UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

MIKELL FUSON, 

 Petitioner, 

 Case No. 15-cv-10089 

v. 

 HON. TERRENCE G. BERG 

DUNCAN MACLAREN, HON. ELIZABETH A. STAFFORD 

 Respondent. 

_______________________________/ 

OPINION AND ORDER

DENYING THE PETITION FOR WRIT OF HABEAS CORPUS, 

DECLINING TO GRANT A CERTIFICATE OF APPEALABILITY, 

AND GRANTING LEAVE TO APPEAL IN FORMA PAUPERIS

 Petitioner Mikell Fuson, who is presently incarcerated at the Chippewa 

Correctional Facility in Kincheloe, Michigan, has filed a petition for the writ of 

habeas corpus under 28 U.S.C. § 2254. In his pro se application, Petitioner 

challenges his state convictions and sentence for first-degree home invasion, Mich. 

Comp. Laws § 750.110a(2), felon in possession of a firearm, Mich. Comp. Laws § 

750.224f, and two counts of possession of a firearm during the commission of a 

felony (felony firearm), Mich. Comp. Laws § 750.227b. For the reasons stated 

below, the petition for writ of habeas corpus is DENIED WITH PREJUDICE. 

I. BACKGROUND

 The charges against Petitioner arose from the breaking and entering of a 

house in Milford, Michigan on November 29, 2010. The homeowners arrived at the 

house while the home invasion was in progress. They saw two armed suspects in 
2 

the house and one suspect outside the house. The homeowners left their property 

without entering the house and contacted the police, who arrested Petitioner and 

one of his accomplices within an hour of being dispatched to the area. A canine 

handler and his dog tracked Petitioner’s scent back to an area near the victims’ 

house. 

 On April 28, 2011, Petitioner pleaded guilty in Oakland County Circuit Court 

to first-degree home invasion, felon in possession of a firearm, and two counts of 

felony firearm. Petitioner also acknowledged being a habitual offender. In return, 

the trial court agreed to sentence Petitioner at the bottom of the sentencing 

guidelines, which were expected to be eighty-four months.1 

 On May 20, 2011, the trial court sentenced Petitioner, as promised, to eightyfour months (seven years) to forty years for the home-invasion conviction, fourteen 

months to forty years for the felon-in-possession conviction, and two years in prison 

for each of the felony-firearm convictions. The felony-firearm sentences were 

 

1 In People v. Cobbs, 505 N.W.2d 208 (Mich. 1993), the Michigan Supreme Court recognized the 

following manner in which trial court judges may participate in discussions about the potential 

sentence: 

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. 

. . . 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 212 (emphasis omitted). 
3 

ordered to run concurrently with each other, but consecutively to the other 

sentences, which ran concurrently with each other. All the sentences were ordered 

to run consecutively to the sentence that Petitioner was serving for violating parole 

in an unrelated case. 

 In an application for leave to appeal, Petitioner argued that he lacked a 

rational and factual understanding of the proceedings against him and that both 

the trial court and defense counsel erred by failing to raise the issue of his 

competence. The Michigan Court of Appeals denied leave to appeal for lack of merit 

in the grounds presented to it. See People v. Fuson, No. 310400 (Mich. Ct. App. 

June 27, 2012). Petitioner apparently attempted to appeal the Court of Appeals’ 

decision, but his application was rejected as untimely. See Pet. at 2 and Brief in 

Support of Pet. for Writ of Habeas Corpus, at ix; see also Affidavit of Larry Royster, 

Clerk of the Michigan Supreme Court, stating that the decision in Michigan Court 

of Appeals number 310400 was not appealed to the Michigan Supreme Court (ECF 

No. 10-10.) 

 Petitioner raised six of his seven habeas claims in a motion for relief from 

judgment. The trial court denied his motion in a reasoned opinion, and the 

Michigan Court of Appeals denied leave to appeal under Michigan Court Rule 

6.508(D) and, more specifically, Rule 6.508(D)(3). See People v. Fuson, No. 319265 

(Mich. Ct. App. Apr. 7, 2014). On November 25, 2014, the Michigan Supreme Court 

also denied leave to appeal under Rule 6.508(D). See People v. Fuson, 856 N.W.2d 

16 (Mich. 2014). 
4 

 Finally, on January 5, 2015, Petitioner filed his habeas petition. He raises 

seven claims about his sentence, his multiple convictions for firearm offenses, his 

trial and appellate attorneys, and the lack of an evidentiary hearing in state court. 

 Respondent Duncan MacLaren argues through counsel that the majority of 

Petitioner’s claims (one through four and seven) are procedurally defaulted because 

Petitioner raised those claims for the first time in his post-conviction motion and 

the Michigan Court of Appeals relied on that fact to deny relief. Respondent also 

argues that, even if the Court considers the claims, they are meritless or not 

cognizable on habeas review. 

