1

 When petitioner originally filed his petition for writ of habeas corpus, he was incarcerated at the Standish

Maximum Correctional Facility, but has since been transferred to the Carson City Correctional Facility. The only

proper respondent in a habeas case is the habeas petitioner’s custodian, which in the case of an incarcerated habeas

petitioner would be the warden of the facility where the petitioner is incarcerated. See Edwards Johns, 450 F. Supp.

2d 755, 757 (E.D. Mich. 2006); See also Rule 2(a), 28 foll. U.S.C. § 2254. Normally, the Court would order that the

caption of the case be amended to reflect that the proper respondent in this case is Blaine C. Lafler, the warden of

Carson City Correctional Facility, the current location of petitioner. However, because the Court is denying the

petition, it will not do so in this case. See Logan v. Booker, No. 2007 WL 2225887, * 1, n. 1 (E.D. Mich. August 1,

2007). 

1

 UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

ROBERT LEAVELL MULLINS,

#582904,

Petitioner, Civil No. 2:09-CV-12515

HONORABLE ANNA DIGGS TAYLOR

v. UNITED STATES DISTRICT JUDGE

THOMAS BIRKETT,

Respondent,

___________________________________/

OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS

CORPUS, DENYING A CERTIFICATE OF APPEALABILITY, AND DENYING

LEAVE TO APPEAL IN FORMA PAUPERIS

Robert Leavell Mullins, (“petitioner”), presently confined at the Carson City

Correctional Facility in Carson City, Michigan, seeks the issuance of a writ of habeas

corpus pursuant to 28 U.S.C. § 2254. 1

 In his pro se application, petitioner challenges his

conviction and sentence for second-degree murder, M.C.L.A. 750.317; and possession of

a firearm in the commission of a felony [felony-firearm], M.C.L.A. 750.227b. For the

reasons stated below, the petition for writ of habeas corpus is DENIED.

C L O S E D
2

I. Background

Petitioner was originally charged with first-degree premeditated murder, firstdegree felony murder, felon in possession of a firearm, and felony-firearm. Petitioner

pleaded guilty to a reduced charge of second-degree murder and to the felony-firearm

charge, in exchange for which the prosecutor agreed to dismiss the remaining charges. 

The parties further agreed that petitioner’s minimum sentence would be twenty years on

the second-degree murder conviction and that petitioner would be subject to a mandatory

consecutive two year sentence on the felony-firearm conviction.

On December 15, 2006, petitioner was sentenced to twenty to sixty years in prison

on the second-degree murder conviction and received a consecutive two year prison

sentence on the felony-firearm conviction.

Petitioner’s conviction and sentence were affirmed on appeal. People v. Mullins,

No. 281346 (Mich.Ct.App. December 28, 2007); lv. den. 481 Mich. 877, 748 N.W.2d 824

(2008). 

Petitioner seeks a writ of habeas corpus. For purposes of judicial clarity, the Court

will paraphrase the claims rather than recite them verbatim:

I. Petitioner’s right to due process was violated when the trial court permitted

allocution by a non-victim at sentencing.

II. Petitioner was deprived of his right to due process, when the trial court

wrongfully assessed restitution. 

III. Petitioner was deprived of his right to due process when the trial court

double counted the sentencing guidelines in fashioning a sentence. 
3

IV. Petitioner was denied the effective assistance of counsel at sentencing.

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.

When a state court fails to adjudicate a habeas petitioner’s claim on the merits,

federal habeas review is not subject to the deferential standard contained in § 2254(d)

and a federal court is required to review that claim de novo. See Cone v. Bell, 129 S. Ct.

