Opinion
CASE NO. 02-CV-70979-DT
October 4, 2002
OPINION AND ORDER
I. Introduction
Petitioner Keven A. Wiesman has filed an application for the writ of habeas corpus pursuant to 28 U.S.C. § 2254. The habeas petition attacks Petitioner's convictions on two counts of home invasion. The two counts were brought in separate cases in Oakland County Circuit Court.
A. Case No. 99-167003
In case number 99-167003, Petitioner pleaded guilty on November 9, 1999, to one count of second-degree home invasion, MICH. CoMP. LAWS § 750.110a(3). The crime occurred at 28651 Haggerty Road in Novi, Michigan on February 23, 1999. The trial court sentenced Petitioner as a fourth habitual offender to a term of seven to thirty years in prison for the crime.
In a delayed application for leave to appeal in the Michigan Court of Appeals, Petitioner raised the following allegations of error:
I. Defendant's conviction of home invasion must be reversed where he was charged under the wrong statute because the building which was entered was not a dwelling as defined in the home invasion statute.
II. Defendant's conviction of home invasion must be set aside because he was denied effective assistance of trial counsel who wrongly advised him to plead guilty to a charge of home invasion where the `dwelling' element of the crime was not present.
III. Defendant must be resentenced where his sentence is excessive due to guidelines scoring errors and the use of the wrong guidelines crime class and group.
The Michigan Court of Appeals denied leave to appeal "for lack of merit in the grounds presented." People v. Wiesman, No. 230869 (Mich.Ct.App. Jan. 4, 2001). Petitioner did not appeal his conviction to the Michigan Supreme Court. See Corbin R. Davis' affidavit dated June 5, 2002.
B. Case No. 99-167004
At the same plea proceeding in Oakland County Circuit Court on November 2, 1999, Petitioner pleaded guilty in a separate case charging him with second-degree home invasion. The charge arose from a home invasion at 30275 Haggerty Road in Novi, Michigan on February 23, 1999. The trial court sentenced Petitioner as a fourth habitual offender to a term of fifteen to thirty years for the crime. The sentence is running concurrently with Petitioner's sentence in case number 99-167003.
Petitioner raised the following arguments in a delayed application for leave to appeal in the Michigan Court of Appeals:
I. Defendant must be resentenced where his sentence is excessive due to guideline scoring errors; and
II. Defendant's 15 year minimum sentence must be vacated because he was denied effective assistance of trial counsel who wrongly advised him to enter into a Cobbs agreement which was of no benefit whatever.
The court of appeals denied leave to appeal "for lack of merit in the grounds presented." See People v. Wiesman, No. 230871 (Mich.Ct.App. Jan. 4, 2001). Petitioner raised the same two issues in the Michigan Supreme Court, which denied leave to appeal. See People v. Wiesman, 464 Mich. 863 (2001).
C. The Habeas Corpus Petition
Petitioner filed his habeas corpus petition on March 15, 2002. The habeas petition attacks both of Petitioner's convictions. It raises the five claims that Petitioner presented to the Michigan Court of Appeals. Respondent urges the Court to deny the habeas petition on the grounds that Petitioner's claims are unexhausted, not cognizable, or lacking in merit.
II. Discussion A. Exhaustion of State Remedies; Waiver Analysis
The doctrine of exhaustion of state remedies requires a state prisoner to fully and fairly present his claims to the state courts as matters of federal law before raising his claims in a federal habeas corpus petition. 28 U.S.C. § 2254(b)(1)(A) and (c); O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); Stanford v. Parker, 266 F.3d 442, 451 (6th Cir. 2001), petition for cert. filed, (U.S. Apr. 29, 2002) (No. 01-1008). The exhaustion requirement is satisfied if a prisoner invokes one complete round of the State's established appellate review process, including a petition for discretionary review to a state supreme court. O'Sullivan, 526 U.S. at 839-40, 845.
Petitioner raised his two claims from case number 99-167004 in both state appellate courts, but he raised the claims from case number 99-167003 only in the Michigan Court of Appeals. His sole application for leave to appeal in the Michigan Supreme Court references only trial court number 99-167004 and court of appeals number 230871. Although he argued in the "new issues" section of his form application that his cases should have been consolidated at some unspecified point in time, he did not say that he was appealing trial court number 99-167003 and court of appeals number 230869. In addition, the supreme court denied leave to appeal, citing only trial court number 99-167004 and court of appeals number 230871. The court's order does not mention trial court number 99-167003 or court of appeals number 230869.
