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 May 6, 2013, Petitioner pleaded nolo
contendere in the Calhoun 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
June 3, 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.
August 31, 2018, Petitioner filed his habeas corpus petition
raising six 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 appellate 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.
VI. Trial counsel rendered ineffective assistance by failing
to object to OV-7, where the defendants did not engage in
“excessive brutality” but instead reacted out of
self-preservation when the complainant began shooting at
(Pet., ECF No. 1, PageID.5-15.) Respondent has filed an
answer to the petition (ECF No. 8) stating that the grounds
should be denied because they are meritless. Alternatively,
Respondent invites the Court to decline to review the
petition under the concurrent sentencing doctrine. Upon
review of the petition and record in this case and the
petition and record in Mann v. Trierweiler, No.
1:18-cv-1072 (W.D. Mich.), I recommend that the Court decline
to review this petition under the concurrent sentencing
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, Petitioner's
counsel read a synopsis of the facts underlying
Petitioner's plea. (Plea Hr'g Tr., ECF No. 9-9,
PageID.157-159.) Counsel derived the synopsis from ...