United States District Court, W.D. Michigan, Southern Division
HONORABLE ROBERT J. JONKER JUDGE.
REPORT AND RECOMMENDATION
Kent United States Magistrate Judge
a habeas corpus action brought by a state prisoner under 28
U.S.C. § 2254. Petitioner Lonnie Lee Mann is
incarcerated with the Michigan Department of Corrections at
the Bellamy Creek Correctional Facility (IBC) in Ionia,
Michigan. On June 6, 2013, Petitioner pleaded nolo
contendere in the Barry County Circuit Court to one
count of first-degree home invasion in violation of Mich.
Comp. Laws § 750.1101(2) and to his status as a habitual
offender-third offense, Mich. Comp. Laws § 769.11. On
July 11, 2013, the court sentenced Petitioner to a prison
term of 15 to 40 years, to be served consecutively to a 5 to
15 year term of imprisonment for a 2006 breaking and entering
conviction-a crime for which he was out on parole when he
committed this home invasion-but concurrently to a 15 to 40
year sentence imposed for a first-degree home invasion
conviction from Calhoun County imposed on June 3, 2013.
August 31, 2018, Petitioner filed his habeas corpus petition
raising five grounds for relief, as follows:
I. Petitioner was denied his Sixth Amendment right to defend
against the charges and due process of law when the
prosecution failed to timely provide notice of their intent
to enhance Petitioner's sentence pursuant to the habitual
II. The Petitioner was denied his constitutional right to
effective assistance of counsel where his trial attorney and
appellate attorney failed to object to the erroneous scoring
of PRV 1, PRV 2, and PRV 5, which in effect resulted in an
invalid sentence based upon inaccurate information.
III. [Petitioner] was denied [his] constitutional right to
effective assistance of appellate counsel and his right to
due process as guaranteed by the Fourteenth Amendment.
IV. [Petitioner] submits that good cause and actual prejudice
has been presented for his failure to bring the issues raised
in his post-conviction appellate proceedings due to
ineffective assistance of counsel.
V. Judicial fact-finding at sentencing based on less than
proof beyond a reasonable doubt violated [Petitioner's]
Fifth, Sixth, and Fourteenth Amendment rights.
(Pet., ECF No. 1, PageID.5-14.) Respondent has filed an
answer to the petition (ECF No. 8) stating that the grounds
should be denied because they are meritless. Upon review and
applying the standards of the Antiterrorism and Effective
Death Penalty Act of 1996, Pub. L. 104-132, 110 Stat. 1214
(AEDPA), I find that the grounds are meritless. Accordingly,
I recommend that the petition be denied.
habeas issues relate to pretrial proceedings and sentencing
matters. Therefore, the facts relating to Petitioner's
crime are not at issue. At his plea hearing, by stipulation
of the parties, the trial court read into the record, as a
factual foundation for Petitioner's plea, an excerpt from
a Michigan State Police report:
[T]his was investigated on September 24th, 2012, by Trooper
Keto of the Michigan State Police. He was dispatched to a
breaking and entering, responded to the incident, meeting
with the victim, Jerry Beard, who reported forced entry in
his residence and theft of multiple firearms, electronics,
and jewelry. This venue was 4834 Mud Lake Road,
Barry-Johnston Township, Barry County, State of Michigan.
He was then advised that the Battle Creek Police Department
was at the scene of a recovered stolen vehicle that matched
the description of the vehicle seen driving eastbound on Mud
Lake Road at the time of the break-in. A camera that was
stolen from the venue, that being Mr. Beard's house, was
found and recovered from the stolen vehicle. Trooper Keto
then went to the Calhoun County Jail, speaking with Troy
Wilkins and Lonnie Mann, codefendants. During his interview
with Troy Wilkins, he admitted to being in the theft and sale
of the stole-stolen items, indicating the defendant was with
him during the break-in.
(Plea Hr'g Tr., ECF No. 9-3, PageID.114.)
October 1, 2012, Petitioner was apprehended following another
home invasion in Calhoun County. Petitioner's prosecution
for that crime ran parallel to his Barry County prosecution.
Petitioner entered a nolo contendere
in the Calhoun County case on May 6, 2013. Petitioner was
offered a similar deal by the Calhoun County prosecutor-one
count of first-degree home invasion, habitual offender-third
offense, and all other charges dismissed. The Calhoun County
plea deal, however, did not include any sentencing agreement.
The parties referenced a minimum sentence range of 117 to 240
months based on a cursory sentencing guidelines calculation,
so Petitioner was aware of that range as a worst-case
scenario. Petitioner was well-aware that he could be
sentenced to any minimum sentence within that range.
Petitioner was sentenced in Calhoun County on June 3, 2013.
The court imposed a sentence of 15 to 40 years.
Calhoun County sentence was then used as the basis for a plea
deal in Barry County. The prosecutor and defense counsel in
Barry County and the prosecutor and defense counsel in
Calhoun County agreed that the sentences would run
concurrently. Apparently, because the sentences would be
concurrent and the guidelines scoring was likely to be the
same in Barry County, the parties agreed to a 15-year
sentence. The court agreed to proceed with the plea with a
Killebrew agreement of 15 years.
11, 2013, the court imposed a sentence of 15 to 40 years.
Because Petitioner was on parole when he committed the home
invasion offenses, he received no credit on the home invasion
sentences for time spent in jail prior to sentencing.
Moreover, because the Calhoun County sentence was imposed 38
days before the Barry County sentence, the Calhoun County
minimum would expire 38 days before the Barry County minimum.
