-1-

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

TONY LAMARR COCHRANE,

Petitioner, Case No. 09-10589

Honorable David M. Lawson

v.

CARMEN PALMER,

Respondent.

________________________________/

OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

Petitioner Tony Lamarr Cochrane, presently confined at the Michigan Reformatory in Ionia,

Michigan, has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The

petitioner was convicted following a bench trial in the Oakland County, Michigan circuit court of

assault with intent to commit murder, felonious assault, second-degree child abuse, discharge of a

firearm in a building, domestic assault, assault and battery, and four counts of possession of a

firearm in the commission of a felony. He was sentenced to several concurrent prison terms topping

out at thirty to fifty years, plus consecutive terms of two years for each of the firearm convictions.

The charges stem from the defendant’s shooting rampage in his own apartment in which his wife

was shot while his children were present. The petitioner alleges that his due process right was

violated when the prosecutor charged him with additional crimes after he refused to plead guilty to

the original charges, he did not knowingly and voluntarily waive his right to a jury trial, and the state

trial court improperly departed above the sentencing guidelines range by using factors which had

not been submitted to a jury and proven beyond a reasonable doubt or admitted to by petitioner. The

2:09-cv-10589-DML-CEB Doc # 10 Filed 03/19/12 Pg 1 of 14 Pg ID 691
-2-

respondent has filed an answer to the petition, asserting that the claims are procedurally defaulted

and lack merit. The Court agrees that petitioner’s claims are meritless and will deny the petition.

I.

The Michigan Court of Appeals summarized the pertinent facts, which are set forth here:

Defendant lived in an apartment in Oak Park with his wife, Julie Cochrane,

and their two children. As a result of his service with the United States Army in

Desert Storm in 1991, defendant suffered from posttraumatic stress disorder.

Defendant had been using Tylenol-3, Tylenol-4, Soma, and illegally obtained Xanax.

Between 9:30 and 10:30 a.m. on February 13, 2005, Julie arrived home after working

a midnight shift at a post office. Defendant and the children were all in the

apartment when Julie arrived. Defendant and Julie got into a lengthy argument,

lasting several hours. Defendant struck Julie and the younger child during the course

of the argument. Defendant claimed that, after striking Julie and the younger child,

he took some Xanax, Soma, and Tylenol-3. Then defendant sent the older child to

the store to purchase cigarettes.

Shortly thereafter, defendant shot Julie, who was seated, seven times with a

semiautomatic SK-47 assault rifle. Julie sustained gunshot wounds in her left

shoulder, left elbow, right arm, hip, and midsection. Julie was in the hospital until

March 9, 2005, when she was transferred to a rehabilitation facility, where she

recovered until April 5, 2005. At the time of trial, Julie was waiting until her internal

injuries had finished healing before she could undergo shoulder and elbow

replacement surgeries. Defendant testified at trial and admitted that he shot Julie, but

denied that he intended to kill her. Although defendant claimed he was an expert

marksman, he indicated that he did not shoot to kill Julie because he was not focused

on what he was doing. Rather, defendant claimed that he had been in a “haze” from

the drugs and snapped out of it after he shot her and everything became clear.

After shooting Julie, defendant approached the younger child, who was in his

bedroom, pointed the gun at him, and asked him if he had any questions. The

younger child shook his head, and defendant turned the gun on himself and fired.

Defendant fired two bullets toward his head and one toward his chest, fully aware

that the younger child was watching him. At least one of these gunshots actually hit

defendant, and he received treatment. One of the bullets went into the ceiling, into

an occupied apartment. Defendant admitted at trial that he intentionally fired the

rifle in the younger child’s room, knowing that there was an occupied apartment

upstairs. In fact, Naomi Ashford, the upstairs neighbor, was sitting in her bedroom

studying when the bullet came through the floor and landed in her ceiling.

Defendant threw the gun aside and went to help Julie, and the younger child called

the police.

