United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER SUMMARILY DENYING THE PETITION FOR
WRIT OF HABEAS CORPUS, DECLINING TO ISSUE A CERTIFICATE OF
APPEALABILITY, AND DENYING PETITIONER LEAVE TO APPEAL IN
V. PARKER U.S. DISTRICT JUDGE.
Ventron Vaneke Lott (“Petitioner”), confined at
the Macomb Correctional Facility in New Haven, Michigan, has
filed a pro se petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2254. Petitioner challenges his sentence
following a guilty plea in 2015 for one count of armed
robbery and one count of carjacking in violation of Michigan
Compiled Laws §§ 750.29 and 750.529a, respectively.
For the reasons that follow, the Court is summarily denying
Petitioner's request for habeas relief.
pleaded guilty to the above offenses in the Circuit Court for
Kent County, Michigan. The state trial judge sentenced
Petitioner to terms of imprisonment of eight to thirty years
on the armed robbery conviction and six to twenty five years
on the carjacking conviction.
filed a motion to correct an invalid sentence in the trial
court, which the court denied. People v. Lott, No.
15-06780 (Kent Cty. Cir. Ct. Aug. 12, 2016). On direct
appeal, the Michigan Court of Appeals affirmed
Petitioner's sentence and the Michigan Supreme Court
denied Petitioner leave to appeal. People v. Lott,
No. 334622 (Mich. Ct. App. Oct. 25, 2016); lv den.
893 N.W.2d 619 (Mich. 2017).
seeks a federal writ of habeas corpus on the following
I. The trial court erred in sentencing petitioner under the
restrictions of OV-1 and OV-2 [of the Michigan Sentencing
Guidelines] in violation of his constitutional right under
the Sixth Amendment, where the record does not support the
scoring by a preponderance of the evidence. People v.
Lockridge, 2015 MICH LEXIS 1774.
II. Petitioner Lott was denied his constitutional right to
effective assistance of counsel under the Sixth Amendment
where defense counsel failed to object to the scoring under
OV-1 and OV-2, resulting in an inaccurate sentence requiring
petition for a writ of habeas corpus must set forth facts
that give rise to a cause of action under federal law or it
may summarily be dismissed. See Perez v. Hemingway,
157 F.Supp.2d 790, 796 (E.D. Mich. 2001). Federal courts are
authorized to dismiss any habeas petition that appears
legally insufficient on its face. McFarland v.
Scott, 512 U.S. 849, 856 (1994). If it plainly appears
from the face of the petition or the exhibits attached
thereto that the petitioner is not entitled to federal habeas
relief, a federal habeas court may summarily dismiss the
petition. See Carson v. Burke, 178 F.3d 434, 436
(6th Cir. 1999); Rules Governing § 2254 Cases, Rule 4,
28 U.S.C. foll. § 2254. The Sixth Circuit, in fact, long
ago disapproved of “the practice of issuing a show
cause order [to the respondent] until after the District
Court first has made a careful examination of the
petition.” Allen v. Perini, 424 F.2d 134, 140
(6th Cir. 1970). A district court therefore has the duty to
screen out any habeas corpus petition lacking merit on its
face. Id. at 141. No response to a habeas petition
is necessary when the petition is frivolous, or obviously
lacks merit, or where the necessary facts can be determined
from the petition itself without consideration of a return by
the state. Id. The present petition is one requiring
Petitioner's claim that the state trial court incorrectly
scored his sentencing guidelines range under the Michigan
Sentencing Guidelines is not cognizable on habeas review.
Tironi v. Birkett, 252 F. App'x 724, 725 (6th
Cir. 2007); Howard v. White, 76 F. App'x 52, 53
(6th Cir. 2003); see also Swarthout v. Cooke, 562
U.S. 216, 219 (2011) (habeas corpus relief does not lie for
errors of state law) (quoting Estelle v. McGuire,
502 U.S. 62, 67 (1991)). Errors in the application of state
sentencing guidelines cannot independently support habeas
relief. See Kissner v. Palmer, 826 F.3d 898, 904
(6th Cir. 2016). Petitioner's claim that the state trial
court improperly departed above the correct sentencing
guidelines range would thus not entitle him to habeas relief,
because such a departure did not violate any of
Petitioner's federal due process rights. Austin v.
Jackson, 213 F.3d 298, 301 (6th Cir. 2000). Petitioner
also argues, however, that the state trial court violated his
Sixth Amendment right to a jury trial by using factors not
submitted to a jury and proven beyond a reasonable doubt or
admitted by Petitioner when scoring these guidelines
variables under the Michigan Sentencing Guidelines. Yet, this
argument also fails to set forth a basis for granting
Petitioner's request for habeas relief.
United States Supreme Court has held 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), where the Supreme Court
held that any fact that 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.
The Supreme Court in Alleyne overruled Harris v.
United States, 536 U.S. 545 (2002), in which the Court
had held that only factors increasing the maximum, as opposed
to the minimum, sentence must be proven beyond a reasonable
doubt to a fact finder. Alleyne, 133 S.Ct. at
2157-58. The Alleyne Court emphasized that its
ruling did not require that every fact influencing judicial
discretion in sentencing must be proven to a jury beyond a
reasonable doubt. Id. at 2163.
does not apply to Petitioner's claim 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, ” which is what happened in
Petitioner's case. See United States v. Cooper,
739 F.3d 873, 884 (6th Cir. 2014); United States v.
James, 575 F. App'x 588, 595 (6th Cir. 2014)
(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) (“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 Sixth Circuit in fact has ruled that
Alleyne did not decide the question whether judicial
fact-finding under Michigan's indeterminate sentencing
scheme violates the Sixth Amendment. See Kittka v.
Franks, 539 F. App'x 668, 673 (6th Cir. 2013).
Michigan Supreme Court did rely on Alleyne 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). Nevertheless,
Lockridge does not provide a basis for federal
habeas relief for Petitioner. The AEDPA standard of review
found in 28 U.S.C. § 2254(d)(1) prohibits the use of
anything but United States Supreme Court precedent when
determining whether the state court's 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) (citing Williams v.
Taylor, 529 U.S. 362, 412 (2000); Harris v.
Stovall, 212 F.3d 940, 944 (6th Cir. 2000)). “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 WL 1068744, at *5 (W.D.
Mich. Mar. 18, 2016). The fact that the Sixth Circuit ruled
that Alleyne does not apply to sentencing guidelines
factors is significant for purposes of § 2254(d) review,
as it means there is no clearly established Supreme Court