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 UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

ARMOR TURNER,

Petitioner, Civil No. 2:09-CV-12891

HONORABLE GERALD E. ROSEN

v. CHIEF UNITED STATES DISTRICT JUDGE

NICK LUDWICK,

Respondent,

 /

OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND

DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY OR LEAVE TO

APPEAL IN FORMA PAUPERIS

Armor Turner, (“Petitioner”), presently incarcerated at the Newberry Correctional

Facility in Newberry, Michigan, has filed a pro se petition for writ of habeas corpus pursuant

to 28 U.S.C. § 2254, in which he challenges his convictions for unarmed robbery, M.C.L.A.

750.530; assault with intent to do great bodily harm less than murder, M.C.L.A. 750.84; and

being a fourth felony habitual offender, M.C.L.A. 769.12. For the reasons stated below, the

petition for writ of habeas corpus is DENIED. 

I. Background

Petitioner pleaded guilty to the above charges in the Wayne County Circuit Court,

in exchange for a sentence agreement made with the trial court judge pursuant to People

v. Cobbs, 443 Mich. 276; 505 N.W. 2d 208 (1993), in which the judge agreed to sentence

petitioner to fourteen years, six months to forty years in prison.

On August 1, 2006, petitioner was sentenced to fourteen years, six months to forty

years in prison. 

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Petitioner’s conviction and sentence were affirmed on appeal. People v. Turner, No.

279618 (Mich.Ct.App. September 5, 2007); lv. den. 480 Mich. 959; 741 N.W. 2d 352

(2007). Petitioner then filed a post-conviction motion for relief from judgment pursuant to

M.C.R. 6.500, et. Seq., which the trial court denied. People v. Turner, No. 06-6498-01

(Third Judicial Circuit Court, May 30, 2008). The Michigan appellate courts denied

petitioner leave to appeal. People v. Turner, No. 287272 (Mich.Ct.App. January 7, 2009);

lv. den. 483 Mich. 1110; 766 N.W. 2d 804 (2009).

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

OV 4, OV 10, and OV 13 were scored in plain error and since the correction

to the scoring lowers the guidelines range defense counsel rendered

ineffective assistance of counsel in agreeing to the misscoring.

II. Standard of Review

28 U.S.C. § 2254(d), as amended by The Antiterrorism and Effective Death Penalty

Act of 1996 (AEDPA), 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

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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.

The Supreme Court has explained that “[A] federal court’s collateral review of a

state-court decision must be consistent with the respect due state courts in our federal

system.” Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). 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, 130 S. Ct. 1855,

1862 (2010)((quoting Lindh v. Murphy, 521 U.S. 320, 333, n. 7 (1997); Woodford v.

Viscotti, 537 U.S. 19, 24 (2002) (per curiam)). “[A] state court’s determination that a claim

lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree’

on the correctness of the state court’s decision.” Harrington v. Richter, 131 S. Ct. 770, 786

(2011)(citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). 

III. Discussion

A. Claim # 1. Petitioner is not entitled to habeas relief on his sentencing

claims because they are non-cognizable on federal habeas review.

Petitioner initially alleges that the trial court judge incorrectly scored several of the

offense variables under the Michigan Sentencing Guidelines, which caused his sentencing

guidelines to be scored at fifty to two hundred months. Petitioner contends that had these

offense variables been correctly scored, petitioner’s guidelines range would have been

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thirty six to one hundred and forty two months. 

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). 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 Haskell v. Berghuis, 695 F. Supp. 2d 574, 598 (E.D. Mich. 2010);Coy v. Renico, 414

F. Supp. 2d 744, 780 (E.D. Mich. 2006). “Petitioner has no state-created interest in having

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

Mitchell v. Vasbinder, 644 F. Supp. 2d 846, 867 (E.D. Mich. 2009)(citing Shanks v.

Wolfenbarger, 387 F. Supp. 2d 740, 752 (E.D. Mich. 2005)). “[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. Petitioner is not entitled to

habeas relief on this portion of his claim. 

Petitioner further alleges in his reply brief that the trial court judge violated his Sixth

Amendment right to a trial by jury by using factors that had not been submitted to a jury

and proven beyond a reasonable doubt when scoring his sentencing guidelines. 

In Blakely v. Washington, 542 U.S. 296 (2004), the U.S. Supreme Court held that

other than the fact of a defendant’s prior conviction, any fact that increases or enhances

a penalty for a crime beyond the prescribed statutory maximum for the offense must be

submitted to the jury and proven beyond a reasonable doubt. Id. at 301 (citing Apprendi

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v. N.J., 530 U.S. 466, 490 (2000)). 

