UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

LAMAR CLINTON CRAIG, 

 Petitioner, 

v. CASE NO. 14-12386 

 HONORABLE ARTHUR J. TARNOW 

JOE BARRETT, 

 Respondent. 

___________________________/ 

OPINION AND ORDER 

DENYING THE HABEAS CORPUS PETITION, 

DENYING A CERTIFICATE OF APPEALABILITY, 

BUT GRANTING LEAVE TO APPEAL IN FORMA PAUPERIS

 This matter has come before the Court on petitioner Lamar Clinton Craig’s pro se 

habeas corpus petition under 28 U.S.C. § 2254. The habeas petition challenges 

Petitioner’s plea-based conviction and sentence of thirteen to forty years for gross 

indecency between a male and a female as a sexually delinquent person. See Mich. 

Comp. Laws § 750.338b; Mich. Comp. Laws § 750.10a. Petitioner alleges as grounds for 

relief that: (1) his guilty plea was not knowing, voluntary, or intelligent; (2) he was 

sentenced on the basis of inaccurate information in the pre-sentence report and 

improperly scored sentencing guidelines; (3) trial counsel was ineffective; and (4) 

appellate counsel was ineffective on direct appeal. In an answer to the habeas petition, 

respondent Joe Barrett urges the Court to deny the petition because Petitioner’s claims 

lack merit or are not cognizable on habeas review and because the state court’s 

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adjudication of the claims was objectively reasonable. The Court agrees with 

Respondent that Petitioner’s claims do not warrant habeas relief. Accordingly, the 

habeas petition will be denied. 

I. Background

 Petitioner initially was charged in Wayne County, Michigan with five counts of 

criminal sexual conduct in the first degree. See Mich. Comp. Laws § 750.520b(1)(a) 

(sexual penetration of a person under thirteen years of age). Following a preliminary 

examination where the victim testified that Petitioner penetrated her vagina four times, 

the state district court transferred jurisdiction to the Wayne County Circuit Court on four 

counts of first-degree criminal sexual conduct. 

 On March 23, 2009, Petitioner pleaded guilty to one count of gross indecency 

between a male and a female, Mich. Comp. Laws § 750.338b, and one count of being a 

sexually delinquent person, Mich. Comp. Laws § 750.10a. In return, the prosecution 

dismissed the four counts of criminal sexual conduct and agreed to a sentence of thirteen 

to forty years. On April 8, 2009, the trial court sentenced Petitioner to thirteen to forty 

years in prison for gross indecency between a male and a female and a concurrent term of 

one to five years in prison for being a sexually delinquent person. On May 27, 2009, the 

trial court entered an amended judgment of sentence, which reflected a sentence of one to 

five years in prison for the gross-indecency conviction and a concurrent term of thirteen 

to forty years for the sexually-delinquent-person conviction. 

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 In a delayed application for leave to appeal, Petitioner argued through counsel 

that: (1) his sentence was based on improperly scored sentencing guidelines and 

inaccurate information in the pre-sentence report; (2) his sentence for being a sexually 

delinquent person under Mich. Comp. Laws § 750.10a should be reversed because the 

statute merely defines what it is to be a sexually delinquent person and is not a charge; 

and (3) trial counsel was ineffective for failing to (a) make proper objections to the 

scoring of the guidelines and (b) inform either the trial court or Petitioner that count two 

(sexually delinquent person) was not a charge, but merely a definition of a term used in 

the gross-indecency count. The Michigan Court of Appeals denied leave to appeal “for 

lack of merit in the grounds presented.” See People v. Craig, No. 296159 (Mich. Ct. 

App. Apr. 2, 2010). 