 A procedural default is “a critical failure to comply with state procedural 

law.” Trest v. Cain, 522 U.S. 87, 89 (1997). It “is not a jurisdictional matter,” id., 

and to obtain habeas relief on procedurally defaulted claims, a petitioner “must 

establish cause and prejudice for the defaults” and “also show that the claims are 

meritorious.” Babick v. Berghuis, 620 F.3d 571, 576 (6th Cir. 2010). 

 Petitioner denies that his claims are procedurally defaulted and also blames 

his appellate attorney for not raising all his claims on direct appeal. The Court has 

determined that it is more efficient to address the merits of Petitioner’s claims than 

to consider whether they are procedurally defaulted and whether Petitioner has 

established “cause” for the alleged defaults and resulting prejudice. Accordingly, 

the Court “cut[s] to the merits here,” as “the cause-and-prejudice analysis adds 

nothing but complexity to the case.” Id. 

II. LEGAL STANDARD
5 

 28 U.S.C. § 2254(d) provides that: 

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. 

 A decision of a state court is “contrary to” clearly established law if the state 

court arrives at a conclusion opposite to that reached by the Supreme Court of the 

United States on a question of law, or if the state court decides a case differently 

from the Supreme Court on a set of materially indistinguishable facts. See Williams 

v. Taylor, 529 U.S. 362, 405-06 (2000). An “unreasonable application” occurs when 

“a state court decision unreasonably applies the law of [the Supreme Court] to the 

facts of a prisoner’s case.” Id. at 409. “[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. 

 “A federal court’s collateral review of a state-court decision must be 

consistent with the respect due state courts in our federal system.” Miller-El v. 

Cockrell, 537 U.S. 322, 340 (2003). Section 2254(d) “thus imposes a ‘highly 

deferential standard for evaluating state-court rulings,’ and ‘demands that state-
6 

court decisions be given the benefit of the doubt.’” Renico v. Lett, 559 U.S. 766, 773 

(2010) (quoting Lindh v. Murphy, 521 U.S. 320, 333 n.7 (1997), and Woodford v. 

Visciotti, 537 U.S. 19, 24 (2002)). “[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 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). “[E]ven a 

strong case for relief does not mean the state court’s contrary conclusion was 

unreasonable.” Id. at 102 (citing Lockyer v. Andrade, 538 U.S. 63, 75 (2003)). 

Furthermore, “[u]nder § 2254(d), a habeas court must determine what arguments or 

theories supported or . . . could have supported, the state court’s decision . . . and 

then it must ask whether it is possible fairminded jurists could disagree that those 

arguments or theories are inconsistent with the holding in a prior decision of [the 

Supreme] Court.” Id. 

 Section 2254(d)(1) limits a federal habeas court’s review to a determination of 

whether the state court’s decision comports with “the governing legal principle or 

principles set forth by the Supreme Court at the time the state court renders its 

decision.” Andrade, 538 U.S. at 71-72 (citing Williams, 529 U.S. at 405, 413); see 

also Knowles v. Mirzayance, 556 U.S. 111, 122 (2009) (noting that the Supreme 

Court “has held on numerous occasions that it is not ‘an unreasonable application 

of’ ‘clearly established Federal law’ for a state court to decline to apply a specific 

legal rule that has not been squarely established by [the Supreme] Court”). 

Further, “‘a determination of a factual issue made by a State court shall be 
7 

presumed to be correct,’ unless rebutted by ‘clear and convincing evidence.’” 

Holland v. Rivard, 800 F.3d 224, 242 (6th Cir. 2015) (quoting 28 U.S.C. § 

2254(e)(1)), cert. denied, 136 S. Ct. 1384 (2016). Finally, “review under § 2254(d)(1) 

is limited to the record that was before the state court that adjudicated the claim on 

the merits.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011). 

III. ANALYSIS

A. Jail Credit

 In his first claim, Petitioner alleges that the trial court erred by failing to 

grant him sentencing credit for the time that he spent in jail prior to being 

sentenced. This claim is not cognizable on habeas review because “[a] state court’s 

alleged misinterpretation of state sentencing guidelines and crediting statutes 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). “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). 

 Petitioner’s claim also lacks merit. Michigan’s jail credit statute provides 

that, 

[w]henever any person is hereafter convicted of any crime within this 

state and has served any time in jail prior to sentencing because of 

being denied or unable to furnish bond for the offense of which he is 

convicted, the trial court in imposing sentence shall specifically grant 

credit against the sentence for such time served in jail prior to 

sentencing. 

Mich. Comp. Laws § 769.11b. 
8 

 Petitioner, however, was on parole when he committed the crimes at issue 

here, and the Michigan Supreme Court has held that 

the jail credit statute does not apply to a parolee who is convicted and 

sentenced to a new term of imprisonment for a felony committed while 

on parole because, once arrested in connection with the new felony, the 

parolee continues to serve out any unexpired portion of his earlier 

sentence unless and until discharged by the Parole Board. 

