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UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

CORWIN ROBERSON

Petitioner, 

v. 

CATHERINE S. BAUMAN, 

Respondent. 

 / 

Case No. 14-cv-13784 

UNITED STATES DISTRICT COURT JUDGE

GERSHWIN A. DRAIN

UNITED STATES MAGISTRATE JUDGE

DAVID R. GRAND

OPINION AND ORDER DENYING THE HABEAS CORPUS PETITION [1], 

DENYING A CERTIFICATE OF APPEALABILITY, AND

GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

I. INTRODUCTION

 Corwin Roberson (“Petitioner”) filed a pro se Petition for a Writ of Habeas 

Corpus pursuant to 28 U.S.C. § 2254 on October 1, 2014. In his Petition [1], 

Petitioner challenges his Saginaw County (Michigan) convictions and sentence for 

second-degree murder, see MICH. COMP. LAWS § 750.317, carrying a dangerous 

weapon with unlawful intent, MICH. COMP. LAWS § 750.226, and possessing a 

firearm during the commission of a felony, MICH. COMP. LAWS § 750.227b. 

The Petition asserts that his guilty plea was involuntary, that his sentencing 

guidelines were incorrectly scored, and that his trial attorney was ineffective. 

Respondent Catherine S. Bauman urges the Court, through counsel, to deny the 

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Petition on the basis that the state courts reasonably concluded that Petitioner’s 

plea was voluntary. Respondent further asserts that Petitioner’s sentencing claim 

lacks merit and is not cognizable on habeas review. The Court agrees that 

Petitioner’s claims do not warrant habeas corpus relief. Accordingly, the Court 

will DENY the Habeas Petition [1]. 

II. BACKGROUND

 Petitioner was charged in Saginaw County, Michigan with open murder, 

carrying a dangerous weapon with unlawful intent, and felony firearm. The 

charges arose from allegations that Petitioner and two other men beat and killed 

twenty-year-old Ernie Griffin. Apparently, the motive for the attack was 

Petitioner’s belief that Griffin possessed his gun. 

 The evidence at trial established that, on the evening of July 12, 2011, 

Griffin and his friend Dexter Pruitt walked to a store in Buena Vista Township. 

When they got to the store, Petitioner and two of his friends (Jeremy Hatfield and 

Enese Dixon) approached Griffin from behind. Petitioner placed Griffin in a choke 

hold. Griffin fell to the ground. Petitioner and his two friends then proceeded to 

punch and kick Griffin in the head, chest, and ribs. At one point, they picked 

Griffin up and then slammed him face-down on the cement. After the attack, 

Griffin got up and tried to run away. Jeremy Hatfield, however, used Petitioner’s 

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gun to fire five gunshots at Griffin. Griffin died from the gunshot wounds and 

blunt trauma. 

 At his criminal trial, Petitioner asserted that he placed Griffin in a choke 

hold, but that he did not participate in the subsequent beating or shooting. On May 

22, 2012, after three days of a jury trial in Saginaw County Circuit Court, 

Petitioner pleaded guilty to second-degree murder, carrying a dangerous weapon 

with unlawful intent, and felony firearm. On July 26, 2012, the trial court 

sentenced Petitioner to two years in prison for the felony firearm conviction, 

followed by concurrent terms of life imprisonment for the murder conviction and 

two to seven and a half years for the carrying-a-dangerous-weapon conviction. 

 Petitioner subsequently raised his habeas claims in a motion to withdraw his 

guilty plea and for re-sentencing. The trial court held oral arguments on the 

motion, but found no merit in Petitioner’s arguments and denied his motion. The 

Michigan Court of Appeals subsequently denied Petitioner’s appeal for “lack of 

merit in the grounds presented,” People v. Roberson, No. 314819 (Mich. Ct. App. 

Dec. 3, 2013), and on April 28, 2014, the Michigan Supreme Court denied leave to 

appeal because it was not persuaded to review the issues. See People v. Roberson, 

495 Mich. 994; 845 N.W.2d 125 (2014) (table decision). 

 On October 1, 2014, Petitioner filed his habeas corpus petition. He asserts 

the following grounds for relief: 

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 I. Petitioner’s state and federal constitutional rights were violated 

when he was coerced into taking a plea because his attorney 

failed to explain the parole differences between an 

indeterminate sentence with a minimum of 15 years and the 

possibility of parole [after 15 years of a life sentence with the 

possibility of parole] and this constituted ineffective assistance 

of counsel. 

