UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

ELMER SHAMBA STALLINGS,

Petitioner,

v. CASE NO. 08-cv-13987

HON. PATRICK J. DUGGAN

MARY BERGHUIS,

Respondent.

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OPINION AND ORDER

DENYING PETITIONER’S MOTION FOR A STAY,

DISMISSING THE HABEAS PETITION WITH PREJUDICE, AND

GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

At a session of said Court, held in the U.S.

District Courthouse, Eastern District

of Michigan on March 5, 2010.

PRESENT: THE HONORABLE PATRICK J. DUGGAN

 U.S. DISTRICT COURT JUDGE

Petitioner Elmer Shamba Stallings (“Petitioner”), a Michigan prisoner, has filed a

pro se petition for the writ of habeas corpus pursuant to 28 U.S.C. § 2254. Also pending

before the Court is Petitioner’s motion to hold this case in abeyance while he pursues

additional state remedies for two unexhausted claims. Respondent Mary Berghuis urges

the Court through counsel to deny the petition. Having reviewed the pleadings and

record, the Court finds that Petitioner’s habeas claims lack merit and that it would be an

abuse of discretion to stay this case. Accordingly, the habeas petition and motion to hold

the petition in abeyance are denied. 
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I. BACKGROUND

Petitioner was charged in the Circuit Court for Wayne County, Michigan with (1)

two counts of assault with intent to commit murder, (2) arson of a dwelling house, (3)

delivery/manufacture of five to forty-five kilograms of marijuana, (4) felon in possession

of a firearm, and (5) possession of a firearm during the commission of a felony (felony

firearm). Petitioner also was charged with being a habitual offender, second offense. 

At a final pretrial conference held on September 8, 2005, the prosecutor stated that

the sentencing guidelines for Petitioner’s minimum sentence on the assault or arson

charge were 270 to 450 months. The prosecutor offered to dismiss several pending

charges if Petitioner pleaded guilty to one count of assault with intent to commit murder,

with a sentence of eighteen to thirty years, and felony firearm, with a consecutive

sentence of two years. The trial court gave Petitioner two weeks to consult with his

attorney and consider the prosecutor’s offer. 

On September 23, 2005, Petitioner pleaded guilty to one count of assault with

intent to commit murder in violation of Michigan Compiled Laws § 750.83 and one count

of felony firearm in violation of Michigan Compiled Laws § 750.227b. In return, the

prosecutor dismissed the remaining charges against Petitioner and agreed to a sentence of

two years in prison for the felony firearm conviction and fifteen to thirty years for the

assault conviction. A Presentence Investigation Report subsequently was prepared which

calculated Petitioner’s guideline range under the Michigan Sentencing Guidelines as 225-

375 months. On October 7, 2005, the trial court sentenced Petitioner pursuant to the plea
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agreement and awarded Petitioner 202 days of sentencing credit.

Petitioner subsequently moved to withdraw his plea and to correct the Presentence

Information Report. Petitioner argued that the Prior Record Variable (PRV) in the report

had been misscored because two prior convictions in Alabama were scored as lowseverity felonies when they in fact were misdemeanors. He further argued that an

adjustment in the PRV would have reduced his guideline range to 171-295 months. The

trial court declined to alter the presentence report and denied Petitioner’s motion to

withdraw his plea.

Petitioner thereafter filed a direct appeal in which he raised the same claims that he

now asserts in his habeas petition. On February 26, 2007, the Michigan Court of Appeals

denied leave to appeal “for lack of merit in the grounds presented.” People v. Stallings,

No. 274326 (Mich. Ct. App. Feb. 26, 2007) (unpublished opinion). On July 30, 2007, the

Michigan Supreme Court denied leave to appeal because it was not persuaded to review

the issues presented. See People v. Stallings, 479 Mich. 864, 735 N.W.2d 255 (2007).

Petitioner filed his habeas corpus petition on September 16, 2008. In his petition,

he asserts the following claims:

I. The trial court erred in refusing to correct the

sentencing information report when the prior

record variables were misscored which affected

the sentencing guideline range.

II. The trial court abused its discretion in denying

defendant’s motion to withdraw his plea when

defendant was misadvised as to the sentence he

was to receive and the trial court indicated
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defendant waived any claim for a plea

withdrawal.

