1

 In 1996, the Michigan Legislature abolished the Detroit Recorder’s Court and merged its functions with

the Wayne County Circuit Court. See Redmond v. Jackson, 295 F. Supp. 2d 767, 769, n. 1 (E.D. Mich. 2003)(citing

Anthony v. Michigan, 35 F. Supp. 2d 989, 996-97 (E.D. Mich. 1999)).

1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

DWIGHT RASHAD, 

Petitioner,

CASE NO. 2:08-CV-14983

v. HONORABLE VICTORIA A. ROBERTS

UNITED STATES DISTRICT JUDGE

BLAINE LAFLER, 

Respondent.

__________________________________/

OPINION AND ORDER DENYING THE

PETITION FOR WRIT OF HABEAS CORPUS

Dwight Rashad, (“Petitioner”), confined at the Carson City Correctional Facility in

Carson City, Michigan, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In

his pro se application, Petitioner challenges his conviction for possession of 650 or more

grams of cocaine, M.C.L.A. 333.7403(2)(a)(i). For the reasons stated below, the

application for writ of habeas corpus is DENIED.

I. Background

Petitioner was originally charged with possession with intent to deliver of 650 or

more grams of cocaine. Following a jury trial in the Detroit Recorder’s Court,1

 Petitioner

was convicted of the cognate offense of possession of 650 or more grams of cocaine. On

May 22, 1989, Petitioner was sentenced to forty to one hundred years in prison after the

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 Petitioner was separately convicted in another trial of possession with intent to deliver 650 or more

grams of cocaine. This conviction was vacated after another judge in this district granted Petitioner habeas relief on

the ground that this second conviction arising from the same incident violated Petitioner’s Fifth Amendment right

against Double Jeopardy. See Rashad v. Burt, No. 94-CV-71785-DT (E.D. Mich. November 30, 1995)(Borman, J.);

aff’d 108 F. 3d 677 (6th Cir. 1997). Petitioner’s original direct appeal in the Michigan Court of Appeals was a

consolidation of the two appeals of these two separate convictions, as well as the prosecutor’s appeal of Petitioner’s

sentence of forty to one hundred years in this case. 

2

trial court judge ruled that the mandatory sentence of life imprisonment without parole, in

effect at the time of Petitioner’s conviction, was unconstitutional. 

This Court recites verbatim the relevant facts relied upon by the Michigan Court of

Appeals, which are presumed correct on habeas review pursuant to 28 U.S.C. §

2254(e)(1). See Wagner v. Smith, --- F.3d ----, No. 2009 WL 3029654, * 1 (6th Cir.

September 24, 2009):

On September 7, 1988, the police confiscated over 650 grams of cocaine from

the home pursuant to a valid search warrant. Defendant was arrested and

charged with possession in excess of 650 grams with intent to deliver. On that

same day a narcotics dog detected contraband in a 1988 Lincoln parked in the

driveway. The police observed cocaine residue in the Lincoln but after a

search they concluded that there were no drugs in the vehicle. However, the

Lincoln was impounded because it was subject to forfeiture action.

Subsequently, an informant informed the police that the Lincoln contained

contraband. On September 22, 1988, a search warrant for the vehicle was

obtained and it was searched. The police confiscated over 650 grams of

cocaine from a quarter panel of the vehicle, bundles of heroin, a gun, and

defendant’s driver’s license. Defendant was charged with possession in excess

of over 650 grams with intent to deliver.

People v. Rashad, Nos. 118136, 118777, 124060 (Mich.Ct.App. June 23, 1992). 2

 

The Michigan Court of Appeals affirmed Petitioner’s conviction, but reversed 

Petitioner’s sentence of forty to one hundred years and remanded the matter to the trial

court for resentencing. Id. Petitioner’s application for leave to appeal to the Michigan

Supreme Court was denied. People v. Rashad, 442 Mich. 905; 503 N.W.2d 445 (1993).

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Petitioner was not resentenced for almost twelve years. In March of 2004,

Petitioner retained new counsel, who filed a motion for resentencing in the Wayne

County Circuit Court. On May 14, 2004, Petitioner was resentenced to life imprisonment

with the possibility of parole. Petitioner’s new sentence was affirmed on appeal. People

v. Rashad, No. 255819 (Mich.Ct.App. November 22, 2005); lv. den. 475 Mich. 868; 714

N.W.2d 311 (2006). 