 II. The petitioner is entitled to resentencing where the sentencing 

guidelines were mis-scored in violation of the state and federal 

due process right to sentencing based upon accurate information 

and trial/defense counsel was ineffective for failing to challenge 

the scoring. 

(Pet. for Writ of Habeas Corpus, Attachment B). 

III. STANDARD OF REVIEW

 “The statutory authority of federal courts to issue habeas corpus relief for 

persons in state custody is provided by 28 U.S.C. § 2254, as amended by the 

Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).” Harrington v. 

Richter, 562 U.S. 86, 97 (2011). Pursuant to § 2254, the court may not grant a 

state prisoner’s application for the writ of habeas corpus unless the state court’s 

adjudication of the prisoner’s claims on the merits 

(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. 

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28 U.S.C. § 2254(d). 

Under the “contrary to” clause [of § 2254(d)(1)], a federal habeas 

court may grant the writ if the state court arrives at a conclusion 

opposite to that reached by [the Supreme] Court on a question of law 

or if the state court decides a case differently than [the Supreme] 

Court has on a set of materially indistinguishable facts. Under the 

“unreasonable application” clause [of § 2254(d)(1)], a federal habeas 

court may grant the writ if the state court identifies the correct 

governing legal principle from [the Supreme] Court’s decisions but 

unreasonably applies that principle to the facts of the prisoner’s case. 

Williams v. Taylor, 529 U.S. 362, 412–13 (2000) (O’Connor, J., opinion of the 

Court for Part II). 

 “[A] federal habeas court may not issue the writ simply because that court 

concludes in its independent judgment that the relevant state-court decision applied 

clearly established federal law erroneously or incorrectly. Rather, that application 

must also be unreasonable.” Id. at 411. “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). 

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

habeas relief so long as ‘fair-minded jurists could disagree’ on the correctness of 

the state court’s decision.” Richter, 562 U.S. at 101 (quoting Yarborough v. 

Alvarado, 541 U.S. 652, 664 (2004)). To obtain a writ of habeas corpus from a 

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federal court, a state prisoner must show that the state court’s ruling on his claims 

“was so lacking in justification that there was an error well understood and 

comprehended in existing law beyond any possibility for fair-minded 

disagreement.” Id. at 103. 

 Both of Petitioner’s claims include allegations of ineffective assistance of 

trial counsel. To prevail on these claims, Petitioner must show that his trial 

attorney’s “performance was deficient” and “that the deficient performance 

prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). 

“Unless a defendant makes both showings, it cannot be said that the conviction . . . 

resulted from a breakdown in the adversary process that renders the result 

unreliable.” Id. 

 The “deficient performance” prong of the Strickland test “requires showing 

that counsel made errors so serious that counsel was not functioning as the 

‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. “Judicial 

scrutiny of counsel’s performance must be highly deferential.” Id. at 689. 

 To demonstrate that counsel’s performance prejudiced the defense, 

Petitioner must show “a reasonable probability that, but for counsel’s 

unprofessional errors, the result of the proceeding would have been different. A 

reasonable probability is a probability sufficient to undermine confidence in the 

outcome.” Id. at 694. “This does not require a showing that counsel’s actions 

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‘more likely than not altered the outcome,’ ” but “[t]he likelihood of a different 

result must be substantial, not just conceivable.” Richter, 562 U.S. at 111–12 

(quoting Strickland, 466 U.S. at 693). 

IV. DISCUSSION

A. Claim One: Involuntary Plea and Ineffective Assistance of Counsel

1. The Plea 

 Petitioner alleges that his guilty plea was involuntary, unknowing, and 

unintelligent because he thought that he was pleading guilty in exchange for a 

minimum sentence of fifteen years in prison. He claims that he is likely to spend 

the rest of his life in prison and that he was unaware of this likelihood when he 

pleaded guilty. 

 a. 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). 

