NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 12a1049n.06 No. 09-2091 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

P ABLO B ONILLA, P etitioner -Appellant,

v. BLAINE L AF LER, Warden, Respondent-Appellee. ) ) ) ) ) ) ) ) ) ) ) ON AP P EAL FROM THE UNITED STAT ES DIS TRICT COU R T F OR TH E EASTE RN DISTRICT OF MICHIG AN

O P I N I O N

BEFORE: M ERRITT, McK EAGU E, and STRANCH, Circuit Judges. McK EAGU E, Circuit Judge. Petitioner-appe llant Pablo Bonilla appea ls the district court’s denial of his petition for a writ of habea s corpus. Bonilla ar gu es t h at h i s life sentenc e with the possibili ty of parole violates the Eig hth Amendment’s prohibition ag ainst crue l and u n u s u al punishment. More specific ally , he arg ues t hat hi s sentenc e violates the g ross disproportionality principle of the Eig hth Amendment. The district court found that Bonilla’s claim was barr ed by Harmelin v. Michiga n , 5 0 1 U. S

. 957 (1991). B onilla appea ls this decision. W e ag ree with the district court and aff irm . I. BACKG ROUND On Fe bruar

y 7, 2002, Pablo Bonilla was arr ested in Pontiac, Michig an, after 917 g rams of

coca ine wer e found inside his ve hicle. Subsequently , Bonilla was char g ed in Mic higa n court withNo. 09-2091

Bonilla v. Lafl er, W

arden

one count of possessing with intent to deliver more than 650 g rams of a mix ture containing coca ine in violation of M.C.L

. § 333.7401(2)( a)( i) (2001) and one count of possessing metallic knuckles in violation of M.C.L

. § 75 0

. 224. At the conclusion of the trial, the prosec ution reque sted a lesserincluded instruction for the crime of simple possession of 650 or more g rams of coca ine. The judge acquie sced, g iving this instruction in addition to the principal char g e. T h e j u ry returne d a g uilty verdic t for simple possession. The Michig an sentenc ing scheme suffe re d from an inconsistency at the time of Bonilla’s

arr est. On the date of Bonilla’s arr est, possession of more than 650 g rams of coca ine was punishable by a sentenc e of mandatory life with the possibili ty of parole

. M.C.L

. § 333.7403(2)( a)( i) (2001). On the same date, a defe ndant convicted of possession with intent to distribute more than 650 g rams of coca ine fac ed a sentenc e of 20 y ear s to life. M.C.L

. § 333.7401(2)( a)( i) (2001). After his arr est,

an amendment to the simple possession sta t u t e beca me eff ective on Marc h 1, 2003. Under the amende d simple possession sentencing scheme , Bonilla would have fac ed a max imum term of 30 y ear s, with no mandatory minimum term presc ribed. M.C.L

. § 333.7401(2)( a)( i) (2003). The trial
court sentenc ed Bonilla under the version of the Michig an possession statue in eff ect on the date of his arre st. He wa s sentence d to life in prison with the possibil ity of par ole. 1 Bonilla appea led his conviction to the Michig an Cour t o f Appea ls on numerous g rounds, including the disproportionate nature of hi s s en tence

. I n his brief, the only mention of t he Eighth

Bonilla arg ues that he will serve more time for simple possession than for possession with 1 intent to distribute. Howeve r, this a rg ument is pure conje cture

. Bonilla will be elig ible for parole afte r serving 15 y ear s. M.C.L

. § 791.234(7)( a). This w ill make him elig ible for parole on April 5, 2019. - 2 -No. 09-2091

Bonilla v. Lafl er, W

arden Amendment occur

red in the six th question prese nted and the heading to the section addre ssing this question. Only

one citation, People v . Milbourn , 461 N.W.2d 1 (Mich. 1990), squar ely addre ssed the issue of proportionality

. Bonilla claimed that the inconsistencies resulting fr o m the failure to amend some, bu t not all, of t he Mi chig an sentencing scheme did not comport wit h Milbourn

. He further contende d that the result—a lesser- included offe nse being punished more sever ely than the g rea ter offe nse—wa s arbitra ry and capr icious. The majority of his arg ument then focuse d on a claim that he should have been se ntence d under the amende d sentenc ing sc heme. On J anuar y 17, 2006, the Michig an Court of Appea ls aff irmed Bonilla’s sentenc e. The court first stated, “We reje ct defe ndant’s final claim that his life sentenc e imposed under the former version of MCL