1769, 1784 (2009); See also McKenzie v. Smith, 326 F. 3d 721, 726 (6th Cir. 2003). The

Michigan Court of Appeals and the Michigan Supreme Court denied petitioner’s

applications for leave to appeal by form order. In this case, “there are simply no results,

let alone reasoning, to which this court can defer. Without such results or reasoning, any

attempt to determine whether the state court decision ‘was contrary to, or involved an

unreasonable application of clearly established Federal law,’ 28 U.S.C. § 2254(d)(1),

would be futile.” McKenzie, 326 F. 3d at 727.
4

III. Discussion

The Court will discuss petitioner’s claims together because they are interrelated. 

In his first claim, petitioner contends that his due process rights were violated at

sentencing when the trial court permitted the murder victim’s aunt to make a statement 

at the sentence, because she did not qualify as a “victim”, as defined by Michigan’s

Crime Victim Rights Act. In his second claim, petitioner contends that the trial court

wrongfully ordered petitioner to pay restitution in the amount of $ 9,800.00 for the

funeral costs. In his third claim, petitioner contends that the trial court erred in scoring

two separate offense variables under the Michigan Sentencing Guidelines for the same

conduct. In his fourth claim, petitioner contends that he was deprived of the effective

assistance of counsel at sentencing, because trial counsel failed to object to these errors.

The Court initially notes that the prosecutor and petitioner agreed that petitioner

would receive a minimum sentence of twenty years on the second-degree murder

conviction and that petitioner would receive the mandatory consecutive two year

sentence on the felony-firearm conviction. The trial court sentenced petitioner to twenty

to sixty years in prison on the second-degree murder conviction and a consecutive two

year sentence on the felony-firearm conviction. A defendant who consents to a specific

sentence in a plea agreement and receives the exact sentence that he bargained for

waives the right to challenge the sentence on appeal or collateral review. See United

States v. Livingston, 1 F. 3d 723, 725 (8th Cir. 1993); Gill v. Berghuis, No. 2008 WL

1995096, *2 (E.D. Mich. May 6, 2008); Drumm v. Warren, No. 2005 WL 3107772, * 5
5

(E.D. Mich. November 18, 2005); Lozada-Rivera v. United States, 195 F. Supp. 2d 365,

368 (D. Puerto Rico 2002).

Moreover, petitioner’s sentences were within the statutory limit under Michigan

law for the crimes of second-degree murder and felony-firearm. A 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). 

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

Lucey v. Lavigne, 185 F. Supp. 2d 741, 745 (E.D. Mich. 2001).

In his first claim, petitioner argues that the sentencing court violated the Michigan

Crime Victim Rights Act, M.C.L.A. 780.752, by allowing a non-victim to testify at his

sentencing hearing. 

It is well-established that “federal habeas corpus relief does not lie for errors of

state law.” Estelle v. McGuire, 502 U.S. 62, 67 (1991)(quoting Lewis v. Jeffers, 497 U.S.

764, 780 (1990)). Errors in the application of state law are therefore not to be questioned

by federal courts on habeas review of a state court conviction. See Whittaker v. Lafler,

639 F. Supp. 2d 818, 825 (E.D. Mich. 2009)(citing Waters v. Kassulke, 916 F.2d 329,

335 (6th Cir. 1990)). Petitioner’s claim that the sentencing court violated the Michigan
6

Crime Victim Rights Act by allowing a non-victim to testify at his sentencing hearing is

non-cognizable on federal habeas review, because the claim involves an alleged error of

state law. See Shamblen v. Smith, No. 2009 WL 2135221, * 4 (W.D. Mich. July 15,

2009); See also Blaich v. County of Putnam, 852 F. Supp. 249, 250-51 (S.D.N.Y.

1994)(petitioner not entitled to habeas relief because victim’s attorney, rather than

victim, addressed state court at sentencing). 

Petitioner next claims that he was deprived of his due process rights when the trial

court assessed restitution for funeral costs in the amount of $ 9, 800.00, without any

testimony or evidence to support such a finding.

Petitioner does not state a claim upon which federal habeas relief can be granted. 