Petitioner is not entitled to habeas relief on his claim. Blakely involved a trial court’s

departure from Washington’s determinate sentencing scheme. Michigan, by contrast, has

an indeterminate sentencing system in which the defendant is given a sentence within a

minimum and maximum sentence. See People v. Claypool, 470 Mich. 715, 730, n. 14; 684

N.W.2d 278 (2004); People v. Drohan, 475 Mich. 140, 160-61; 715 N.W.2d 778

(2006)(both citing M.C.L.A. 769.8). “[M]ichigan’s sentencing guidelines, unlike the

Washington guidelines at issue in Blakely, create a range within which the trial court must

set a minimum sentence.” Drohan, 475 Mich. at 161. Under Michigan law, only the

minimum sentence must presumptively be set within the appropriate sentencing guidelines

range. See People v. Babcock, 469 Mich. 247, 255, n. 7; 666 N.W.2d 231 (Mich.

2003)(citing M.C.L.A. 769.34(2)). Under Michigan law, the trial judge sets the minimum

sentence, but can never exceed the maximum sentence. Claypool, 470 Mich. at 730.

Therefore, Michigan’s indeterminate sentencing scheme is unaffected by the U.S.

Supreme Court’s holding in Blakely. Drohan, 475 Mich. at 164. 

The holding in Blakely is inapplicable to petitioner’s sentence. Indeterminate

sentencing schemes, unlike determinate sentencing schemes, do not infringe on the

province of the jury. Blakely, 542 U.S. at 304-05, 308-09. The holdings in Apprendi and

Blakely do not apply to a judge’s factfinding that increases a minimum sentence so long

as the sentence does not exceed the applicable statutory maximum. See Chontos v.

Berghuis, 585 F.3d 1000, 1002 (6th Cir. 2009); See also Montes v. Trombley, 599 F.3d

490, 495 (6th Cir. 2010)(the Blakely-Apprendi rule requiring any fact that increases the

penalty for a crime beyond the prescribed statutory maximum to be submitted to a jury and

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 Because the holding in Blakely is inapplicable to Michigan’s indeterminate sentencing scheme,

trial counsel was not ineffective for failing to object to the scoring of the sentencing guidelines on this

basis. See Rupert v. Berghuis, 619 F. Supp. 2d 363, 371 (W.D. Mich. 2008).

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proved beyond a reasonable doubt does not apply to laws that set the maximum sentence

by statute but that permit a judge to determine the minimum sentence through judicial

factfinding, and does not preclude a judge from utilizing the

preponderance-of-the-evidence standard when finding facts related to sentencing). As

noted by the Sixth Circuit, “[T]he Sixth Amendment gives a criminal defendant the right to

have a jury find any fact that increases the maximum sentence the defendant faces, not

any fact that increases the minimum sentence.” Arias v. Hudson, 589 F.3d 315, 317 (6th

Cir. 2009)(citing McMillan v. Pennsylvania, 477 U.S. 79 (1986))(emphasis original).

Because Michigan’s sentencing laws create an indeterminate-sentencing scheme, it does

not violate petitioner’s due-process rights or his right to a jury trial. Montes, 599 F. 3d at

497. Petitioner is not entitled to habeas relief on any Blakely claim. Id. 1

B. Claim # 1. Petitioner is not entitled to habeas relief on his ineffective

assistance of counsel claim because there is no clearly established federal

law regarding the effective assistance of counsel in noncapital sentencings

nor can petitioner show that he was prejudiced by counsel’s failure to object

to the scoring of the sentencing guidelines.

As part of his first claim, petitioner alleges that his trial counsel was ineffective for

failing to object to the scoring of the Michigan Sentencing Guidelines. Although unclear,

it appears that petitioner may also be alleging that appellate counsel was ineffective for

failing to raise the claim of the ineffective assistance of trial counsel on petitioner’s direct

appeal.

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

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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 Sixth

Amendment. Strickland v. Washington, 466 U.S. 668, 687 (1984). Second, the defendant

must show that such performance prejudiced his defense. Id. The Strickland standard

applies as well to claims of ineffective assistance of appellate counsel. See Whiting v.

Burt, 395 F. 3d 602, 617 (6th Cir. 2005). 