Consequently, the 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). For a guilty plea to be valid, the 

defendant must appreciate the consequences of his waiver of constitutional rights, 

waive his rights without being coerced to do so, and understand the rights that he is 

surrendering by pleading guilty. Ruelas v. Wolfenbarger, 580 F.3d 403, 408 (6th 

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Cir. 2009). The defendant also must be aware of the maximum sentence that could 

be imposed. Id. at 408. And because an involuntary plea is “an impairment of a 

defendant’s substantial rights,” United States v. Martin, 668 F.3d 787, 792 (6th 

Cir. 2012), courts must consider all the relevant circumstances when determining 

whether a plea was voluntary. Brady, 397 U.S. at 749. 

 b. Application 

 The assistant prosecutor explained the plea offer on the record at Petitioner’s 

plea proceeding on May 22, 2012. He stated that Petitioner would be pleading 

guilty to an added count of second-degree murder, which replaced the open 

murder/felony murder count, and that Petitioner also would plead guilty, as 

charged, to felony firearm and carrying a dangerous weapon with unlawful intent. 

Additionally, Petitioner would be required to acknowledge that he was a habitual 

offender. The prosecutor further explained that the sentence for the murder 

conviction was “a parolable life sentence.” Plea Tr. at 3-4, May 22, 2012, ECF 

No. 9-12 (Pg. ID No. 366).1

 

 Defense counsel added that Petitioner would be eligible for parole in fifteen 

years. Defense counsel also stated that he and Petitioner had discussed the matter 

fully in the courthouse and in prison and that Petitioner wished to avail himself of 

 

1

 Had Petitioner been convicted of first-degree murder, he would have been subject to a 

mandatory sentence of life imprisonment without the possibility of parole. MICH. COMP. LAWS §

750.316(1). 

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the plea offer as stated on the record. Id. at 4-5 (Pg. ID No. 366–67). After 

Petitioner swore to tell the truth, the following colloquy occurred between him and 

the trial court: 

THE COURT: You are Corwin Roberson? 

THE DEFENDANT: Yes. 

THE COURT: Mr. Sturtz is your lawyer? 

THE DEFENDANT: Yes. 

THE COURT: Have you had a chance to completely discuss this case 

with Mr. Sturtz? 

THE DEFENDANT: Yes. 

THE COURT: Did you hear and understand the plea agreement 

placed on the record? 

THE DEFENDANT: Yes. 

THE COURT: Is it your intention to accept the plea agreement? 

 

THE DEFENDANT: Fifteen to life? Sir? 

THE COURT: No. That’s not the plea agreement. The plea 

agreement is life with the possibility of parole. 

A VOICE: Oh, God. 

THE DEFENDANT: So it ain’t 15? 

THE COURT: Wow. 

THE DEFENDANT: I thought it was 15. 

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MR. STURTZ [defense counsel]: No, no, no. You’re eligible for 

parole in 15 years. I told you the max is life. 

THE DEFENDANT: Yes, sir. Yes, sir. 

THE COURT: You understand it’s 15 parolable years? I have 

nothing to do with that. That’s up to the parole board - - 

THE DEFENDANT: I know, sir. 

THE COURT: – so I’m not saying 15 to life is your sentence. 

THE DEFENDANT: Yes, I know, sir. 

THE COURT: Okay. So are we clear on that? 

THE DEFENDANT: Yes. 

THE COURT: So now, did you hear and understand the plea 

agreement? 

THE DEFENDANT: Yes. 

THE COURT: Is it your intention to accept the plea agreement as 

stated? 

 

THE DEFENDANT: Yes. 

THE COURT: Pleading to second-degree murder and also Count II, 

which is felony firearm, and Count V, which is dangerous weapon 

with unlawful intent. 

THE DEFENDANT: Yes. 

THE COURT: That’s the plea agreement. 

MR. KING [the prosecutor]: Plus habitual. 

THE COURT: Yeah, plus habitual offender. 

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THE DEFENDANT: Yes. 

Id. at 5–7 (Pg. ID No. 366–67). 

 Petitioner went on to say that he had not been promised anything other than 

what was stated in court and that no one had threatened him. He also stated that he 

was pleading guilty of his own free choice and that he understood the rights he was 

waiving by pleading guilty. Defense counsel assured the trial court that Petitioner 

appeared to understand his rights. Id. at 7–8 (Pg. ID No. 367). 