Where a habeas petitioner is not claiming the right to be released but is challenging the

imposition of a fine or other costs, he or she may not bring a petition for writ of habeas

corpus. United States v. Watroba, 56 F. 3d 28, 29 (6th Cir. 1995). Continuing liability

under a restitution order is like a fine-only conviction and is not a serious restraint on

liberty as to warrant habeas relief. Barnickel v. United States, 113 F. 3d 704, 706 (7th

Cir. 1997)(quoting Tinder v. Paula, 725 F. 2d 801, 805 (1st Cir. 1984)); See also Flores

v. Hickman, 533 F. Supp. 2d 1068, 1085 (C.D. Cal. 2008)(imposition of restitution order

as part of California state sentence could not be challenged under habeas statute because

restitution did not affect duration of habeas petitioner’s state custody). Because the

appropriate relief would be an amendment of the court’s order of restitution and not

release from custody, the grant of a writ of habeas corpus or other post conviction relief
7

would be inappropriate. United States v. Zaragoza, 16 F. Supp. 2d 1111, 1112 (N.D. Ind.

1998).

Petitioner’s current restitution order is not a sufficient enough restraint on his

liberty so as to warrant habeas relief. Moreover, petitioner still has available state

remedies if he is unable to pay this restitution. Under M.C.L.A. 780.766 (12), petitioner

may at any time petition the sentencing judge or his or her successor to modify the

method of payment and the sentencing judge may modify the method of payment if the

court determines that payment under the order would impose a manifest hardship to the

defendant or his family. In addition, M.C.L.A. 780.766(14) indicates that a defendant

shall not be incarcerated for a violation of probation or parole for failure to pay the

ordered restitution unless either the court or the parole board determines that the

defendant has the resources to pay the ordered restitution and has not made a good faith

effort to do so. If petitioner’s parole was either extended or revoked due to his failure to

pay restitution, he would then be “in custody” and this Court would have the jurisdiction

to hear his claim. However, until such time, the threat that petitioner’s liberty will be

severely restrained is “too speculative to warrant the exercise of federal habeas

jurisdiction.” Tinder, 725 F. 2d at 806. 

In his third claim, petitioner contends that the trial court erred in scoring two

separate offense variables under the Michigan Sentencing Guidelines for the same

conduct.
8

Petitioner’s claim that the state trial court incorrectly scored or calculated his

sentencing guidelines range under the Michigan Sentencing Guidelines is not a

cognizable claim for federal habeas review, because it is basically a state law claim. See

Howard v. White, 76 Fed. Appx. 52, 53 (6th Cir. 2003); See also Adams v. Burt, 471 F.

Supp. 2d 835, 844 (E.D. Mich. 2007). Petitioner has no state-created interest in having

the Michigan Sentencing Guidelines applied rigidly in determining his sentence. See

Shanks v. Wolfenbarger, 387 F. Supp. 2d 740, 752 (E.D. Mich. 2005). Petitioner’s claim

that the Michigan Sentencing Guidelines was incorrectly scored fails to state a claim

upon which habeas relief can be granted. Shanks, 387 F. Supp. 2d at 752; Cook, 56 F.

Supp. 2d at 797. “[I]n short, petitioner had no federal constitutional right to be sentenced

within Michigan’s guideline minimum sentence recommendations.” Doyle v. Scutt, 347

F. Supp. 2d 474, 485 (E.D. Mich. 2004). Any error by the trial court in calculating his

guideline score or in departing above his sentencing guidelines range alone would not

merit habeas relief. Id.; See also Kopsolias v. Davis, No. 2007 WL 201024, * 2 (E.D.

Mich. January 23, 2007).

In his fourth claim, petitioner contends that trial counsel was ineffective for

failing to object to the sentencing errors. 

To show that he was denied the effective assistance of counsel under federal

constitutional standards, a defendant must satisfy a two prong test. First, the defendant

must demonstrate that, considering all of the circumstances, counsel’s performance was

so deficient that the attorney was not functioning as the “counsel” guaranteed by the
9

Sixth Amendment. Strickland v. Washington, 466 U.S. 668, 687 (1984). In so doing, the

defendant must overcome a strong presumption that counsel’s behavior lies within the

wide range of reasonable professional assistance. Id. Second, the defendant must show

that such performance prejudiced his defense. Id. 