In March of 2007, Petitioner filed a motion for relief from judgment pursuant to

M.C.R. 6.500, et. seq., which the trial court denied. People v. Rashad, No. 88-11275

(Wayne County Circuit Court, April 11, 2007); reconsideration den. June 12, 2007. The

Michigan appellate courts denied Petitioner’s post-conviction appeal. People v. Rashad,

No. 282453 (Mich.Ct.App. March 27, 2008); lv. den. 482 Mich. 1029; 769 N.W.2d 213

(2008). 

Petitioner seeks a writ of habeas corpus on the following grounds:

I. The trial court erred when it instructed the jury on aiding and abetting

over objection of Petitioner-Appellant.

II. MCL 769.32(2); MSA 28.1055(2), constitutes an absolute bar to a jury

instruction on possession of cocaine in excess of 650 grams where

Petitioner is charged with possession with intent to distribute cocaine in

excess of 650 grams.

III. The search of Petitioner’s brief case and seizure of a key from within

constituted an unreasonable search and seizure.

IV. Petitioner is entitled to re-sentencing because he should have been

re-sentenced under the new amendments to the drug sentencing laws.

V. Petitioner’s sentence for possession of 650 grams is a violation of due

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process and equal protection of the law, where the penalty is significantly

more serious than that for the offense of delivery of over 650 grams of

cocaine.

VI. Petitioner was denied the effective assistance of appellate counsel

where his attorney did not raise the above issues [Claim V] during his

appeal by right.

II. Standard of Review

28 U.S.C. § 2254(d) imposes the following standard of review for habeas cases: 

An application for a writ of habeas corpus on behalf of a person in custody

pursuant to the judgment of a State court shall not be granted with respect to

any claim that was adjudicated on the merits in State court proceedings

unless the adjudication of the claim–

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

involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the

United States; or

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

unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.

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

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

question of law or if the state court decides a case differently than the Supreme Court has

on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06

(2000). An “unreasonable application” occurs when “a state court decision unreasonably

applies the law of [the Supreme Court] to the facts of a prisoner’s case.” Id. at 409. A

federal habeas court may not “issue the writ simply because that court concludes in its

independent judgment that the relevant state-court decision applied clearly established

federal law erroneously or incorrectly." Id. at 410-11.

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III. Discussion

A. Claims # 1, # 2, and # 3. The statute of limitations issue. 

Respondent contends that Petitioner’s first three claims, which challenge his

underlying conviction, are barred by the statute of limitations contained within 28

U.S.C.§ 2244(d), because Petitioner’s habeas application was not filed within one year

of his conviction becoming final. In response, Petitioner contends that his judgment of

conviction did not become final, for purposes of commencing the one year statute of

limitations, until he was resentenced in 2004 and the appeal from his resentencing was

completed. 

Respondent’s position has some merit. Although the Sixth Circuit has held that

“the one-year statute of limitations begins to run on a habeas petition that challenges a

resentencing judgment on the date that the resentencing judgment became final, rather

than the date that the original conviction became final,” See Linscott v. Rose, 436 F. 3d

587, 591 (6th Cir. 2006), the holding in Linscott “expressly restricts itself to petitions that

challenge the resentencing decision itself--that is, to petitions that bring legal challenges

to the same event that causes the restarting of the statute of limitations clock.” See

Bachman v. Bagley, 487 F. 3d 979, 982 (6th Cir. 2007). Thus, although Sixth Circuit

caselaw allows habeas petitioners to challenge their resentencing within a year of that

decision becoming final, none of these cases undermines the Sixth Circuit’s rule that

habeas challenges to the underlying conviction and sentence must be made within one

year of the conclusion of direct review of the original sentencing decision. Bachman, 487

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F. 3d at 985; See also DiCenzi v. Rose, 452 F.3d 465, 469 (6th Cir. 2006).