 Petitioner raised the same claims in the Michigan Supreme Court, which agreed 

with Petitioner that the sexually-delinquent-person statute is a definitional statute and that 

it does not carry the possibility of a separate conviction or sentence independent of other 

criminal charges. In lieu of granting leave to appeal, the state supreme court remanded 

the case to the trial court for amendment of the judgment of sentence to reflect a single 

conviction of gross indecency between a male and a female and a single sentence of 

thirteen to forty years. The supreme court denied leave to appeal in all other respects 

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because it was not persuaded to review the remaining issues. See People v. Craig, 488 

Mich. 861; 788 N.W.2d 13 (2010).1

 

 On or about February 29, 2012, Petitioner filed a motion for relief from judgment 

in the trial court. He claimed that: (1) his guilty plea was illusory; (2) trial counsel was 

ineffective for not objecting to Petitioner being charged and sentenced under a 

definitional statute; (3) appellate counsel was ineffective for not raising his first two 

claims on direct appeal; and (4) he could establish “cause” for not raising his claims on 

direct appeal and resulting prejudice. 

 The trial court denied Petitioner’s motion after concluding that Petitioner’s guilty 

plea was not illusory and that there was no basis for relief on Petitioner’s other claims 

because the erroneous sentence was corrected by the Michigan Supreme Court and the 

trial court’s corrected judgment of sentence.2

 See People v. Craig, No. 08-009824-01-

FC, Op. and Order on Deft’s Mot. for Relief from J. (Wayne Cty. Cir. Ct. May 7, 2012). 

Petitioner subsequently filed a document entitled “Construction Legal Notice.” The trial 

court treated the document as a motion for reconsideration and then granted Petitioner’s 

request to correct the pre-sentence report to reflect the proper scoring of the guidelines. 

The court denied the motion in all other respects. See People v. Craig, No. 08-009824-

 

1

 Justice Alton Thomas Davis recused himself because he was a member of the panel that 

decided Petitioner’s case in the Michigan Court of Appeals. 

2

 It appears from the record before the Court that the second amended judgment of 

sentence, which showed one offense and one sentence of thirteen to forty years for gross 

indecency between a male and a female as a sexually delinquent person, actually was not 

entered until January 22, 2014. See ECF No. 8-12. 

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01-FC, Op. and Order on Deft’s Mot. for Reconsideration (Wayne Cty. Cir. Ct. June 12, 

2012). 

 Petitioner appealed the trial court’s decision, but the Michigan Court of Appeals 

denied leave to appeal for failure to establish entitlement to relief under Michigan Court 

Rule 6.508(D). See People v. Craig, No. 310515 (Mich. Ct. App. Nov. 8, 2012). On 

June 25, 2013, the Michigan Supreme Court denied leave to appeal for the same reason. 

See People v. Craig, 494 Mich. 868; 832 N.W.2d 223 (2013). Petitioner moved for 

reconsideration, but the state supreme court denied his motion. See People v. Craig, 495 

Mich. 904; 839 N.W.2d 485 (2013). Finally, on June 18, 2014, Petitioner filed his habeas 

corpus petition. 

II. Standard of Review

 Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 

Petitioner is entitled to federal habeas corpus relief 

only if the state court’s decision “was contrary to, or involved an 

unreasonable application of, clearly established Federal law, as determined 

by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). “A 

state court’s determination that a claim lacks merit precludes federal habeas 

relief so long as ‘fairminded jurists could disagree’ on the correctness of the 

state court’s decision.” Harrington v. Richter, 562 U.S. 86, 101, 131 S.Ct. 

770, 178 L.Ed.2d 624 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 

652, 664, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004)). The state court 

decision must be “so lacking in justification that there was an error well 

understood and comprehended in existing law beyond any possibility for 

fairminded disagreement.” White v. Woodall, 572 U.S. ––––, ––––, 134 

S.Ct. 1697, 1702, 188 L.Ed.2d 698 (2014) (internal quotation marks 

omitted). 

Woods v. Etherton, 136 S. Ct. 1149, 1151 (2016). 

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“AEDPA thus imposes a ‘highly deferential standard for evaluating state-court rulings,’ 

Lindh v. Murphy, 521 U.S. 320, 333 n.7 (1997), and ‘demands that state-court decisions 

be given the benefit of the doubt,’ Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per

curiam).” Renico v. Lett, 559 U.S. 766, 773 (2010). 