333.7403, constitutes c ruel and unusual punishment.” (R. 12-17, Ct. App. Op. at 9, Pag e I D # 333.) The court then addre ssed his proportionality challeng e by focusing on Michig an law that prohibits application of an amended sentencing statute to an off ense oc curr ing before the statute’s ef

fec tive date. I n a footnote the court a dded: De fenda nt sug g ests that his parola ble life sentenc e constitutes crue l and unusual punishment. Although [t he Michig an] Supreme Court has held that imposit ion of a mandatory sentenc e of l i fe i mprisonment without the possibili ty of parole for a conviction of simple possession of 650 or more g ra m s o f a controlled substance constitutes crue l or unusual punishment, defe ndant has not cited any support for his claim that a parola

ble life term of imprisonment constitutes crue l and usual [si c] punishment. (R. 12-17, Ct. App. Op. at 10, Pag e I D # 334.) The court continued, “‘A n appellant may not mere ly

announce his position and leave it to this Court to discover and rationalize the basis for his claims,

nor may he g ive only cursor y trea tment [of an issue] with littl e or no ci t at i o n o f supporting

a uthority .’” (

Id. (alter ation in orig inal) (quoting People v. W atson , 6 2 9 N

. W. 2 d 4 1 1 , 4 2 1

- 2 2 ( 2 0 0 1 ) )

. ) - 3 -No. 09-2091

Bonilla v. Lafl er, W

arden Bonilla pe titioned the Michiga n Supreme Court for

leave to appea l, which was de nied. Bonilla next petitioned the United States District Court for the Easter n District of Michig an for a writ of habea s corpus pursuant t o 2 8 U.S.C. § 2254. I n a repor t and rec ommendation, the mag istrate judge conclude d that Bonilla’s petition was fore closed by Supreme Court prec edent. The district judge ag ree d, adopting the mag istrate’s rec ommendation an d d en y ing the petition. We g rante d Bonilla’s motion for a cer tificate of appea lability on the issue of whether his se ntence was arbitra ry and disproportionate

. II. ANALYSIS I nitially , L afle r contends that Bonilla proce durally defa ulted his Eig hth Amendment claim. Bonilla c ontends that L afle r wa ived the proc edura l defa ult arg ument, or in the alter native, that his Eig hth Amendment claim is not defa ulted. A party may waive a proce dural defa u l t defe nse by faili ng to asser

t it. Slagle v. Bagley , 457 F.3d 501, 514 (6th Cir. 2006). Be cause L af l er fa i l ed t o raise his proc edura l defa

ult defense in his ini tial a ppellate brief and beca

use the a rg ument was not made be fore the district court, we ref rain fr om rea ching this iss ue. I n habea s proce eding s, we revie w de novo a district court’s leg al conclusion s and deter minations of mix ed questions of law and fac t. Gall v. Scroggy , 603 F.3d 346, 3 5 1 (6th Cir. 2010). We revie w a district court’s finding s of fac t for clea r err or. Titl ow v. Burt , 680 F.3d 577, 585-86 (6th Cir. 2012). Gene rally , a state-c ourt decision under revie w is en t i t l ed to defe renc e pursuant to the Antiterror ism and Effe ctive Dea th Penalty Act of 1996 (AEDPA) , codified at 28 U.S.C. § 2254(d). That subsec tion provides as follows: - 4 -No. 09-2091

Bonilla v. Lafl er, W

arden An application for a writ of habea s corpus on behalf of a person in custody pursuant to the j udg ment of a State court s h al l n o t b e grante d with respe ct t o any claim t hat was a djudicated on the me rits in St ate c ourt proce eding s unless the adjudica tion of the claim— (1) resulted in a decisio n t h at was contra ry to, or involved an unreas o nable application of, clea rly established Fe dera l law, as deter mined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unrea sonabl e deter mination of the fac ts in light of the evide n ce p re sented in the State court proc eeding

. 28 U.S.C. § 2254(d). Bonilla arg ues that the state court did not rea ch the merits of his claim and that he is there fore entitled to de novo revie w. I n the alternative, he states that subsection (1) applies to this case. When a state c ourt fails t o rea ch the merits of a fede ral constitut ional claim or c laims, this
court does not aff

ord the state court AEDPA defe renc e. Henley v. Bell , 487 F.3d 379, 390 (6th Cir. 2007). I n these inst ance s, the cou rt em p l o y s d e novo revie w t o deter mine whether the s tate court decision wa s contrar

y to Supreme Court prec edent. Id. The Supreme Court’s decision in Harrington v. Richter , 131 S. Ct . 770 (2011), g uides our analy sis of whether a state court rea ched the merits of a claim. The Court held that AE DP A defe renc e is appropr iate when courts summarily deny a h ab ea s petitioner’s claim. Id. at 784. I n these case s, fede ral courts will presume the state court decide d the case on the merits “in the absenc e of any indication or state-law proce dural principles to the contra ry .” Id. at 784-85. A petitioner may

overc ome the presumption “whe n there is rea son to think s o m e other explanation for the lower court’s de cision is more likely .” Id. at 785.