This Court has some concern, however, whether the holding in Bachman has been

undermined by the U.S. Supreme Court’s decision in Burton v. Stewart, 549 U.S. 147

(2007), where the Supreme Court concluded that for purposes of the habeas statute of

limitations, “[f]inal judgment in a criminal case means the sentence. The sentence is the

judgment.” Id. at 156-57 (quoting Berman v. United States, 302 U.S. 211, 212 (1937)). 

At least one district court has concluded that in light of the Supreme Court’s holding in

Burton, the finality for limitations purposes is calculated from a resentencing judgment.

See Hess v. Ryan,--- F.Supp.2d ----, No. 2009 WL 2706961, * 11-13 (D. Ariz. August

25, 2009). 

Although the issue of whether a claim is procedurally barred should ordinarily be

resolved first, “judicial economy sometimes dictates reaching the merits [of a claim or

claims] if the merits are easily resolvable against a petitioner while the procedural bar

issues are complicated.” Barrett v. Acevedo, 169 F. 3d 1155, 1162 (8th Cir. 1999)(internal

citations omitted). Because the statute of limitations does not constitute a jurisdictional

bar to habeas review, a federal court, can, in the interest of judicial economy, proceed to

the merits of a habeas petition. See Smith v. State of Ohio Dept. of Rehabilitation, 463 F.

3d 426, 429, n. 2 (6th Cir. 2006)(quoting Trussell v. Bowersox, 447 F. 3d 588, 590 (8th

Cir. 2006)). Simply put, this Court need not resolve the dispute over the timeliness of

petitioner habeas application. Assuming without deciding that the current petition was

timely, Petitioner’s habeas application fails on the merits. See Ahart v. Bradshaw, 122

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7

Fed. Appx. 188, 192 (6th Cir. 2005).

B. Claims # 1 and # 2. The jury instruction claims.

The Court will consider Petitioner’s first two claims together for judicial

economy. In his first claim, Petitioner contends that the trial court erred in giving the

jury an instruction on aiding and abetting. In his second claim, Petitioner claims that the

trial court erred in instructing the jury on the offense of possession of 650 or more grams

of cocaine, in light of the fact that Petitioner was originally charged with possession with

intent to deliver over 650 grams of cocaine.

The burden of demonstrating that an erroneous instruction was so prejudicial that

it will support a collateral attack upon the constitutional validity of a state court

conviction is even greater than the showing required in a direct appeal. The question in

such a collateral proceeding is whether the ailing instruction so infected the entire trial

that the resulting conviction violates due process, not merely whether the instruction is

undesirable, erroneous, or even “universally condemned”, and an omission or incomplete

instruction is less likely to be prejudicial than a misstatement of the law. Henderson v.

Kibbee, 431 U.S. 145, 154-55 (1977). The challenged instruction may not be judged in

artificial isolation but must be considered in the context of the instructions as a whole

and the trial court record. Grant v. Rivers, 920 F. Supp. 769, 784 (E.D. Mich. 1996). To

warrant habeas relief, the jury instructions must not only have been erroneous, but also,

taken as a whole, so infirm that they rendered the entire trial fundamentally unfair. Scott

v. Mitchell, 209 F. 3d 854, 882 (6th Cir. 2000). 

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The Michigan Court of Appeals rejected Petitioner’s first instructional error

claim, finding that there was sufficient evidence on the record to support an instruction

on aiding and abetting, in light of the fact that Petitioner was present at the house when

the police executed the search warrant and discovered 650 grams of cocaine in the

basement storage area. Attached to Petitioner’s key ring was a key to the padlock on the

door to the storage area. Petitioner’s counsel argued that someone other than Petitioner

had placed the cocaine in the basement storage area. The Michigan Court of Appeals

reasoned that if the jury believed Petitioner’s argument, they could find that he and

another person acted in concert. Rashad, Slip. Op. at * 2.

The trial court’s instruction on aider and abettor liability did not deprive

Petitioner of a fair trial, in light of the fact that Petitioner argued at trial that someone

else had placed the cocaine in the basement storage area. See Davie v. Mitchell, 291 F.