2:09-cv-10589-DML-CEB Doc # 10 Filed 03/19/12 Pg 2 of 14 Pg ID 692
-3-

Julie told the police that defendant had tried to kill her, and defendant

admitted to two police officers that he had shot Julie. The police indicated that blood

and body tissue were on the walls, ceiling, and floor throughout the apartment. The

police discovered a bullet hole in the ceiling of the younger child’s bedroom and, in

the upstairs apartment, they found a matching bullet hole in the floor and located a

bullet lodged in the ceiling. . . .

Defendant was charged with assault with intent to commit murder, MCL

750.83, assault with intent to do great bodily harm less than murder, MCL 750.84 (as

an alternative to the assault with intent to commit murder charge), felony-firearm,

MCL 750.227b, domestic assault MCL 750.81(2), and assault and battery, MCL

750.81(1). On May 5, 2005, at the time set for the preliminary examination,

defendant conditionally waived his right to a preliminary examination and indicated

that he would enter either a guilty or no contest plea. The prosecutor explained that,

if defendant failed to do so, either party would be free to request a remand for a

preliminary examination. Defense counsel acknowledged that there were additional

charges the prosecutor could bring and that there was a benefit to waiving the

preliminary examination. The district court found that defendant’s waiver was

knowing and voluntary and bound the case over to the circuit court on all five

charges. The prosecutor then filed a felony information, identifying the same

charges as the felony complaint.

On May 12, 2005, the date scheduled for the arraignment before the circuit

court, the prosecutor stated his intent to dismiss the assault with intent to do great

bodily harm charge. Defendant was not ready to enter a guilty or no contest plea at

that time, and the prosecutor stated that, if he failed to plead as agreed at the next

pretrial hearing, the prosecutor intended to request a remand to the district court to

add additional charges. At a pretrial hearing on June 2, 2005, defendant explained

that he was not willing to enter a guilty or no contest plea and wished to request a

preliminary examination. Defense counsel explained that this decision was against

his advice. Both parties requested a remand to the district court. The circuit court

entered an order remanding the case to the district court for a preliminary

examination. The prosecutor filed an amended complaint, adding charges of

felonious assault, MCL 750.82, second-degree child abuse, MCL 750.136b(3),

discharge of a firearm in a building, MCL 750.234b, and three additional counts of

felony-firearm, MCL 750.227b. Following a preliminary examination on June 9,

2005, the district court bound defendant over to the circuit court on all counts. The

prosecutor filed a new felony information, identifying the same charges as the

amended complaint.

At a subsequent pretrial hearing, defendant waived his right to a jury trial.

Under oath, defendant stated that he was 40 years old, was literate, had a 12th grade

education, and was able to hear and understand the trial court and his attorney.

Defendant agreed that he understood the pending charges, and he assented when

2:09-cv-10589-DML-CEB Doc # 10 Filed 03/19/12 Pg 3 of 14 Pg ID 693
-4-

asked if he understood that he had the right to a trial by jury of 12 and a unanimous

verdict. Defendant stated that he understood the difference between a jury trial and

bench trial, specifically, that the judge would be the only decision maker at a bench

trial. The circuit court found that defendant had “knowingly, voluntarily and

understandingly waived his right to a jury. . . .”

People v. Cochrane, No. 267151, 2007 WL 2811540, at *1-2 (Mich. Ct. App. Sept. 27, 2007)

(footnote omitted). The petitioner’s convictions were affirmed on appeal, and the state supreme

court denied leave to appeal. Ibid., lv. den. 480 Mich. 1075, 744 N.W.2d 145 (2008).

The petitioner filed a petition for a writ of habeas corpus on February 17, 2009. The

petitioner raised the following three grounds for habeas corpus relief, each of which were addressed

by the state appellate court:

I. The prosecution violated pet[itioner]’s due process rights by punishing for

exercising const[itutional] right to trial where as additional charges was

added when pet[itioner] decline to plead guilty/ineffective assistance of

counsel for failing to object.