People v. Idziak, 773 N.W.2d 616, 624 (Mich. 2009). In other words, 

the parolee is “liable, when arrested, to serve out the unexpired portion 

of his or her maximum imprisonment” and actually resumes serving 

that term of imprisonment on the date of his availability for return to 

the [Department of Corrections], which in this case is synonymous 

with the date of his arrest. . . . Because the parolee is required to 

remain in jail pending the resolution of the new criminal charge for 

reasons independent of his eligibility for or ability to furnish bond for 

the new offense, the jail credit statute does not apply. 

Id. at 626–27. 

 Petitioner acknowledges the holding in Idziak, but argues that it does not 

apply to him because, in his opinion, the majority decision was based on an 

erroneous and incomplete reading of Michigan statutes. Petitioner contends that 

the trial court should have relied on Justice Markman’s dissenting opinion, which 

states that, after a new conviction, the Michigan Parole Board is “required to make 

an affirmative determination as to whether the defendant is required to serve any 

remaining portion on his original sentence.” Id. at 654. The trial court, however, 

was required to follow the Michigan Supreme Court’s majority opinion in Idziak. 

See Solomon v. Civil Serv. Commission, City of Highland Park, 236 N.W.2d 94, 95 
9 

(1975) (noting that the Court of Appeals was bound by a majority opinion of the 

Michigan Supreme Court). 

 Petitioner also claims that Idziak does not apply to him because the trial 

court denied him jail credit before the court revoked his parole. Petitioner contends 

that this sequence of events violated his right to notice and due process of law. The 

record, however, indicates that Petitioner was informed before he pleaded guilty 

that his sentence likely would run consecutively to the sentence for which he was on 

parole. (4/28/11 Plea Tr. at 7-8.) The implication was that he was serving time on 

his prior conviction and would begin serving his new sentence after the expiration of 

his prior sentence. His right to notice was not violated, and his jail-credit claim 

lacks merit. 

B. Calculation of the Sentencing Guidelines 

 Petitioner alleges next that the trial court incorrectly scored offense variables 

9 and 19 the Michigan sentencing guidelines. Petitioner received ten points for both 

offense variables. He maintains that subtracting ten points from either one of those 

offense variables would decrease the sentencing guidelines range, and because the 

trial court agreed to sentence him at the low end of the guidelines, the trial court’s 

errors prejudiced him. The trial court reviewed Petitioner’s claim during postconviction proceedings and determined that Petitioner had failed to show the 

sentencing guidelines were improperly scored. 

 This Court rejects Petitioner’s claim because, like his first claim, a challenge 

to the state court’s application and interpretation of state sentencing guidelines is 
10 

“a matter of state concern only.” Howard, 76 F. App’x at 53. Consequently, his 

claim is not cognizable on habeas 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). And even though 

Petitioner argues that the trial court relied on inaccurate information in violation of 

his constitutional rights, the following discussion demonstrates that the trial court 

did not rely on “extensively and materially false” information in violation of 

Petitioner’s right to due process. Townsend v. Burke, 334 U.S. 736, 741 (1948). 

 1. Offense Variable 9 

 Offense variable 9 addresses the number of victims involved in the case 

under consideration. Mich. Comp. Laws § 777.39(1). Petitioner was assessed ten 

points, which would be correct if two to nine victims “were placed in danger of 

physical injury or death” or four to nineteen victims “were placed in danger of 

property loss.” Mich. Comp. Laws § 777.39(1)(c). 

 There were two victims in this case: the homeowners, Mr. and Mrs. Huszti. 

Petitioner points out that Mrs. Huszti was not inside the house when the home 

invasion occurred, and he claims there is no mention of where Mr. Huszti was at the 

time. Thus, according to Petitioner, there were no facts to support the conclusion 

that two or more victims were placed in danger of physical injury or death. 

 Although Mr. Huszti did not testify at the preliminary examination, Mrs. 

Huszti testified that she and her husband drove into their driveway about 11:00 

a.m. on November 29, 2010. They noticed a rusty minivan parked there, and when 
11 

she looked through the front glass door of their house, she saw two men running 

through the house with large guns. At the time, she and her husband were seated 

in their car about twenty to thirty feet away from the men. (12/15/10 Prelim. 

Examination at 4-9, 11, 24.) 

 Continuing, Mrs. Huszti testified that, after she pulled a phone out of her 

purse to call 911, she saw a third person enter the minivan parked next to the 

couple’s garage. Although she did not notice whether the third suspect was armed, 

two police officers established at the preliminary examination that there was a 

loaded long gun in the minivan. (Id. at 9-10, 19, 26; 2/16/11 Prelim. Examination 

at 18-19, 25, 30.) 