Although the Supreme Court has never expressly extended Strickland to noncapital

sentencing cases, the Sixth Circuit has applied it in that context with regards to reviewing

federal convictions on direct appeal. See United States v. Stevens, 851 F. 2d 140, 145 (6th

Cir. 1988). However, the AEDPA standard of review found in 28 U.S.C. § 2254 (d)(1)

prohibits the use of lower court decisions in determining whether the state court decision

is contrary to, or an unreasonable application of, clearly established federal law. See Miller

v. Straub, 299 F. 3d 570, 578-579 (6th Cir. 2002). The Ninth Circuit has noted, “[W]hen the

Supreme Court established the test for ineffective assistance of counsel claims in

Strickland, the [Supreme] Court expressly declined to ‘consider the role of counsel in an

ordinary sentencing, which ... may require a different approach to the definition of

constitutionally effective assistance.’” Cooper-Smith v. Palmateer, 397 F. 3d 1236, 1244

& n. 39 (9th Cir. 2005)(quoting Strickland, 466 U.S. at 686). Because the Supreme Court

has not decided what standard should apply to ineffective assistance of counsel claims in

the noncapital sentencing context, there is no clearly established federal law regarding

ineffective assistance of counsel claims in noncapital sentencing cases, so as to provide

petitioner with a basis for habeas relief on his claim. Id., See also Davis v. Grigas, 443 F.

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3d 1155, 1158 (9th Cir. 2006).

Assuming that Strickland applies to petitioner’s ineffective assistance of counsel

claim, he is not entitled to relief. Petitioner challenged the scoring of the various offense

variables under the Michigan Sentencing Guidelines before the state courts both on his

direct appeal and in his post-conviction motion for relief from judgment. The state courts

rejected his sentencing claims on both occasions. When the alleged attorney error

involves the failure to object to a violation of state law that does not involve the

enforcement of federal constitutional rights or interests, there is no Supreme Court case

which prevents a federal court sitting in habeas review of a state court conviction from

looking “to whether there is a reasonable probability that the do-over proceeding state law

provides would reach a different result.” See Hammond v. Hall, 586 F.3d 1289, 1340 (11th

Cir. 2009). 

In light of the fact that petitioner’s sentencing claims were rejected by the Michigan

courts on both his direct appeal and in his post-conviction proceedings, petitioner cannot

show that he was prejudiced by trial counsel’s failure to object to the scoring of the

Michigan Sentencing Guidelines. See Myers v. Ludwick, No. 2009 WL 4581693, * 3 (E.D.

Mich. December 3, 2009). If “one is left with pure speculation on whether the outcome of

... the penalty phase could have been any different,” there has been an insufficient

showing of prejudice, for purposes of an ineffective assistance of counsel claim. Baze v.

Parker, 371 F. 3d 310, 322 (6th Cir. 2004). Because petitioner has offered no evidence to

show that the state trial court judge would have been inclined to impose a lesser sentence

or that the Michigan appellate courts were inclined to reverse his sentence, petitioner is

unable to show that he was prejudiced by his trial counsel’s purported ineffectiveness in

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 See Delayed Application for Leave to Appeal [part of this Court’s Dkt. # 5-4]. 

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failing to raise objections to his sentencing guidelines. See Spencer v. Booker, 254 Fed.

Appx. 520, 525-26 (6th Cir. 2007). 

Finally, to the extent that petitioner claims that appellate counsel was ineffective for

failing to raise the issue of trial counsel’s ineffectiveness on petitioner’s direct appeal, a

review of the brief on appeal that appellate counsel submitted on petitioner’s behalf shows

that appellate counsel did raise a claim that trial counsel was ineffective for failing to object

to the scoring of the sentencing guidelines. 2

 Accordingly, petitioner has failed to show

that appellate counsel was ineffective.

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, 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; See

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also Strayhorn v. Booker, 718 F. Supp. 2d 846, 875 (E.D. Mich. 2010).

For the reasons stated in this opinion, 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. See also Millender v. Adams, 187 F. Supp. 2d 852, 880 (E.D.

Mich. 2002). The Court will also deny petitioner leave to appeal in forma pauperis,

because the appeal would be frivolous. See Allen v. Stovall, 156 F. Supp. 2d 791, 798

(E.D. Mich. 2001).

V. ORDER

Based upon the foregoing, IT IS ORDERED that the petition for a writ of habeas

corpus is DENIED WITH PREJUDICE.

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

IT IS FURTHER ORDERED that leave to appeal in forma pauperis is DENIED.

s/Gerald E. Rosen 

Chief Judge, United States District Court

Dated: December 2, 2011

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

record on December 2, 2011, by electronic mail and upon Armor Turner, #125685,

Newberry Correctional Facility, 3001 Newberry Avenue, Newberry, MI 49868 by

ordinary mail.

s/Ruth A. Gunther 

Case Manager

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