II. Petitioner waiver of a jury trial was not voluntary and violated due process.

III. The pet[itioner’]s due process was violated when the trial court used

additional facts not a matter of record to enhance sentencing.

Ptn. at 4, 6, 7. The warden filed a response in opposition.

II.

The provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.

L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996), which govern this case, “circumscribe[d]” the

standard of review federal courts must apply when considering an application for a writ of habeas

corpus raising constitutional claims, including claims of ineffective assistance of counsel. See

Wiggins v. Smith, 539 U.S. 510, 520 (2003). As amended, 28 U.S.C. § 2254(d) permits a federal

court to issue the writ only if the state court decision on a federal issue “was contrary to, or involved

2:09-cv-10589-DML-CEB Doc # 10 Filed 03/19/12 Pg 4 of 14 Pg ID 694
-5-

an unreasonable application of, clearly established Federal law, as determined by the Supreme

Court,” or it amounted to “an unreasonable determination of the facts in light of the evidence

presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1)-(2); Franklin v. Francis, 144 F.3d

429, 433 (6th Cir. 1998). Under that review standard, mere error by the state court does not justify

issuance of the writ; rather, the state court’s application of federal law “must have been objectively

unreasonable.” Wiggins, 539 U.S. at 520-21 (quoting Williams v. Taylor, 529 U.S. 362, 409 (2000)

(internal quotes omitted)). Additionally, this Court must presume the correctness of state court

factual determinations. 28 U.S.C. § 2254(e)(1) (“In a proceeding instituted by an application for a

writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a

determination of a factual issue made by a State court shall be presumed to be correct.”); see also

West v. Seabold, 73 F.3d 81, 84 (6th Cir. 1996) (stating that “[t]he court gives complete deference

to state court findings of historical fact unless they are clearly erroneous”).

The Supreme Court has explained the proper application of the “contrary to” clause as

follows:

A state-court decision will certainly be contrary to [the Supreme Court’s] clearly

established precedent if the state court applies a rule that contradicts the governing

law set forth in our cases. . . .

A state-court decision will also be contrary to this Court’s clearly established

precedent if the state court confronts a set of facts that are materially

indistinguishable from a decision of this Court and nevertheless arrives at a result

different from [the Court’s] precedent.

Williams, 529 U.S. at 405-06. 

The Supreme Court has held that a federal court should analyze a claim for habeas corpus

relief under the “unreasonable application” clause of § 2254(d)(1) “when a state-court decision

unreasonably applies the law of this Court to the facts of a prisoner’s case.” Id. at 409. The Court

2:09-cv-10589-DML-CEB Doc # 10 Filed 03/19/12 Pg 5 of 14 Pg ID 695
-6-

has explained that an unreasonable application of federal law is different from an incorrect

application of federal law. Under that language, “a federal habeas court may grant the writ 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.” Williams, 529 U.S. at 413.

The Supreme Court has continued to emphasize the limited nature of this review. In its recent

unanimous decision in Harrington v. Richter, --- U.S. ---, 131 S. Ct. 770 (2011), the Court reiterated

that the AEDPA requires federal habeas courts to review state court decisions with “deference and

latitude,” and “[a] state court’s determination that a claim lacks merit precludes habeas relief so long

as ‘fairminded jurists could disagree’ on the correctness of the state court’s decision.” Id. at 785-86

(quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).

The distinction between mere error and an objectively unreasonable application of Supreme

Court precedent creates a substantially higher threshold for obtaining relief than de novo review.

