1

UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

JOHN ALLEN ALEXANDER, #182285, 

 Petitioner, 

 Case No. 15-cv-11364 

v. Hon. Matthew F. Leitman 

BONITA HOFFNER, 

 Respondent. 

_________________________________/ 

OPINION AND ORDER (1) DENYING PETITION FOR A WRIT 

OF HABEAS CORPUS (ECF #1), (2) DENYING A CERTIFICATE OF 

APPEALABILITY, AND (3) GRANTING LEAVE TO PROCEED IN 

FORMA PAUPERIS ON APPEAL 

 Petitioner John Allen Alexander is a state prisoner in the custody of the 

Michigan Department of Corrections. On April 13, 2015, Alexander filed a petition 

for a writ of habeas corpus in this Court pursuant to 28 U.S.C. § 2254. (See ECF #1.) 

In that petition, Alexander challenges his state-court convictions of second-degree 

fleeing and eluding a police officer, Mich. Comp. Laws § 257.602a(4)(b), and 

resisting or obstructing a police officer, Mich. Comp. Laws § 750.81d(1). Following 

a jury trial in the Wayne County Circuit Court, the state trial court sentenced 

Alexander as a fourth habitual offender, Mich. Comp. Laws § 769.12, to concurrent 

terms of life imprisonment and 5 to 15 years imprisonment. 
2

 In his original and supplemental pleadings, Alexander raises claims 

concerning an upward sentencing departure, the admission of certain impeachment 

evidence, the sufficiency of the evidence, the conduct of the prosecutor, his right to 

a speedy trial, the accuracy of the pre-sentence information report, his habitual 

offender sentencing enhancement, the effectiveness of trial and appellate counsel, a 

Friend of the Court warrant and pre-trial bail, double jeopardy, the charging 

decision, and the scoring of his sentencing guidelines. (See ECF ## 1, 11.) 

The Court has reviewed Alexander’s submissions and concludes that his 

claims are without merit. Therefore, the Court DENIES the petition. The Court will 

also deny Alexander a certificate of appealability, but it will grant him permission 

to appeal in forma pauperis. 

I

 Alexander’s convictions arose from his conduct in fleeing a Wayne State 

University Police Officer in Detroit, Michigan on January 19, 2011. The Court 

adopts Respondent’s summary of the trial testimony, to the extent that it is consistent 

with the record. Those facts are as follows: 

Wayne State University Police Officer Ryan Spangler was 

on duty and in uniform in the early morning hours of 

January 19, 2011 when he pulled up behind a Plymouth 

Breeze in his marked squad car. (8/8/11 Trial Tr. at 78-

79.) There were no other cars or people around. (8/8/11 

Trial Tr. at 83.) The Breeze ran a stop sign, so Officer 
3

Spangler activated his lights to initiate a traffic stop. 

(8/8/11 Trial Tr. at 80.) As he did so, the Breeze 

accelerated. (8/8/11 Trial Tr. at 80.) The Breeze was 

approximately 50 to 75 feet away at that time. (8/8/11 

Trial Tr. at 80.) Officer Spangler then activated his sirens. 

(8/8/11 Trial Tr. at 80.) 

 

The Breeze continued to flee from Officer Spangler, even 

running a red light in the process. (8/8/11 Trial Tr. at 81.) 

Officer Spangler ran the Breeze’s license plates and 

discovered the vehicle was stolen. (8/8/11 Trial Tr. at 81.) 

After the Breeze turned onto another street, it slowed 

down and the passenger jumped out of the vehicle, running 

north. (8/8/11 Trial Tr. at 82.) 

 

Seconds later, the driver—later identified as Alexander—

also jumped out of the car while it was still moving. 

(8/8/11 Trial Tr. at 82.) The Breeze crashed into another 

car while Alexander ran south. (8/8/11 Trial Tr. at 82.) 

Officer Spangler chased Alexander on foot for 

approximately one block. (8/8/11 Trial Tr. at 82.) He had 

Alexander in his sights almost the entire time, save for 

when Alexander turned a corner. (8/8/11 Trial Tr. at 83.) 

When Officer Spangler turned the same corner, he saw 

Alexander attempting to hide amongst some bushes. 

(8/8/11 Trial Tr. at 83.) Officer Spangler then arrested 

him. (8/8/11 Trial Tr. at 83.) 

Another officer arrived on the scene and searched 

Alexander, finding a screwdriver in his right sleeve. 

(8/8/11 Trial Tr. at 84.) Officer Spangler went back to the 

Breeze and noticed that the ignition had been punched out 

with a screwdriver. (8/8/11 Trial Tr. at 84.) 

The parties also stipulated that Alexander was twice 

previously convicted of fleeing and eluding. (8/8/11 Trial 

Tr. at 104.) 

Alexander testified that Officer Spangler had the wrong 

guy. (8/8/11 Trial Tr. at 120.) He stated that the previous 
4

night he had gone over to a friend’s house to drink and get 

high on crack cocaine. (8/8/11 Trial Tr. at 110-11.) He 

then walked to his friend Gwendolyn’s house where he 

watched TV until the early morning. (8/8/11 Trial Tr. at 

112.) He left her house around 4 a.m. and ended up 

passing out face-down in the snow by the bushes where 

Officer Spangler eventually found him. (8/8/11 Trial Tr. 

at 114-16.) He claimed he carried the screwdriver for 

protection because, as a parolee, he was not allowed to 

carry any actual weapons. (8/8/11 Trial Tr. at 117.) 

On cross-examination, Alexander admitted that he lies to 

escape trouble, including using numerous aliases. (8/8/11 

Trial Tr. at 128-29, 134.) He also admitted that he had 

been twice convicted of receiving and concealing a stolen 

motor vehicle. (8/8/11 Trial Tr. at 133.) 

(Resp. Ans., ECF #7 at Pg. ID 131-34.) 

 Following Alexander’s convictions and sentencing, he filed an appeal of right 

with the Michigan Court of Appeals raising claims concerning the trial court’s 

upward sentencing departure, his impeachment with two prior convictions for 

receiving and concealing stolen property, the sufficiency of the evidence to support 

his convictions, prosecutorial misconduct for eliciting testimony that the vehicle was 

stolen and evidence of his use of aliases, birth dates, and social security numbers, 

ineffective assistance of trial counsel for failing to object to testimony about the 

vehicle and his possession of a screwdriver upon his arrest, and a violation of his 

speedy trial rights. (See ECF #8-14.) The Michigan Court of Appeals denied relief 

on those claims and affirmed Alexander’s convictions. See People v. Alexander, 

2012 WL 6215272 (Mich. Ct. App. Dec. 13, 2012). Alexander then filed an 
5

application for leave to appeal with the Michigan Supreme Court, and that court 

denied leave. See People v. Alexander, 832 N.W.2d 749 (Mich. 2013). 

 After Alexander exhausted his direct appeals, he filed a motion to dismiss and 

a motion for relief from judgment with the state trial court. In these filings, 

Alexander raised claims related to (1) inaccurate information in his pre-sentence 

report, (2) his right to challenge his fourth habitual offender sentencing 

enhancement, (3) ineffective assistance of trial counsel for (a) failing to investigate 

a Friend of the Court warrant, (b) failing to object to the pre-sentence information 

report, and (c) agreeing to a preliminary examination stipulation without his consent, 

(4) ineffective assistance of appellate counsel for (a) failing to raise the foregoing 

issues on direct appeal and (b) failing to challenge a late appellate filing by the 

prosecution, (5) prosecutorial misconduct for issuing an invalid Friend of the Court 

warrant causing a denial of bail, (6) double jeopardy, and (7) a charging decision 

error due to a defective indictment. (See ECF ## 8-16, 8-17.) The state trial court 

denied relief on those claims and held that Alexander was not entitled to relief 

because he had failed to establish either good cause for failing to raise his claims on 

direct appeal or in a prior motion or actual prejudice under Michigan Court Rule 

6.508(D)(3). (See ECF #8-18.) Alexander filed a delayed application for leave to 

appeal the state trial court’s decision with the Michigan Court of Appeals, and the 

state appellate court denied leave. (See ECF #8-19.) Alexander then filed an 
6

application for leave to appeal with the Michigan Supreme Court, and that court 

denied leave pursuant to Michigan Court Rule 6.508(D). See People v. Alexander, 

861 N.W.2d 2 (Mich. 2015). 

 On April 13, 2015, Alexander filed his initial federal habeas petition raising 

most of the claims presented to the state courts on direct appeal and collateral review 

of his convictions. (See ECF #1.) Respondent filed an answer to the petition on 

January 8, 2016. (See ECF #7.) She contended that the Court should dismiss the 

petition because Alexander’s claims were procedurally defaulted, not cognizable, 

and/or lack merit. (See id.) 

