Opinion
Civil No. 99-74565-DT
May 8, 2000
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
Joseph Colon, ("petitioner"), presently confined at the Ryan Correctional Facility in Detroit, Michigan, seeks the issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his application, filed pro se, petitioner challenges his conviction on two counts of Uttering and Publishing, M.C.L.A. 750.249; M.S.A. 28.446, and one count of Attempt to Obtain Controlled Substance by Fraud, M.C.L.A. 333.7404(1)(c); M.S.A. 14.15 (7404) (1)(c). For the reasons stated below, the petition for writ of habeas corpus is DENIED.
Petitioner initially filed two petitions for a writ of habeas corpus. Because each of these petitions challenged the same convictions, this Court dismissed the second habeas petition, 99-74896, on the ground that it was duplicative.
I. BACKGROUND
Petitioner pleaded guilty to two counts of uttering and publishing and one count of attempt to obtain controlled substances by fraud. In exchange for his plea of guilty, the prosecutor agreed to dismiss a supplemental information charging petitioner with being a fourth felony habitual offender. The prosecutor also agreed to dismiss a fourth case involving a charge of insufficient funds over $200.00 and a fifth case of uttering and publishing and forgery.
On November 6, 1997, petitioner received concurrent sentences of five (5) to fourteen (14) and seven (7) to fourteen (14) years on each of the uttering and publishing convictions and a sentence of one (1) to two (2) years on the attempt to obtain controlled substances by fraud conviction. All of the sentences were ordered to run consecutive to the sentence that petitioner was on parole for at the time he committed these offenses.
Petitioner thereafter filed a motion for re-sentencing, which was denied by the trial court. People v. Colon, Jackson County Circuit Court #97-81554, 97-81556; dated June 29, 1998. Petitioner's convictions were affirmed on appeal. People v. Colon, 212892 and 212893 (Mich.Ct.App. August 19, 1998); lv. den. 459 Mich. 986 (1999). Petitioner now seeks the issuance of a writ of habeas corpus on the following grounds:
I. The Petitioner was denied the effective assistance of counsel.
II. The trial court denied Petitioner's due process when it abused its discretion and considered information that was totally inaccurate and unsupported by any factual basis when imposing sentence upon Petitioner.
III. The trial court violated Petitioner's constitutional right of fair treatment when it abused its discretion in imposing a sentence upon Petitioner that was not proportionate to the seriousness of the offense against him.
II. STANDARD OF REVIEW
The provisions of the Antiterrorism and Effective Death Penalty Act (A.E.D.P.A) govern this case because petitioner filed his habeas application after the effective date of the AEDPA. See Lindh v. Murphy, 521 U.S. 320 (1997). The Act altered the standard of review that a federal court must use when reviewing applications for writs of habeas corpus. 28 U.S.C. § 2254 (d) provides:An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(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 on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C. § 2254 (d); Harpster v. State of Ohio, 128 F.3d 322, 326 (6th Cir. 1997).
The United States Supreme Court has only recently defined the applicability of § 2254(d)(1). With respect to the "contrary to" clause, there are two situations in which a state court decision will be contrary to clearly established federal law. First, a state court decision will clearly be contrary to the Supreme Court's clearly established precedent if the state court applies a rule that contradicts the governing law set forth in the Supreme Court's cases. Second, a state-court decision would also be contrary to the Supreme Court's clearly established precedent if the state court confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at a result different from the Supreme Court precedent. Williams v. Taylor, ___ S.Ct. ___; 2000 WL 385369, *24 (U.S. April 18, 2000). On the other hand, a "run-of-the-mill state-court decision" which applied the correct legal rule from the Supreme Court's cases to the facts of a petitioner's cases would not fit comfortably within the "contrary to" clause in § 2254(d)(1). Id. These cases should be reviewed under the "unreasonable application" language of § 2254(d)(1).
A federal habeas court making the "unreasonable application" inquiry must ask whether the state court's application of clearly established federal law was objectively unreasonable. Williams v. Taylor, Slip. Op. at *26. Although the term unreasonable is difficult to define, it is a common term in the legal world, and federal judges are familiar with its meaning. An unreasonable application of federal law is different from an incorrect application of federal law. Thus, a federal habeas court may not issue a writ simply because the court concludes in its independent judgment that the relevant state court decision applied clearly established federal law erroneously or incorrectly. Rather, the application must also be unreasonable. Id. at 27.
Finally, the term "clearly established federal law" refers to the holdings as opposed to the dicta of the U.S. Supreme Court's decisions at the time of the relevant state court decisions. Williams v. Taylor, Slip. Op. at *28.
