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Brown v. Hoffner

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

June 18, 2019

WILLIAM JESSIE BROWN #231109, Petitioner,
v.
BONITA HOFFNER, Respondent.

          AMENDED OPINION AND ORDER

          JANET T. NEFF UNITED STATES DISTRICT JUDGE.

         This is 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).

         Objection 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).

         The 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).

         However, 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 valid.

         In 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.

         The 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 case.

         Accordingly, 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.

         Objection 2: Expert Testimony

         Petitioner 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 PageID.1562-1563).

         The 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 ...


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