 While Alexander’s petition was pending in this Court, he filed a second 

motion for relief from judgment with the state trial court seeking a remand on a 

sentencing claim under People v. Lockridge, 870 N.W.2d 502 (Mich. 2015). (See 

ECF #8-21.) In Lockridge, the Michigan Supreme Court held that “[a] 

straightforward application of the language and holding” in the United States 

Supreme Court’s decision in Alleyne v. United States, 570 U.S. 99 (2013), compelled 

the conclusion that the mandatory Michigan sentencing guideline scheme in place at 

the time of Alexander’s sentencing “violate[d] the Sixth Amendment” because it 

“allow[ed] judges to find by a preponderance of the evidence facts that are then used 

to compel an increase in the mandatory minimum punishment a defendant receives.” 

Lockridge, 870 N.W.2d at 513-14, 524. The state trial court denied the motion 
7

pursuant to Michigan Court Rule 6.502(G)(2). (See ECF #17-3.) It held that 

Lockridge was not retroactively applicable to Alexander’s case. (See id.) Alexander 

then filed a motion for reconsideration, which the state trial court denied on January 

26, 2016. (See ECF #17-4.) Alexander filed a delayed application for leave to appeal 

that decision and a motion for summary judgment with the Michigan Court of 

Appeals, and the state appellate court denied both the application and motion. (See 

ECF ## 17-5, 17-6.) Alexander then filed an application for leave to appeal with the 

Michigan Supreme Court, which that court denied pursuant to Michigan Court Rule 

6.502(G). See People v. Alexander, 888 N.W.2d 80 (Mich. 2016). Finally, 

Alexander filed a motion for reconsideration with the Michigan Supreme Court, and 

that court denied the motion. See People v. Alexander, 500 Mich. 963, 892 N.W.2d 

364 (2017). 

 After Alexander exhausted his state court appeals with respect to his second 

motion for relief from judgment, he filed an amended federal habeas petition in this 

Court supplementing his original petition with claims challenging the scoring of his 

sentencing guidelines and asserting that the state trial court sentenced him in 

violation of his Sixth Amendment rights under Lockridge and related federal law. 

(See ECF #11.) Respondent filed an answer to the amended petition contending that 

the claims are not cognizable, barred by procedural default, barred by the nonretroactivity doctrine, and/or lack merit. (See ECF #16.) 
8

III

 The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 

codified at 28 U.S.C. § 2241 et seq., sets forth the standard of review that federal 

courts must use when considering habeas petitions brought by prisoners challenging 

their state court convictions. AEDPA provides in relevant part: 

An application for a writ of habeas corpus on behalf of a 

person in custody pursuant to the judgment of a State court 

shall not be granted with respect to any claim that was 

adjudicated on the merits in State court proceedings unless 

the adjudication of the claim – 

(1) resulted in a decision that was contrary to, or 

involved an unreasonable application of, 

clearly established Federal law, as 

determined by the Supreme Court of the 

United States; or 

(2) resulted in a decision that was based on an 

unreasonable determination of the facts in 

light of the evidence presented in the State 

court proceeding. 

28 U.S.C. §2254(d). 

 “The question under AEDPA is not whether a federal court believes the state 

court’s determination was incorrect but whether that determination was 

unreasonable—a substantially higher threshold.” Schriro v. Landrigan, 550 U.S. 

465, 473 (2007). 
9

IV 

The Court first turns to the claims in Alexander’s habeas petition that he raised 

on direct appeal. The Court has carefully reviewed these claims and concludes that 

they are without merit.1

A

 Alexander first asserts that he is entitled to federal habeas relief because the 

trial court erred when it (1) departed above the minimum sentencing guidelines 

range, failed to provide substantial and compelling reasons for that decision, and 

failed to rely upon objective and verifiable factors when it issued his sentence and 

(2) issued him a disproportionate life sentence. The Michigan Court of Appeals 

considered these claims on direct review and rejected them: 

The trial court noted defendant’s extensive and recidivistic 

criminal history, which began in 1978 and continued 

unabated. Defendant was aged 45 at sentencing and had 

incurred 13 prior felony convictions and one misdemeanor 

conviction. He also had a history of substance abuse. The 

court noted that defendant had reached habitual-offenderfourth status in 1991, “20 years ago, yet has continued his 

nefarious career as a habitual offender for another 20 

years.” The court emphasized several times how quickly 

defendant committed new crimes after being placed on 

parole. In one instance, the court noted, defendant had 

lasted only 39 days before being charged with a new 

                                                            

1 The Court notes that Alexander’s list of his habeas claims varies between his form 

petition and his memorandum in support of his petition. Respondent relies on the 

list contained in the memorandum. For consistency and to minimize confusion, the 

Court does the same. 
10

felony, and in another instance he was on parole for 10 

months before he committed his next felony. Finally, 

summing up defendant’s criminal history, the court 

remarked that the crimes at issue in this case were 

committed only two months after defendant had been 

paroled for his most recent prior conviction. 

The trial court also noted that the instant crimes made 

defendant, in reality, an habitual offender, thirteenth

offense, rather than fourth. The court clearly stated that 

defendant’s extensive criminal history made him the exact 

type of “candidate” envisioned by the Legislature when it 

provided for a sentence of parolable life under the 

habitual-offender-fourth statute. We find that the trial 

court sufficiently articulated a substantial and compelling 

reason to justify its guidelines departure and to enable this 

Court to undertake an effective appellate review. Id. at 

259–260. The fact that defendant had reached habitualoffender-fourth status 20 years earlier and was now, in 

actuality, convicted of his thirteenth felony, was not taken 

into account in determining the appropriate sentence range 

and had not been given adequate or proportionate weight 

in the guidelines recommendation. 

The trial court’s reasons for departure were objective and 

verifiable, because they were based on defendant’s 

extensive criminal history and were capable of being 

confirmed. People v. Horn, 279 Mich.App 31, 43 n 6; 755 

NW2d 212 (2008). The trial court’s statement concerning 

the legislative intent behind the habitual-offender-fourth 

“parolable life” sentence, and how far beyond his fourth 

offense defendant had gone, clearly explained why the 

departure was more proportionate than the sentencing 

guidelines recommendation. People v. Smith, 482 Mich. 

292, 304; 754 NW2d 284 (2008). The court’s reiteration 

of defendant’s extensive criminal history of recurring and 

escalating acts demonstrated his dangerousness. 

Defendant’s sentences were proportionate to the 

seriousness of his conduct and prior criminal history. Id.

at 300, 305. Giving the deference that is due to the trial 
11

court, Babcock, 469 Mich. at 270, we find that the trial 

court identified substantial and compelling reasons based 

on objective and verifiable facts to depart from the 

guidelines, did not make any factual errors, and did not 

abuse its discretion. 

Alexander, 2012 WL 6215272, at ** 1-2. 

 Alexander has failed to establish that the state appellate court’s decision was 

either contrary to, or an unreasonable application of, clearly-established federal law. 

His challenge to the state trial court’s upward departure from the recommended 

minimum sentence guidelines range and his insistence that the state court did not 

comply with requirements under Michigan law when it issued his sentence are statelaw claims that are not cognizable on federal habeas review. See Estelle v. McGuire, 

502 U.S. 62, 68 (1991) (“In conducting habeas review, a federal court is limited to 

deciding whether a conviction violated the Constitution, laws, or treaties of the 

United States”); Pulley v. Harris, 465 U.S. 37, 41 (1984) (noting that a federal court 

“may not issue the writ [of habeas corpus] on the basis of a perceived error of state 

law”). Simply put, “[a] state court’s alleged misinterpretation of state sentencing 

guidelines ... is a matter of state concern only.” Howard v. White, 76 F. App’x 52, 

53 (6th Cir. 2003); Cheatham v. Hosey, 12 F.3d 211, 1993 WL 478854, *2 (6th Cir. 

