UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

CARLOS V. LANE,

Petitioner, 

v.

CAROL HOWES,

Respondent. 

/

Case Number: 2:09-CV-12254

HONORABLE NANCY G. EDMUNDS

OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

AND DENYING CERTIFICATE OF APPEALABILITY

Petitioner Carlos V. Lane has filed a pro se petition for a writ of habeas corpus under 28

U.S.C. § 2254. Petitioner is currently in the custody of the Michigan Department of Corrections

pursuant to convictions for three counts of possession with intent to deliver less than 50 grams of

cocaine, two counts of delivery/manufacture of between 50-224 grams of cocaine, two counts of

felonious assault, fleeing and eluding a police officer, and driving with a suspended license. He

challenges his convictions on the grounds that the police entrapped him and that the trial court

erred in failing to address this claim. For the reasons discussed below, the Court denies the

petition. 

I. Background

Petitioner pleaded guilty in Monroe County Circuit Court to three counts of possession

with intent to deliver less than 50 grams of cocaine, two counts of delivery/manufacture of

cocaine between 50-224 grams, two counts of felonious assault, fleeing and eluding a police

officer, and driving with a suspended license. On January 11, 2007, he was sentenced to 85 to
2

480 months’ imprisonment for the possession of cocaine convictions, 99 to 480 months’

imprisonment for the delivery/manufacture of cocaine convictions, 43 to 96 months’

imprisonment for each of the assault convictions, and 57 to 120 months’ imprisonment for the

fleeing and eluding conviction, all to be served concurrently. He was ordered to pay restitution

in the amount of $3,550. 

Petitioner filed a motion for modification of restitution. The trial court denied the motion

on April 17, 2007. People v. Lane, No. 06-35428 (Monroe County Cir. Ct. Apr. 17, 2007). On

July 27, 2007, Petitioner filed a motion for relief from judgment in the trial court challenging the

presentence investigation report and the scoring of the sentencing guidelines. The trial court

denied the motion. People v. Lane, No. 06-35428 (Monroe County Cir. Ct. July 30, 2007). 

Petitioner filed another motion for relief from judgment, raising essentially the same claims

raised in his first motion for relief from judgment. The trial court held that the motion could not

be reviewed because a defendant is entitled to only one motion for relief from judgment,

alternatively, the court held that the motion was meritless because even if the scoring of the

sentencing guidelines was corrected in accordance with Petitioner’s claims, the sentencing

guidelines would not change. People v. Lane, No. 06-35428 (Monroe County Cir. Ct. May 1,

2008). Petitioner filed a motion for reconsideration, which was denied. People v. Lane, No. 06-

35428 (Monroe County Cir. Ct. June 2, 2008). 

Petitioner then filed an amended motion for relief from judgment, raising challenges to

the presentence investigation report, the scoring of the sentencing guidelines, and, for the first

time, a claim of entrapment. The trial court denied the motion as an improper successive motion

for relief from judgment. People v. Lane, No. 06-35428 (Monroe County Cir. Ct. Aug. 22,
3

2008). 

Petitioner failed to appeal his convictions or the denials of his motions for relief from

judgment to the Michigan Court of Appeals or Michigan Supreme Court. 

Petitioner then filed the pending petition for a writ of habeas corpus, raising the

following claims:

I. The police misconduct in persuading defendant to increase the quantity of drugs

in excess of 50 grams in the last two transactions constitutes sentencing factor

manipulation because the police were not after a larger drug source at that point

and defendant had clearly communicated his reluctance and inability to increase

larger quantity.

II. Petitioner did not waive his challenge to sentencing factor manipulation due to

police misconduct where the claim was made before and at sentencing, the court

was aware of it but refused to resolve the matter.

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 proceedings. 

28 U.S.C. § 2254(d). Additionally, this court must presume the correctness of state court factual

determinations. 28 U.S.C. § 2254(e)(1). 

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
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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. Rather, that

application must also be unreasonable.” Id. at 410-11. 

III. Analysis

Respondent argues that Petitioner’s claims are procedurally defaulted from habeas review

because they are unexhausted and no means for exhausting them in state court remains available

to Petitioner. 

A prisoner challenging his confinement by way of a habeas corpus petition must exhaust

his state court remedies prior to seeking federal habeas corpus relief by fairly presenting the

substance of each federal constitutional claim in state court. See 28 U.S.C. § 2254(b); Coleman

v. Thompson, 501 U.S. 722, 731 (1991); Wong v. Money, 142 F.3d 313, 322 (6th Cir. 1998). To

be properly exhausted, each claim must have been “fairly presented” to both the state court of

appeals and the state supreme court. See Wagner v. Smith, 581 F.3d 410, 414 (6th Cir. 2009). A

prisoner “‘fairly presents’ his claims to the state courts by citing a provision of the Constitution,

federal decisions using constitutional analysis, or state decisions employing constitutional

analysis in similar fact patterns.” Levine v. Torvik, 986 F.2d 1506, 1516 (6th Cir. 1993). The

petitioner bears the burden of showing that state court remedies have been exhausted. See Rust

v. Zent, 17 F.3d 155, 160 (6th Cir. 1994). Petitioner has not presented his claims to the Michigan
5

Court of Appeals or Michigan Supreme Court. The claims, therefore, are unexhausted. 

