NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 11a0383n.06
No. 09-1856
UNI TED STATES COURT OF A PPEAL S FOR THE SI XTH CI RCUI T
DERRI CK D. COL EMAN, Petitioner-Appellant,

v. CI NDI S. CURTI

N, Respondent-Appe llee. ) ) ) ) ) ) ) ) ) ON APPEALFROM THE U NI TED STATES DI STRI CT COURT FOR THE WESTERN DI STRI CT OF MI CHI GAN

Be fore : KEI TH, MARTI N, and COOK , Circuit J udg es.

BO YCE F. MARTI

N, J R., Circuit J udg e. Der rick D. Coleman, a M i chig an prisoner proce eding pro se, appea ls the district court’s order deny ing his petition for a writ of habea s corpus, filed under

28 U.S.C. § 2254. This case has bee n ref err ed to a pa

nel of the c ourt pursuant to Rule 34(j)(1) , Rules of the Six th Circuit. Upon examination, t h i s panel unanimously ag ree s that oral arg ument is not needed. F ed. R. App. P. 34(a)

. Coleman pled guilty to arme d robber y and possessing a firea

rm during the comm i s s i o n of

a felony

. The trial c ourt sentenc ed him to consec utive prison terms of 262 to 600 months a nd two y ear s, respe ctively

. The Michig an Court of Appea ls a n d M ic h ig a

n Su preme Court denied Coleman’s appea ls and his reque sts for post-conviction re lief. Coleman filed a § 2254 petition, and ultimately an amende d petition, asser ting three claims: (1) the Michiga

n trial court viol ated his due process rights by not enfor cing the pl ea ag ree ment or permitting Coleman to withdraw his plea; (2) the trial court violated his due proce ss rig hts by scoring the Michig an sentenc ing g uidelines using fac ts not admitted by Coleman or found by a jury bey ondNo. 09-1856 - 2 -

a rea sonable doubt; and (3) the trial court violated his due proce ss ri gh t s by improperly scoring

cer tain offe nse varia

bles and using inacc urate information to calc ulate his s en t en ce . L astly , he arg ues his trial and appellate counsel provided ineffe ctive assistance by not objecting

. The United States Mag istrate J ud ge rec ommended the denial of all issues on the merits. Over Coleman’s objections, the district court adopted the mag istrate judge ’s rec ommendatio n, denied the petition, and declined to issue a cer tificate of appea lability

. This court g rante d Coleman a cer tificate of appea lability

for a ll three of his c laims. Coleman then m oved thi s court to hold h i s ap p ea l i n abey ance and remand t he case to the Michig an Court of Appea ls for an evidentiar y hear ing conce rning the impact on his case of the Mic h i gan S u p re me Court’s decision in People v. McG raw , 771 N.W.2d 655 (Mich. 2009). On appea l, Coleman arg ues that the district cour t erre d in deny

ing his § 2254 pe tition. We revie w de novo a district court’s denial of a § 2254 petition. Middlebrooks v. Bell , 619 F.3d 526, 534 ( 6th Cir. 2010). “When a state c ourt does not address the merits of a claim, fe dera l revie w is de novo.” Id. ; see D orn v. Lafler , 601 F.3d 439, 443 ( 6th Cir. 2010). Coleman first arg ues that the trial court violated his due proce ss rig hts by not enfor cing the plea ag ree ment he made with the Michig an prosec utor or allowing him to withdraw his plea. “The longsta nding test for determ i n i n g the validity of a g uilty plea is whether the plea repr esents a voluntary and intelligent choice among the alterna tive course s of action open to th e d ef en d ant.” Railey v. W

ebb , 540 F.3d 393, 417 (6th Cir. 2008) (interna l quotation marks and citation omitted). “The plea must be made with know ledg e of the rele vant circ umstances and likely conseque nces.” King v. Dutton , 17 F.3d 151, 153 ( 6th Cir. 1994) (interna l quotation marks and citation omitted). At his plea hear ing, the trial court advised Coleman of the ch arg es ag ainst him and the conseque nces of his ple a. Fur ther, afte r the prosec utor stated that offe nse would be score d as zero and the prosec ution would dismiss the third-fe lony habitual offe nder char g e in exchang e for Colem an p leading g uilty to being a second-fe lony habitual offender , Coleman acknow ledg ed that