The AEDPA thus imposes a highly deferential standard for evaluating state-court rulings, and

demands that state-court decisions be “given the benefit of the doubt.” Renico v. Lett, --- U.S. ---,

---, 130 S. Ct. 1855, 1862 (2010) (finding that the state court’s rapid declaration of a mistrial on

grounds of jury deadlock was not unreasonable even where “the jury only deliberated for four hours,

its notes were arguably ambiguous, the trial judge’s initial question to the foreperson was imprecise,

and the judge neither asked for elaboration of the foreperson’s answers nor took any other measures

to confirm the foreperson’s prediction that a unanimous verdict would not be reached” (internal

quotation marks and citations omitted)); see also Bray v. Andrews, 640 F.3d 731, 737-39 (6th Cir.

2011); Phillips v. Bradshaw, 607 F.3d 199, 205 (6th Cir. 2010); Murphy v. Ohio, 551 F.3d 485,

493-94 (6th Cir. 2009); Eady v. Morgan, 515 F.3d 587, 594-95 (6th Cir. 2008); Davis v. Coyle, 475

2:09-cv-10589-DML-CEB Doc # 10 Filed 03/19/12 Pg 6 of 14 Pg ID 696
-7-

F.3d 761, 766-67 (6th Cir. 2007); King v. Bobby, 433 F.3d 483, 489 (6th Cir. 2006); Rockwell v.

Yukins, 341 F.3d 507, 511 (6th Cir. 2003) (en banc). Moreover, habeas review is “limited to the

record that was before the state court.” Cullen v. Pinholster, --- U.S. ---, 131 S. Ct. 1388, 1398

(2011). 

A.

The petitioner first alleges that he was denied his right to due process by the prosecutor’s

vindictiveness in charging him with additional criminal offenses after the petitioner declined to

plead guilty or no contest to the original charges that had been filed against him. 

The respondent argues that the petitioner procedurally defaulted his first claim, as well as

his remaining claims, by failing to object at trial. The petitioner contends that his lawyer was

ineffective by failing to object. A federal habeas court need not decide whether an issue is

procedurally defaulted before deciding against a petitioner on the merits. Mahdi v. Bagley, 522 F.3d

631, 635 (6th Cir. 2008) (quoting Hudson v. Jones, 351 F.3d 212, 216 (6th Cir. 2003)). The Court

therefore will proceed to address the merits of the petitioner’s claims. The Court need not discuss

the claim of ineffective assistance of counsel because the petitioner has not raised it as an

independent claim for relief, and the Court’s consideration of the merits of the underlying claim

obviates the need to consider cause for the failure to object.

It is “‘patently unconstitutional’” for a prosecutor to pursue a course of action whose

objective is to penalize a criminal defendant’s reliance on his protected statutory or constitutional

rights. See United States v. Goodwin, 457 U.S. 368, 372 n.4 (1982) (quoting Bordenkircher v.

Hayes, 434 U.S. 357, 363 (1978)). “A prosecutor vindictively prosecutes a person when he or she

acts to deter the exercise of a protected right by the person prosecuted.” United States v. Anderson,

2:09-cv-10589-DML-CEB Doc # 10 Filed 03/19/12 Pg 7 of 14 Pg ID 697
-8-

923 F.2d 450, 453 (6th Cir. 1991). Therefore, “a criminal prosecution which would not have been

initiated but for vindictiveness is constitutionally prohibited.” Bragan v. Poindexter, 249 F.3d 476,

481 (6th Cir. 2001) (citing United States v. Adams, 870 F. 2d 1140, 1145 (6th Cir. 1989)).

However, the Due Process Clause does not prohibit a prosecutor from carrying out a threat

made during plea negotiations to bring additional charges against a criminal defendant who refuses

to plead guilty to the offenses for which he was originally charged. Bordenkircher, 434 U.S. at 363.

When negotiating a guilty plea agreement, “there is no such element of punishment or retaliation

so long as the accused is free to accept or reject the prosecution’s offer.” Ibid. In United States v.