III. Analysis

A. The Guilty Plea

 Petitioner alleges that his guilty plea was not knowing, intelligent, voluntary, or 

understanding because it was illusory and based on ignorance, misinformation, 

misrepresentation, incomprehension, and a false premise. Petitioner states that he 

pleaded guilty to an inapplicable statute and did not completely understand the plea 

agreement because no one informed him that the sexually-delinquent-person statute was a 

definition of a crime, not a crime itself. Petitioner also states that the gross-indecency 

statute carries a five-year maximum sentence, yet he was sentenced to thirteen to forty 

years in prison. 

1. Clearly Established Federal Law

 “A guilty or no-contest plea involves a waiver of many substantial constitutional 

rights,” Fautenberry v. Mitchell, 515 F.3d 614, 636 (6th Cir. 2008), and an involuntary 

plea is “an impairment of a defendant’s substantial rights,” United States v. Martin, 668 

F.3d 787, 792 (6th Cir. 2012). Consequently, a guilty plea must be a voluntary, knowing, 

and intelligent act “done with sufficient awareness of the relevant circumstances and 

likely consequences.” Brady v. United States, 397 U.S. 742, 748 (1970). Courts consider 

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all the relevant circumstances when determining whether a plea was voluntary. Id. at 

749. 

 A reviewing court must ensure that the defendant appreciated the consequences of 

his waiver of constitutional rights, waived his rights without being coerced to do so, and 

understood the rights that he was surrendering by pleading guilty. Ruelas v. 

Wolfenbarger, 580 F.3d 403, 408 (6th Cir. 2009). Additionally, the defendant must 

understand the essential elements of the offense to which he pleads guilty and be aware 

of the maximum sentence to which he is exposed. Id. at 408-09. And “the determination 

of whether a plea is illusory must be based on the circumstances existing at the time the 

decision to plead guilty was made, not at a later time, when additional facts may have 

been discovered.” Cross v. Barrett, No. 1:14-cv-530, 2014 WL 2778111, at *12 (W.D. 

Mich. June 19, 2014) (unpublished opinion citing Brady, 397 U.S. at 756.) 

2. Application

 The term “illusory” has been defined as “Deceptive; based on a false impression.” 

Black’s Law Dictionary (10th Ed. 2014). Petitioner’s plea and sentencing agreement was 

far from illusory. In the words of the trial court, 

Defendant faced four separate counts of Criminal Sexual Conduct in the 

First Degree with a person under the age of 13. Each count carried a 

maximum sentence of life in prison (or any number of years) with a 

mandatory minimum sentence of twenty-five years. 

Defense counsel was able to negotiate a plea agreement to a reduced charge 

with a sentence agreement of thirteen to forty years – approximately onehalf the mandatory minimum required for the original charges. That is a 

significant reduction in potential punishment and cannot be considered 

illusory under any definition. 

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People v. Craig, No. 08-009824-01-FC, Opinion (Wayne Cty. Cir. Ct. May 7, 2012) 

(footnote omitted). Thus, there is no merit to Petitioner’s claim that his guilty plea was 

illusory. 

 There also is no merit in Petitioner’s claim that his plea was involuntary or 

unknowing. At the plea proceeding, he claimed to understand that the gross-indecency 

charge carried a maximum sentence of five years in prison and that the sexuallydelinquent charge had a statutory maximum of life in prison. (Plea Tr., at 4, Mar. 23, 

2009). He also claimed to understand the rights that he was waiving by pleading guilty, 

id. at 4-5, and that an appeal would be by leave of the court instead of automatic, id. at 6-

7. He stated that no promises, other than the plea agreement, were made to him to induce 

his guilty plea and that his plea was not coerced. Id. at 5, 7. Petitioner assured the trial 

court that he had an opportunity to discuss the case with his attorney, that he understood 

the settlement offer, and that his attorney had answered his questions. Id. at 7. He stated 

that he was pleading guilty because he was guilty, id., and that he wanted the court to 

accept his plea, id. at 4. He concluded his colloquy with the trial court by providing a 

factual basis for the plea, admitting that he digitally penetrated someone who was under 

the age of thirteen. Id. at 8-9. Petitioner’s “[s]olemn declarations in open court carry a 

strong presumption of verity.” Blackledge v. Allison, 431 U.S. 63, 74 (1977). 

