015) (citations and
internal quotations omitted).
state court adjudicated the claim, deferential AEDPA
standards must be applied. 28 U.S.C. § 2254(d); see
Premo v. Moore, 562 U.S. 115, 121 (2011); Waddington
v. Sarausad, 555 U.S. 179, 190 (2009); Holder v.
Palmer, 588 F.3d 328, 341 (6th Cir. 2009) ((“[A]ny
claim that was adjudicated on the merits in State court
proceedings' is subject to AEDPA deference.”)
(quoting 28 U.S.C. § 2254(d)). AEDPA prevents federal
habeas “retrials” and ensures that state court
convictions are given effect to the extent possible under
law. Bell v. Cone, 535 U.S. 685, 693-94 (2002). It
prohibits “using federal habeas corpus review as a
vehicle to second-guess the reasonable decisions of state
courts.” Parker v. Matthews, 132 S.Ct. 2148,
2149 (2012) (per curiam).
AEDPA standard is difficult to meet “because it was
meant to be.” Harrington v. Richter, 562 U.S.
86, 102 (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 corrections through appeal.” Id. at
102-03 (citation and internal quotation omitted); see
Woods v. Donald, 135 S.Ct. 1372, 1376 (2015). Section
2254(d) states that an application for a 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); see
White v. Wheeler, 136 S.Ct. 456, 460 (2015); Davis
v. Ayala, 135 S.Ct. at 2198; White v. Woodall,
134 S.Ct. 1697, 1702 (2014).
only definitive source of clearly established federal law for
purposes of § 2254(d)(1) is the holdings-not dicta-of
Supreme Court decisions. White v. Woodall, 134 S.Ct.
at 1702; see Woods v. Donald, 135 S.Ct. at 1377
(“Because none of our cases confront ‘the
specific question presented by this case, ' the state
court's decision could not be ‘contrary to' any
holding from this Court.”). “[W]here the precise
contours of a right remain unclear, state courts enjoy broad
discretion in their adjudication of a prisoner's
claims.” Id. (quotations and internal
unreasonable application of the Supreme Court's holding
must be “‘objectively unreasonable, ' not
merely wrong; even ‘clear error' will not
suffice.” White v. Woodall, 134 S.Ct. at 1702
(quoting Lockyer v. Andrade, 538 U.S. 63, 75-76
(2003)). Rather, “[a]s a condition for obtaining habeas
corpus from a federal court, a state prisoner must 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.”
White v. Woodall, 134 S.Ct. at 1702 (quoting
Harrington v. Richter, 562 U.S. at 103).
“[C]ircuit precedent does not constitute ‘clearly
established Federal law, as determined by the Supreme Court,
' ” and “[i]t therefore cannot form the basis
for habeas relief under AEDPA.” Hill v.
Curtin, 792 F.3d 670, 677 (6th Cir. 2015) (quoting
Parker v. Matthews, 132 S.Ct. at 2155); see
Glebe v. Frost, 135 S.Ct. 429, 431 (2014) (per curiam)
(“As we have repeatedly emphasized,  circuit
precedent does not constitute ‘clearly established
Federal law, as determined by the Supreme
state-court factual determination is not unreasonable merely
because the federal habeas court would have reached a
different conclusion in the first instance.” Wood
v. Allen, 558 U.S. 290, 301 (2010). Section 2254(d)(2)
requires that this Court accord the state trial court
substantial deference. If reasonable minds reviewing the
record might disagree about the finding in question, on
habeas review that does not suffice to supersede the trial
court's determination. Brumfield v. Cain, 135
S.Ct. 2269, 2277 (2015); Burt v. Titlow, 134 S.Ct.
10, 15 (2013).