III. DISCUSSION
A. Claim #1. Petitioner has failed to show that he was deprived of the effective assistance of counsel.
1. Standard of Review
To show that he was denied the effective assistance of counsel under federal constitutional standards, a defendant must satisfy a two prong test. First, the defendant must demonstrate that, considering all of the circumstances, counsel's performance was so deficient that the attorney was not functioning as the "counsel" guaranteed by the Sixth Amendment. Strickland v. Washington, 466 U.S. 668, 687 (1984). In so doing, the defendant must overcome a strong presumption that counsel's behavior lies within the wide range of reasonable professional assistance. Id.; O'Hara v. Wigginton, 24 F.3d 823, 828 (6th Cir. 1994). In other words, petitioner must overcome the presumption that, under the circumstances, the challenged action might be sound trial strategy. Strickland, 466 U.S. at 689. Second, the defendant must show that such performance prejudiced his defense. Id. To demonstrate prejudice, the defendant must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694.
2. The Individual Claims.
A. Failure to appeal the denial of the motion for disqualification to the chief judge of the circuit court.
Petitioner first claims that his attorney was ineffective for failing to appeal the denial of his motion to disqualify the sentencing judge. Although petitioner's attorney did file a motion for disqualification with the sentencing judge, petitioner contends that his counsel was ineffective for failing to appeal the denial of that motion to disqualify with the chief judge of the circuit court, as allowed for under M.C.R. 2.003.
In the present case, the only basis that petitioner argues for the judge's disqualification is that the sentencing judge previously prosecuted him for some of his prior offenses. Michigan law, however, indicates that a judge does not need to disqualify himself or herself from presiding over a case even though he or she previously prosecuted a defendant, in the absence of a showing of actual bias or prejudice. People v. Lowenstein, 118 Mich. App. 475, 485; 325 N.W.2d 462, 466 (1982); People v. Moran, 36 Mich. App. 730, 734; 194 N.W.2d 555 (1971). The Sixth Circuit has also refused to adopt a per se rule which would prevent a judge who had previously prosecuted a defendant from presiding over his or her case. Jenkins v. Bordenkircher, 611 F.2d 162, 166-167 (6th Cir. 1979).
In the present case, petitioner has offered no evidence that the trial court had any actual prejudice or bias against him. The only argument that petitioner makes in support of this claim in his petition is that the sentence imposed by the trial court was disproportionate. Adverse rulings are not themselves sufficient to establish bias or prejudice which will disqualify a judge. Hence v. Smith, 49 F. Supp.2d 547, 549 (E.D. Mich. 1999) (Gadola, J.) (citing to Knapp v. Kinsey, 232 F.2d 458, 466 (6th Cir. 1956)). In the absence of such actual bias, Michigan law would not require that the sentencing judge disqualify himself from hearing this case even though he may have prosecuted petitioner on a prior occasion. Moreover, a review of the transcripts from the trial court proceedings fails to show any actual bias on the trial court's part towards petitioner. Because petitioner has failed to show actual bias by the trial judge rising to the level of a constitutional violation and that an appeal based on the trial judge's refusal to recuse himself would have lead to a different result, petitioner has failed to demonstrate that trial counsel was ineffective for failing to appeal the trial judge's refusal to recuse himself. See Harris v. State of Mo., 960 F.2d 738, 740 (8th Cir. 1992); See also Baldwin v. Johnson, 152 F.3d 1304, 1317 (11th Cir. 1998).
B. Failure to object to the scoring of various sentencing guidelines variables.
Petitioner also claims that counsel was ineffective for failing to object to the use of inaccurate information at sentencing which lead to the incorrect scoring of several variables under the Michigan sentencing guidelines.
A defendant has a constitutional right to the effective assistance of counsel at sentencing. Wilson v. United States, 962 F.2d 996, 997 (11th Cir. 1992). To establish a claim of ineffective assistance of counsel in the sentencing context, a defendant must show that:
1. counsel's representation fell below the objective standard of reasonableness; and;
2. there is a reasonable probability that, but for counsel's unprofessional errors, the result of the sentence would have been different.United States v. Harris, 894 F. Supp. 20, 26 (D.D.C. 1995).
With respect to a defendant's efforts to demonstrate prejudice arising from ineffective assistance of counsel in the context of a noncapital sentencing, a habeas court must determine whether there is a probability that, but for counsel's deficiency, the defendant's sentence would have been "significantly less harsh". United States v. Walker, 68 F.3d 931, 934 (5th Cir. 1995).
In the present case, the only guidelines variable that petitioner specifically identifies as having not been objected to is Offense Variable (OV) 8 of the Michigan Sentencing Guidelines, Continuing Pattern of Criminal Behavior, which allows the trial court to assess ten points against the defendant's offense variable level if: "the offense is part of a pattern of criminal activities over a period of time from which the offender derives a substantial portion of his or her income and/or the offense is directly related to membership in an organized criminal group." Petitioner claims that had the trial court not improperly assessed ten points against him under OV8, his guidelines range would have been scored at DII, 18-60 months, instead of DIII, 24-84 months.
In support of his claim in the state courts, petitioner contended that he was receiving income in the form of social security payments, thus negating the finding that he was receiving a substantial portion of his income from criminal activities. In denying the motion for re-sentencing, the trial court found that nothing in the affidavit submitted by petitioner in support of his motion for resentencing indicated that petitioner had informed his attorney about these social security benefits. Petitioner failed to present any such proof to the Michigan appellate courts, nor has he presented any proof to this Court that he had made counsel aware of the fact that he was receiving social security benefits. Because there is no proof that petitioner's counsel was aware that petitioner was receiving these benefits, counsel would not have been ineffective for failing to bring these payments up at the time of sentencing to oppose the scoring of this guidelines variable.
