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Mann v. Trierweiler

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

September 30, 2019

LONNIE LEE MANN, Petitioner,
v.
TONY TRIERWEILER, Respondent.

          HONORABLE ROBERT J. JONKER JUDGE.

          REPORT AND RECOMMENDATION

          Ray Kent United States Magistrate Judge

         This is 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.

         On 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 offender statute.
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.

         Discussion

         I. Factual allegations

         Petitioner's 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.)

         On 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 plea[1] 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.

         The 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.[2]

         On July 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.

         At the 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.)

         With 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.)

         Petitioner 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.)

         On 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. (Id.)

         Petitioner 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.

         II. AEDPA standard

         This 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).

         The 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).

         A 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 ...


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