Goodwin, the Supreme Court commented:

In declining to apply a presumption of vindictiveness, the Court recognized that

“additional” charges obtained by a prosecutor could not necessarily be characterized

as an impermissible “penalty.” Since charges brought in an original indictment may

be abandoned by the prosecutor in the course of plea negotiation –– in often what is

clearly a “benefit” to the defendant –– changes in the charging decision that occur

in the context of plea negotiation are an inaccurate measure of improper

prosecutorial “vindictiveness.” An initial indictment –– from which the prosecutor

embarks on a course of plea negotiation –– does not necessarily define the extent of

the legitimate interest in prosecution. For just as a prosecutor may forgo legitimate

charges already brought in an effort to save the time and expense of trial, a

prosecutor may file additional charges if an initial expectation that a defendant would

plead guilty to lesser charges proves unfounded.

Goodwin, 457 U.S. at 378-80. Therefore, “the mere fact that a defendant refuses to plead guilty and

forces the government to prove its case is insufficient to warrant a presumption that subsequent

changes in the charging decision are unjustified.” Id. at 382-83. 

The Sixth Circuit has consistently held that the pretrial addition of criminal charges against

a defendant after he refuses to plead guilty does not amount to vindictive prosecution. See, e.g.,

United States v. DeJohn, 368 F. 3d 533, 545 (6th Cir. 2004); United States v. Walls, 293 F.3d 959,

970 (6th Cir. 2002). Indeed, a prosecutor may hold some potential charges in abeyance as an

2:09-cv-10589-DML-CEB Doc # 10 Filed 03/19/12 Pg 8 of 14 Pg ID 698
-9-

inducement during plea bargain negotiations without being considered vindictive, as long as the

additional charges are supported by probable cause. See United States v. Suarez, 263 F.3d 468, 480

(6th Cir. 2001). 

Nonetheless, a criminal defendant may prove prosecutorial vindictiveness by one of two

methods. First, a defendant may demonstrate “actual vindictiveness” by establishing “through

objective evidence that a prosecutor acted in order to punish the defendant for standing on his legal

rights.” Bragan, 249 F.3d at 481 (citing United States v. Meyer, 810 F.2d 1242, 1245 (D.C. Cir.

1987) (citing Goodwin, 457 U.S. at 380-81, 384 & n.19)). That showing, however, is “exceedingly

difficult to make.” Ibid. (quoting Meyer, 810 F.2d at 1245). Second, a defendant may show that

there existed a “‘realistic likelihood of vindictiveness’” in the prosecutor’s actions in the defendant’s

particular case. Ibid. (quoting United States v. Andrews, 633 F.2d 449, 453 (6th Cir. 1980). “A

court may only presume an improper vindictive motive when a reasonable likelihood of

vindictiveness exists.” Ibid. (citing Goodwin, 457 U.S. at 373). A habeas petitioner must show that

(1) the prosecutor had “some ‘stake’ in deterring the petitioner’s exercise of his rights, and (2) the

prosecutor’s conduct was somehow ‘unreasonable.’” Id. at 482 (quoting Anderson, 923 F.2d at 453-

54).

The state court of appeals concluded that the petitioner did not establish a due process

violation, commenting that “[t]he record reveals no evidence that the prosecutor expressed any

hostility or threats to suggest that defendant was deliberately punished for exercising his right to a

preliminary examination and ensuing trial, and the additional charges were in the prosecutor’s

charging discretion.” Cochrane, 2007 WL 2811540, at *3. The Court agrees. The petitioner has

not shown that he was the victim of prosecutorial vindictiveness in this case. The petitioner initially