Moreover, because the Michigan sentencing guidelines do not have a legislative mandate, the Michigan Supreme Court has not required adherence to the guidelines by the sentencing courts. Because the guidelines do not have the force of law, a guidelines error does not violate Michigan law. Thus, a claim of a miscalculated variable is not in itself a claim of legal error. People v. Mitchell, 454 Mich. 145, 175; 560 N.W.2d 600 (1997). When a sentence is not disproportionate, putative error in the scoring of sentencing guidelines does not provide a basis for relief on appeal. People v. Raby, 456 Mich. 487, 496; 572 N.W.2d 644 (1998). Even if trial counsel was ineffective for failing to object to the scoring often points under OV 8, petitioner is not entitled to habeas relief on this claim because he has failed to show that but for his counsel's errors, the sentence imposed would have been significantly less harsh. At the time of sentence, petitioner had three prior felony convictions and six misdemeanor convictions. Petitioner was on parole at the time that these offenses were committed. Although petitioner claims that the offense that he was convicted for involved only a fifty dollar check, petitioner had passed eight other checks totaling eight hundred and sixty dollars and two cents ($860.02) for which he was not charged. Even if the trial court had agreed to reduce petitioner's guidelines range to 18-60 months, petitioner still could have received a minimum sentence of 60 months, which was not significantly less than the 84 month minimum sentence which was imposed. Under the circumstances, petitioner has failed to show that his sentence would have been significantly less harsh had his attorney objected to the scoring of OV 8.
With respect to petitioner's other claims of ineffective assistance of counseling at sentencing, petitioner has failed to specify what errors or omissions were committed by counsel. A habeas petitioner must come forward with some evidence that his or her claim has merit. Bald assertions and unsupported, conclusory allegations do not entitle a habeas petitioner to an evidentiary hearing in federal court. Nickerson v. Lee, 971 F.2d 1125, 1136 (4th Cir. 1992); Zettlemoyer v. Fulcomer, 923 F.2d 284 (3rd Cir. 1991). A contrary rule would "encourage meritless petitions burdening judicial resources." Id. at 301. Because petitioner has not specified what other errors were committed by his trial counsel at sentencing, he is not entitled to relief on this claim.
C. Conclusion
Petitioner was not denied the effective assistance of counsel.
B. Claims #2 and #3. Petitioner is not entitled to habeas relief based upon his state law sentencing claims.
The Court has consolidated petitioner's two remaining claims for judicial economy. In his second claim, petitioner alleges that the trial court used inaccurate or false information in imposing sentence. In his third claim, petitioner claims that his sentence of seven (7) to fourteen (14) years violated the principle of proportionality.
In order to prevail on a claim that a trial court relied on inaccurate information at sentencing, a habeas petitioner must demonstrate that the sentencing court relied upon this information and that it was materially false. Collins v. Buchkoe, 493 F.2d 343, 345-346 (6th Cir. 1974); Welch v. Burke, 49 F. Supp.2d 992, 1007 (E.D. Mich. 1999) (Cleland, J.). Because petitioner has failed to demonstrate in his petition that the sentencing court relied upon materially false information in imposing sentence, this claim is without merit. Thomas v. Foltz, 654 F. Supp. 105, 108 (E.D. Mich. 1987) (Cohn, J.). Moreover, to the extent that petitioner is claiming that his sentence violates the Michigan state sentencing guidelines, his claim is not cognizable in a habeas proceeding because it is a state law claim. Id.; See also Johnson v. Abramajtys, 951 F.2d 349, 1991 WL 270829, *9 (6th Cir. December 17, 1991) (Michigan Sentencing Guidelines are not mandatory, do not create substantive rights, and are merely a tool used to assist the sentencing judge in the exercise of discretion). A claim that a sentence is imposed in violation of Michigan's sentencing laws does not state a claim for relief in a habeas proceeding where there is no allegation that the sentence violates the cruel and unusual punishment clause of the Eighth Amendment to the U.S. Constitution. See Atkins v. Overton, 843 F. Supp. 258, 260 (E.D. Mich. 1994) (Gadola, J.). Because petitioner does not claim that the sentence imposed violates the cruel and unusual punishment clause of the Eighth Amendment, he has failed to state a claim upon which habeas relief can be granted.
In the present case, petitioner's sentence of seven to fourteen years was within the statutory limits of uttering and publishing. A sentence imposed within the statutory limits is not generally subject to habeas review. Townsend v. Burke, 334 U.S. 736, 741 (1948); Cook v. Stegall, 56 F. Supp.2d 788, 797 (E.D. Mich. 1999) (Gadola, J.). Because petitioner's sentence falls within the statutory limits, petitioner is not entitled to habeas relief.
IV. ORDER
Based upon the foregoing, IT IS ORDERED that the petition for a writ of habeas corpus is DENIED WITH PREJUDICE.