On April 23, 2009, Respondent filed an answer to the habeas petition. Respondent argues

that Petitioner’s first claim is not cognizable on habeas review and that habeas relief also

is not warranted on Petitioner’s second claim. Petitioner subsequently filed a motion to

hold his habeas petition in abeyance.

II. MOTION FOR A STAY

In his motion to hold this matter in abeyance, Petitioner indicates that he wants to

return to state court to “federalize” his claims and to raise two new claims. These new

claims concern his trial attorney’s failure to object to the scoring of the sentencing

guidelines and his appellate attorney’s failure to couch the sentencing claim in federal

constitutional terms.

District courts possess authority to issue stays. Rhines v. Weber, 544 U.S. 269,

276, 125 S. Ct. 1528, 1534, 161 L.Ed.2d 440 (2005). However, a “stay and abeyance”

approach in which a district court stays a habeas petition while the petitioner exhausts

state remedies for unexhausted claims is permissible only where (1) there is “good cause”

for the petitioner’s failure to exhaust his claims first in state court, (2) the unexhausted

claims are not “plainly meritless,” and (3) the petitioner is not “engage[d] in abusive

litigation tactics or intentional delay.” Id. at 277-78, 125 S. Ct. at 1535.

It does not appear that Petitioner is engaged in abusive litigation tactics and he

implies that his appellate attorney is “cause” for not raising his first claim as a federal
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constitutional issue on appeal. The Court nevertheless believes for the following reasons

that Petitioner’s unexhausted claims regarding trial and appellate counsel are plainly

meritless.

A. Applicable Law

To prevail on a claim of ineffective assistance of counsel, a petitioner must

demonstrate “that counsel’s performance was deficient” and “that the deficient

performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687, 104

S.Ct. 2052, 2064 (1984). This standard applies to claims concerning trial and appellate

counsel. Webb v. Mitchell, 586 F.3d 383, 398 (6th Cir. 2009) (citing Smith v. Robbins,

528 U.S. 259, 285, 120 S. Ct. 746 (2000)). 

In a case where the defendant pleaded guilty, the “performance” prong requires a

showing that defense counsel’s representation fell below an objective standard of

reasonableness or was outside the range of competence demanded of attorneys in criminal

cases. Hill v. Lockhart, 474 U.S. 52, 56-59, 106 S. Ct. 366, 369-70 (1985). The

“prejudice” prong requires proof that “counsel’s constitutionally ineffective performance

affected the outcome of the plea process.” Id. at 59, 106 S. Ct. at 370. The petitioner

must show “a reasonable probability that, but for counsel’s errors, he would not have

pleaded guilty and would have insisted on going to trial.” Id. 

B. Trial Counsel

Petitioner alleges that his trial attorney failed to object to inaccurate information in

the presentence report and failed to recognize that the sentence was based on inaccurate
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information. Trial counsel negotiated a favorable plea bargain for Petitioner, and even if

he failed to inform Petitioner and the trial court of the correct sentencing guidelines, not

“every item of misinformation which counsel may impart vitiates the voluntariness of a

plea. Each case must depend largely on its own facts. A mistake of a few years in advice

about the length of what would otherwise be a long term would not constitute

ineffectiveness of counsel.” Hammond v. United States, 528 F.2d 15, 18 (4th Cir. 1975).

In Hammond, the defendant was erroneously advised “that he could be sentenced

to 90 or 95 years if he went to trial and was found guilty on all of the charges against him,

when in fact the maximum sentence was 55 years and therefore his plea of guilty might

save him 30 years and not 60 or 65 years as he was told . . . .” Id. The Fourth Circuit

concluded that counsel’s erroneous advice was so gross as to constitute ineffective

assistance of counsel.

Petitioner alleges that the guidelines score for his minimum sentence on the assault

with intent to murder conviction should have been 171 to 285 months and that he was

informed his guidelines were 225 to 375 months, a difference of four and a half years at

the lowest end of the two guidelines score. However, if Petitioner had gone to trial, been

convicted on all counts charged against him, and been sentenced as a habitual offender,

the penalty would have been considerably more severe than the sentence he received

pursuant to the plea agreement. Notably, he faced a statutory maximum sentence of life

imprisonment on the assault with intent to murder charges.