 First-degree home invasion is considered a continuing offense, because it “is 

not necessarily completed at the time of entry into a dwelling, but rather can be 

completed by commission of the final element of the crime while the person is 

present in (or leaving) the dwelling.” People v. Shipley, 662 N.W.2d 856, 863 (Mich. 

Ct. App. 2003). Further, in People v. Baker, No. 302784, 2012 WL 1415159, at *6 

(Mich. Ct. App. Apr. 24, 2012) the Michigan Court of Appeals upheld the trial 

court’s scoring of offense variable 9 where the homeowner and her five-year-old son 

arrived in their driveway during the home invasion. The Court of Appeals 

concluded that, because the homeowner and her son were in proximity to the 

defendant and his accomplices, they were placed in danger of physical injury or 

death. 
12 

 This case is similar to the facts in Baker, in that the Husztis arrived in their 

driveway as the home invasion was occurring. A reasonable inference from their 

close proximity to the armed suspects is that they were placed in danger of physical 

injury or death. “A trial court’s scoring decision ‘for which there is any evidence in 

support will be upheld.’ ” People v. Steele, 769 N.W.2d 256, 269 (Mich. Ct. App. 

2009) (quoting People v. Endres, 711 N.W.2d 398, 400 (Mich. Ct. App. 2006)). 

Thus, the score of ten points for offense variable 9 was justified, and the state trial 

court did not rely on materially false information when scoring the offense variable.

 2. Offense Variable 19

 Petitioner challenges the trial court’s scoring of offense variable 19, which 

assesses whether there was a “threat to the security of a penal institution or court 

or interference with the administration of justice or the rendering of emergency 

services.” Mich. Comp. Laws § 777.49. Petitioner was assessed ten points on the 

basis that he “interfered with or attempted to interfere with the administration of 

justice.” Mich. Comp. Laws § 777.49(c). 

 Petitioner maintains that offense variable 19 is not applicable to his case 

because he left the scene before the police were notified and because he did nothing 

to hinder law enforcement officials. He concedes there may be evidence that he fled 

the area after the crime, but he contends that he did not try to prevent the victims 

from reporting the crime, nor keep the police from investigating the crime or 

arresting him. He also claims that he did not change his appearance after the 
13 

crime, provide a false name to the police at his arrest, nor try to conceal evidence 

from the authorities. 

 In People v. Barbee, 681 N.W.2d 348 (Mich. 2004), the Michigan Supreme 

Court stated “that the phrase ‘interfered with or attempted to interfere with the 

administration of justice’ encompasses more than just the actual judicial process” 

because “[l]aw enforcement officers are an integral component in the administration 

of justice, regardless of whether they are operating directly pursuant to a court 

order.” Id. at 350-51. The state supreme court concluded that conduct which 

“occurs before criminal charges are filed can form the basis for interference, or 

attempted interference, with the administration of justice, and [offense variable] 19 

may be scored for this conduct where applicable.” Id. at 351. Decisions of the 

Michigan Court of Appeals and the Michigan Supreme Court 

have held the following conduct to constitute an interference or 

attempted interference with the administration of justice: providing a 

false name to the police, threatening or intimidating a victim or 

witness, telling a victim or witness not to disclose the defendant’s 

conduct, fleeing from police contrary to an order to freeze, attempting to 

deceive the police during an investigation, interfering with the efforts 

of store personnel to prevent a thief from leaving the premises without 

paying for store property, and committing perjury in a court 

proceeding. 

People v. Hershey, 844 N.W.2d 127, 136–37 (2013), leave to appeal dismissed, 858 

N.W.2d 461 (Mich. 2015) (emphasis added). 

 The record in this case reveals that Petitioner discarded clothing and a gun in 

the woods after a police officer observed him and then ran from the officer and 

continued to run after the officer ordered him to stop. (1/26/11 Prelim. Examination 
14 

Tr. at 4-13.) Although the officer lost track of Petitioner at that point, he was 

ultimately captured about forty-five minutes after the home invasion was broadcast 

to law enforcement officers. (Id. at 24-32.) 

 Given this testimony, the trial court reasonably concluded that Petitioner 

hindered the administration of justice. The trial court did not rely on materially 

false information when scoring ten points for offense variable 19. 

 3. Alleyne

 Petitioner alleges that the facts used to score offense variables 9 and 19 were 

not admitted by him, nor found a jury beyond a reasonable doubt, and, therefore, 

he was sentenced in violation of Alleyne v. United States, 133 S. Ct. 2151 (2013). 

 The Supreme Court held in Apprendi v. New Jersey, 530 U.S. 466 (2000), 

that, “[o]ther than the fact of a prior conviction, any fact that increases the penalty 

for a crime beyond the prescribed statutory maximum must be submitted to a jury, 

and proved beyond a reasonable doubt.” Id. at 490. The Supreme Court 

subsequently held in Alleyne: “Any fact that, by law, increases the penalty for a 

crime is an ‘element’ that must be submitted to the jury and found beyond a 

reasonable doubt.” Id. at 2155. 

