United States District Court, W.D. Michigan, Southern Division
AMENDED OPINION AND ORDER
T. NEFF UNITED STATES DISTRICT JUDGE.
a habeas corpus petition filed pursuant to 28 U.S.C. §
2254. Petitioner asserted twelve grounds for habeas relief.
The matter was referred to the Magistrate Judge, who issued a
Report and Recommendation (R&R) recommending that this
Court deny the petition: “Grounds I to VIII and XI to
XII are without merit, Ground IX is both procedurally
defaulted and without merit, and Ground X is both
procedurally defaulted and noncognizable” (R&R, ECF
No. 36 at PageID.1481). The matter is presently before the
Court on Petitioner's objections to the Report and
Recommendation. In accordance with 28 U.S.C. § 636(b)(1)
and Fed.R.Civ.P. 72(b)(3), the Court has performed de novo
consideration of those portions of the Report and
Recommendation to which objections have been made. The Court
previously issued an Opinion and Order, and Judgment (ECF
Nos. 40, 42) conditionally granting habeas relief to
Petitioner on the limited issue of sentencing based on
improper judicial factfinding raised in Petitioner's
Objection 1. The Court ordered the case remanded to state
court for resentencing (Order of Remand, ECF No. 41).
However, on reconsideration, the Court concludes that
Petitioner is not entitled to resentencing, and therefore
issues this Amended Opinion and Order, modifying its analysis
of Objection 1. The Court will also issue an Amended Judgment
in this § 2254 proceeding. See Gillis v. United
States, 729 F.3d 641, 643 (6th Cir. 2013) (requiring a
separate judgment in habeas proceedings).
1: Sentencing Claims
Petitioner argues that the Magistrate Judge erred in
determining that People v. Lockridge, 870 N.W.2d 502
(Mich. 2015): (1) did not clearly establish the
unconstitutionality of Michigan's sentencing scheme, and
(2) does not apply to Petitioner's case to entitle him to
federal habeas relief (Obj., ECF No. 36 at PageID.1538-1542).
arguments and analysis on this issue are set forth in the
Report and Recommendation (ECF No. 36 at PageID.1493-1497).
The Magistrate Judge concluded that Lockridge did
not clearly establish the unconstitutionality of
Michigan's minimum sentencing scheme because reasonable
jurists could and did disagree about whether Alleyne v.
United States, 570 U.S. 99 (2013), applied to the
calculation of Michigan's minimum sentencing guidelines
(R&R, ECF. No. 36 at PageID.1496-1497, citing 28 U.S.C.
§ 2254(d)). The Magistrate Judge relied on decisions of
the state court and the Sixth Circuit:
As is apparent from the reasoned decisions of the Michigan
Court of Appeals in [People v.] Herron, 845
N.W.2d [533, 539 (Mich. Ct. App. 2013)], and the Sixth
Circuit in Kittka [v. Franks, 539 F.
App'x, 668, 673 (6th Cir. 2013)], and Saccoccia
[v. Farley, 573 F. App'x, 383, 485 (6th Cir.
2014)], as well as the decision of the dissenting justices in
Lockridge itself, reasonable jurists could and did
disagree about whether Alleyne applied to the
calculation of Michigan's minimum sentencing guidelines.
Alleyne therefore did not clearly establish the
unconstitutionality of the Michigan sentencing scheme.
(R&R, ECF No. 36 at PageID.1497).
the Court observes that in light of the Sixth Circuit Court
of Appeals' decision in Robinson v. Woods, 901
F.3d 710 (6th Cir. 2018), cert. denied sub nom. Huss v.
Robinson, No. 18-680, 2019 WL 887795 (U.S. Feb. 25,
2019), issued after the Report and Recommendation and
Petitioner's Objection, to the extent that the Report and
Recommendation determined that “reasonable jurists
could and did disagree about whether Alleyne applied
to the calculation of Michigan's minimum sentencing
guidelines” and “Alleyne therefore did
not clearly establish the unconstitutionality of the Michigan
sentencing scheme, ” that determination is no longer
Robinson, 901 F.3d at 712, the Sixth Circuit
concluded that “[b]ecause Alleyne clearly
established that mandatory minimum sentences may only be
increased on the basis of facts found by a jury or admitted
by a criminal defendant, Alleyne, 570 U.S. at 108,
133 S.Ct. 2151, the Michigan Court of Appeals'
disposition of Robinson's case ‘was contrary to, or
involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United
States,' 28 U.S.C. § 2254(d)(1).” The Sixth
Circuit conditionally granted Robinson's petition for a
writ of habeas corpus, limited to his sentence, and remanded
the case to the district court with instructions to remand to
the state sentencing court for further proceedings consistent
with its opinion and the United States Constitution.
Robinson, 901 F.3d at 712, 718.
analysis in Robinson, however, does not apply to
Petitioner's case to warrant remand to the state
sentencing court as in Robinson because
Alleyne was not decided until June 17, 2013- after
the Michigan Court of Appeals' adjudication of
Petitioner's case on October 16, 2012. See People v.
Brown, No. 306201, 2012 WL 4899695, at *6-7 (Mich. Ct.
App. Oct. 16, 2012). “Under the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA), a federal court
may not grant habeas relief to a state prisoner with respect
to any claim that has been ‘adjudicated on the merits
in State court proceedings' unless the state-court
adjudication ‘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.'” Greene v. Fisher,
565 U.S. 34, 35-36 (2011) (quoting 28 U.S.C. §
2254(d)(1)). “[C]learly established Federal law”
does not include decisions of the Supreme Court “that
are announced after the last adjudication of the merits in
state court but before the defendant's conviction becomes
final.” Id. at 35, 38. Petitioner's case
was decided by the Michigan Court of Appeals eight months
before the Supreme Court's decision in Alleyne.
Thus, Alleyne does not apply to Petitioner's
this Court denies Petitioner's objection to the Report
and Recommendation, based improper judicial factfinding, and
more specifically, on Alleyne. The Magistrate
Judge's analysis and conclusion as to Petitioner's
claim of improper judicial factfinding is rejected only to
the extent it is inconsistent with the Sixth Circuit's
decision in Robinson (see R&R, ECF No.
36 at PageID.1494-1497). Nonetheless, Petitioner is not
entitled to habeas relief under Greene.
2: Expert Testimony
argues that the Magistrate Judge erred in his determination
that a sexual-assault expert did not testify in
Petitioner's case and thus Petitioner was not prejudiced
by the expert's testimony (Obj., ECF No. 37 at
PageID.1562-1563; R&R, ECF No. 36 at PageID.1518-1519).
Petitioner contends that he was prejudiced because the expert
was called while the jury was seated (Obj., ECF No. 37 at
objection is denied. Petitioner could not have been
prejudiced by the expert's testimony because, as the
Magistrate Judge noted, the expert was not allowed to testify
after the trial judge considered the expert's proposed
testimony outside the presence of the jury (R&R, ECF No.
36 at PageID.1485, citing T. Tr. I, ECF No. 16-3 at
PageID.496; see also ECF No. 16-3 at ...