Supp. 2d 573, 608 (N.D. Ohio 2003)(state trial court’s jury instruction as to aider and

abettor or accomplice culpability did not deprive petitioner of fundamental fairness or

amount to a clear violation of due process, as required to support claim for federal

habeas relief; instruction was proper response to petitioner’s defense that other person

had committed murders). 

Moreover, the Michigan Court of Appeals determined that under Michigan law it

was proper under the facts of this case to give the jury an instruction on aiding and

abetting. Federal courts are bound by the state courts’ interpretation of their own laws.

See Mullaney v. Wilbur, 421 U.S. 684, 690-91 1975). The nature of a particular jury

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instruction that is given is a matter of state law, and a federal court is not at liberty to

grant a writ of habeas corpus simply because the federal court finds the state court’s

decision was incorrect under state law. See Newton v. Million, 349 F.3d 873, 879 (6th Cir.

2003). Where a state appeals court finds that the instruction given by the trial court

accurately reflected state law, this Court must defer to that determination and cannot

question it. See Seymour v. Walker, 224 F. 3d 542, 558 (6th Cir. 2000). Because the

Michigan Court of Appeals determined that it was proper for the trial court to give the

jury an instruction on aiding and abetting, Petitioner is not entitled to habeas relief on

this claim. See e.g. Williams v. Withrow, 328 F. Supp. 2d 735, 752-53 (E.D. Mich. 2004).

In his second claim, Petitioner contends that the trial court erred in instructing the

jury on the offense of possession of 650 or more grams of cocaine, in light of the fact

that he was originally charged with possession with intent to deliver 650 or more grams

of cocaine. Petitioner contends that M.C.L.A. 768.32(2) bars a trial court from

instructing jurors on lesser included offenses where a defendant is charged with a major

controlled substance offense, such as possession with intent to deliver 650 or more grams

of cocaine.

The Michigan Court of Appeals rejected Petitioner’s claim, on the ground that

possession of 650 or more grams of cocaine is a cognate offense of possession with

intent to deliver 650 or more grams of cocaine, rather than a lesser included offense.

Rashad, Slip. Op. at * 3. The Michigan Court of Appeals further concluded that the

evidence supported an instruction on the offense of possession of 650 or more grams of

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cocaine. Id.

By definition, cognate offenses such as possession of 650 or more grams of

cocaine do not meet the definition of lesser-included offenses because they are “related

and hence ‘cognate’ in the sense that they share several elements, and are of the same

class or category, but may contain some elements not found in the higher offense.”

Williams, 328 F. Supp. 2d at 749 (quoting United States v. Colon, 268 F. 3d 367, 373 (6th

Cir. 2001)). The Michigan Court of Appeals determined that it was proper to instruct the

jury on the cognate offense of possession of 650 or more grams of cocaine. Because the

Michigan Court of Appeals determined that the instruction given by the trial court

accurately reflected state law, this Court must defer to that determination and cannot

question it. Seymour, 224 F. 3d at 558. Petitioner is not entitled to habeas relief on his

first and second claims.

C. Claim # 3. The illegal search and seizure claim.

Petitioner next contends that the search of Petitioner’s briefcase and the seizure of 

a key from that briefcase violated his Fourth Amendment right against unreasonable

searches and seizures.

Prior to trial, Petitioner’s counsel filed several motions to suppress the evidence,

which were heard on the day the trial was to begin (Tr. 4/12/89, pp. 6-30). Petitioner’s

counsel alleged that certain information contained in the affidavit supporting the search

warrant was false. Defense counsel claimed that he had an affidavit from Sheila Buffkin,

which stated that she was a single woman, that she did not run a “dope operation” or

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“distribution point” at the house in question, and that she did not live there. Buffkin’s

statements were contrary to allegations found in the search warrant affidavit. 

In response to defense counsel’s allegation that the police fabricated the

undisclosed informant, the court ordered the prosecution to produce the informant (Id., at

pp. 16-18). The prosecutor responded that the defense had no standing to raise the issue

(Id. at pp. 20-22). A statement made by Ms. Buffkin to the police was read into the

record. Buffkin had informed the police that she lived at and owned the house located at

20219 Greydale in Detroit, that Petitioner was the father of her child, that the cocaine in

the basement belonged to Petitioner, that he had the keys to the area where the drugs

were kept, that he told her not to let anyone in the area where the drugs were stored, and,

that they were not dating “ ...because of the dope transaction and too many friends in my

house.” (Id. at pp. 24-26). The prosecutor argued that the statement showed that

Petitioner did not live in the house and had no expectation of privacy or standing to

contest the search warrant. The trial court rejected the prosecutor’s argument and ruled

that Petitioner had an expectation of privacy and, thus, had standing to raise the issue

involving the search and seizure. (Id. at p. 28). 