 The trial court subsequently explained the maximum sentence for each of the 

charged crimes. The court said that: the sentence for felony firearm was a 

mandatory two years, consecutive to any other sentence Petitioner received; the 

sentence for carrying a dangerous weapon with unlawful intent was five years, but 

the maximum penalty would increase to seven and a half years as a result of the 

habitual offender notice; and the maximum sentence for second-degree murder was 

life in prison with the possibility of parole. Petitioner claimed to understand the 

maximum penalties and then stated that he wished to plead guilty. Id. at 8–9 (Pg. 

ID No. 367). 

 Petitioner also provided a factual basis for his plea. He admitted that he 

participated in the assault on Ernie Griffin by striking Griffin with his feet even 

though he knew that he was creating a very high risk of death or great bodily harm 

by doing so. He also conceded that the killing was not justified, that he possessed 

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a firearm during the incident, and that he had a prior conviction. Id. at 9–11 (Pg. 

ID No. 367). 

 The record, as summarized above, indicates that Petitioner’s plea was 

voluntary, knowing, and intelligent. He claimed to understand the plea agreement, 

the rights he was waiving by pleading guilty, and the maximum penalties. 

Although he initially expressed some confusion about the sentence for seconddegree murder, the trial court clarified the issue by stating that the sentence was 

life imprisonment with the possibility of parole. Petitioner then assured the trial 

court that he understood the plea agreement and that he wanted to accept the plea 

offer. 

 Petitioner’s “[s]olemn declarations in open court carry a strong presumption 

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

[t]he rule that a plea must be intelligently made to be valid does not require 

that a plea be vulnerable to later attack if the defendant did not correctly 

assess every relevant factor entering into his decision. A defendant is not 

entitled to withdraw his plea merely because he discovers long after the plea 

has been accepted that his calculus misapprehended . . . the likely penalties 

attached to alternative courses of action. 

Brady, 397 U.S. at 757. The Court therefore rejects Petitioner’s claim that his plea 

was involuntary, unknowing, and unintelligent. 

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2. Trial Counsel’s Advice 

Petitioner alleges that his trial attorney was ineffective because the attorney 

failed to explain the difference between an indeterminate sentence with a minimum 

sentence of fifteen years, and a life sentence with the possibility of parole after 

fifteen years in prison. Petitioner contends that his attorney should have explained 

the Michigan Parole Board’s procedure for “lifers” and informed him how difficult 

it is to be released on parole when a person is sentenced to life imprisonment with 

the possibility of parole. 

 a. Supreme Court Precedent 

 A defendant has the right to effective assistance of counsel when considering 

whether to accept a plea bargain and plead guilty. Lafler v. Cooper, 132 S. Ct. 

1376, 1387 (2012); Padilla v. Kentucky, 559 U.S. 356, 364 (2010). But to prevail 

on a claim that trial counsel was ineffective during plea negotiations, the petitioner 

must satisfy the two-part test set forth in Strickland. Hill v. Lockhart, 474 U.S. 52, 

58 (1985). This requires showing that “counsel’s performance was deficient” and 

that “the deficient performance prejudiced the defense.” Strickland, 466 U.S. at 

687. 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, 474 U.S. at 56–57. 

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 The “prejudice” prong of the two-part Strickland test “focuses on whether 

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

process.” Id. at 59. In other words, the “defendant must show [that] the outcome 

of the plea process would have been different with competent advice.” Lafler, 132 

S. Ct. at 1384. 

 b. Application 

 Petitioner asserts that his trial attorney failed to inform him that the 

Michigan Parole Board does not distinguish between defendants who are serving a 

sentence of life imprisonment with the possibility of parole and defendants who are 

serving a life sentence without the possibility of parole. He claims that, for the 

Parole Board, “life means life.” 

 “[G]ross misadvice concerning parole eligibility can amount to ineffective 

assistance of counsel.” Sparks v. Sowders, 852 F.2d 882, 885 (6th Cir. 1988). But 

“a defendant need not know all the possible consequences of his plea,” Ruelas, 580 

F.3d at 408, and a plea can be knowingly entered where the defendant agreed to a 

life sentence even though he misunderstood the implications of a parolable life 

sentence in Michigan and believed that he would be paroled in a number of years. 

McAdoo v. Elo, 365 F.3d 487, 494-95 (6th Cir. 2004). 

 Here, no one promised Petitioner that he would be released on parole after 

fifteen years in prison. Trial counsel correctly advised Petitioner at the plea 

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proceeding that he would be eligible for parole in fifteen years, see MICH. COMP. 