no other promises had been ma de and that he had not be en told how the court would sentenc e him except that the Michig an g uidelines would be utiliz ed. Coleman has thus failed to show that his pleaNo. 09-1856 - 3 - was invol untary or unknowing or that the t rial court did n ot proper ly enfor ce the plea ag ree ment. Coleman’s claim that the trial c o u r t im p r operly preve nted him from withdrawing his g uilty plea lacks merit beca

use Coleman specific ally declined to withdraw his plea when g iven the opportunity to do so at the sentenc ing he aring

. Coleman next arg ues that the trial court violated his rig hts under Blakely v. W ashington , 542 U.S. 296 (2004), when i t score d ce rt ai n offe nse variables usi ng fac ts not admitted by Coleman or found by a jury bey ond a re asonable doubt. There is no basis for this alleg ation beca use Coleman did not rec eive a sentenc e bey ond the s t atut ory maxi mum for his crimes. See Mich. Comp. L aws §§ 750.227b(1), 750.529; Montes v. Trombley , 599 F.3d 490, 496- 97 (6th Cir. 2010). Coleman also arg ues t hat t he trial court viol ated his due pr ocess r ights by assessing points for offe nses based on inacc urate information. Coleman also arg ues that his trial and appellate counsel pe rfor

med ineff ectively by not arg uing tha t the varia bles wer e incor

rec tly calc ulated. Fe dera l habea s revie w “is limit ed to deciding whether a conviction violated the Constit ution, laws, or trea ties of t he United State s . ” B ey v. Bagley , 500 F.3d 514, 519 (6th Cir. 2007) (internal quotation marks omitted). As a result, an err or in the application of state law will be revie wed “only if it wer e so fundame ntall y u n fa i r as t o violate the petitioner’s due proce ss rig hts.” Coleman v. Mitchell , 244 F.3d 533, 542 (6th Cir. 2001). To the ex tent that Coleman asser t s his sentenc e was improperly calc ulated under state l aw, his claim is not cog nizable in fede ral habea s proce eding s. Fur ther, he has not shown that the scoring of the offe nse varia bles was so unfair as to violate his due proce ss ri gh t s , an d h e h as not made a fac tual showing that the trial court relied on inacc urate information during sentenc ing. “I neff ective assistance under Strickland [ v. W ashington , 466 U.S. 668 (1984),] is de ficient perf ormanc e by counsel resulting in prejudice , wi t h perf ormanc e being measure d ag ainst an objective standard of rea sonablene ss under preva iling profe ssional norms.” Rompilla v. Beard , 545 U.S. 374, 380 (2005) (citations and internal quotation marks omitted). Coleman has not established that he was prejudice d by counsel’s failure to arg ue that offe nse varia bles 12 and 19 wer e improperly

score d beca

use there was a sufficie nt fac tual basis for the scoring of eac h varia ble. Coleman’s claimNo. 09-1856 - 4 - that McG raw prohibited the tr i al court from considering his post-offe nse conduct when scoring offe nse varia

ble 19 lacks me rit beca

use “scor ing OV 19 nece ssarily is not limit ed to c onsideration of the sentenc ing offe nse.” People v. Smith , 793 N.W.2d 666, 667 (Mich. 2010). Coleman’s claim
t h at , when scoring offe nse variable 12, the t rial court was prohibited from considering u n ch ar ged contempora

neous felonious criminal acts also lacks merit. See People v. Light , __N.W.2d __, 2010 WL 4751768 (Mich. Ct. App. Nov. 23, 2010). We deny Coleman’s motion to rema nd and aff

irm the district court’s judgme n t

. R u l e 34(j)(2) (C), Rules of the Six th Circuit.