2:09-cv-10589-DML-CEB Doc # 10 Filed 03/19/12 Pg 9 of 14 Pg ID 699
-10-

agreed to waive his preliminary examination on the original five criminal charges with the

understanding that he would plead guilty or no contest in the circuit court. At the time of the

preliminary examination, counsel for the petitioner stated on the record that additional criminal

charges could have been brought against the petitioner. The prosecutor indicated that if petitioner

failed to plead guilty or no contest in the circuit court, either party could request a remand for a

preliminary examination. After the petitioner chose not to plead guilty or no contest at either pretrial

hearing, the prosecutor sought a remand to the district court for a preliminary examination. The

prosecutor then filed an amended complaint, adding charges of felonious assault, second-degree

child abuse, discharge of a firearm in a building, and three additional counts of felony-firearm. The

prosecutor did not act improperly in charging the petitioner with additional criminal offenses after

the petitioner declined to plead guilty or no contest to the original charges. The petitioner has failed

to show that his counsel was ineffective for failing to object to these additional charges or that he

was deprived of his Fourteenth Amendment due process rights due to prosecutorial vindictiveness.

B. 

The petitioner next contends that he did not voluntarily waive his right to a jury trial. A

knowing and intelligent waiver of a constitutional right to a jury trial occurs “where the defendant

‘understood that the choice confronting him was, on the one hand, to be judged by a group of people

from the community, and on the other hand, to have his guilt or innocence determined by a

judge. . . .’” Sowell v. Bradshaw, 372 F.3d 821, 836 (6th Cir. 2004) (quoting United States v.

Sammons, 918 F.2d 592, 597 (6th Cir. 1990) (internal quotation omitted)). The petitioner has the

burden of demonstrating that his waiver of a jury trial was invalid. Sowell, 372 F.3d at 831.

“Although recommended, there is no federal constitutional requirement that a court conduct an

2:09-cv-10589-DML-CEB Doc # 10 Filed 03/19/12 Pg 10 of 14 Pg ID 700
-11-

on-the-record colloquy with the defendant prior to accepting the jury waiver.” Spytma v. Howes,

313 F.3d 363, 370 (6th Cir. 2002); see also Fitzgerald v. Withrow, 292 F.3d 500, 504 (6th Cir. 2002)

(holding that neither an oral colloquy nor any other particular form of waiver is required for a valid

waiver of jury trial as a matter of federal constitutional law). Furthermore, “[t]echnical knowledge

of the jury trial right is not required for waiver to be effective.” Spytma, 313 F.3d at 370 (internal

quotation omitted). 

The petitioner’s appellate counsel filed a motion to remand to the trial court for an

evidentiary hearing on this issue. He attached an affidavit from the petitioner that averred that the

petitioner did not voluntarily waive his right to a jury trial because his trial counsel had advised him

that the trial court would “slam” him at sentencing if the petitioner elected to a trial by jury.

Appellate counsel also attached a letter from the petitioner’s trial counsel to his first appellate

counsel, in which trial counsel stated that it was the petitioner’s idea to have the case tried by the

judge without a jury and that counsel had seconded the petitioner’s desire to proceed with a bench

trial because, in his professional opinion,“wasting the Court’s time with a jury trial could increase

the Defendant’s sentence.” The Michigan Court of Appeals denied relief on this claim. Cochrane,

2007 WL 2811540, at *5. 

On direct appeal, the court of appeals rejected the petitioner’s claim because the record

showed that the trial judge had advised the petitioner of his right to a jury trial. The trial court

record discloses that the petitioner understood the pending charges against him and acknowledged

to the judge that giving up his right to a jury trial meant that the judge would be the only decision

maker at trial. Cochrane, 2007 WL 2811540, at *5. The state court of appeals also found that trial

counsel’s advice that the trial court judge would be less favorable at sentencing if the petitioner was

2:09-cv-10589-DML-CEB Doc # 10 Filed 03/19/12 Pg 11 of 14 Pg ID 701
-12-

convicted following a jury trial did not render the waiver involuntary. That decision accords with

federal law. The fact that the petitioner waived his right to a jury trial because he believed that the

judge might be more lenient on him at sentencing does not render a waiver invalid. A criminal

defendant may have sound tactical reasons for relinquishing a jury trial in favor of a bench trial. See

Adams v. United States e. rel. McCann, 317 U.S. 269, 278 (1942) (“And since trial by jury confers

burdens as well as benefits, an accused should be permitted to forego its privileges when his

competent judgment counsels him that his interests are safer in the keeping of the judge than of the

jury.”). On habeas review of a state court conviction, a federal court is “required to give a high

measure of deference to the state court’s findings concerning [a] jury waiver.” Spytma, 313 F.3d

at 371.