LAWS § 791.234(7)(a), and that Petitioner’s maximum sentence was life 

imprisonment. The trial court, moreover, emphasized that it was not saying the 

sentence was fifteen years to life, but that the sentence was life imprisonment. The 

trial court also stated that parole eligibility was a matter for the parole board to 

decide. Petitioner then acknowledged that the trial court had no control over 

parole, and he stated that he understood the plea agreement. Plea Tr. at 6, May 22, 

2012, ECF No. 9-12 (Pg. ID No. 366.) 

 Trial counsel’s failure to advise Petitioner that the Michigan Parole Board 

was unlikely to release him in fifteen years did not amount to ineffective 

assistance, because “a defendant need not be informed of the details of his parole 

eligibility, including the possibility of being ineligible for parole.” King v. Dutton, 

17 F.3d 151, 154 (6th Cir. 1994) (citing Brown v. Perini, 718 F.2d 784, 788 (6th 

Cir. 1983), and Armstrong v. Egeler, 563 F.2d 796, 800 (6th Cir. 1977)). 

Furthermore, trial counsel would have had no way of knowing what the parole 

board might do in fifteen years. 

3. Summary 

 The state trial court and the Michigan Court of Appeals found no merit in 

Petitioner’s claims about the voluntariness of his plea and trial counsel’s 

performance. These decisions were objectively reasonable and neither contrary to 

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Supreme Court precedent, nor unreasonable applications of Supreme Court 

precedent. The Court therefore denies habeas relief on Petitioner’s first claim. 

B. Claim Two: Miscalculated Sentencing Guidelines; Ineffective Assistance of 

Counsel 

 In his second and final claim, Petitioner alleges that the trial court 

miscalculated the sentencing guidelines and that trial counsel was ineffective for 

failing to challenge the guidelines score. Furthermore, Petitioner asserts that the 

trial court deprived him of due process by relying on inaccurate information at 

sentencing. He claims that the errors resulted in a higher guidelines score than he 

deserved and that this, in turn, led to an increase in his minimum sentence. 

1. Clearly Established Federal Law 

 The state trial court’s application of state sentencing laws and guidelines “is 

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

2003), and “[a] federal court may not issue the writ on the basis of a perceived 

error of state law.” Pulley v. Harris, 465 U.S. 37, 41 (1984). Consequently, 

Petitioner’s allegation that the trial court incorrectly scored four offense variables 

of the state 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). 

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 Petitioner nevertheless couches his claim in constitutional terms by asserting 

that he had a due process right to be sentenced on accurate information. In 

Townsend v. Burke, 334 U.S. 736 (1948), the Supreme Court stated that a sentence 

based on “extensively and materially false” information, which the prisoner had no 

opportunity to correct through counsel, violates due process. Id. at 741. Petitioner 

was represented by counsel at his plea, and, for the following reasons, the Court 

finds that he was not sentenced on the basis of extensively and materially false 

information. 

2. Application 

 a. Offense Variable 6 

 Petitioner alleges that he should have been scored ten points, not twenty-five 

points, for offense variable 6. “Offense variable 6 is the offender’s intent to kill or 

injure another individual.” MICH. COMP. LAWS § 777.36(1). A score of twenty-five 

points is appropriate if “[t]he offender had unpremeditated intent to kill, the intent 

to do great bodily harm, or created a very high risk of death or great bodily harm 

knowing that death or great bodily harm was the probable result.” MICH. COMP.

LAWS § 777.36(1)(b). Ten points is appropriate if “[t]he offender had intent to 

injure or the killing was committed in an extreme emotional state caused by an 

adequate provocation and before a reasonable amount of time elapsed for the 

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offender to calm or there was gross negligence amounting to an unreasonable 

disregard for life.” MICH. COMP. LAWS § 777.36(1)(c). 

 Petitioner argued in state court that the criminal incident was a combative 

situation, which resulted from a property dispute, and that, after he put the victim 

in a choke hold, the other men beat the victim. The trial court disagreed and said 

that offense variable 6 was appropriately scored because it was not a mere 

combative situation. According to the trial court, there was a clear intent to kill or 

injure another person where three men attacked one person, slammed him to the 

ground, kicked him, and then shot him. Mot. Hr’g, at 10-13, Feb. 11, 2013, ECF 

No. 9–14 (Pg. ID No. 378). 