1. Lack of a State Court Remedy
Exhaustion is a problem only when the state still provides a remedy to exhaust. Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994). Petitioner no longer has an effective state remedy to exhaust because the fifty-six day deadline for appealing the court of appeals decision in trial court number 99-167003 and court of appeals number 230869 has expired. See Mich. Ct. R. 7.302(C)(3) (requiring applications for leave to appeal in the Michigan Supreme Court to be filed within fifty-six days of the decision made by the Michigan Court of Appeals).
Petitioner could re-start the appellate process by filing a motion for relief from judgment in the trial court. However, the Michigan Court of Appeals has already adjudicated Petitioner's unexhausted claims, and Michigan Court Rule 6.508(D)(2) prohibits courts from granting relief from judgment when the grounds raised were decided against the defendant in a prior appeal. Petitioner has not satisfied the exception to Rule 6.508(D)(2) for retroactive changes in the law. Thus, Petitioner is barred from pursuing an otherwise available state court remedy, and his claims must be deemed exhausted. Gray v. Netherland, 518 U.S. 152, 161 (1996).
2. Cause and Prejudice
The Court may review Petitioner's procedurally defaulted claims on the merits only if Petitioner shows (1) cause for not raising his claims at all levels of state court review and prejudice, or (2) that he is actually innocent of the crimes for which he was convicted. Id. at 162; Hannah v. Conley, 49 F.3d 1193, 1195-96 1196 n. 3 (6th Cir. 1995) (citing Coleman v. Thompson, 501 U.S. 722, 750-51 (1991); Murray v. Carrier, 477 U.S. 478, 496 (1986)). Petitioner has not provided any explanation for his failure to raise three of his claims in the Michigan Supreme Court. Nor does it appear that he could establish "cause" to excuse his failure to present the claims in the state supreme court. He was able to appeal his conviction in the companion case. Moreover, he had no constitutional right to appointment of counsel in the Michigan Supreme Court. See Pennsylvania v. Finley, 481 U.S. 551, 555 (1987).
Petitioner has not established "cause" for his procedural error. Consequently, the Court need not determine if Petitioner was prejudiced by the alleged violations of federal law. Smith v. Murray, 477 U.S. 527, 533 (1986).
3. Actual Innocence
Prisoners can overcome procedurally defaulted claims, even in the absence of "cause and prejudice," by producing new and reliable evidence of actual innocence. Schlup v. Delo, 513 U.S. 298, 324 (1995); Lott v. Coyle, 261 F.3d 594, 620 (6th Cir. 2001), cert. denied, __ U.S. __, 122 S.Ct. 1106 (2002). Petitioner has not produced any new and reliable evidence demonstrating that he is actually innocent of the crimes for which he pleaded guilty and was convicted. Furthermore, he admitted at the plea proceeding that he entered the two homes on Haggerty Road by force and without permission. He also stated that he took property that did not belong to him. (Tr. Nov. 2, 1999, 13-15). He subsequently pleaded guilty to having three prior felony convictions.
4. Summary
To summarize, Petitioner has not exhausted state remedies for three of his claims. Those claims must be deemed exhausted because Petitioner is barred by the Michigan Court Rules from raising the claims in state court now. Petitioner has not shown "cause" for his failure to raise all his claims in the Michigan Supreme Court and resulting prejudice or that he is actually innocent of the crime for which he was convicted.
Accordingly, the Court is not required to adjudicate the substantive merits of Petitioner's claims from case number 99-167003. Those claims are dismissed. The Court will proceed to address Petitioner's two exhausted claims from case number 99-167004.
B. Scoring of the Sentencing Guidelines
Petitioner alleges that he must be re-sentenced because his sentence in case number 99-167004 is disproportionately excessive due to errors in scoring the sentencing guidelines. This claim has no merit because a plurality of the Supreme Court has held that the Eighth Amendment does not require strict proportionality between the crime and sentence. See Harmelin v. Michigan, 501 U.S. 957, 965 (1991). Thus, the state appellate court's conclusion that Petitioner's claim lacked merit was not contrary to, or an unreasonable application of, Supreme Court precedent. 28 U.S.C. § 2254(d)(1). Furthermore, a claim that the trial court misscored the state sentencing guidelines does not infringe specific federal constitutional protections and is not cognizable on habeas corpus review. Cook v. Stegall, 56 F. Supp.2d 788, 797 (E.D. Mich. 1999).