Although the Supreme Court has never expressly extended Strickland to

noncapital sentencing cases, the Sixth Circuit has applied it in that context. See United

States v. Stevens, 851 F. 2d 140, 145 (6th Cir. 1988). “[A] failure to investigate,

participate in, and prepare for the sentencing proceedings fails to satisfy an objective

standard of reasonable representation and therefore falls below Sixth Amendment

standards for effective assistance of counsel.” Arredondo v. United States, 178 F. 3d 778,

788 (6th Cir. 1999). To establish a claim of ineffective assistance of counsel in the

sentencing context, a defendant must show that:

1. counsel’s representation fell below the objective standard of

reasonableness; and;

2. there is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the sentence would have been different.

United States v. Harris, 894 F. Supp. 20, 26 (D.D.C. 1995). 

As mentioned above, the trial court sentenced petitioner to twenty to sixty years

in prison on the second-degree murder conviction and to a consecutive two year sentence

on the felony-firearm conviction, which was in conformity with the plea and sentence

agreement entered into by the parties. In light of the fact that the trial court sentenced

petitioner to the sentences that he agreed upon as part of the plea and sentence bargain,
10

petitioner is unable to establish that counsel was ineffective for failing to object to the

victim’s aunt testifying at the sentencing or to the scoring of the sentencing guidelines.

See Whitaker v. U.S., 186 Fed. Appx. 571, 573-74 (6th Cir. 2006); See also U.S. v. Smith,

143 Fed. Appx. 559, 561 (5th Cir. 2005). 

Regarding counsel’s failure to object to the amount of restitution imposed by the

trial court, petitioner has offered no evidence or argument to establish that the amount of

restitution imposed in this case was inaccurate. Conclusory allegations of ineffective

assistance of counsel, without any evidentiary support, do not provide a basis for habeas

relief. See Malcum v. Burt, 276 F. Supp. 2d 664, 685 (E.D. Mich. 2003). Because

petitioner does not offer any argument as to what counsel could have done to obtain a

different result at sentencing with respect to the amount of restitution, he is not entitled

to habeas relief on this portion of his ineffective assistance of counsel claim. See Dorchy

v. Jones, 320 F. Supp. 2d 564, 581 (E.D. Mich. 2004). 

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

adequate to deserve encouragement to proceed further. Slack v. McDaniel, 529 U.S. 473,
11

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. “The district court must issue or deny a certificate of appealability when it enters a

final order adverse to the applicant.” Rules Governing § 2254 Cases, Rule 11(a), 28

U.S.C. foll. § 2254.

Having conducted such a review, the Court concludes that petitioner has failed to

make a substantial showing of the denial of a constitutional right as to his habeas claims.

A certificate of appealability is not warranted in this case nor should petitioner be

granted leave to proceed on appeal in forma pauperis as any appeal would be frivolous.

See Fed. R.App. P. 24(a).

V. ORDER

Accordingly, the Court DENIES WITH PREJUDICE the petition for a writ of

habeas corpus. 

The Court further DENIES a certificate of appealability.

The Court further DENIES petitioner leave to appeal in forma pauperis.

DATED: March 4, 2010 s/Anna Diggs Taylor

ANNA DIGGS TAYLOR

UNITED STATES DISTRICT JUDGE
12

CERTIFICATE OF SERVICE

The undersigned certifies that the foregoing Order of Dismissal was served upon counsel of record via the Court's ECF

System to their respective email addresses or First Class U.S. mail disclosed on the Notice of Electronic Filing on

March 4, 2010.

Robert Mullins, #582904 

Carson City Correctional Facility 

10274 Boyer Road 

Carson City, MI 48811 s/Johnetta M. Curry-Williams

Case Manager