No state court remedy is available to Petitioner because he already has filed several

motions for relief from judgment in the state trial court and, pursuant to Mich. Ct. R. 6.502(G),

he may not file a successive motion. Additionally, the time for filing an application for leave to

appeal the trial court’s denial of his motion for relief from judgment has expired. Where a

petitioner “fails to present his claims to the state courts and . . . is barred from pursuing relief

there, his petition should not be dismissed for lack of exhaustion because there are simply no

remedies available for him to exhaust.” Hannah v. Conley, 49 F.3d 1193, 1196 (6th Cir. 1995). 

However, a petitioner will not be allowed to present unexhausted claims unless he can show

cause to excuse his failure to present them in the state courts and actual prejudice to his defense

at trial or on appeal. 

It is unclear whether Petitioner asserts ineffective assistance of appellate counsel as cause

to excuse the procedural default of these claims. Assuming he does, ineffective assistance of

appellate counsel would not excuse Petitioner’s failure to present these claims on collateral

review in state court. Hannah, 49 F.3d at 1196. See also Guilmette v. Howes, __ F.3d __, No.

08-2256, 2010 WL 4117281, at *4 (6th Cir. Oct. 21, 2010) (holding that a claim of ineffective

assistance of appellate counsel is properly exhausted when it is raised at the first opportunity to

do so – in a post-conviction motion for collateral relief in state court). Additionally, Petitioner’s

claim that an appeal would have been denied does not excuse his failure to exhaust these claims. 

Thus, these claims are procedurally defaulted and barred from review unless Petitioner can

establish that a constitutional error resulted in a fundamental miscarriage of justice. See Schlup

v. Delo, 513 U.S. 298, 321 (1995). 
6

The Supreme Court explicitly has tied the miscarriage of justice exception to procedural

default to a petitioner’s innocence. Id. Thus, Petitioner must assert a constitutional error along

with a claim of innocence. To make a showing of actual innocence, “a petitioner must show that

it is more likely than not that no reasonable juror would have found the petitioner guilty beyond

a reasonable doubt.” Id. at 327. The Court further explained this standard as follows:

The . . . standard is intended to focus the inquiry on actual innocence. In

assessing the adequacy of petitioner’s showing, therefore, the district court is not

bound by the rules of admissibility that would govern at trial. Instead, the

emphasis on “actual innocence” allows the reviewing tribunal to consider the

probative force of relevant evidence that was either excluded or unavailable at

trial. . . . The habeas court must make its determination concerning the

petitioner’s innocence in light of all the evidence, including . . . evidence tenably

claimed to have been wrongly excluded or to have become available only after

trial. 

* * *

. . . [A]ctual innocence does not merely require a showing that a reasonable doubt

exists in the light of the new evidence, but rather that no reasonable juror would

have found the defendant guilty. It is not the district court’s independent

judgment as to whether reasonable doubt exists that the standard addresses; rather

the standard requires the district court to make a probabilistic determination about

what reasonable, properly instructed jurors would do. Thus, a petitioner does not

meet the threshold requirement unless he persuades the district court that, in light

of the new evidence, no juror, acting reasonably, would have voted to find him

guilty beyond a reasonable doubt. 

Id. (internal quotation omitted). 

Petitioner fails to present new, reliable evidence in light of which no reasonable juror

would have found him guilty. Therefore, these claims are procedurally barred. 

IV. Certificate of Appealability

Federal Rule of Appellate Procedure 22 provides that an appeal may not proceed unless a

certificate of appealability (COA) is issued under 28 U.S.C. § 2253. Rule 11 of the Rules
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Governing Section 2254 Proceedings now requires that the Court “must issue or deny a

certificate of appealability when it enters a final order adverse to the applicant.” 

A COA may be issued “only if the applicant has made a substantial showing of the denial

of a constitutional right.” 28 U.S.C. §2253(c)(2). A petitioner must show “that reasonable

jurists could debate whether (or, for that matter, agree that) the petition should have been

resolved in a different manner or that the issues presented were adequate to deserve

encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (citation

omitted). In this case, the Court concludes that reasonable jurists would not debate the

conclusion that the petition fails to state a claim upon which habeas corpus relief should be

granted. Therefore, the Court will deny a certificate of appealability.

V. Conclusion

For the foregoing reasons, IT IS ORDERED that the petition for a writ of habeas corpus

is DENIED and the matter is DISMISSED WITH PREJUDICE.

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

s/Nancy G. Edmunds 

Nancy G. Edmunds

United States District Judge

Dated: November 18, 2010

I hereby certify that a copy of the foregoing document was served upon counsel of record on

November 18, 2010, by electronic and/or ordinary mail.

s/Carol A. Hemeyer 

Case Manager