However, when Petitioner’s counsel failed to appear at the appointed time for the

evidentiary hearing, the court determined that the issues had been waived (Id. at pp. 38-

43).

After the jury was selected, the trial court judge indicated for the record that she

had contacted the informant in question. The judge indicated that after having conducted

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12

an interrogation, she was convinced that that person was the·informant in this case. The

judge indicated that she believed “everything the SOI said to me.” (Id. at pp. 119-120).

The Michigan Court of Appeals denied Petitioner’s various challenges to the

validity of the search and seizure on appeal. Rashad, Slip. Op. at * 2, 4. 

A federal habeas review of a petitioner’s arrest or search by state police is barred

where the state has provided a full and fair opportunity to litigate an illegal arrest or a

search and seizure claim. Stone v. Powell, 428 U.S. 465, 494-495 (1976); Machacek v.

Hofbauer, 213 F. 3d 947, 952 (6th Cir. 2000). For such an opportunity to have existed,

the state must have provided, in the abstract, a mechanism by which the petitioner could

raise the claim, and presentation of the claim must not have been frustrated by a failure

of that mechanism. Riley v. Gray, 674 F. 2d 522, 526 (6th Cir. 1982). The relevant

inquiry is whether a habeas petitioner had an opportunity to litigate his claims, not

whether he in fact did so or even whether the Fourth Amendment claim was correctly

decided. See Wynne v. Renico, 279 F. Supp. 2d 866, 892 (E.D. Mich. 2003).

Therefore, on federal habeas review, a federal court cannot re-examine a

petitioner’s Fourth Amendment claim that evidence should have been suppressed as

“poisonous fruit” of his or her illegal arrest or search, where the state provided an

opportunity for full and fair litigation of the habeas petitioner’s Fourth Amendment

claim prior to trial. See Walendzinski v. Renico, 354 F. Supp. 2d 752, 759 (E.D. Mich.

2005); See also Monroe v. Smith, 197 F. Supp. 2d 753, 766 (E.D. Mich. 2001). 

The mere fact that the trial court ruled on the motion to suppress evidence without

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conducting an evidentiary hearing does not constitute a denial of a full and fair

opportunity to litigate. See Sanders v. Oliver, 611 F. 2d 804, 808 (10th Cir. 1979)(state

trial court’s refusal to hear testimony on factual allegations at suppression hearing did

not deny the petitioner an opportunity to fully and fairly litigate his illegal arrest claim

where a prior hearing before a state magistrate court had been full and unrestricted and

included a complete examination of the police officer by the petitioner); see also

Gonzalez v. Superintendent, Sullivan Corr. Facility, 761 F. Supp. 973, 976-77

(E.D.N.Y.1991)(state procedures afforded petitioner full and fair opportunity to litigate

illegal arrest claim despite the fact that both the trial and appellate courts denied his

motion for a probable cause hearing on the ground that insufficient facts were asserted to

warrant an evidentiary hearing); Mack v. Cupp, 564 F. 2d 898, 901 (9th Cir.1977)(habeas

review not warranted where state trial court's decision not to hold an evidentiary hearing

on a Fourth Amendment claim was based on finding that the petitioner’s factual

allegations did not conflict with the police affidavits).