 The Michigan Supreme Court has considered whether Michigan’s sentencing 

guidelines violate a defendant’s Sixth Amendment right to a jury trial and 

concluded that the rule from Apprendi, as extended by Alleyne, 

applies to Michigan’s sentencing guidelines and renders them 

constitutionally deficient. That deficiency is the extent to which the 

guidelines require judicial fact-finding beyond facts admitted by the 

defendant or found by the jury to score offense variables (OVs) that 
15 

mandatorily increase the floor of the guidelines minimum sentence 

range, i.e., the “mandatory minimum” sentence under Alleyne. 

People v. Lockridge, 870 N.W.2d 502, 506 (Mich. 2015) (emphasis in original), cert. 

denied sub nom. Michigan v. Lockridge, 136 S. Ct. 590 (2015). 

 The state trial court in this case sentenced Petitioner pursuant to the Cobbs

agreement, and, in the words of one Michigan Court of Appeals judge, 

[w]hen a sentencing judge imposes a legal sentence pursuant to the 

terms of a plea agreement bargained for and accepted by the 

defendant, the sentence is not affected by the judge’s perception of the 

mandatory or advisory nature of the sentencing guidelines and, thus, 

the defendant’s Sixth Amendment jury trial right is not implicated. See 

United States v. Cieslowski, 410 F3d 353, 356–357, 363–364 (CA 7, 

2005), cert den 456 U.S. 1097 (2006). Stated another way, because 

defendant agreed to a sentence within the guidelines range, the 

sentence imposed by the trial court “arose directly from the plea 

agreement and was not based on any facts found only by the trial 

court.” Amezcue v. Almager, unpublished order of the United States 

District Court for the Central District of California, issued May 25, 

2009 WL 1513427), p. 5, aff’d 577 Fed Appx 699 (CA 9, 2014). 

Moreover, by expressly and voluntarily bargaining for and agreeing to 

a guidelines sentence, defendant voluntarily waived his Sixth 

Amendment right and any related concerns. Amezcue, 577 Fed App’x 

at 700–701. 

People v. Velez, No. 315209, 2015 WL 5945364, at *4 (Mich. Ct. App. Oct. 13, 

2015)(unpublished) (Boonstra, P.J., concurring). As in Velez, “there are no Sixth 

Amendment concerns [here], and the rule of Alleyne and Lockridge is not 

implicated.” Id. 

C. Double Jeopardy

 The third habeas claim alleges that Petitioner’s two convictions for felon in 

possession of a firearm violate the Double Jeopardy Clause because the convictions 

were based on the same firearm. Petitioner actually was convicted of only one count 
16 

of felon in possession of a firearm. His supporting brief, however, indicates that his 

real concern is having been convicted and punished for two counts of felonyfirearm, where one of the underlying convictions was felon in possession of a 

firearm. 

 Petitioner asserts that the two felony-firearm convictions violate the 

prohibition against being twice convicted and sentenced for the same offense, 

because the same firearm was used throughout the criminal incident. In other 

words, the firearm was possessed at the same time, in the same location, and 

during the commission of one continuous event. The state trial court disagreed with 

Petitioner’s argument and concluded that Petitioner was not entitled to relief from 

judgment on the basis of this issue. 

 1. Legal Framework

 The Double Jeopardy Clause of the Fifth Amendment states that “[n]o person 

shall be . . . subject for the same offence to be twice put in jeopardy of life or limb . . . 

.” U.S. CONST. amend. V. The Clause is “applicable to the States through the 

Fourteenth Amendment,” and “it protects against successive prosecutions for the 

same offense after acquittal or conviction and against multiple criminal 

punishments for the same offense.” Monge v. California, 524 U.S. 721, 727–28 

(1998) (citing North Carolina v. Pearce, 395 U.S. 711, 717 (1969)). 

What determines whether the constitutional prohibition against 

multiple punishments has been violated is the state legislature’s intent 

concerning punishment. Specifically, “[w]ith respect to cumulative 

sentences imposed in a single trial, the Double Jeopardy Clause does 

no more than prevent the sentencing court from prescribing greater 
17 

punishment than the legislature intended.” Missouri v. Hunter, 459 

U.S. 359, 366, 103 S. Ct. 673, 74 L. Ed.2d 535 (1983). 

Jackson v. Smith, 745 F.3d 206, 211 (6th Cir. 2014). 

 Michigan’s felony-firearm statute prohibits the possession of a firearm during 

the commission of, or attempt to commit, a felony. Mich. Comp. Laws § 750.227b(1). 

“The Legislature intended the felony-firearm statute to reduce the possibility of 

injury to victims, passersby, and police officers posed by a criminal’s utilization of a 

firearm and to deter the underlying felony itself.” People v. Dillard, 631 N.W.2d 

755, 760 (2001). 