The Court therefore concludes that, even if the sentencing guidelines for the
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assault conviction were incorrectly scored, the information supplied to Petitioner did not

“grossly exaggerate[] the benefit to be derived from the [guilty plea].” Hammond, 528

F.2d at 19. Therefore, trial counsel was not ineffective for failing to object to the

sentencing guidelines, as scored by the probation officer, or for failing to correctly advise

Petitioner and the trial court of the correct guidelines range. Further, the Court cannot

find a reasonable probability that, if counsel had raised the alleged errors, Petitioner

would have rejected the plea offer and insisted on going to trial.

C. Appellate Counsel

Petitioner states that appellate counsel was ineffective for not raising Petitioner’s

sentencing claim as a federal constitutional question on direct review. The claim is

fundamentally a state law issue, and to the extent that Petitioner has alleged a due process

violation, his claim lacks merit for the reason given in the discussion below. See infra. 

Appellate counsel therefore was not ineffective for failing to raise Petitioner’s sentencing

claim as a federal constitutional issue.

D. Summary

Petitioner’s unexhausted claims asserting ineffective assistance of trial and

appellate counsel are plainly meritless. Consequently, it would be an abuse of discretion

to stay these proceedings while Petitioner exhausts his state remedies for these claims. 

Petitioner’s motion to hold his habeas petition in abeyance therefore is DENIED.

III. APPLICATION FOR HABEAS RELIEF

A. Standard of Review
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Petitioner asserts that no state court addressed his habeas claims on their merits

and, therefore, habeas review is de novo. The Michigan Court of Appeals, however,

denied leave to appeal “for lack of merit in the grounds presented.” Because in fact this

was a merits determination, Abela v. Martin, 380 F.3d 915, 923 (6th Cir. 2004), review is

not de novo. Petitioner is entitled to habeas relief only if the state court’s adjudication of

his claims on the merits–

(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).

A state court’s decision 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, 412-

13, 120 S. Ct. 1495, 1523 (2000). A state court’s decision is an “unreasonable application

of” clearly established federal law “if the state court identifies the correct governing legal

principle from [the Supreme] Court’s decisions but unreasonably applies that principle to

the facts of the prisoner’s case.” Id., 529 U.S. at 413, 120 S. Ct. at 1523. 

B. Scoring of the Sentencing Guidelines

Petitioner alleges that two PRVs used to calculate the Michigan sentencing
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guidelines were inaccurately scored and that the trial court should have corrected the

sentencing information report to reflect the proper score. Petitioner’s claim is not

cognizable on habeas review. As the Sixth Circuit has summarized:

A state court’s alleged misinterpretation of state sentencing

guidelines and crediting statutes is a matter of state concern

only. Travis v. Lockhart, 925 F.2d 1095, 1097 (8th Cir.

1991); Branan v. Booth, 861 F.2d 1507, 1508 (11th Cir.

1988). “[F]ederal habeas corpus relief does not lie for errors

of state law.” Estelle v. McGuire, 502 U.S. 62, 67, 112 S.Ct.

475, 116 L.Ed.2d 385 (1991) (quoting Lewis v. Jeffers, 497

U.S. 764, 780, 110 S.Ct. 3092, 111 L.Ed.2d 606 (1990)).

Howard v. White, 76 Fed. App’x 52, 53 (6th Cir. 2003).

In his reply brief, Petitioner asserts that his due process rights were violated by the

incorrect scoring of the sentencing guidelines resulting in a sentence based on inaccurate

information. The Supreme Court, however, has stated that the severity or duration of a

sentence that falls within statutory limits does not render a sentence constitutionally

invalid. Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252 (1948). Rather, “it is the

careless or designed pronouncement of sentence on a foundation so extensively and

materially false, which the prisoner had no opportunity to correct by the services which

counsel would provide, that renders the proceedings lacking in due process.” Id. at 741,

68 S.Ct. at 1255 (emphasis added). Therefore, to prevail on his claim, Petitioner must

show that the trial judge relied on the false information when sentencing him. United

States v. Polselli, 747 F.2d 356, 358 (6th Cir. 1984).

The trial court did not rely on the sentencing guidelines when sentencing
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Petitioner. It sentenced Petitioner pursuant to the parties’ plea agreement. Therefore, it

cannot be said that Petitioner was sentenced on the basis of “extensively and materially

false” information or sentencing guidelines, which he had no opportunity to correct. 