Moreover, the opportunity to litigate encompasses more than an evidentiary

hearing in the trial court. It also includes corrective action available through the

appellate process on direct review of the conviction. See Pulver v. Cunningham, 419

F.Supp. 1221, 1224 (S.D.N.Y.1976); See also Atkinson v. Portuondo, 269 F. Supp. 2d

57, 63 (E.D.N.Y. 2003)(habeas petitioner was not deprived of full and fair opportunity to

litigate Fourth Amendment claim that was raised in postconviction proceedings and

denied by the trial court on the ground that the pleadings were defective, where the

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14

appellate court granted leave to raise claim on direct appeal). Because all of the material

facts were before the state appellate courts on direct review, the Michigan Court of

Appeals addressed the relevant factual and procedural issues, and the appellate process

was not otherwise deficient, Petitioner had a full and fair opportunity to litigate his

Fourth Amendment claims. Accordingly, his claim concerning the validity of the search

and seizure this case is non-cognizable on habeas review. Pulver, 419 F. Supp. at 1224. 

D. Claims # 4 and # 5. The sentencing claims.

The Court will consolidate Petitioner’s sentencing claims for judicial economy. 

In his fourth and fifth claims, Petitioner brings various challenges to his sentence. 

Respondent contends that Petitioner’s fourth claim is procedurally defaulted

because Petitioner failed to preserve the issue at his resentencing and that Petitioner’s

fifth claim is procedurally defaulted because Petitioner raised the claim for the first time

on his post-conviction motion for relief from judgment and is unable to show cause and

prejudice, as required under M.C.R. 6.508(D), for failing to raise the claim on his direct

appeal.

This Court notes that procedural default is not a jurisdictional bar to review of a

habeas petition the merits. See Trest v. Cain, 522 U.S. 87, 89 (1997). In addition,

“[F]ederal courts are not required to address a procedural-default issue before deciding

against the petitioner on the merits.” Hudson v. Jones, 351 F. 3d 212, 215 (6th

Cir.2003)(citing Lambrix v. Singletary, 520 U.S. 518, 525 (1997)). “Judicial economy

might counsel giving the [other] question priority, for example, if it were easily

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resolvable against the habeas petitioner, whereas the procedural-bar issue involved

complicated issues of state law.” Lambrix, 520 U.S. at 525. In this case, in light of the

fact that Petitioner’s sentencing claims are non-cognizable or without merit, it is easier

for the Court to address the merits of the claims.

At the time of Petitioner’s trial and conviction, the penalty for possession of 650

or more grams of cocaine carried a mandatory nonparolable life sentence. The trial court

found this provision to be unconstitutional and sentenced Petitioner to forty to one

hundred years in prison. The Michigan Court of Appeals reversed the sentence and

remanded the case to the trial court for re-sentencing.

Subsequent to Petitioner’s conviction, but prior to his resentencing, the Michigan

Supreme Court decided the case of People v. Bullock, 440 Mich. 15, 485 N.W.2d 866

(1992), in which that court held that a mandatory sentence of life imprisonment without

parole violated the Michigan Constitution’s ban on “cruel or unusual punishments.” Id.

at 37-41. To remedy the constitutional infirmity of the statute, the Supreme Court

ordered that all persons convicted under the statute be granted “the parole consideration

otherwise available upon completion of ten calender years of the sentence.” Id. at 42. 

On remand, Petitioner was resentenced to a parolable life sentence, consistent

with the holding in Bullock.

This Court initially notes that consistent with the holding in Bullock, Petitioner’s

sentence of life imprisonment with the possibility of parole was within the statutory

limits for the crime of possession of 650 or more grams at the time of the offense. A

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sentence imposed within the statutory limits is not generally subject to habeas review.

Townsend v. Burke, 334 U.S. 736, 741 (1948); Cook v. Stegall, 56 F. Supp. 2d 788, 797

(E.D. Mich. 1999). A sentence within the statutory maximum set by statute does not

normally constitute cruel and unusual punishment. Austin v. Jackson, 213 F. 3d 298, 302

(6th Cir. 2000); See also Foster v. Withrow, 159 F. Supp. 2d 629, 645 (E.D. Mich. 2001). 

Claims which arise out of a state trial court’s sentencing decision are not normally

cognizable on federal habeas review, unless the habeas petitioner can show that the

sentence imposed exceeded the statutory limits or is wholly unauthorized by law. See

Vliet v. Renico, 193 F. Supp. 2d 1010, 1014 (E.D. Mich. 2002).