 The trial court’s conclusion is supported by the record. The trial testimony 

established that Petitioner participated in the beating and provided the gun that was 

used to kill the victim. Petitioner subsequently admitted at the plea proceeding that 

he assaulted the victim, knew that he was creating a very high risk of death or great 

bodily harm, and that he had neither justification nor excuse. Plea Tr., at 9-11, 

May 22, 2012, ECF No. 9-12 (Pg. ID No. 367–68). 

 Petitioner’s actions and admissions demonstrated more than a mere intent to 

injure, and there was no evidence of any provocation by the victim. Consequently, 

offense variable 6 was properly scored at twenty-five points for intent to kill, to do 

great bodily harm, or to create a high risk of death or great bodily harm. 

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 b. Offense Variable 7 

 Petitioner states that he was erroneously scored fifty points for offense 

variable 7. “Offense variable 7 is aggravated physical abuse.” MICH. COMP. LAWS 

§ 777.37(1). This offense variable should be scored fifty points if “[a] victim was 

treated with sadism, torture, excessive brutality or similarly egregious conduct 

designed to substantially increase the fear and anxiety a victim suffered during the 

offense.” MICH. COMP. LAWS § 777.37(1)(a). Petitioner contends that the score 

should have been zero, which is appropriate if “[n]o victim was treated with 

sadism, torture, excessive brutality or similarly egregious conduct designed to 

substantially increase the fear and anxiety a victim suffered during the offense.” 

MICH. COMP. LAWS § 777.37(1)(b). 

 The trial court determined that offense variable 7 was appropriately scored 

because the facts indicated that aggravated physical abuse occurred. In reaching 

this conclusion, the trial court pointed out that, “not only was the victim slammed 

to the ground, he was kicked so hard that it broke his clavicle bone, and then they 

still shot him.” Mot. Hr’g, at 14, Feb. 11, 2103, ECF No. 9-14 (Pg. ID No. 379). 

 The record supports the trial court’s decision. The testimony at trial 

established that Petitioner and his two companions repeatedly punched and kicked 

the victim while he was on the ground. Trial Tr. Vol. II, 55-56, May 17, 2012, 

ECF No. 9-10 (Pg. ID No. 256). There was additional evidence that one or more of 

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the attackers slammed the victim face-down on the cement. Id. at 56. One witness 

stated that the assault went on for about half an hour and then the suspects shot the 

victim. Id. at 147–48 (Pg. ID No. 279). 

 The medical examiner testified that the victim’s eye sockets were bruised, 

that his jawbone and collarbone were broken, and that he was still alive when he 

sustained his injuries. Trial Tr. Vol. III, 12–13, 15, 31, 36, May 18, 2012, ECF No. 

9-11 (Pg. ID No. 312, 316, 318). The beating was so severe that the victim would 

have died without treatment even if he had not been shot. Id. at 24 (Pg. ID No. 

315). The record clearly supports the conclusion that Petitioner treated the victim 

with excessive brutality. Thus, offense variable 7 was appropriately scored at fifty 

points. 

 c. Offense Variable 10 

 Petitioner received ten points for offense variable 10, but he claims that he 

should have received no points. “Offense variable 10 is exploitation of a 

vulnerable victim.” MICH. COMP. LAWS § 777.40(1). The score should be ten 

points if “[t]he offender exploited a victim’s physical disability, mental disability, 

youth or agedness, or a domestic relationship, or the offender abused his or her 

authority status.” MICH. COMP. LAWS § 777.40(1)(b). 

 The victim in this case was a small man (5’5” tall and about 140 pounds), 

and the trial court noted at the post-conviction hearing that the victim was 

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simultaneously beat by three individuals who were much taller in stature. The trial 

court concluded from these facts that Petitioner and his friends exploited the 

victim’s vulnerability “to the utmost degree when they beat him and kicked him 

and then . . . shot him.” Mot. Hr’g at 14, Feb. 11, 2013 (Pg. ID No. 379). Because 

the state court did not base this conclusion on extensively and materially false 

information, the state court’s determination stand. 

 d. Offense Variable 14 

 “Offense variable 14 is the offender’s role” in the crime. MICH. COMP. 