 To summarize, Petitioner knowingly waived his constitutional rights, claimed that 

his plea was voluntary and not coerced, demonstrated that he understood the elements of 

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the crime, and stated that he understood the maximum penalties for the crimes. Although 

it appears that neither Petitioner, nor his attorney, understood that the sexuallydelinquent-person statute was not a crime in itself, the misunderstanding could not have 

affected the voluntariness of Petitioner’s plea. After the judgment of sentence was 

amended to reflect the true nature of the delinquent-person statute, the end result was 

essentially the same as what Petitioner bargained for: a conviction for gross indecency as 

a sexually delinquent person and a sentence of thirteen to forty years. 

 The Court concludes that Petitioner’s plea was voluntary, knowing, and 

intelligent, and his plea agreement was not deceptive. Habeas relief is not warranted on 

Petitioner’s first claim. 

B. The Sentence

 Petitioner alleges next that he was not given an opportunity to inspect the presentence report before sentencing. He also contends that he was sentenced on the basis of 

an inaccurate pre-sentence report and incorrectly scored sentencing guidelines. 

According to him, the report contained errors regarding his age, his prior misdemeanors 

and felonies, his tattoo, his girlfriend’s address and date of birth, his children and the 

spelling of their names and their mothers’ names, his prior employment, the color of his 

hair, his relationship to the victim, and his military infraction. Petitioner asserts that, 

although these inaccuracies may seem insignificant, they are, in fact, significant when 

added together. Additionally, Petitioner states that his sentence was inconsistent with his 

sentencing guidelines. 

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 To begin, the record belies Petitioner’s allegation that he did not have an 

opportunity to inspect the pre-sentence report before sentencing. His attorney stated at 

the sentence proceeding that he did have an opportunity to review the pre-sentence report 

with Petitioner. (Sentencing Tr. at 3, Apr. 8, 2009.) 

 Furthermore, the state court’s application of its sentencing laws and guidelines “is 

a matter of state concern only,” Howard v. White, 76 F. App’x 52, 53 (6th Cir. 2003), and 

“federal habeas corpus relief does not lie for errors of state law,” Lewis v. Jeffers, 497 

U.S. 764, 780 (1990); see also Pulley v. Harris, 465 U.S. 37, 41 (1984) (stating that “[a] 

federal court may not issue the writ on the basis of a perceived error of state law”). “In 

conducting habeas review, a federal court is limited to deciding whether a conviction 

violated the Constitution, laws, or treaties of the United States.” Estelle v. McGuire, 502 

U.S. 62, 68 (1991). Thus, Petitioner’s contention that the trial court miscalculated the 

sentencing guidelines is not a cognizable claim on federal habeas corpus review. Tironi 

v. Birkett, 252 F. App’x 724, 725 (6th Cir. 2007); McPhail v. Renico, 412 F. Supp. 2d 

647, 656 (E.D. Mich. 2006); Robinson v. Stegall, 157 F. Supp. 2d 802, 823 (E.D. Mich. 

2001). 

 Petitioner’s related claim that errors occurred in his pre-sentence report also is not 

cognizable on habeas review. See Rodriguez v. Jones, 625 F. Supp. 2d 552, 569 (E.D. 

Mich. 2009). And “the mere presence of . . . inaccurate information in a [pre-sentence 

report] does not constitute a denial of due process.” Hili v. Sciarrotta, 140 F.3d 210, 216 

(2nd Cir. 1998). 

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 While it is true that Petitioner had a right to be sentenced on accurate information, 

it is only a sentence based on “extensively and materially false” information, which the 

prisoner had no opportunity to correct through counsel, that violates due process. 

Townsend v. Burke, 334 U.S. 736, 741 (1948). Petitioner was represented by counsel at 

his plea, and his attorney alerted the trial court to errors in the criminal history section of 

the pre-sentence report. The other errors about which Petitioner complains were 

insignificant and harmless. The trial court did not sentence Petitioner on extensively and 

materially false information. 