Petitioner initially claims that he should be resentenced under the new, more

lenient sentencing provisions of Michigan’s controlled substances laws, contending that

2002 P.A. 665, which reduced the penalties for his offense, should be applied

retroactively to his case. Effective March 1, 2003, the Michigan’s Controlled Substances

Act was amended pursuant to 2002 P.A. 665 to provide for different penalty schemes. 

Petitioner contends that he should be resentenced under these new, more lenient,

sentencing provisions. 

A habeas petitioner serving a state sentence has no federal constitutional right to

retroactive application of more lenient state sentencing rules and is therefore not entitled

to federal habeas relief on that ground. See Dockins v. Hines, 374 F. 3d 935, 940 (10th

Cir. 2004); See also Maples v. Stegall, 175 F. Supp. 2d 918, 923-24 (E.D. Mich. 2001);

rev’d on other grds, 340 F. 3d 433 (6th Cir. 2003)(petitioner not entitled to habeas relief

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on claim involving the non-retroactivity of Michigan’s new sentencing guidelines). In

addition, the Michigan Court of Appeals has held that the new sentencing provisions

contained within 2002 P.A. 665 should be applied only prospectively and only to those

offenses committed on or after the effective date of the legislation, March 1, 2003. See

People v. Doxey, 263 Mich. App. 115, 122; 687 N.W. 2d 360 (2004); lv. den. 472 Mich.

878; 693 N.W. 2d 818 (2005). Petitioner does not deny that the offense that he was

convicted of occurred prior to the enactment date of 2002 P.A. 665. Because the

Michigan Court of Appeals has held that the provisions of 2002 P.A. 665 do not apply

retroactively, Petitioner’s claim that the trial court should have resentenced him under

the amended penalties contained in this Public Act does not merit habeas relief. See

Snook v. Wood, 89 F. 3d 605, 611 (9th Cir. 1996). 

In his related fifth claim, Petitioner contends that he is being denied the equal

protection of the law and due process because other defendants who have been convicted

subsequent to the amendment of Michigan’s controlled substances law have received

lesser sentences for possessing the same, or greater, quantities of cocaine or heroin. 

There is no constitutional requirement that persons convicted of the same offenses

receive identical sentences. Williams v. Illinois, 399 U.S. 235, 243 (1970). A state

legislature may therefore prospectively reduce the maximum penalty for a crime even

though prisoners sentenced to the maximum penalty before the effective date of the act

would serve a longer term of imprisonment than a prisoner sentenced to the maximum

term thereafter. See Frazier v. Manson, 703 F. 2d 30, 36 (2nd Cir. 1983). Petitioner is not

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3

 Although Petitioner had already filed an appeal of right from his conviction, the Michigan Court of

Appeals had remanded his case for resentencing. A defendant who has already taken an appeal of right from the

judgment of conviction could also take a second appeal of right from an order of resentencing following a remand

from the Michigan Court of Appeals to the trial court for resentencing. People v. Jones, 394 Mich. 434, 435-436;

231 N.W. 2d 649 (1975). 

18

entitled to habeas relief on his fourth or fifth claims.

E. Claim # 6. The ineffective assistance of appellate counsel claim.

Petitioner lastly contends that his appellate counsel was ineffective for failing to

raise the equal protection argument raised in his fifth claim on the appeal from his

resentencing. 3

The Sixth Amendment guarantees a defendant the right to the effective assistance

of counsel on the first appeal by right. Evitts v. Lucey, 469 U.S. 387, 396-397 (1985). 

However, court appointed counsel does not have a constitutional duty to raise every

nonfrivolous issue requested by a defendant. Jones v. Barnes, 463 U.S. 745, 751 (1983).

Strategic and tactical choices regarding which issues to pursue on appeal are “properly

left to the sound professional judgment of counsel.” United States v. Perry, 908 F. 2d 56,

59 (6th Cir. 1990). “Generally, only when ignored issues are clearly stronger than those

presented will the presumption of effective assistance of appellate counsel be overcome.”

