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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 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.

         On 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 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 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 them.

(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 doctrine.

         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, 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 ...


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