Barry County sentencing, Petitioner attempted to convince the
trial court that the Calhoun County plea was based on a
promise that Petitioner's minimum sentence would be 111
months. Petitioner claimed further that the Barry County
prosecutor and defense agreed that the Barry County sentence
would be the same as the Calhoun County sentence.
Petitioner's statements-that his minimum sentence was
supposed to be 111 months and that the Barry County and
Calhoun County sentences were supposed to be the same-find no
support in the record of the Calhoun County prosecution.
See Mann v. Trierweiler, No. 1:18-cv-1162 (W.D.
Mich.) (Plea Hr'g Tr., ECF No. 9-9, Sentencing Hr'g
Tr., ECF No. 9-10.)
the assistance of appointed appellate counsel, Petitioner
sought leave to appeal raising one issue: the trial
court's sentence was impermissibly based on judge-found
facts in violation of the Sixth Amendment. By order entered
June 4, 2014, the Michigan Court of Appeals denied leave
“for lack of merit in the grounds presented.”
(Mich. Ct. App. Order, ECF No. 9-9, PageID.200.)
then sought leave to appeal in the Michigan Supreme Court
raising the same issue he raised in the court of appeals. The
supreme court held Petitioner's application in abeyance
pending a decision in People v. Lockridge, No.
149073 (Mich.). (Mich. Order, ECF No. 9-10, PageID.261.) By
order entered October 28, 2015, in lieu of granting leave to
appeal, the court remanded the case to the trial court
“to determine whether the court would have imposed a
materially different sentence” if the sentencing
guidelines were discretionary-which they were because of the
decision in Lockridge-rather than mandatory. (Mich.
Order, ECF No. 9-10, PageID.260.)
March 14, 2016, Petitioner filed a notice of intent to forego
the Lockridge remand after his counsel informed
Petitioner that it was a possibility that the trial court
would impose a longer minimum sentence upon resentencing.
(Barry Cty. Cir. Ct. Docket Sheet, ECF No. 9-1, PageID.86.)
Several months later, however, Petitioner filed a pro
per motion or resentencing which the trial court denied.
then filed a pro per motion for relief from judgment raising
the same issues he raises as issues I-IV in his habeas
petition. The trial court denied the motion for lack of
merit. (Barry Cty. Cir. Ct. Order, ECF No. 9-6, PageID.137.)
Petitioner sought leave to appeal the trial court's order
in the Michigan Court of Appeals and the Michigan Supreme
Court. Those courts denied leave by orders dated September
12, 2017, and July 3, 2018, respectively. (Mich. Ct. App.
Order, ECF No. 9-11, PageID.281; Mich. Order, ECF No. 9-12,
PageID.318.) This timely petition followed.
action is governed by the Antiterrorism and Effective Death
Penalty Act of 1996, Pub. L. 104-132, 110 Stat. 1214 (AEDPA).
The AEDPA “prevents federal habeas
‘retrials'” and ensures that state court
convictions are given effect to the extent possible under the
law. Bell v. Cone, 535 U.S. 685, 693-94 (2002). An
application for writ of habeas corpus on behalf of a person
who is incarcerated pursuant to a state conviction cannot be
granted with respect to any claim that was adjudicated on the
merits in state court unless the adjudication: “(1)
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; or
(2) resulted in a decision that was based upon an
unreasonable determination of the facts in light of the
evidence presented in the state court proceeding.” 28
U.S.C. § 2254(d). This standard is “intentionally
difficult to meet.” Woods v. Donald, 575 U.S.
__, 135 S.Ct. 1372, 1376 (2015) (internal quotation omitted).
AEDPA limits the source of law to cases decided by the United
States Supreme Court. 28 U.S.C. § 2254(d). This Court
may consider only the holdings, and not the dicta, of the
Supreme Court. Williams v. Taylor, 529 U.S. 362, 412
(2000); Bailey v. Mitchell, 271 F.3d 652, 655 (6th
Cir. 2001). In determining whether federal law is clearly
established, the Court may not consider the decisions of
lower federal courts. Williams, 529 U.S. at 381-82;
Miller v. Straub, 299 F.3d 570, 578-79 (6th Cir.
2002). Moreover, “clearly established Federal
law” does not include decisions of the Supreme Court
announced after the last adjudication of the merits in state
court. Greene v. Fisher, 565 U.S. 34, 37-38 (2011).
Thus, the inquiry is limited to an examination of the legal
landscape as it would have appeared to the Michigan state
courts in light of Supreme Court precedent at the time of the
state-court adjudication on the merits. Miller v.
Stovall, 742 F.3d 642, 644 (6th Cir. 2014) (citing
Greene, 565 U.S. at 38).
federal habeas court may issue the writ under the
“contrary to” clause if the state court applies a
rule different from the governing law set forth in the
Supreme Court's cases, or if it decides a case
differently than the Supreme Court has done on a set of
materially indistinguishable facts. Bell, 535 U.S.
at 694 (citing Williams, 529 U.S. at 405-06).
“To satisfy this high bar, a habeas petitioner is
required to ‘show that the state court's ruling on
the claim being presented in federal court was so lacking in
justification that there was an error well understood and
comprehended in existing law beyond any possibility for
fairminded disagreement.'” Woods, 135
S.Ct. at 1376 (quoting Harrington v. Richter, 562
U.S. 86, 103 (2011)). In other words, “[w]here ...