Nov. 19, 1993) (departure from state sentencing guidelines is a state-law issue not 

cognizable on federal habeas review). Accordingly, any alleged error by the state 
12

trial court departing from the recommended minimum guidelines range does not 

merit federal habeas relief.1

 

 Nor has Alexander established that the Michigan Court of Appeals acted 

contrary to, or unreasonably applied, clearly-established federal law when it 

concluded that his sentences were proportional to the seriousness of his offenses and 

his history of criminal conduct. Alexander has not cited any United States Supreme 

Court case that suggests, much less holds, that his sentence here was so 

disproportional as to amount to an Eighth Amendment violation. Moreover (and in 

any event), Alexander has not shown that his sentence here was disproportional. As 

noted above, Alexander has a lengthy criminal history, the crimes at issue were 

serious, and the trial court’s sentences are within the statutory maxima. For all of 

these reasons, Alexander has thus failed to establish that he is entitled to federal 

habeas relief on this claim. 

                                                            

1

 The Court further notes that Alexander’s sentences are within the statutory 

maximum sentences for second-degree fleeing and eluding and resisting and 

obstructing a police officer for a fourth habitual offender under Michigan law. See

Mich. Comp. Laws §§ 257.602a(4) (authorizing a sentence of 10 years 

imprisonment); 750.81d(1) (authorizing a sentence of 2 years imprisonment), and 

769.12 (authorizing a sentence of life or a lesser term for a fourth habitual offender 

where the subsequent felony is punishable by a maximum term of five years or more 

or life and authorizing a sentence of up to 15 years imprisonment for a fourth habitual 

offender where the subsequent felony is punishable by less than 5 years 

imprisonment). 
13

B 

 Alexander next asserts that he is entitled to federal habeas relief because the 

state trial court erred when it allowed the prosecution to impeach him with two prior 

convictions for receiving and concealing stolen property and with his use of aliases 

and multiple birth dates and social security numbers. The Michigan Court of 

Appeals considered this claim on direct appeal and rejected it: 

Defendant was impeached with his 2003 and 2007 

convictions for receiving and concealing stolen property. 

These crimes contained elements of theft and were 

punishable by imprisonment in excess of one year. See 

People v. Johnson, 474 Mich. 96, 103; 712 NW2d 703 

(2006), and MRE 609(a)(2)(A). Both occurred within the 

10–year time limit required by MRE 609(c). They were 

not similar to the remaining charges against defendant. See 

MRE 609(b). Moreover, the court made the determination 

that the probative value of the evidence outweighed the 

prejudicial effect. The court found that defendant’s 

credibility was “paramount” to the issue and that the 

evidence was not “unduly prejudicial under MRE 403.” In 

its determination of prejudice, the trial court needed to 

consider only “the similarity to the charged offense and 

the importance of the defendant’s testimony to the 

decisional process....” Allen, 429 Mich. at 606. The record 

reveals that the court’s ruling did not deter defendant from 

testifying. Meshell, 265 Mich.App at 636. Finally, the 

court gave a limiting instruction to the jury. 

We find that the trial court did not abuse its discretion in 

permitting impeachment of defendant with his prior 

convictions. We find no merit to defendant’s contention 

that the trial court erroneously “created a new standard” 

under MRE 403 when it found that the evidence was not 

“unduly prejudicial.” MRE 609(a)(2)(B) requires the court 

to determine whether “the probative value of the evidence 
14

outweighs its prejudicial effect.” The court’s “unduly 

prejudicial” statement did not create a new standard; the 

court was simply paraphrasing the applicable standard. 

Defendant also takes issue with impeachment evidence 

consisting of aliases, different birth dates, and different 

social security numbers allegedly used by him. However, 

under the circumstances here, where defendant admitted 

to lying and implied, in his answers to the prosecutor, that 

his use of false identifying information was for the purpose 

of escaping trouble, the trial court cannot be deemed to 

have abused its discretion in admitting the evidence. See, 

e.g., People v. Thompson, 101 Mich.App 609, 614; 300 

NW2d 645 (1980), and People v. Messenger, 221 

Mich.App 171, 180; 561 NW2d 463 (1997). 

Alexander, 2012 WL 6215272, at ** 2-3. 

 Alexander has failed to establish that the state appellate court’s decision was 

either contrary to, or an unreasonable application of, clearly-established federal law. 

First, the errors Alexander has identified are errors of state evidentiary law, and, as 

noted above, “federal habeas corpus relief does not lie for errors of state law.” 

Estelle, 502 U.S. at 67. This claim is therefore not cognizable on federal habeas 

review. See Serra v. Michigan Dept. of Corrections, 4 F.3d 1348, 1354 (6th Cir. 

1993). Second, Alexander not shown that that the trial court’s evidentiary rulings 

were “so egregious” that they violated his federal due process rights. McAdoo v. Elo, 

365 F.3d 487, 494 (6th Cir. 2004) (explaining that only when an evidentiary ruling 

is “so egregious that it results in a denial of fundamental fairness” may it violate 

federal due process rights and warrant federal habeas relief). Nor has he cited any 

clearly-established federal law that could establish that the admission of the 
15

identified impeachment evidence violated his constitutional rights or rendered his 

trial fundamentally unfair. See, e.g., Givens v. Yukins, 238 F.3d 420, 2000 WL 

1828484, *7 (6th Cir. 2000) (stating that the Supreme Court has not addressed 

whether the admission of alias evidence may render a trial fundamentally unfair).2

 

Alexander has therefore failed to establish a right to federal habeas relief on this 

claim. 

C 

 Alexander next maintains that he is entitled to federal habeas relief because 

the prosecution presented insufficient evidence to support his convictions for 

second-degree fleeing and eluding and resisting and obstructing a police officer. The 

Michigan Court of Appeals considered this claim on direct review and rejected it: 

Defendant contends that there was insufficient evidence to 

establish the requisite element of identification to convict 

defendant of fleeing and eluding. See MCL 257.602a(1) 

and (4). 

[....] 

There was sufficient evidence to convict defendant of 

fleeing and eluding. The jury was presented with two 

opposing theories and chose to believe the prosecution’s 

                                                            

2

 The Court also notes that any potential prejudice to Alexander from the admission 

of the identified impeachment evidence was mitigated, in part, by the fact that the 

trial court gave a limiting instruction on the proper use of the prior conviction 

evidence. See Penry v. Johnson, 532 U.S. 782, 799 (2001) (citing Richardson v. 

Marsh, 481 U.S. 200, 211 (1987)); United States v. Powell, 469 U.S. 57, 66 (1984) 

(“Jurors ... take an oath to follow the law as charged, and they are expected to follow 

it.”). 
16

theory, presented through the testimony of the police 

officer. Although there were discrepancies in the officer’s 

description of defendant’s clothing, these were matters for 

the jury to resolve. People v. Davis, 241 Mich.App 697, 

700; 617 NW2d 381 (2000). The jury found the police 

officer’s identification of defendant credible, and, again, 

this Court will not interfere with the jury’s role of 

determining the credibility of the witnesses. People v. 

Bulmer, 256 Mich.App 33, 36; 662 NW2d 117 (2003). A 

rational trier of fact could have found that the essential 

elements of the crime were proven beyond a reasonable 

doubt. 

[....] 

To establish the offense of resisting and obstructing a 

police officer, the prosecution was required to prove that: 

“(1) the defendant assaulted, battered, wounded, resisted, 

obstructed, opposed, or endangered a police officer, and 

(2) the defendant knew or had reason to know that the 

person that the defendant assaulted, battered, wounded, 

resisted, obstructed, opposed, or endangered was a police 

officer performing his or her duties.” People v. Corr, 287 

Mich.App 499, 503; 788 NW2d 860 (2010). Failure to 

obey a police officer’s order to stop, flight or attempted 

flight from the scene that actively interferes with a stop 

and investigation, and wrestling with a police officer 

amount to conduct constituting resisting and obstructing a 

police officer. See, generally, People v. Nichols, 262 

Mich.App 408, 411–413; 686 NW2d 502 (2004); see also 

People v. Wess, 235 Mich.App 241, 242, 247; 597 NW2d 

215 (1999), and People v. Pohl, 207 Mich.App 332, 333; 

523 NW2d 634 (1994) (analyzing the analogous statute of 

MCL 750.479). Here, the fact that defendant fled from the 

scene and interfered with the officer’s attempted stop and 

investigation was sufficient to establish the first prong of 

the crime. 
17

The word “obstruct” in the statute “includes ... a knowing 

failure to comply with a lawful command.” MCL 750.81 

d(7)(a). In particular, the “has reason to know” language 

can be interpreted as “has reasonable cause to believe” and 

requires the fact-finder to analyze whether the facts 

indicate that when resisting, the defendant had “reasonable 

cause to believe” the officer was performing his or her 

duties. Nichols, 262 Mich.App at 414. The “prosecution 

could sustain its burden by proving defendant had 

constructive, implied, or imputed knowledge, or by using 

the record evidence to show that a defendant should have 

had knowledge on the basis of the facts and circumstances 

of the case.” Id.