 Finally, although Petitioner claims that his sentence was not consistent with the 

sentencing guidelines, he was sentenced pursuant to the plea and sentencing agreement. 

The trial court therefore did not err by deviating from the sentencing guidelines. Habeas 

relief is not warranted on Petitioner’s sentencing claim. 

C. Trial Counsel

 In his third habeas claim, Petitioner alleges that his trial attorney was ineffective 

for failing to: (1) challenge Petitioner’s guilty plea as illusory; (2) object to Petitioner 

being charged and sentenced under an inappropriate criminal statute; (3) challenge 

inaccuracies in the pre-sentence report; and (4) correctly score the sentencing guidelines. 

Petitioner argues that, if counsel had performed effectively, the plea bargain would not 

have been made or accepted and his sentence would have been significantly shorter. 

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1. Clearly Established Federal Law

 A defendant has the right to effective assistance of counsel during plea 

negotiations and during sentencing. Lafler v. Cooper, 132 S. Ct. 1376, 1384-86 (2012). 

But to prevail on a claim of ineffective assistance, a habeas petitioner must show that 

“counsel’s performance was deficient” and that “the deficient performance prejudiced the 

defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). In the context of a guilty 

plea, a deficient performance is one that falls below an objective standard of 

reasonableness or is outside the range of competence demanded of attorneys in criminal 

cases, Hill v. Lockhart, 474 U.S. 52, 56-57 (1985). The “prejudice” prong “focuses on 

whether counsel’s constitutionally ineffective performance affected the outcome of the 

plea process.” Id. at 59. 

When the claim at issue is one for ineffective assistance of counsel, 

moreover, AEDPA review is “doubly deferential,” Cullen v. Pinholster, 

563 U.S. 170, 190, 131 S.Ct. 1388, 179 L.Ed.2d 557 (2011), because 

counsel is “strongly presumed to have rendered adequate assistance and 

made all significant decisions in the exercise of reasonable professional 

judgment,” Burt v. Titlow, 571 U.S. ––––, ––––, 134 S.Ct. 10, 17, 187 

L.Ed.2d 348 (2013) (quoting Strickland v. Washington, 466 U.S. 668, 690, 

104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); internal quotation marks omitted). 

In such circumstances, federal courts are to afford “both the state court and 

the defense attorney the benefit of the doubt.” Burt, supra, at ––––, 134 

S.Ct., at 13. 

Etherton, 136 S. Ct. at 1151. 

2. Application

 Petitioner alleges his trial attorney was ineffective for failing to challenge the 

guilty plea as illusory. As explained above, however, the plea agreement was not 

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illusory. In fact, defense counsel negotiated a plea and sentence agreement that was very 

favorable to Petitioner in that the charges and potential penalty were significantly 

reduced. The Court therefore concludes that defense counsel was not ineffective for 

failing to challenge Petitioner’s plea as illusory. 

 Petitioner alleges next that trial counsel was ineffective for failing to object to 

Petitioner being charged and sentenced under an inappropriate criminal statute. The 

Michigan Supreme Court agreed with Petitioner that the sexually-delinquent-person 

statute was a definitional statute and that the statute did not carry the possibility of a 

separate conviction or sentence independent of other criminal charges. Nevertheless, the 

state supreme court remanded Petitioner’s case to the state trial court for amendment of 

the judgment of sentence to reflect a single conviction for gross indecency between a 

male and a female and a single sentence of thirteen to forty years pursuant to the plea and 

sentence agreement. Therefore, even assuming that defense counsel’s performance was 

deficient, the deficient performance did not prejudice the defense, and “there can be no 

finding of ineffective assistance without prejudice.” Shimel v. Warren, __ F.3d __, __, 

No. 15-2419, 2016 WL 5219883, at *9 (6th Cir. Sept. 22, 2016). 