 The felon-in-possession statute generally prohibits persons previously 

convicted of a felony from possessing a firearm until a few years after the person 

has paid all fines, served all terms of imprisonment, successfully completed all 

conditions of probation or parole, and has had his or her right to possess a firearm 

restored. Mich. Comp. Laws § 750.224f. “[T]he felon in possession statute focuses 

on the criminal status of a possessor of a firearm,” whereas,” [t]he felony-firearm 

statute . . . focuses on the act of utilizing a firearm to facilitate the commission of a 

felony.” Dillard, 631 N.W.2d at 759-60. 

 The two statutes (§§ 750.224f and 750.227b) “have distinct purposes that 

address different social norms.” Id. at 760. Therefore, the two offenses “should be 

viewed as separate and amenable to permitting multiple punishments.” Id. In 

other words, a “defendant could constitutionally be given cumulative punishments 

when charged and convicted of both felon in possession, M.C.L. § 750.224f, and 

felony-firearm, M.C.L. § 750.227b.” People v. Calloway, 671 N.W.2d 733, 735 (Mich. 
18 

2003). Furthermore, a defendant can be convicted of one count of felony-firearm for 

each felony committed during a single sequence of events. People v. Morton, 377 

N.W.2d 798, 798, 801 (Mich. 1985). 

 2. Application

 Petitioner was convicted of, and sentenced for, two counts of felony firearm: 

one for the underlying crime of home invasion and one for the underlying crime of 

felon in possession of a firearm. This was proper under state law. Id. 

 Sentencing Petitioner for both felon in possession of a firearm and felony 

firearm also was proper because the Michigan Legislature intended the two offenses 

to be punished separately. Calloway, 671 N.W.2d at 735. The state court, 

therefore, did not violate Petitioner’s double jeopardy rights by sentencing 

Petitioner to two counts of felony firearm, because the sentencing court did not 

punish Petitioner to more than the legislature intended. Hunter, 459 U.S. at 366. 

D. Trial Counsel

 The fourth claim alleges ineffective assistance of trial counsel. Petitioner 

contends that his trial counsel failed to: (1) ensure that Petitioner’s plea was 

knowing and the plea agreement understood; (2) challenge the two felony-firearm 

convictions; and (3) object to the scoring of offense variables 9 and 19 of the 

sentencing guidelines. The trial court rejected Petitioner’s claims about trial 

counsel because the underlying claims lacked merit. 

 1. Clearly Established Federal Law
19 

 To prevail on a claim of ineffective assistance of counsel, 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. In 

other words, the defendant must show “a reasonable probability that, but for 

counsel’s errors, he would not have pleaded guilty and would have insisted on going 

to trial.” Id. “[C]ounsel should be ‘strongly presumed to have rendered adequate 

assistance and made all significant decisions in the exercise of reasonable 

professional judgment.’ ” Burt v. Titlow, 134 S.Ct. 10, 17 (2013) (quoting Strickland, 

466 U.S. at 690). 

 

2. Application 

a. The Plea 

 Petitioner contends that his trial attorney failed to ensure that he knew and 

understood the charges to which he pleaded guilty. He states that the trial court’s 

description of the charges was confusing, and that trial counsel should have 
20 

objected or asked for clarification because the trial court’s comments were beyond 

his comprehension. 

 To be valid, 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)). Among the 

factors to be considered are whether 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). Additional factors to be considered 

are whether the defendant understood the essential elements of the offenses to 

which he was pleading guilty and whether he was aware of the maximum sentence 

for his crimes. Id. at 408-09. 

 The record indicates that Petitioner was thirty years old at the plea 

proceeding and that he could read, write, and understand the English language. He 

stated that he understood he was pleading guilty to first-degree home invasion, 

possession of a firearm by a felon, and two counts of possession of a firearm during 

the commission of a felony. (4/28/11 Plea Hr’g at 5-6; Pg IDs 398-399) He also 

stated that he understood (1) his sentence could be as much as life imprisonment 

because he was a fourth habitual offender, (2) his sentence for possessing a firearm 

during the commission of a felony would be consecutive, and (3) the Court would 

sentence him at the low end of the guidelines, which were approximately 84 

months. (Id. at 5-6, 8-9; Pg IDs 398-399, 401-402). 
21 

 Although Petitioner claims in an affidavit attached to his petition that his 

plea was coerced and that his trial counsel did not explain the rights he was 

forfeiting by pleading guilty, the trial court enumerated those rights at the plea 

proceeding. Petitioner assured the Court that he understood the rights he was 

waiving by pleading guilty. He also stated that it was his choice to plead guilty and 

that no one had threatened him to make him plead guilty. (Id. at 10-12, Pg IDs 

403-405.) He subsequently acknowledged his prior convictions and the factual basis 

for his plea. (Id. at 12-14; Pg IDs 405-407.) 