The police officer testified that he was dressed in his 

police uniform, driving a marked police vehicle, and 

activated his lights; when the targeted vehicle sped up, the 

officer activated his siren, and the vehicle sped up even 

more. Then, the vehicle slowed a bit and the passenger 

jumped out; it slowed a bit more and the driver jumped out 

while the vehicle was still running, and the vehicle crashed 

into a parked vehicle. The officer chased the driver, lost 

sight of him for a few seconds as he turned a corner, and 

then found defendant hiding behind some bushes. The jury 

determines the credibility of each witness and what weight 

to give that testimony, and the reviewing court should not 

disrupt that role. Wolfe, 440 Mich. at 514–515. Viewed in 

the light most favorable to the prosecutor, the officer’s 

testimony was sufficient to create a reasonable inference 

that defendant had “reasonable cause to believe” that the 

person chasing him was a police officer performing an 

investigation and that defendant hindered him. See 

Nichols, 262 Mich.App at 414, and Pohl, 207 Mich.App 

at 333. Thus, all the essential elements of the crime were 

proven beyond a reasonable doubt. 

Alexander, 2012 WL 6215272, at ** 3-4. 
18

 Alexander has failed to establish that the state appellate court’s decision was 

either contrary to, or an unreasonable application of, clearly-established federal law. 

Nor did it rest on an unreasonable determination of the facts. The question before 

the Michigan appellate courts on Alexander’s sufficiency-of-the-evidence claim was 

“whether, after viewing the evidence in the light most favorable to the prosecution, 

any rational trier of fact could have found the essential elements of the crime beyond 

a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). But, on habeas 

review under AEPDA, this claim must survive “two layers” of deference: 

We have made clear that Jackson claims face a high bar in 

federal habeas proceedings because they are subject to two 

layers of judicial deference. First, on direct appeal, it is the 

responsibility of the jury—not the court—to decide what 

conclusions should be drawn from evidence admitted at 

trial. A reviewing court may set aside the jury's verdict on 

the ground of insufficient evidence only if no rational trier 

of fact could have agreed with the jury. And second, on 

habeas review, a federal court may not overturn a state 

court decision rejecting a sufficiency of the evidence 

challenge simply because the federal court disagrees with 

the state court. The federal court instead may do so only if 

the state court decision was ‘objectively unreasonable. 

Coleman v. Johnson, 556 U.S. 650, 651 (2012). See also Brown v. Konteh, 567 F.3d 

191, 205 (6th Cir. 2009) (noting that when analyzing a Jackson claim on habeas 

review, reviewing court “cannot even inquire whether any rational trier of fact would 

conclude that petitioner [] is guilty of the offenses with which he was charged. 

Instead, [the reviewing court] must determine whether the [state] Court of Appeals 
19

itself was unreasonable in its conclusion that a rational trier of fact could find [the 

petitioner] guilty beyond a reasonable doubt based upon the evidence introduced at 

trial”). 

 Here, the Michigan Court of Appeals did not unreasonably conclude that a 

rational trier of fact could have agreed with the jury’s guilty verdict. At trial, Officer 

Spangler testified that he was in his uniform driving a marked patrol car when he 

saw the target vehicle and activated his lights. The vehicle sped up. The officer 

activated his siren. The vehicle sped up even more. The vehicle eventually slowed 

and the passenger and then the driver jumped out and fled as the vehicle crashed into 

a parked car. Officer Spangler chased the driver, lost sight of him for a few seconds 

as he rounded a corner, and then found Alexander behind some nearby bushes. 

Officer Spangler identified Alexander as the person he chased and found in the 

bushes. The parties stipulated that Alexander had two prior convictions for fleeing 

and eluding the police. Such evidence was sufficient to establish that Alexander was 

the person who committed the crime, that he fled and eluded the officer, and that he 

resisted and obstructed the officer. And to the extent there were conflicts in the 

evidence, it was for the jury, not this Court, to resolve those conflicts. See Jackson, 

443 U.S. at 326. For all of these reasons, the Michigan Court of Appeals’ decision 

affirming the jury’s verdict was not contrary to, nor an unreasonable application of, 
20

clearly established federal law. Alexander is therefore not entitled to federal habeas 

relief on this claim. 

D 

 Alexander next claims that he is entitled to federal habeas relief because the 

prosecution engaged in misconduct when it impeached him with his receiving and 

concealing stolen property convictions and with his use of aliases and multiple birth 

dates and social security numbers. The Michigan Court of Appeals reviewed this 

claim on direct appeal and rejected it: 

Defendant further contends that the prosecutor’s use of his 

aliases, birth dates, and social security numbers was 

unfairly prejudicial and not probative of any material fact 

at issue. However, the trial court held that this evidence 

was admissible, and thus the prosecutor was not acting in 

bad faith in attempting to elicit it. See, e.g., People v. 

Dobek, 274 Mich.App 58, 70; 732 NW2d 546 (2007) (“[a] 

prosecutor’s good-faith effort to admit evidence does not 

constitute misconduct”). 

Alexander, 2012 WL 6215272, at *4.3

Alexander has failed to establish that the state appellate court’s decision was 

either contrary to, or an unreasonable application of, clearly-established federal law. 

Alexander has not identified any clearly-established federal law which holds that it 

                                                            

3

 It does not appear that Alexander raised the portion of this claim related to the 

prosecution’s use of his previous convictions on direct appeal. However, even if the 

Court reviewed that claim de novo, it would still conclude that Alexander is not 

entitled to federal habeas relief on this claim for all of the reasons stated above. 
21

is prosecutorial misconduct to introduce evidence that a trial court has held is 

admissible. Indeed, “[a] prosecutor may rely in good faith on evidentiary rulings 

made by the state trial judge and make arguments in reliance on those rulings.” 

Cristini v. McKee, 526 F.3d 888, 900 (6th Cir. 2008). Alexander is therefore not 

entitled to federal habeas relief on this claim. 

E 

 Alexander next asserts that he is entitled to federal habeas relief because the 

state trial court erred when it denied his motion to dismiss based upon a perceived 

speedy trial violation. The Michigan Court of Appeals considered this claim on 

direct review and rejected it: 

The United States and Michigan Constitutions guarantee 

criminal defendants the right to a speedy trial. US Const, 

Am VI; Const 1963, art 1, ¶ 20; People v. Patton, 285 

Mich.App 229, 235 n 4; 775 NW2d 610 (2009). The 

relevant period for determining whether a defendant was 

denied a speedy trial begins on the date of the defendant’s 

arrest, id. at 236, but a formal charge or restraint of the 

defendant is necessary to invoke the speedy-trial 

guarantees, People v. Rosengren, 159 Mich.App 492, 506 

n 16; 407 NW2d 391 (1987). 

This Court reviews a defendant’s claim of a speedy-trial 

violation by balancing the following four factors: “(1) the 

length of delay, (2) the reason for delay, (3) the 

defendant’s assertion of the right, and (4) the prejudice to 

the defendant.” People v. Williams, 475 Mich. 245, 261–

262; 716 NW2d 208 (2006). Where the delay is less than 

18 months, the defendant bears the burden of showing 

prejudice, but the prosecutor has the burden to prove that 

the defendant was not prejudiced when the delay is more 
22

than 18 months. See id. at 262. When considering the 

reasons for a delay, a court must determine the extent to 

which the prosecutor or the defendant caused the delay. 