Monzo v. Edwards, 281 F. 3d 568, 579 (6th Cir. 2002)(internal quotations omitted). In

fact, winnowing out weaker issues on appeal is actually “the hallmark of effective

appellate advocacy.” Id. (quoting Smith v. Murray, 477 U.S. 527, 536 (1986)). Appellate

counsel may deliver deficient performance and prejudice a defendant by omitting a

“dead-bang winner,” which is defined as an issue which was obvious from the trial

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record and would have resulted in a reversal on appeal. See Meade v. Lavigne, 265 F.

Supp. 2d 849, 870 (E.D. Mich. 2003). 

In the present case, although appellate counsel did not bring an equal protection

challenge to Petitioner’s sentence, she did argue on appeal that Petitioner was entitled to

retroactive application of Michigan’s new sentencing laws. In her brief, appellate

counsel argued that retroactive application of the new sentencing laws would allow for

more individualized sentencings that would be better tailored to the offense and to the

offender. Petitioner has failed to show that appellate counsel’s decision to raise the

retroactivity issue in this manner without raising an equal protection argument was

deficient. 

Moreover, because Petitioner’s equal protection challenge to his sentence is

without merit, appellate counsel’s failure to raise this sentencing issue did not constitute

ineffective assistance of appellate counsel. See Siebert. v. Jackson, 205 F. Supp. 2d 727,

735 (E.D. Mich. 2002). Petitioner is not entitled to habeas relief on his sixth claim.

IV. Conclusion

The Court will deny the petition for writ of habeas corpus. The Court will also

deny a certificate of appealability to Petitioner. In order to obtain a certificate of

appealability, a prisoner must make a substantial showing of the denial of a

constitutional right. 28 U.S.C. § 2253(c)(2). To demonstrate this denial, the applicant is

required to show that reasonable jurists could debate whether, or agree that, the petition

should have been resolved in a different manner, or that the issues presented were

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adequate to deserve encouragement to proceed further. Slack v. McDaniel, 529 U.S. 473,

483-84 (2000). When a district court rejects a habeas petitioner’s constitutional claims

on the merits, the petitioner must demonstrate that reasonable jurists would find the

district court’s assessment of the constitutional claims to be debatable or wrong. Id. at

484. A federal district court may grant or deny a certificate of appealability when the

court issues a ruling on the habeas petition. Castro v. United States, 310 F. 3d 900, 901

(6th Cir. 2002). 

The Court will deny Petitioner a Certificate of Appealability because he has failed

to make a substantial showing of the denial of a federal constitutional right. Jurists of

reason would not find this Court’s resolution of Petitioner’s claims to be debatable or

that he should receive encouragement to proceed further. Siebert, 205 F. Supp. 2d at 735. 

Although this Court will deny a certificate of appealability to Petitioner, the

standard for granting an application for leave to proceed in forma pauperis (IFP) is a

lower standard than the standard for certificates of appealability. See Foster v. Ludwick,

208 F. Supp. 2d 750, 764 (E.D. Mich. 2002)(citing United States v. Youngblood, 116 F.

3d 1113, 1115 (5th Cir. 1997)). Whereas a certificate of appealability may only be

granted if petitioner makes a substantial showing of the denial of a constitutional right , a

court may grant IFP status if it finds that an appeal is being taken in good faith. Id. at

764-65; 28 U.S.C. § 1915(a)(3); Fed. R.App.24 (a). “Good faith” requires a showing

that the issues raised are not frivolous; it does not require a showing of probable success

on the merits. Foster, 208 F. Supp. 2d at 765. Although jurists of reason would not

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debate this Court’s resolution of Petitioner’s claim, the issues are not frivolous;

therefore, an appeal could be taken in good faith and Petitioner may proceed in forma

pauperis on appeal. Id.

V. ORDER

IT IS ORDERED that the Petition for Writ of Habeas Corpus is DENIED.

IT IS FURTHER ORDERED That a Certificate of Appealability is DENIED.

IT IS FURTHER ORDERED that Petitioner will be GRANTED leave to appeal in

forma pauperis.

S/Victoria A. Roberts 

Victoria A. Roberts

United States District Judge

Dated: October 6, 2009

The undersigned certifies that a copy of this

document was served on the attorneys of record

and Dwight Rashad by electronic means or U.S.

Mail on October 6, 2009.

s/Carol A. Pinegar 

Deputy Clerk

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