LAWS § 777.44(1). A score of ten points is appropriate if “[t]he offender was a 

leader in a multiple offender situation.” MICH. COMP. LAWS § 777.44(1)(a). 

Petitioner contends that offense variable 14 should have been scored zero because 

there is nothing in the record to support the conclusion that he was the leader in the 

situation. The state trial court disagreed on the basis that Petitioner was the first 

individual to grab the victim and that he “was right there in the middle of things.” 

Mot. Hr’g at 15, Feb. 11, 2013 (Pg. ID No. 379). 

 Once again, the record supports the trial court’s conclusion. According to 

the victim’s friend, Dexter Pruitt, the criminal incident began when Petitioner 

grabbed the victim around the neck. Trial Tr. Vol. I, at 149, 173, May 16, 2012,2

 

ECF No. 9-15 (Pg. ID No. 419, 425). Another eyewitness, Jessica Rivera, testified 

2

 The cover page for this volume of transcript indicates that this session of trial occurred on May 

16, 2013. The correct date is May 16, 2012. See Pg ID 383. 

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that Petitioner subsequently pulled a gun from his pocket and hit the victim in the 

head with the gun. (Trial Tr., Vol. II, at 110, May 17, 2012, ECF No. 9-10, Pg ID 

269.) Luke Spear testified that Petitioner said the conflict was about Petitioner’s 

nine millimeter gun, which the victim supposedly possessed. Petitioner also 

admitted to Spear that, he handed his .45 caliber gun to Jeremy Hatfield and that 

the gun was used to shoot the victim. Trial Tr. Vol. III, 47-50, May 18, 2012, ECF 

No. 9–11 (Pg. ID No. 320–21). Given this testimony, the trial court concluded that 

Petitioner was a leader in the conflict. Offense variable 14 was properly scored. 

 e. Summary 

 For the reasons given above, the trial court did not sentence Petitioner on the 

basis of materially false information. Therefore, Petitioner’s right to due process 

was not violated, and the Court declines to grant relief on Petitioner’s sentencing 

claims. 

3. Ineffective Assistance of Counsel 

 Petitioner alleges that his trial attorney was ineffective for failing to 

challenge the scoring of the guidelines. The guidelines, however, were 

appropriately scored, and when none of the underlying errors are meritorious, a 

trial attorney is not ineffective for failing to object. Hoffner v. Bradshaw, 622 F.3d 

487, 509 (6th Cir. 2010); see also Bradley v. Birkett, 192 F. App’x 468, 475 (6th 

Cir. 2006) (stating that, because the petitioner’s prosecutorial-misconduct claim 

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lacked merit, trial counsel’s failure to object to the alleged misconduct was not 

constitutionally deficient performance). 

V. CONCLUSION

 The state courts’ rejection of Petitioner’s claims did not result in decisions 

that were contrary to Supreme Court precedent, an unreasonable application of 

Supreme Court precedent, or an unreasonable determination of the facts. They 

certainly were not so lacking in justification that there was an error beyond any 

possibility for fair-minded disagreement. Accordingly, the petition for writ of 

habeas corpus [1] is DENIED. 

 “[A] prisoner seeking post-conviction relief under 28 U.S.C. § 2254 has no 

automatic right to appeal a district court’s denial or dismissal of the petition. 

Instead, [the] petitioner must first seek and obtain a [certificate of appealability.]” 

Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). 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). The Supreme Court has explained 

that, 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 v. McDaniel, 529 U.S. 473, 484 (2000). 

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 Here, Petitioner’s plea was voluntary, knowing, and intelligent, and his 

sentence was not based on extensively or materially false information. 

Furthermore, defense counsel’s performance was not deficient. Consequently, 

reasonable jurists would not find the Court’s assessment of Petitioner’s claims 

debatable or wrong. The Court therefore declines to issue a certificate of 

appealability. Petitioner nevertheless may appeal this Court’s decision in forma 

pauperis, because he was granted in forma pauperis status in this Court, and an 

appeal could be taken in good faith. Fed. R. Civ. P. 24(a)(3)(A). 

IT IS SO ORDERED. 

Dated: March 22, 2016 /s/Gershwin A Drain 

Detroit, MI HON. GERSHWIN A. DRAIN 

 United States District Court Judge

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