People v. Walker, 276 Mich.App 528, 541–542; 741 

NW2d 843 (2007), vacated in part on other grounds 480 

Mich. 1059; 743 NW2d 914 (2008) and overruled in part 

on other grounds by People v. Lown, 488 Mich. 242; 794 

NW2d 9 (2011). “Unexplained delays” and “[s]cheduling 

delays and docket congestion” are charged against the 

prosecutor. Walker, 276 Mich.App at 542. “However, 

[a]lthough delays inherent in the court system, e.g., docket 

congestion, are technically attributable to the prosecution, 

they are given a neutral tint and are assigned only minimal 

weight in determining whether a defendant was denied a 

speedy trial.” People v. Waclawski, 286 Mich.App 634, 

665–666; 780 NW2d 321 (2009) (internal citations and 

quotation marks omitted). “[T]here is no set number of 

days between a defendant’s arrest and trial that is 

determinative of a speedy trial claim.” Id. at 665. 

However, “[a] delay of six months is necessary to trigger 

an investigation into” a claim that a defendant has been 

denied a speedy trial. Walker, 276 Mich.App at 541. 

In this case, trial was held six months and 20 days from 

defendant’s arrest, sufficient to “trigger an investigation.” 

Id. Fifteen days of the delay were attributable to defendant 

because defense counsel failed to appear. The delay by the 

court, two business days, was “inherent in the court 

system,” because the court was scheduled to be in another 

location. The delay attributable to the prosecutor, because 

a prosecution witness was on furlough, was approximately 

33 days. Although defendant asserted his right by filing a 

motion to dismiss based on an alleged speedy-trial 

violation, the delay was less than 18 months and therefore 

defendant bears the burden of showing prejudice. 

Williams, 475 Mich. at 262. Defendant has provided no 

information or statement to demonstrate any prejudice, 

other than the fact that he was incarcerated pending the 

trial. He has stated no claim of prejudice to his defense 

strategy. Id. at 264. He does not allege that any witness he 
23

intended to call to support his alibi, or any evidence, was 

lost because of the delay. Therefore, we conclude that 

defendant was not prejudiced by the short delay in his trial. 

The record demonstrates that defendant failed to establish 

a violation of his constitutional right to a speedy trial. 

Alexander, 2012 WL 6215272, at *6. 

 First, to the extent that Alexander argues that the state trial court violated 

Michigan’s state-law 180-day speedy-trial rule, that claim is not cognizable on 

federal habeas review because it is a question of state law, and “federal habeas 

corpus relief does not lie for errors of state law.” Estelle, 502 U.S. at 67. 

 Second, to the extent that Alexander claims that the state trial court violated 

his federal speedy trial rights, the Michigan Court of Appeals’ rejection of that claim 

was not contrary to, nor an unreasonable application of, clearly established federal 

law. The state appellate court applied the proper test under federal law. See Barker 

v. Wingo, 407 U.S. 514, 530 (1972). And Alexander has not shown how the 

Michigan Court of Appeals’ application of that law was unreasonable or incorrect. 

Alexander is therefore not entitled to federal habeas relief on this claim. 

V 

 The Court now turns to the claims that Alexander raised in his first motion for 

relief from judgment that he filed in the state trial court. Respondent argues that the 

Court should not consider these claims – other than Alexander’s ineffective 

assistance of appellate counsel claim – because they are procedurally defaulted. 
24

However, because the underlying merits of Alexander’s claims are easily resolved, 

the Court will consider them. See 28 U.S.C. § 2254(b)(2) (“An application for a writ 

of habeas corpus may be denied on the merits, notwithstanding the failure of the 

applicant to exhaust the remedies available in the courts of the State”). See also 

Hudson v. Jones, 351 F.3d 212, 216 (6th Cir. 2003) (proceeding directly to merits 

analysis because “the question of procedural default presents a complicated question 

. . . and is unnecessary to our disposition of the case”). 

A 

 Alexander first asserts that he is entitled to federal habeas relief because he 

did not have enough time to review his pre-sentence information report and the 

report contains inaccurate information. The state trial court considered this claim 

and rejected it: 

Defendant first argues that he is entitled to be resentenced 

because his presentence investigation report (PSIR) 

contains inaccurate information. Defendant asserts that he 

was not given ample time to review the report with trial 

counsel before his sentencing hearing. However, even if 

defendant felt he did not have enough time to review the 

PSIR prior to the hearing, as defendant admits here, he was 

allowed to read along with defense counsel while the 

Court reviewed the PSIR on the record. 

First, the Court notes that defendant has failed to support 

his contention that the PSIR contained inaccurate 

information within any documentary support. 

Accordingly, defendant has not met his burden of 

establishing that the PSIR was, in fact, inaccurate, and that 

his sentence is invalid on that basis. MCR 
25

6.508(D)(3)(b)(iv). Further, defendant has waived review 

of this issue. At sentencing, defendant and defense counsel 

did not object to the information contained in the PSIR. 

The Court of Appeals has held that the plain language of 

MCL 771.14(6) and MCR 6.425(E)(2)(b) requires a 

defendant to challenge the accuracy of any information 

contained in the PSIR at the time of sentencing. People v 

Sharp, 192 Mich App 501, 504; 481 NW2d 773 (1992). In 

Sharp, the Court of Appeals specifically refused to allow 

postsentencing preservation of issues concerning the 

accuracy of presentencing information in light of the cited 

statute and court rule. Id. Accordingly, defendant’s failure 

to challenge the accuracy of the information contained in 

the PSIR during sentencing precludes review here. Id.

(ECF #8-18 at Pg. ID 773-74.) 

 Alexander has failed to establish that the state trial court’s decision was either 

contrary to, or an unreasonable application of, clearly-established federal law. Nor 

did it rest on an unreasonable determination of the facts. Alexander has not made 

any showing, either to the trial court to this Court, that his pre-sentence report 

contained any inaccurate information or that the trial court relied upon materially 

false or inaccurate information when it sentenced him. Nor has he explained how 

any additional time to review the report would have changed the sentence he 

ultimately received. Alexander’s speculative and conclusory allegations do not 

entitle him to federal habeas relief on this claim. See, e.g., Cross v. Stovall, 238 F. 

App’x 32, 39-40 (6th Cir. 2007); Prince v. Straub, 78 F. App’x 440, 442 (6th Cir. 

2003). 
26

B 

 Alexander next maintains that he is entitled to federal habeas relief because 

he did not have sufficient notice of, and the ability to challenge, his fourth habitual 

offender sentencing enhancement. The state trial court reviewed this claim and 

rejected it: 

Defendant next argues that he was denied due process and 

is entitled to resentencing because he was denied his right 

to challenge the habitual offender charge as outlined in 

MCL 769.13(4). 

Pursuant to MCR 769.13(4), “[a] defendant who has been 

given notice that the prosecuting attorney will seek to 

enhance his or her sentence as provided under section 10, 

11, or 12 of this chapter, may challenge the accuracy or 

constitutional validity of 1 or more of the prior convictions 

listed in the notice by filing a written motion with the court 

and by serving a copy of the motion upon the prosecuting 

attorney in accordance with the rules of the supreme 

court.” As defendant states, his attorney received written 

notice of the sentencing enhancement as mandated by 

MCL 769.13(1) and (2). 

It is unclear from defendant’s argument here why he 

believes he was not given the right under MCL 769.13(4) 

to challenge the habitual offender enhancement. More 

importantly, defendant fails to bring forth evidence which 

would establish that he was not subject to a sentence 

enhancement as a fourth habitual offender. Accordingly, 

the Court will not grant relief from judgment on this issue. 

(ECF #8-18 at Pg. ID 774-75.) 

 Alexander has failed to establish that the state trial court’s decision was either 

contrary to, or an unreasonable application of, clearly-established federal law. First, 
27

to the extent that Alexander argues that he failed to receive adequate notice of the 

habitual offender enhancement under Michigan law, this is a state-law claim that is 

not cognizable on federal habeas review. See, e.g., Estelle, 502 U.S. at 67-68. 

Second, to the extent Alexander claims that the state trial court violated his 

constitutional rights, he has not identified any Supreme Court case that recognizes 

such a violation under these circumstances. Moreover, the record in this case shows 

that the prosecutor filed a fourth habitual offender notice with the arrest warrant and 

that Alexander had the opportunity to challenge his sentencing enhancement during 

the proceedings before the state trial court. For all of these reasons, Alexander has 

not shown that he is entitled to federal habeas relief on this claim. 