 Petitioner consulted and communicated with his attorney a few times during 

the plea proceeding (id. at 3-4, 7-8), but he appeared to understand the plea 

agreement and the crimes for which he was pleading guilty. The only questions he 

voiced on the record dealt with restitution and whether he could appeal his 

convictions if he pleaded guilty. The attorneys and the trial court appear to have 

answered his questions satisfactorily. (Id. at 9-10, 12.) Furthermore, Petitioner 

stated that he was satisfied with his attorney’s advice (id. at 5), and when the trial 

court asked him at sentencing whether he wanted to make a statement, Petitioner 

simply apologized for his conduct and said that his actions toward the community 

were “preposterous and selfish.” (5/20/11 Sentencing Tr. at 4; Pg ID 413) 

 To conclude, there is no factual support in the record for Petitioner’s claim 

that his plea was not knowing and voluntary or that defense counsel failed to 

ensure the plea was voluntary and knowing. Even if trial counsel’s performance 

was deficient, Petitioner has not alleged that, but for counsel’s deficient 
22 

performance, he would not have pleaded guilty and would have chosen to go to trial. 

Therefore, he has not established that he was prejudiced by counsel’s performance. 

b. Failure to Object to the Double Jeopardy Violation and to 

the Scoring of the Offense Variables 

 Petitioner also claims that his trial attorney’s performance was deficient 

because the attorney failed to challenge the two counts of felony firearm and failed 

to object to the scoring of offense variables 9 and 19. As pointed out above, however, 

there was no violation of the Double Jeopardy Clause, and the scores for offense 

variables 9 and 19 were supported by the facts. See supra, Section III.B. and III.C. 

Because Petitioner’s underlying claims lack merit, defense counsel was not 

ineffective for failing to object to the scoring of the guidelines or to the alleged 

double jeopardy violation. See Hoffner v. Bradshaw, 622 F.3d 487, 509 (6th Cir. 

2010). 

E. Appellate Counsel

 The fifth claim alleges ineffective assistance of appellate counsel. Petitioner 

asserts that his appellate attorney’s failure to raise his habeas claims on direct 

appeal was deficient performance. Petitioner also asserts that his current issues 

are “dead bang winners” and that he stood a good chance of having his case 

remanded for trial if appellate counsel had raised the issues on direct appeal. The 

trial court, however, rejected Petitioner’s claims about appellate counsel because 

the underlying claims lacked merit. 
23 

 1. Clearly Established Federal Law

 Claims of ineffective assistance of appellate counsel are governed by the same 

Strickland standard as claims of ineffective assistance of trial counsel. Shaneberger 

v. Jones, 615 F.3d 448, 452 (6th Cir. 2010). To prevail on these claims, Petitioner 

“must show that his [appellate] counsel’s performance was deficient and that he was 

prejudiced as a result.” Id. (citing Strickland, 466 U.S. at 687). This requires 

demonstrating (1) that his attorney acted unreasonably in failing to discover and 

raise nonfrivolous issues on appeal; and (2) there is a reasonable probability he 

would have prevailed on appeal if his attorney had raised the issues. Smith v. 

Robbins, 528 U.S. 259, 285 (2000) (citing Strickland, 466 U.S. at 687-91, 694). 

 2. Application

 For the reasons set forth above, Petitioner’s underlying claims about his plea 

and sentence, his trial attorney, and the lack of an evidentiary hearing in state 

court are meritless. Therefore, appellate counsel’s performance was not deficient. 

“[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). 

 Petitioner also has failed to show that his appellate attorney’s performance 

prejudiced him. He raised all his claims, with the exception of his sixth claim about 

being denied an evidentiary hearing, in his motion for relief from judgment, which 

the trial court rejected at least in part for lack of merit. Consequently, there is not 

a reasonable probability that Petitioner would have prevailed if his attorney had 

raised the issues on direct appeal. The state courts’ rejection of Petitioner’s claim 
24 

about appellate counsel was neither contrary to, nor an unreasonable application of, 

Strickland.

F. The Lack of an Evidentiary Hearing

 The sixth claim alleges that the state courts erred and violated Petitioner’s 

right to due process by not holding an evidentiary hearing on Petitioner’s claims 

about his trial attorney. Petitioner contends that, without a hearing and further 

development of the facts, the state courts could not appreciate the significance of 

the alleged Sixth Amendment violations and his trial attorney’s failures and 

omissions. 

 To the extent Petitioner contends that the Michigan courts unconstitutionally 

denied him a forum in which to develop the factual record for his ineffectiveassistance-of-counsel claims, his claim is meritless. Hayes v. Prelesnik, 193 F. App’x 

577, 584 (6th Cir. 2006). And “[w]hether or not the Michigan courts complied with 

the procedural requirements of Michigan law is not a matter for this court to decide 

on a petition for habeas corpus relief.” Id. (citing Baze v. Parker, 371 F.3d 310, 322-

23 (6th Cir. 2004)). 

