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McLean v. McKee

United States District Court, W.D. Michigan, Southern Division

September 29, 2017

Ronald J. McLean, Jr., #275421, Petitioner,
v.
Kenneth McKee, Respondent.

          MEMORANDUM OPINION

          Paul L. Maloney, United States District Judge.

         This is 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 appeal.
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 rights.
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 status.[1]

(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).

         After 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.

         Standard of Review

         The 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).

         If a 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).

         The 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).

         The 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 citations omitted).

         An 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 Court.'”).

         “[A] 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).

         Findings of Fact

         A. Circuit Court Proceedings

         On 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[2] agreement, petitioner would be sentenced within Michigan's sentencing guidelines. (PT, 4-5, PageID.343-45).

         With 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 life.

(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).

         On 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 ...

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