C 

 Alexander next claims that he is entitled to federal habeas relief because his 

trial counsel was ineffective for failing to investigate a Friend of the Court warrant, 

for failing to object to the pre-sentence information report, for failing to object to the 

habitual offender enhancement notice, and for stipulating to Alexander’s prior 

convictions at the preliminary examination without Alexander’s permission. The 

state trial court considered these claims and rejected them: 

First, defendant argues that counsel was ineffective for 

failing to investigate a faulty warrant served on defendant 

by the Friend of the Court. He asserts that he was kept in 

the Wayne County Jail pending trial as a result of the 

faulty warrant. Even if counsel had failed to investigate the 

warrant as alleged by defendant, he has failed to address 
28

how this affected the outcome of the proceedings in this 

case. That is, defendant has failed to establish that but for 

his attorney’s failure to investigate the warrant, a different 

outcome reasonably would have resulted. Id. 

Next, defendant argues that counsel was ineffective for 

failing to object to inaccurate information in the PSIR, 

including the information that led to him being sentenced 

as a fourth habitual offender. As noted above, defendant 

has failed to establish that there was, in fact, any 

inaccurate information contained in the PSIR. 

Accordingly, defendant has not shown that counsel was 

ineffective on this basis. 

Finally, defendant argues that counsel was ineffective for 

agreeing to a stipulation at the preliminary examination 

without defendant’s permission. Defendant fails to 

identify the stipulation defense counsel agreed to without 

his permission, or explain how counsel’s stipulation 

deprived him of a fair trial. Therefore, the Court will deny 

the motion for relief from judgment on this issue. 

(ECF #8-18 at Pg. ID 775-76.) 

 Alexander has failed to establish that the state trial court’s decision was either 

contrary to, or an unreasonable application of, clearly-established federal law. Nor 

did it rest on an unreasonable determination of the facts. Federal claims of 

ineffective assistance of counsel are subject to the deferential two-prong standard of 

Strickland v. Washington, 466 U.S. 668 (1984). Strickland asks: (1) whether counsel 

was deficient in representing the defendant; and (2) whether counsel’s alleged 

deficiency prejudiced the defense so as to deprive the defendant of a fair trial. See 

id. at 687. To meet the first prong, a petitioner must establish that his attorney’s 
29

representation “fell below an objective standard of reasonableness,” and must 

overcome the “strong presumption that counsel’s conduct falls within the wide range 

of reasonable professional assistance; that is, the defendant must overcome the 

presumption that . . . the challenged action ‘might be considered sound trial 

strategy.’” Id. at 688, 689. The “prejudice” component of a Strickland claim 

“focuses on the question of whether counsel’s deficient performance renders the 

result of the trial unreliable or the proceeding fundamentally unfair.” Lockhart v. 

Fretwell, 506 U.S. 364, 372 (1993). Prejudice, under Strickland, requires showing 

that “there is a reasonable probability that, but for counsel’s unprofessional errors, 

the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. 

 Here, Alexander has not shown that he suffered prejudice under Strickland. 

As discussed above, he has failed to identify any incorrect information contained 

within the pre-sentence investigative report, and he has therefore not shown how he 

was prejudiced by his counsel’s failure to object to that report. Likewise, because 

Alexander has failed to show a violation with respect to the habitual offender notice, 

he cannot show that he was prejudiced by his counsel’s failure to object to the notice. 

Indeed, counsel is not ineffective for failing to make a futile or meritless objection. 

See Coley v. Bagley, 706 F.3d 741, 752 (6th Cir. 2014) (“Omitting meritless 

arguments is neither professionally unreasonable nor prejudicial.”); United States v. 

Steverson, 230 F.3d 221, 225 (6th Cir. 2000). Finally, Alexander has not shown how 
30

the outcome of his trial or sentencing would have changed if not for his counsel’s 

alleged failure to investigate the Friend of the Court warrant or his counsel’s 

stipulation at the pretrial examination. Alexander has therefore not established the 

entitlement to federal habeas relief on this claim. 

D 

 Alexander next claims that he is entitled to federal habeas relief because his 

appellate counsel was ineffective for failing to raise the issues raised in Alexander’s 

first motion for relief from judgment on direct appeal and for failing to object to the 

prosecution’s late brief on direct appeal. The state trial court reviewed these claims 

and rejected them: 

With regard to the issues raised above, this Court has 

found that defendant’s arguments are meritless. 

Accordingly, appellate counsel could not be deemed 

ineffective for failing to raise these arguments because 

counsel is not required to raise meritless arguments. 

People v Riley (After Remand), 468 Mich 135, 142; 659 

NW2d 611 (2003). 

Defendant also contends that appellate counsel was 

ineffective for failing to timely move to strike the 

prosecution’s brief on appeal because it was untimely 

filed. However, even if appellate counsel failed to 

challenge an untimely response by the prosecution in this 

case, Defendant has not established that the failure 

prejudiced his appeal. Defendant is therefore not entitled 

to relief from judgment based on his ineffective assistance 

of appellate counsel claim. 

(ECF #8-18 at Pg. ID 776-77.) 
31

 Alexander has failed to establish that the state trial court’s decision was either 

contrary to, or an unreasonable application of, clearly-established federal law. First, 

as the Court has held herein, the claims Alexander raised in his first motion for relief 

from judgment lacked merit. And appellate counsel cannot be deemed ineffective 

for failing to raise issues that lack merit. See Shaneberger v. Jones, 615 F.3d 448, 

452 (6th Cir. 2010) (citing Greer v. Mitchell, 264 F.3d 663, 676 (6th Cir. 2001)). 

Second, Alexander has failed to allege or establish that he was prejudiced by his 

appellate counsel’s failure to object to the prosecution’s late brief on appeal or that 

appellate counsel’s conduct affected the outcome of the proceedings. As noted, 

conclusory allegations are insufficient to justify federal habeas relief. See Cross, 238 

F. App’x at 39-40; Prince, 78 F. App’x at 442. Alexander has therefore failed to 

establish that he is entitled to federal habeas relief on this claim. 

E 

 Alexander next asserts that he is entitled to federal habeas relief because the 

prosecutor engaged in misconduct when the prosecutor issued a faulty Friend of the 

Court warrant that resulted in the trial court denying Alexander pre-trial release on 

bail. The state trial court reviewed this claim and rejected it: 

Defendant argues that the prosecutor committed 

misconduct when he issued a warrant for failure to pay 

child support when there was no pending child support 

case against defendant. First, defendant has failed to 

establish that the prosecutor issued a such [sic] a warrant 

or that he was held in the jail pending trial because of the 
32

warrant. Further, even if defendant was held in the Wayne 

County Jail because of the improper allegation that he 

failed to pay child support, defendant has not shown that 

he was denied a fair and impartial trial as a result. 

(ECF #8-18 at Pg. ID 777.) 

 Alexander has failed to establish that the state trial court’s decision was either 

contrary to, or an unreasonable application of, clearly-established federal law. 

Alexander has not presented any evidence to support his claim that the prosecutor, 

in fact, issued an improper Friend of the Court warrant – and the record before this 

Court reveals no such warrant. As discussed, conclusory allegations are insufficient 

to justify federal habeas relief. See Cross, 238 F. App’x at 39-40; Prince, 78 F. 

App’x at 442. Moreover, even if a Friend of the Court warrant was erroneously 

issued, Alexander’s conclusory assertion that being held in jail pending trial 

precluded him from securing unidentified defense witnesses is insufficient to 

establish the required prejudice. Alexander has therefore not shown that he is 

entitled to federal habeas relief on this claim. 

F 

 Alexander next maintains that he is entitled to federal habeas relief because 

his convictions for second-degree fleeing and eluding and resisting and obstructing 

a police officer violated double jeopardy principles. The state trial court reviewed 

this claim and rejected it: 
33

The double jeopardy clauses of the United States and 

Michigan Constitutions protect a defendant from multiple 

punishments for the same offense. People v Heron, 464 

Mich 593, 599; 628 NW2d 10 (2001). In this case, 

defendant fails to present, and the Court is unaware of, any 

legal argument which would establish that convictions for 

both fleeing and eluding and obstruction of justice violate 

double jeopardy protections. The Court will therefore 

deny the motion for relief from judgment on this issue. 

(ECF #8-18 at Pg. ID 778.) 

 Alexander has failed to establish that the state trial court’s decision was either 

contrary to, or an unreasonable application of, clearly-established federal law. The 

Fifth Amendment to the United States Constitution commands that no “person be 

subject for the same offence to be twice put in jeopardy of life or limb.” U.S. CONST.