The petitioner further claims that his waiver was involuntary because the trial court judge

did not ask him whether any threats or promises had been made to get him to relinquish his right to

a jury trial. The state court of appeals rejected the petitioner’s argument because Michigan law does

not require a trial court to inquire about whether the defendant was threatened or promised anything

in exchange for waiving his jury trial right. Cochrane, 2007 WL 2811540, at *5 (citing People v.

Shields, 200 Mich. App 554, 560-561; 504 N.W.2d 711 (1993)). That conclusion was not contrary

to applicable federal law.

This Court concludes that the state court’s determination that the petitioner knowingly and

voluntarily waived his right to a jury trial was not an unreasonable application of clearly established

federal law, nor was it an unreasonable determination of the facts. In this case, the petitioner “took

a litigation risk and lost; these facts alone do not create a constitutional violation.” Sowell, 372 F.3d

at 835. The petitioner is not entitled to habeas relief on his second claim.

2:09-cv-10589-DML-CEB Doc # 10 Filed 03/19/12 Pg 12 of 14 Pg ID 702
-13-

C. 

The petitioner contends that the trial court improperly departed above the sentencing

guidelines range by using factors that had not been proven beyond a reasonable doubt or conceded

to by the petitioner. The petitioner contends that his sentence was increased based upon facts neither

proven to a jury beyond a reasonable doubt nor admitted by him. The petitioner argues, therefore,

that the trial court judge violated his Sixth Amendment right to a trial by jury by using facts to score

his sentencing guidelines that had not been submitted to a jury and proven beyond a reasonable

doubt or admitted to by the petitioner. The petitioner believes that Blakely v. Washington, 542 U.S.

296 (2004), and Apprendi v. New Jersey, 530 U.S. 466 (2000), support his position. However, the

Sixth Circuit has held that Blakely does not apply to judicial fact-finding under Michigan’s

indeterminate sentencing scheme. Montes v. Trombley, 599 F.3d 490, 497 (6th Cir. 2010); see also

Chontos v. Berghuis, 585 F.3d 1000, 1002 (6th Cir. 2009) (“[The petitioner] argues that the

Michigan trial judge violated Apprendi by finding facts that raised his minimum sentence. But

Harris v. United States[, 536 U.S. 545, 563-68 (2002)] tells us that Apprendi’s rule does not apply

to judicial fact finding that increases a minimum sentence so long as the sentence does not exceed

the applicable statutory maximum.”). This Court is bound by those decisions. The petitioner is not

entitled to habeas relief on his sentencing claim.

III.

For the reasons stated, the Court concludes that the state court decision in this case was not

contrary to federal law, an unreasonable application of federal law, or an unreasonable

determination of the facts of the case. The petitioner has not established that he is presently in

custody in violation of the Constitution of the United States.

2:09-cv-10589-DML-CEB Doc # 10 Filed 03/19/12 Pg 13 of 14 Pg ID 703
-14-

Accordingly, it is ORDERED that the petition for writ of habeas corpus is DENIED.

s/David M. Lawson 

DAVID M. LAWSON

United States District Judge

Dated: March 19, 2012

PROOF OF SERVICE

The undersigned certifies that a copy of the foregoing order was served

upon each attorney or party of record herein by electronic means or first

class U.S. mail on March 19, 2012.

s/Deborah R. Tofil 

DEBORAH R. TOFIL

2:09-cv-10589-DML-CEB Doc # 10 Filed 03/19/12 Pg 14 of 14 Pg ID 704