- 5 -No. 09-2091

Bonilla v. Lafl er, W

arden Bonilla cannot make this showing

. The Michig an Court o f Appeals summarily reje cted Bonilla’s claim in the text of its opinion. T h e s u bsequent discussion cited only to state court decisions. But the Michig an Court of Appea ls cannot be faulted for this, for Bonilla o n l y cited Michig an law in his brief. Thoug h the footnote that followed reje cted Bonilla’s claim on proce dural g rounds, this would either be deeme d an alternative ruling for reje cting his c onstitut ional claim on its merits or be deeme d to proce durally bar Bonilla’s constitutional claim. Bonilla has not prese nted 2 sufficie nt evidenc e to overc ome the presumption that the Michig an Court of Appea ls adjudicate d his constituti onal claim on the mer its. T h er ef o re , AEDPA defere nce is appropr iate. To obtain relief , Bonilla must show that th e

s tate court decision was either contra ry to, or an unrea sonable application of, clea rly estab l i s h ed fede ral law. I n deter

mining what constitutes “cle arly established Fe dera l law,” we only look to the holdings of Supreme Court decisions at the time of the relevant state-c ourt decision. Lockye r v. Andrade , 538 U.S. 63, 71 (2003). Courts consider a

state cour

t decision “contr ary

to” clea rly established fe dera l law under § 2254(d)( 1) if the two decisions are “diametr ically differ ent, opposite in char acte r o r n ature , or mutually opposed.” W

illiams v. Taylor , 529 U.S. 362, 405-06 (2000) (quoting W ebster’s Third New International Dictionary 495 (1976)) (interna l quotation marks omitted). The court will only g rant

I n his principal brief, Bonilla cites AEDPA defe renc e as the appropr iate standard of revie w. 2 I n his reply brief, he arg ues that t h e Michig an Court of Appea ls did not rea ch the merits of his constitutional claim, and ther ef o re , h e i s entitled to de novo revie w. I t would be incong ruous to employ de novo revie w when a state court failed to rea ch the merits of a decision beca use an appellant failed to adequa tely arg ue it, and there by abandone d it. I n W atson , the Michig an Court of Appea ls stated that claims not develope d are considere d abandone d. W atson , 629 N.W.2d at 422. - 6 -No. 09-2091

Bonilla v. Lafl er, W

arden habea s relief when the state court arr ived at a conclusion opposite to tha t of the Supreme Court on

a question of law or if the state court decide d the case differ en t l y t h an the Supreme Court has decide d a case on a set of m ater ially indisti ng uishable facts. Id. ; W hite v. Mitchell , 431 F.3d 517, 523 (6th Cir. 2005). Alterna tively , courts consider a state court decision an “unre asonable application” of clea rly established fede ral law when the state court decision was objectively unrea sonable, not just incorre ct

or er roneous. Lockye r , 538 U.S. at 75. There fore , not ever

y constitutional err or i n a st ate- court proce ed i n g m erits t he is suance of a writ of habeas corpus, on l y those that “under mine confide nce in the fundamental fairne ss of t he state adjudication certa inly justify the issuance of the fe dera l writ.” W illiams , 529 U.S. at 375. Bonilla cannot o v erc ome the burden established by AEDPA. Thoug h Supreme Court prec edent clea

rly rec og nizes a conce pt of g ross disproportionality in sentenc ing, the contours of that rig ht are far

from cle ar. Indeed, the Supreme Court stated i n Lockye r that “pre cede nts in thi s are a have not been a model of clar ity ” and that this are a of law is a “thicket.” 538 U.S. at 72. There fore , Bonilla fac es an uphill battle in arg uing there is any clea

rly established fede ral law as deter mined by the Supreme Court in this are a of the law. I t is important to note, moreove r, that the Supreme Court has never st ruck down a sentence as gro s s ly disproportionate when the s entenc e was life wit h the possibili ty

of par ole. I n Harmelin v. Michigan , 501 U.S. 957 (1991), the Court he ld tha t the Eig hth A mendment

rec o gn i zes a narr ow g ross disproportionality principle in sentenc ing. On direc t appea l the Court upheld a life sentenc e without the possibili ty of parole