AMEND. V. The Double Jeopardy Clause provides three basic protections: “[It] 

protects against a second prosecution for the same offense after acquittal. It protects 

against a second prosecution for the same offense after conviction. And it protects 

against multiple punishments for the same offense.” North Carolina v. Pearce, 395 

U.S. 711, 717 (1969) (footnotes omitted). 

 In the context of multiple punishments, however, the Double Jeopardy Clause 

does not prohibit a state from defining one act of conduct to constitute two separate 

criminal offenses. As the Supreme Court has explained, “[b]ecause the substantive 

power to prescribe crimes and determine punishments is vested with the legislature 

. . ., the question under the Double Jeopardy Clause whether punishments are 
34

‘multiple’ is essentially one of legislative intent.” Ohio v. Johnson, 467 U.S. 493, 

499 (1984). Thus, “even if the two statutes proscribe the same conduct, the Double 

Jeopardy Clause does not prevent the imposition of cumulative punishments if the 

state legislature clearly intends to impose them.” Brimmage v. Sumner, 793 F.2d 

1014, 1015 (9th Cir. 1986). When “a legislature specifically authorizes cumulative 

punishments under two statutes, . . . a court’s task of statutory construction is at an 

end and the prosecutor may seek and the trial court or jury may impose cumulative 

punishment under such statutes in a single trial.” Missouri v. Hunter, 459 U.S. 359, 

368-69 (1983). 

 Here, the Michigan Legislature has expressed an intent for multiple 

punishments for the two offenses at issue. The fleeing and eluding statute provides 

that “conviction under this section does not prohibit a conviction and sentence under 

any other applicable provision, except section 479a(2), (3), (4), or (5) of the 

Michigan penal code, 1931 PA 328, MCL 750.479a, for conduct arising out of the 

same transaction.” Mich. Comp. Laws § 257.602a(6). And the resisting and 

obstructing statute provides that the section “does not prohibit an individual from 

being charged with, convicted of, or punished for any other violation of law that is 

committed by that individual while violating this section.” Mich. Comp. Laws § 

750.81d(5). In addition, the Michigan Court of Appeals has held that a defendant 

may be convicted of fleeing and eluding (albeit under Mich. Comp. Laws § 
35

750.479a) and resisting and obstructing a police officer without violating double 

jeopardy principles. See People v. Coronado, 2012 WL 470188, at *3 n. 2 (Mich. 

Ct. App. Feb. 14, 2012); People v. Briggs, 2010 WL 5373873, at *7-8 (Mich. Ct. 

App. Dec. 28, 2010). Given such state law authorizing multiple punishments under 

the relevant statutes, it cannot be said the state trial court unreasonably concluded 

that Alexander’s convictions for second-degree fleeing and eluding and resisting and 

obstructing a police officer did not violate double jeopardy principles. For all of 

these reasons, Alexander has not established that he is entitled to federal habeas 

relief on this claim. 

G 

 Next, Alexander says that he is entitled to federal habeas relief because the 

prosecutor abused his discretion and violated Alexander’s rights under the Due 

Process Clause when the prosecutor cited Alexander for seriously injuring/impairing 

Officer Spangler as part of the second-degree fleeing and eluding charge. The state 

trial court reviewed this claim in the context of a motion to dismiss Alexander had 

filed and rejected it: 

Finally, in defendant’s motion to dismiss, he argues that 

the prosecutor abused his discretion in charging him with 

fleeing and eluding and obstruction of justice because the 

indictment was defective. 

Michigan law provides that criminal prosecutions may be 

initiated in the court having jurisdiction to hear the cause 

by either indictment or information. MCL 767.1 et seq. In 
36

this case, the prosecution charged defendant by filing an 

information. Because there was no indictment issued in 

this case, defendant’s contention that the indictment was 

defective is without merit. 

(ECF #8-18 at Pg. ID 778.) 

Alexander has failed to establish that the state trial court’s decision was either 

contrary to, or an unreasonable application of, clearly-established federal law. 

Simply put, Alexander’s claim is belied by the record. He was charged with seconddegree fleeing and eluding based upon his failure to pull over his vehicle in response 

to the officer’s lights and siren and his prior fleeing and eluding convictions. The 

prosecutor never charged Alexander with seriously injuring or impairing Officer 

Spangler. Alexander has therefore failed to establish that the prosecutor violated his 

(Alexander’s) constitutional rights with respect to the charging decision. Alexander 

is therefore not entitled to federal habeas relief on this claim. 

VI 

A 

 Finally, the Court turns to the claims Alexander raised in his second motion 

for relief from judgment that he filed with the state trial court. As with the claims 

Alexander raised in his first motion for relief from judgment, Respondent argues that 

the Court should not consider these claims because they are procedurally defaulted. 

However, because the underlying merits of Alexander’s claims are easily resolved, 
37

the Court will consider them. See 28 U.S.C. § 2254(b)(2); Hudson, 351 F.3d at 216 

(6th Cir. 2003). 

B 

 Alexander asserts that he is entitled to federal habeas relief because the state 

sentencing court violated his Sixth Amendment rights by engaging in judicial factfinding when it determined his sentencing guidelines range. (See ECF #11 at Pg. ID 

979.) This claim rests in large part upon the Supreme Court’s decision in Alleyne v. 

United States, 570 U.S. 99 (2013).4

 In Alleyne, the Supreme Court held that judicial 

fact-finding “that increases the mandatory minimum sentence for a crime” is 

impermissible under the Sixth Amendment. Alleyne, 570 U.S. at 103. Thus, the 

Supreme Court concluded that “any fact that increases the mandatory minimum is 

an ‘element’ of the offense that must be submitted to the jury and proven beyond a 

reasonable doubt.” Id. 

And just recently, the United States Court of Appeals for the Sixth Circuit, 

applying Alleyne, held that “Michigan’s sentencing regime” in place at the time of 

                                                            

4

 Alexander’s Sixth Amendment claim relies upon the Michigan Supreme Court’s 

decision in People v. Lockridge, 870 N.W.2d 502 (Mich. 2015). (See ECF #11 at Pg. 

ID 979.) As explained in Section I above, the Michigan Supreme Court in Lockridge

held that “[a] straightforward application of the language and holding in Alleyne

leads to the conclusion that Michigan’s sentencing guidelines scheme violates the 

Sixth Amendment.” Lockridge, 870 N.W.2d at 513-14. Thus, because Lockridge

applies Alleyne, Alexander’s Sixth Amendment claim here is best described as an 

Alleyne claim. 
38

Alexander’s sentencing was “unconstitutional.” Robinson v. Woods, ___ F.3d ___, 

2018 WL 4039838, at *4 (6th Cir. Aug. 24, 2018). Under that “regime,” sentencing 

judges found facts that were then used to calculate a defendant’s sentencing 

guidelines range, and the range set what was effectively a mandatory minimum 

sentence. Id. at **4-6. This sentencing process “violated Alleyne’s prohibition on 

the use of judge-found facts to increase mandatory minimum sentences.” Robinson, 

2018 WL 4039838, at *4.5 Robinson makes clear that to the extent that the state 

sentencing court determined Alexander’s sentencing guidelines range based on facts 

that were not found by the jury, Alexander’s sentence violated the Sixth 

Amendment. 

 But Alexander is not entitled to habeas relief because any Sixth Amendment 

error committed by the sentencing court in determining his guidelines range was 

harmless. For purposes of federal habeas review, a constitutional error that 

implicates trial procedures is considered harmless if it did not have a “substantial 

and injurious effect or influence in determining the jury’s verdict.” Brecht v. 

Abrahamson, 507 U.S. 619, 637 (1993); see also Fry v. Pliler, 551 U.S. 112, 117-

18 (2007) (confirming that the Brecht standard applies in “virtually all” habeas 

                                                            

5

 Alexander may invoke Alleyne because it was decided on June 17, 2013, while 

Alexander’s direct appeal was still pending in the Michigan appellate courts. See 

Robinson, 2018 WL 4039838, at *3 (explaining that a Supreme Court decision 

applies to criminal cases pending on direct appeal at the time the decision is issued). 
39

cases); Ruelas v. Wolfenbarger, 580 F.3d 403, 411 (6th Cir. 2009) (ruling that Brecht

is “always the test” in the Sixth Circuit). Importantly, the Supreme Court has held 

that the “[f]ailure to submit a sentencing factor to the jury ... is not a structural error” 

and is therefore subject to harmless-error review. Washington v. Receunco, 548 U.S. 