 Petitioner relies on Massaro v. United States, 538 U.S. 500 (2003), in which 

the Supreme Court stated that “ineffective-assistance claims ordinarily will be 

litigated in the first instance in the [federal] district court, the forum best suited to 

developing the facts necessary to determining the adequacy of representation 

during an entire trial.” Id. at 505. But the Supreme Court did not hold that state 

courts are required, as a matter of constitutional law, to hold an evidentiary 
25 

hearing on claims of ineffective assistance of counsel. In fact, Massaro is not a 

constitutional decision. Sweet v. Bennett, 353 F.3d 135, 140 (2d Cir. 2003); Gomez v. 

Jaimet, 350 F.3d 673, 678 (7th Cir. 2003). 

 Massaro holds that a defendant in a federal criminal prosecution need 

not raise a claim of ineffective-assistance on direct appeal but always 

may reserve it for a collateral proceeding under 28 U.S.C. § 2255. This 

is a rule of practice for federal judges in federal criminal cases . . . 

Hayes v. Battaglia, 403 F.3d 935, 937 (7th Cir. 2005). 

 

 Furthermore, if Petitioner’s concern is the state court’s handling of his 

motion for relief from judgment during the post-conviction proceedings, his claim is 

“outside the scope of federal habeas corpus review” because: 

[T]he essence of habeas corpus is an attack by a person in custody upon 

the legality of that custody, and . . . the traditional function of the writ 

is to secure release from illegal custody. A due process claim related to 

collateral post-conviction proceedings, even if resolved in a petitioner’s 

favor, would not result [in] . . . release or a reduction in . . . time to be 

served or in any other way affect his detention because we would not 

be reviewing any matter directly pertaining to his detention. 

Cress v. Palmer, 484 F.3d 844, 853 (6th Cir. 2007) (quotation marks and citations 

omitted). Moreover, 

it would be an unusual intrusion for federal courts to second-guess 

state procedures for resolving motions once they have been presented. 

States are independent sovereigns, and the federal government 

generally speaking should respect their choices about how to 

adjudicate disputes. 

. . . [Federal courts] must instead presume that, once a federal claim 

comes before a state court, the state judge will use a fair procedure to 

achieve a just resolution of the claim – resolving some motions with 

neither an evidentiary hearing nor an oral argument, some with an 

oral argument alone, some with both. 
26 

Good v. Berghuis, 729 F.3d 636, 639 (6th Cir. 2013), cert. denied, 135 S. Ct. 1174 

(2015). Petitioner’s challenge to the state courts’ refusal to hold an evidentiary 

hearing is not cognizable on habeas corpus review and also lacks merit. 

G. The Cobbs Agreement 

 In his seventh and final claim, Petitioner alleges that he should be permitted 

to withdraw his guilty plea because the trial court failed to comply with the 

sentencing agreement. The agreement, however, called for a sentence at the low 

end of the sentencing guidelines, which were estimated at 84 months (4/28/11 Plea 

Tr. at 6-8), and the trial court sentenced Petitioner to a minimum of 84 months, 

which was the bottom end of the sentencing guidelines (5/20/11 Sentencing Tr. at 4-

5; Pg IDs 413-414). There was no breach of the Cobbs agreement and no unfulfilled 

promise. Petitioner got precisely what he bargained for in the plea agreement. 

Thus, habeas relief is not warranted on his claim. 

IV. CERTIFICATE OF APPEALABILITY

 When a federal district court issues an adverse ruling on a habeas petition, 

the court “must issue or deny a certificate of appealability.” Rules Governing § 2254 

Cases, Rule 11(a), 28 U.S.C. foll. § 2254. A certificate of appealability may be issued 

“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, 
27 

537 U.S. at 327 (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. 

 Petitioner’s claims lack merit for the reasons given above, and reasonable 

jurists would not find the Court’s assessment of the claims debatable or wrong. 

Accordingly, Petitioner is denied a certificate of appealability. The Court 

nevertheless grants leave to appeal in forma pauperis because Petitioner was 

granted in forma pauperis status in this Court, and an appeal would not be 

frivolous. Fed. R. App. P. 24(a)(3)(A). 

V. CONCLUSION

 Based on the foregoing, it is ORDERED that the Petition for a Writ of 

Habeas Corpus is DENIED, and this case is hereby closed. 

 It is FURTHER ORDERED that a certificate of appealability is DENIED. 

 It is FURTHER ORDERED that in forma pauperis status on appeal is 

GRANTED because leave to proceed in forma pauperis was granted in this case, 

and an appeal could be taken in good faith. 

SO ORDERED. 

s/Terrence G. Berg 

TERRENCE G. BERG 

UNITED STATES DISTRICT JUDGE 

Dated: August 30, 2017 
28 

Certificate of Service 

I hereby certify that this Order was electronically submitted on August 30, 

2017, using the CM/ECF system, which will send notification to each party. 

s/A. Chubb 

 Case Manager