Petitioner’s sentencing claim lacks merit. 

C. Denial of the Motion to Withdraw the Guilty Plea

Petitioner’s second and final claim alleges that the trial court abused its discretion

by denying Petitioner’s motion to withdraw his plea. Petitioner asserts that his plea was

involuntary and unknowing because he was informed that his sentence pursuant to the

plea agreement would be lower than the sentencing guidelines range.

A guilty plea constitutes a waiver of several constitutional rights, Boykin v.

Alabama, 395 U.S. 238, 243, 89 S. Ct. 1709 (1969), and therefore is valid only if it is a

voluntary and intelligent act “done with sufficient awareness of the relevant

circumstances and likely consequences.” Brady v. United States, 397 U.S. 742, 748, 90

S. Ct. 1463, 1469 (1970). “A plea may be involuntary if the defendant does not

understand the nature of the constitutional rights he is waiving, or unintelligent if the

defendant does not understand the charges against him.” United States v. Ormsby, 252 

F.3d 844, 849 (6th Cir. 2001) (citing Henderson v. Morgan, 426 U.S. 637, 645 n.13, 96 S.

Ct. 2253, 2257 n. 13 (1976)). The defendant must be “informed of all the direct

consequences of his plea.” Id. This includes “the maximum sentence that could be

imposed.” King v. Dutton, 17 F.3d 151, 154 (6th Cir. 1994) (citing Hart v. Marion Corr.

Inst., 927 F.2d 256, 259 (6th Cir. 1991)).
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The plea hearing transcript shows that Petitioner was informed of the terms of the

plea bargain at the plea proceeding on September 23, 2005. He was told that his sentence

pursuant to the agreement would be two years for the felony firearm conviction and

fifteen to thirty years for the assault conviction. Petitioner was aware that if he went to

trial, he faced a possible lifetime statutory maximum term of imprisonment on the latter

charge. He stated that he understood the plea agreement and that no other promises had

been made to him. He acknowledged that he was subject to the penalties discussed in

court, that he was waiving certain trial rights by pleading guilty, and that his plea

represented a final resolution of three cases. He also admitted that he had tried to burn

down a house and kill the inhabitants and that he possessed a shotgun during commission

or attempt to commit a felony. He assured the trial court that no one was forcing him to

plead guilty and that he was pleading guilty freely and voluntarily. These “[s]olemn

declarations in open court carry a strong presumption of verity.” Blackledge v. Allison,

431 U.S. 63, 74, 97 S. Ct. 1621, 1629 (1977).

D. Summary

The state appellate court’s conclusion that Petitioner’s claims lacked merit did not

result in a decision that was contrary to federal law, an unreasonable application of

federal law, or an unreasonable determination of the facts.

III. APPEAL

Pursuant to 28 U.S.C. § 2253, an appeal may not be taken from the final order in a

habeas proceeding brought pursuant to § 2254 unless the petitioner makes a substantial
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showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). When a district

court denies a habeas petition on the merits of the claims presented, the Supreme Court

has stated that a certificate of appealability may issue only if the petitioner demonstrates

that reasonable jurists would find the district court’s assessment of the constitutional

claims debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484, 120 S. Ct. 1595, 1604

(2000).

In this case, the Court declines to issue a certificate of appealability because

reasonable jurists would neither disagree with its resolution of Petitioner’s constitutional

claims nor conclude that “the issues presented are adequate to deserve encouragement to

proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327, 123 S.Ct. 1029, 1034 (2003)

(citing Slack, 529 U.S. at 484, 120 S. Ct. at 146). However, if Petitioner chooses to

appeal this decision, he may proceed in forma pauperis on appeal because an appeal

could be taken in good faith. 28 U.S.C. § 1915(a)(3).

Accordingly,

IT IS ORDERED, that Petitioner’s motion to hold his case in abeyance is

DENIED;

IT IS FURTHER ORDERED, that his petition for a writ of habeas corpus is

DENIED;

IT IS FURTHER ORDERED, that a certificate of appealability is DENIED.

s/PATRICK J. DUGGAN

UNITED STATES DISTRICT JUDGE
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Copies to:

Elmer Shamba Stallings, #580708

Earnest C. Brooks Correctional Facility

2500 S. Sheridan Drive

Muskegon, MI 49444

Debra M. Gagliardi, Esq.