. Id. at 961. The defe ndant, like Bonilla, was - 7 -No. 09-2091

Bonilla v. Lafl er, W

arden convicted of pos s es s i o n o f a controlled substance under a version of the same statute now under revie w. Id. The fr actur ed opinion of t he Harmelin court recog nized that the Ei g hth Amendment

3 protec ts ag ainst g ross disproportionality in sentenc ing. See id. at 997 (Ke nnedy , J

. concur ring ); id.
at 1012-13 (White, J

. dis s en t i ng ). Howeve r, the Court upheld the sentenc e over an Eig hth Amendment challeng e even though it is more sever e than the sentenc e curr ently under revie w. See id. at 996. I n Lockye r , the Court s t at ed t h at the “g ross disproportionality principle rese rves a constitutional viol at i o n fo r only the extraordinary case .” 538 U.S. at 77. The Supreme Court’s prec edents bear this point out. I n Rumme l v

. Estelle , 445 U.S. 6, 84-85 (1980), the Court uphe ld a
sentenc e of life imprisonment based on three underly ing felonies. I n Hutto v. Davis , 454 U.S. 370, 373-75 (1982) (per curiam), the Court upheld a forty -y ear prison sentenc e for possession with intent
to distribute nine ounces of m arijuana

. Only wher e a def en d an t was sentenced to life wit hout the p o s s i bility of parole for seven non-violent underly ing felonies has the Court overturne d a prison
sentenc e for being g rossly disproportionate under the Eig hth Amendment. Solem v. Helm , 463 U.S. 277 (1983). The sentenc e here allows Bonilla to obtain parole afte r 15 y ear s, which is less than the
sentenc e for possession with intent to distribute. Thus, the s entenc e i s n ei t h er “disproportionate ” nor “unusua l” in compar ison to other drug sentenc es. There fore , Bonilla cannot overc ome AEDPA defe renc e. The Michig an C o u rt of Appea ls decision alig ns with a Supreme Court decision interpre ting a more sever e version of the same statute,

The sentenc e in Harmelin was mandatory life without the possibili ty of parole

. M.C.L

. § 3 333.7403(2)( a)( i) (West Supp. 1990-1991). The sentenc e in this case is m an d at ory life with the possibili ty

of par ole. M.C.L . § 333.7403(2)( a)( i) (2001). - 8 -No. 09-2091

Bonilla v. Lafl er, W

arden and thus w as not c ontrary to c lear ly established fede ral law. Fur ther, Bonilla cannot show that the
court of appea ls unrea sonably applied clea rl y established fede ral law. A court could rea sonably reje ct B onilla’s constitutional claim based on the holding in Harmelin. 4 III. CONCLUSION Acc ording ly , the district court’s denial of Bonilla’s petition for a writ of habea s corpus is AF F IRMED

.

Bonilla fails to convincing ly wre stle with Harmelin and the fac t that it upheld a near ly 4 identical statute that was more sever e than the curr ent statute. Even if we applied de novo revie w, this court considers J ustice Kenne dy ’s Harmelin concur renc e controlling , and the court would apply the test J ustice Kenne dy annuncia ted there

. United States v. Moore , 643 F.3d 451, 454-55 (6th Cir. 2011) (adopting and interpre ting J ustice Kenne dy ’s test from Harmelin ). Gross disproportionality analy sis beg ins with a “threshold compar ison” of t he g ravity of the off ense a nd the seve rity

of the sentenc e. Id. at 455 (citing Harmelin , 501 U.S. at 1005 (Ke nnedy , J ., concur ring )). I f the threshold compar ison of the g ravity of offe nse and s ev er ity of the sentenc e does not reve al g ross disproportionality , it is unnece ssary to eng ag e in the sec ond step of the analy sis—a compar ison of Bonilla’s sentenc e to tho s e o f o ff en ders in Michig an and other jurisdictions. Id. at 456. The threshold compar ison would be seeming ly unnece ssary —the Supreme Court alre ady perf ormed the analy sis in Harmelin . There fore , even unde r de novo r eview, B onilla’s claims would fail. - 9 -