C. Alleged Ineffective Assistance of Counsel
Petitioner's only other exhausted claim is that he was denied effective assistance of counsel when his trial attorney wrongly advised him to enter into a Cobbs agreement, which contained no benefit. Petitioner pleaded guilty in return for a minimum sentence of no more than fifteen years. He contends that, if the sentencing guidelines had been scored correctly, his minimum sentence would have been three years and two months less than the fifteen-year minimum sentence for which he bargained. Consequently, he alleges that the Cobbs agreement was illusory and of no benefit to him.
See People v. Cobbs 443 Mich. 276 (1993), in which the Michigan Supreme Court established the following procedure by which sentencing judges could participate in sentencing discussions:
At the request of a party, and not on the judge's own initiative, a judge may state on the record the length of sentence that, on the basis of the information then available to the judge, appears to be appropriate for the charged offense.
To avoid the potential for coercion, a judge must not state or imply alternative sentencing possibilities on the basis of future procedural choices, such as an exercise of the defendant's right to trial by jury or by the court.
The judge's preliminary evaluation of the case does not bind the judge's sentencing discretion, since additional facts may emerge during later proceedings, in the presentence report, through the allocution afforded to the prosecutor and the victim, or from other sources. However, a defendant who pleads guilty or nolo contendere in reliance upon a judge's preliminary evaluation with regard to an appropriate sentence has an absolute right to withdraw the plea if the judge later determines that the sentence must exceed the preliminary evaluation.Id. at 283 (footnote and emphasis omitted).
The maximum possible sentence was life imprisonment as a fourth felony offender.
Petitioner's claim is based on his own interpretation of the relevant statutes and scoring of the sentencing guidelines. To prevail on his claim, Petitioner must demonstrate that defense counsel's performance was deficient and that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). To satisfy the deficient-performance prong, Petitioner must show that his attorney's representation fell below an objective standard of reasonableness or outside the range of competence demanded of attorneys in criminal cases. Hill v. Lockhart, 474 U.S. 52, 56-59 (1985). The prejudice prong focuses on whether defense counsel's constitutionally ineffective performance affected the outcome of the plea process. Id. at 59. Petitioner must demonstrate "a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Id.
The sentencing guidelines, as calculated by a state probation officer, called for a minimum sentence of anywhere from fifty months (four years and two months) to two hundred months (sixteen years and eight months). The Cobbs' agreement was beneficial because it set the minimum sentence at no more than fifteen years.
Petitioner contends that his minimum sentence should have been no more than eleven years and ten months. However, defense counsel made the same argument at sentencing. The prosecutor then argued that the sentencing guidelines should be even higher than the probation department's calculation of fifty to two hundred months. The trial court was persuaded by the prosecutor's arguments and determined that the guidelines should be fifty-eight to two hundred twenty-eight months.
Petitioner has failed to demonstrate that his trial attorney's arguments and advice to accept the Cobbs plea amounted to a deficient performance. Even if defense counsel's performance was deficient, Petitioner has failed to allege that, but for defense counsel's alleged errors, he would have gone to trial. Thus, the alleged deficiency did not prejudice Petitioner, and the state appellate court's conclusion that Petitioner's claim lacked merit was not an unreasonable application of Strickland and Hill. 28 U.S.C. § 2254(d)(1).
III. Conclusion
The claims attacking Petitioner's conviction and sentence in case number 167004 do not warrant granting the writ of habeas corpus. The claims attacking Petitioner's conviction and sentence in case number 167003 are procedurally defaulted. Accordingly, the application for a writ of habeas corpus is DENIED.
Reasonable jurists would not find the Court's assessment of Petitioner's constitutional claims debatable or wrong. Nor would reasonable jurists find it debatable whether the petition states a valid claim of the denial of a constitutional right and whether the Court's procedural ruling on Petitioner's defaulted claims was correct. The Court therefore declines to issue a certificate of appealability on any of Petitioner's claims. Slack v. McDaniel, 529 U.S. 473, 484 (2000).