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Ford v. Hoffner

United States District Court, E.D. Michigan, Northern Division

April 24, 2019

KENNETH FORD, Petitioner,
v.
BONITA HOFFNER, Respondent.

          OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS, DENYING CERTIFICATE OF APPEALABILITY, AND DENYING PERMISSION TO APPEAL IN FORMA PAUPERIS

          THOMAS L. LUDINGTON UNITED STATES DISTRICT JUDGE

         This is a habeas case brought by a Michigan prisoner under 28 U.S.C. § 2254. Kenneth Ford, (“Petitioner”), was convicted after a bench trial in the Wayne Circuit Court of assault with intent to commit murder, Mich. Comp. Laws § 750.83, felon in possession of a firearm, Mich. Comp. Laws § 750.224f, and possession of a firearm during the commission of a felony. Mich. Comp. Laws § 750.227b. Petitioner was sentenced as a habitual felony offender to 27 to 42 years' imprisonment. The petition asserts two grounds for relief: (1) Petitioner was denied the effective assistance of counsel, and (2) the trial court incorrectly scored the sentencing guidelines and failed to depart below the recommended range. Petitioner's claims are without merit and will be denied.

         I.

         The Court recites verbatim the relevant facts relied upon by the Michigan Court of Appeals, which are presumed correct pursuant to 28 U.S.C. § 2254(e)(1). See Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009):

At approximately 4:00 p.m. on March 7, 2014, the victim, David Schultz, approached defendant outside of defendant's apartment building. Schultz hoped to apologize to defendant for a physical altercation the two men had the day before over a woman. After Schultz greeted defendant and the other man defendant was standing with, defendant invited Schultz up to defendant's apartment. Upon entering the apartment, defendant, Schultz, and the other man sat down at defendant's kitchen table. Schultz then began to apologize to defendant for assaulting him the previous day.
After hearing Schultz's apology, defendant excused himself to go to the bathroom. After approximately two minutes, Schultz observed defendant emerge from the bathroom carrying a shotgun by his right side. Defendant told the other man to move out of the way, at which point Schultz ran towards the front door of the apartment to avoid getting shot. As Schultz attempted to unlock the front door, defendant fired the shotgun and struck Schultz in his back and side. Schultz was able to escape from the apartment and received aid at a store next to the apartment building. Defendant was arrested later that day and a subsequent search of the apartment by the police uncovered an unspent shell casing on the floor of the apartment, two pellets inside the apartment by the front door, and a spent shell casing on the roof outside of the apartment.

People v. Ford, 2015 WL 8283477, at *1 (Mich. Ct. App. Dec. 8, 2015).

         After his conviction and sentence Petitioner filed a direct appeal in the Michigan Court of Appeals. His brief on appeal raised two claims:

I. Defendant's state and federal constitutional rights were violated where trial defense counsel was ineffective for failing to prepare for trial and to prepare a defense, failing to review medical records with him prior to trial, for failing to move for a ballistics expert and for counseling [Ford] to waive his right to a jury trial.
II. Defendant is entitled to resentencing where the sentencing guidelines were mis-scored in violation of the state and federal due process right to sentencing based upon accurate information and defense counsel was ineffective for not making all possible guideline challenges and for not arguing mitigating factors.

         The Michigan Court of Appeals affirmed Petitioner's convictions and sentence in an unpublished opinion. Ford, 2015 WL 8283477, at *1. Petitioner then filed an application for leave to appeal in the Michigan Supreme Court raising the same claims. The Michigan Supreme Court denied the application because it was not persuaded that the questions presented should be reviewed. People v. Ford, 878 N.W.2d 880 (Mich. 2016).

         Petitioner returned to the trial court and filed a motion for relief from judgment. The motion claimed that Petitioner did not receive notice of the habitual felony offender charge and that the trial court relied on facts not proven beyond a reasonable doubt to increase his sentence. Dkt. 10-7. The trial court denied the lack-of-notice claim and ordered a response on Petitioner's sentencing claim. Dkt. 10-11. The trial court thereafter denied relief on Petitioner's sentencing claim. Dkt. 10-13.

         Petitioner appealed this decision to the Michigan Court of Appeals, but his application for leave to appeal was denied. Petitioner appealed this decision, but the Michigan Supreme Court denied relief because he failed to meet the burden of establishing entitlement to ...


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