Circuit Court Proceedings
February 10, 2010, petitioner appeared before Judge Quinn
Benson in Muskegon County Circuit Court for the purpose of
entering his guilty plea to three counts of second-degree
home invasion. (Plea Transcript (PT), ECF No. 18-4,
PageID.340-68). Petitioner was represented by Attorney Lynn
Bremer. Petitioner had a lengthy criminal history. If
convicted of any one of the three charges, petitioner faced a
potential life sentence. By entering guilty pleas, petitioner
was able to avoid the life sentences attendant to his status
as an habitual offender. (PT at 8, 10, 12, 15, PageID.347,
349, 351, 354). Petitioner agreed to plead “guilty as
charged in all three files, ” but under a
“Cobbs” agreement, petitioner would be
sentenced within Michigan's sentencing guidelines. (PT,
regard to habitual offender, fourth offense notice, the
parties had no objection to a modification that eliminated
the allegation that, “on December 5, of 1999[, ] the
Defendant was convicted of attempted resisting and
obstruction” and added that, “on or about
September 12 of 2005, the Defendant was convicted of
operating while intoxicated, third offense[.]” (PT, 6,
PageID.345). This change established uniform habitual
offender notices for all three files. (Id.). The
plea hearing transcript reveals that each felony information
and its accompanying habitual offender notice were read into
the record. (PT, 7-13, PageID.346-52). Thus, petitioner heard
at least three times each of his prior felony convictions
supporting the habitual offender notice:
[T]he defendant was previously convicted of three or more
felonies or attempts to commit felonies in that on or about
September 12th of 2005 the Defendant was convicted of
operating while intoxicated, third-offence notice, in the
27th Circuit Court for the City of White Cloud in the State
of Michigan; [a]nd on or about November 16th 1998 he was
convicted of attempted obstruction of justice in violation of
Michigan law, in the 13th Circuit Court in the State of
Michigan; [a]nd on or about November 6, 2006 he was convicted
of the offense of operating while intoxicated, third- offense
notice, contrary to Michigan law, in the 27th Circuit Court.
And therefore the Defendant is subject to the penalties
provided by MCL 769.12. The penalty for which is life if the
primary offense has a penalty of five years or more; 15 years
or less if the primary offense has a penalty of under five
years. Here we have an offense which would be elevated to
(PT, 7-8, PageID.346-47; see also PT, 9-12,
PageID.348-51). In addition to pleading guilty to each of the
three counts of second-degree home invasion, petitioner
testified that he had been convicted of each of the felonies
listed in the habitual offender, fourth offense notice. (PT,
18-19, PageID.357-58). Judge Benson accepted petitioner's
guilty pleas: “I find that the Defendant has offered a
plea of guilty to the offense of home invasion second degree
on three separate files that I've already mentioned. Your
testimony establishes that you committed the crime or aided
in the committing of the crime in Muskegon County. The court
finds the plea to be knowing, voluntary, understanding and
accurate. For all these reasons, I accept your plea.”
(PT, 26, PageID.365).
March 8, 2010, Judge James Graves, Jr., conducted a
sentencing hearing. (Sentencing Transcript (ST), ECF No.
18-5, PageID.369-79). During the course of the hearing,
petitioner's attorney confirmed that she had an
opportunity to read the presentence report and the attached
sentencing guideline sheets, and that there were no additions
or corrections. (ST, 4-5, PageID.374-75). The presentence
investigation report showed that petitioner had more than
three prior felony convictions. (ECF No. 18-8,
PageID.540-46). Among other things, with regard to the three
convictions stated in the habitual offender notices, the
presentence investigation report showed that petitioner was
represented by counsel when he plead guilty to each of those
crimes. (Id. at PageID.543-44). The sentencing
information report included a score of 20 on prior record
variable 2 (PRV2). (Id. at PageID.529-31). The
sentencing guideline range was 36 to 142 months.
(Id.). The sentencing hearing transcript reveals the
following exchange between Judge Graves and petitioner:
THE COURT: All right. Mr. McLean, have you had the
opportunity to read the presentence report and the attached
guideline sheets and discuss those with your attorney?
THE DEFENDANT: Yes, I have, Your Honor.
THE COURT: And sir, do you have any additions or ...