212, 222 (2006). 

Any judicial fact finding by the sentencing court in determining Alexander’s 

guidelines rage was a harmless error because the guidelines played no meaningful 

role in the court’s ultimate sentencing decision. Indeed, the court imposed the 

maximum sentence allowed by law – life in prison. That sentence far exceeded the 

top end of the guidelines range which called for Alexander to receive a minimum 29 

months to 114 months sentence. (See Sentencing Tr., ECF #8-13 at Pg. ID 465.) 

Critically, the sentencing transcript demonstrates beyond a shadow of a doubt that 

the sentence was driven by Alexander’s lengthy criminal history, not the court’s 

guidelines calculation: 

In this particular case, the defendant [....]was on probation 

and/or parole at the time that he is alleged to have 

committed this offense. In fact, he was 12-year to 20-year 

max on a case out of 1991 for parole when this case -- 12-

year minimum to 20-year maximum. He was on parole for 

also two to five out of Wayne County. He was also on 

parole for one to five out of Wayne County and on 

probation for three years out of another case from Wayne 

County at the time that he was convicted in this particular 

case. So he does not receive any credit. But the body of 

the report should reflect the sentencing date was today's 

date and that he's been in custody 217 days. 
40

In this particular case, although obviously under, you 

know, for murder cases and for Class A offenses the state 

has either mandatory life or prison or Class A, it's 

parolable life offenses, the legislature also envisioned for 

Habitual 4th offenders, Habitual 4th, not the Habitual 13th 

that we have before the Court here today but for Habitual 

4th's, that the -- that life, parolable life is an appropriate 

sentence under the facts and circumstances. 

And the facts and circumstances go all the way back to 

1978 when he was charged with Criminal Sexual Conduct 

in the First Degree and it was pled down to Assault and 

Battery. But the facts and circumstances indicate -- and he 

was sentenced to probation and sent to Maxey Juvenile 

Facility for that offense. But the facts and circumstances 

indicated in that 1978 case the defendant was involved in 

oral sex with a five-year-old on school playground. 

Then we have 1985 where he was convicted of Attempt 

UDAA, sentenced to six months to two-and-a-half years 

in prison. His probation – he violated that probation and 

then was sent back and his parole was extended in that 

1985 case. That was April of 85. 

July of 85, B & E Building With Intent. He was given 

probation in that case. 

June 2nd, 1987, Unlawfully Driving Away, given 

probation. Because of a violation of probation in that case, 

probation was closed in the 1987 case in 2000, 13 years 

later. The defendant has been -- he was in and out of prison 

over -- from 1987 to 2000, and the case was ultimately 

closed at that time. 

Again, July -- another case, attempt UDAA, given 90 days 

in the Wayne County Jail. 

19 -- September of 87, Receiving and Concealing Over 

100, which was a felony, he received two to ten. He was 
41

paroled, but he got a new commitment and the -- on that 

87 case and he had a parole violation with a new sentence 

as a result of a subsequent case. 

In 1991 he had another stolen car, Fleeing and Eluding, 

Habitual 4th. 

The defendant reached Habitual 4 status in 1991, 20 years 

ago, yet has continued his nefarious career as a habitual 

offender for another 20 years. 

And as far as that 1991 case, the defendant was paroled on 

June 3rd and -- of 2003 and on, what was it, one month, so 

30 -- on July 12th he violated his parole after being placed 

on parole on June 3rd, so it lasted a grand total of 39 days 

out of prison before he picked up a new offense, which, on 

July 12th, was another Receiving and Concealing, two 

counts, that he violated parole and received an additional 

one to five in the Michigan Department of Corrections. 

That skips the April 24th, 1991 where he received three to 

five years in the Michigan Department of Corrections for 

a Receiving and Concealing Stolen Property, Fleeing a 

Police Officer as well, which I've not done there. 

And then the 19 -- the 2003 case, the defendant, in addition 

to being out on parole for a whopping 39 days before he 

picked up his next felony, also tried to use an alias of 

Anthony Meyers in order to elude law enforcement. So 

then he's back in prison. He was paroled March 28th, 2007. 

He picked up another Receiving and Concealing Stolen 

Property, receives yet another one to five in the Michigan 

Department of Corrections. The defendant was paroled on 

December 2nd, 2008. 

And then on December or October 2nd, 2009, 10 months 

later, so he -- we're a little bit better than the whopping 39 

days before, we make it ten months this time before -- 
42

while on parole supervision before he picks up his next 

felony. 

He was reinstated on parole because on October 2nd, 2009 

he picked up a new B & E Motor Vehicle, which he 

received one year in jail, three years probation. And that's 

what we have. 

Now, in this particular case he does – if I -- my math is 

correct, he was sentenced November 11th, 2009 to three 

years probation with one year Wayne -- or, I'm sorry, 

November 30th, 2009 to one year in jail. That would take 

us to – three years probation, one year in jail. That would 

take us to approximately November 30th of 2010. 

And lo and behold, on January 19th, 2011, a gap of 

approximately two months, we have another Fleeing and 

Eluding, Receiving and Concealing Stolen Property, not 

just Habitual 4th but Habitual 13th at this particular 

juncture. 

(Id. at Pg. ID 460-64; emphasis added.) After reciting this long criminal history, the 

sentencing court concluded that “if there was any candidate who the [Michigan] 

[L]egislature envisioned out to receive parolable life under the Habitual 4th statute, 

it would be Mr. Alexander.” (Id. at Pg. ID 464.) Given the court’s decision to impose 

the statutory maximum punishment that far exceeded the top of the guidelines range, 

and, just as importantly, its reasoning for that sentence, any alleged Sixth 

Amendment error with respect to the guidelines was harmless. See United States v. 

Brown, 444 F.3d 519, 522 (6th Cir. 2006) (holding that even though trial court erred 

when it, among other things, “made forbidden findings of fact” when determining 

petitioner’s sentence, errors were harmless because “any possible harm from these 
43

errors was nullified when the court later exercised its discretion to grant a substantial 

upward departure that increased the sentence considerably above the Guideline 

recommended range”). Alexander has therefore not shown that he is entitled to 

federal habeas relief on this claim. 

VII

 For the reasons stated above, the Court concludes that Alexander is not 

entitled to federal habeas relief on any of his claims. Accordingly, the Court 

DENIES and DISMISSES WITH PREJUDICE his petition for a writ of habeas 

corpus (ECF #1). 

 Before Alexander may appeal the Court’s decision, the Court must issue a 

certificate of appealability. See 28 U.S.C. § 2253(c)(1)(a); Fed. R. App. P. 22(b). A 

court may issue a certificate of appealability “only if the applicant has made a 

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

When a court denies habeas relief on the merits, the substantial showing threshold 

is met if the petitioner demonstrates that reasonable jurists would find the court’s 

assessment of the claim debatable or wrong. See Slack v. McDaniel, 529 U.S. 473, 

484-85 (2000). “A petitioner satisfies this standard by demonstrating 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). 
44

Here, jurists of reason would not debate the Court’s conclusion that Alexander 

has failed to demonstrate entitlement to habeas relief with respect to any of his 

claims because they are all devoid of merit. Therefore, the Court will DENY

Alexander a certificate of appealability. 

 Finally, although this Court declines to issue Alexander a certificate of 

appealability, the standard for granting an application for leave to proceed in forma 

pauperis on appeal is not as strict as the standard for certificates of appealability. 

See Foster v. Ludwick, 208 F.Supp.2d 750, 764 (E.D. Mich. 2002). While a 

certificate of appealability may only be granted if a petitioner makes a substantial 

showing of the denial of a constitutional right, a court may grant in forma pauperis

status if it finds that an appeal is being taken in good faith. See id. at 764-65; 28 

U.S.C. § 1915(a)(3); Fed. R.App.24 (a). Although jurists of reason would not debate 

this Court’s resolution of Alexander’s claims, an appeal could be taken in good faith. 

Accordingly, the Court GRANTS Alexander permission to proceed in forma 

pauperis on appeal. 

IT IS SO ORDERED. 

s/Matthew F. Leitman 

 MATTHEW F. LEITMAN 

 UNITED STATES DISTRICT JUDGE 

 

Dated: September 27, 2018 
45

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

parties and/or counsel of record on September 27, 2018, by electronic means and/or 

ordinary mail. 

 s/Holly A. Monda 

 Case Manager 

 (810) 341-9763