United States District Court, E.D. Michigan, Northern Division
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS
CORPUS, DENYING CERTIFICATE OF APPEALABILITY, AND DENYING
PERMISSION TO APPEAL IN FORMA PAUPERIS
L. LUDINGTON UNITED STATES DISTRICT JUDGE
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.
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
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).
his conviction and sentence Petitioner filed a direct appeal
in the Michigan Court of Appeals. His brief on appeal raised
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.
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).
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.
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 ...