 Petitioner’s remaining claims allege that defense counsel failed to challenge 

inaccuracies in the pre-sentence report and failed to correctly score the sentencing 

guidelines. The record indicates that defense counsel challenged the scoring of the 

sentencing guidelines and successfully challenged a couple of significant inaccuracies in 

the pre-sentence report. Defense counsel also negotiated a plea and sentence agreement 

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that called for a sentence of about one-half the mandatory minimum sentence required for 

the original charges. This was effective advocacy, not ineffective assistance. The Court 

therefore declines to grant relief on Petitioner’s claim about trial counsel. 

D. Appellate Counsel

 Petitioner’s fourth and final habeas claim is that his appellate attorney on direct 

review was ineffective for failing to raise Petitioner’s claims that his guilty plea was 

illusory and that trial counsel was ineffective for not challenging the guilty plea as 

illusory. Petitioner contends that, if appellate counsel had raised those issues on appeal, 

the appellate courts might have reversed his conviction. 

 The Court concluded above that Petitioner’s guilty plea was not illusory and that 

his trial attorney was not ineffective for failing to challenge the guilty plea as illusory. 

Because Petitioner’s underlying claims lack merit, his appellate attorney was not 

ineffective for failing to raise the claims. “[B]y definition, appellate counsel cannot be 

ineffective for a failure to raise an issue that lacks merit.” Greer v. Mitchell, 264 F.3d 

663, 676 (6th Cir. 2001). The Court therefore declines to grant relief on Petitioner’s 

claim about appellate counsel. 

IV. Conclusion

 The state court decisions in this case were not contrary to Supreme Court 

precedent, an unreasonable application of Supreme Court precedent, or an unreasonable 

determination of the facts. The state court decisions certainly were not so lacking in 

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justification that there was an error beyond any possibility for fairminded disagreement. 

The Court therefore denies the petition for writ of habeas corpus. 

V. CERTIFICATE OF APPEALABILITY

 Habeas petitioners may not appeal a district court’s decision unless a district or 

circuit judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1)(A); Fed. R. 

App. P. 22(b)(1). A certificate of appealability may issue “only if the applicant has made 

a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A 

petitioner satisfies this standard by demonstrating that jurists of reason could disagree 

with the district court’s resolution of his constitutional claims or that jurists could 

conclude the issues presented are adequate to deserve encouragement to proceed further.” 

Miller-El v. Cockrell, 537 U.S. 322, 327 (2003) (citing Slack v. McDaniel, 529 U.S. 473, 

484 (2000)). When, as here, “a district court has rejected the constitutional claims on the 

merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must 

demonstrate that reasonable jurists would find the district court’s assessment of the 

constitutional claims debatable or wrong.” Slack, 529 U.S. at 484. 

 Reasonable jurists could not conclude that the Court’s assessment of Petitioner’s 

claims is debatable or wrong. Nor could reasonable jurists conclude that the issues 

deserve encouragement to proceed further. The Court therefore declines to grant a 

certificate of appealability. 

 The standard for issuing a certificate of appealability is a higher standard than the 

standard for granting in forma pauperis status on appeal. Foster v. Ludwick, 208 F. 

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Supp. 2d 750, 764 (E.D. Mich. 2002). A certificate of appealability may be granted only 

if the petitioner makes “a substantial showing of the denial of a constitutional right,” 28 

U.S.C. § 2253(c)(2), but a court may grant leave to proceed in forma pauperis if it finds 

that the appeal is not frivolous and could be taken in good faith. 28 U.S.C. § 1915(a)(3); 

Foster, 208 F. Supp. 2d at 764–65. Because an appeal in this case could be taken in good 

faith, the Court grants leave to appeal in forma pauperis should Petitioner decide to 

appeal this Court’s decision. 

 S/Arthur J. Tarnow 

 Arthur J. Tarnow 

 Senior United States District Judge 

Dated: November 1, 2016 

I hereby certify that a copy of the foregoing document was served upon parties/counsel of 

record on November 1, 2016, by electronic and/or ordinary mail. 

 S/Catherine A. Pickles 

 Judicial Assistant 

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