Hubbard v. Christiansen

• Decision Date: 24 January 2020
• Docket Number: Case No. 1:18-cv-1078
• Parties: JOHN ROBERT HUBBARD, Petitioner, v. JOHN CHRISTIANSEN, Respondent.
• Court: U.S. District Court — Western District of Michigan

JOHN ROBERT HUBBARD, Petitioner, v. JOHN CHRISTIANSEN, Respondent.

Case No. 1:18-cv-1078

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

January 24, 2020

Honorable Robert J. Jonker

REPORT AND RECOMMENDATION

This is a habeas corpus action brought by a state prisoner under 28 U.S.C. § 2254. Petitioner John Robert Hubbard is incarcerated with the Michigan Department of Corrections at the Central Michigan Correctional Facility (STF) in St. Louis, Gratiot County, Michigan. Petitioner pleaded guilty in the Mecosta County Circuit Court to operating a motor vehicle while intoxicated and to being a habitual offender. On May 10, 2017, the court sentenced Petitioner to a prison term of 40 to 60 months.

On September 8, 2018, Petitioner filed his habeas corpus petition raising the same grounds for relief he raised to the state appellate courts. Under Sixth Circuit precedent, the application is deemed filed when handed to prison authorities for mailing to the federal court. Cook v. Stegall, 295 F.3d 517, 521 (6th Cir. 2002). Petitioner signed his application on September 8, 2018. (Pet., ECF No. 1, PageID.12.) The petition was received by the Court on September 17, 2018. For purposes of this Report and Recommendation, I have given Petitioner the benefit of the earliest possible filing date. See Brand v. Motley, 526 F.3d 921, 925 (6th Cir. 2008) (holding that the date the prisoner signs the document is deemed under Sixth Circuit law to be the date of handing to officials) (citing Goins v. Saunders, 206 F. App'x 497, 498 n.1 (6th Cir. 2006)).

The petition raises three grounds for relief, as follows:

I. [PETITIONER] IS ENTITLED TO RESENTENCING BECAUSE HIS MINIMUM TERM WAS AN UNREASONABLE AND DISPROPORTIONATE SENTENCE.

II. [PETITIONER] IS ENTITLED TO RESENTENCING BECAUSE JUDGE JAKLEVIC VIOLATED HIS DUE PROCESS BY SENTENCING HIM TO THE MAXIMUM ALLOWED TERM FOR A FELONY DRUNK DRIVING AFTER PREVIOUSLY SERVING AS TRIAL PROSECUTOR FOR DEFENDANT'S PREVIOUS DRIVING OFFENSES.

III. [PETITIONER] WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL GUARANTEED BY THE FEDERAL AND STATE CONSTITUTIONS, US CONST, AM VI; CONST 1963, ART 1 & 20, WHERE THE TRIAL ATTORNEY FAILED TO MAKE APPROPRIATE OBJECTION IN THE CASE.

(Pet., ECF No. 1, PageID.5, 6, 8.) Respondent has filed an answer to the petition (ECF No. 8) stating that the grounds should be denied because they are without merit. Upon review and applying the standards of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. 104-132, 110 Stat. 1214 (AEDPA), I find that the grounds are without merit. Accordingly, I recommend that the petition be denied.

Discussion

I. Factual allegations

On March 8, 2017, Petitioner pleaded guilty before Acting Circuit Court Judge Peter M. Jaklevic to operating while intoxicated-third offense, Mich. Comp. Laws § 257.625(9)(c),¹ and habitual offender-second offense, Mich. Comp. Laws § 769.10. (ECF No.9-2, PageID.111.) Petitioner acknowledged that the plea agreement specified a maximum imprisonment of seven-and-a-half years but that no other promises had been made. (Id., PageID.110.)

Two months later, on May 10, 2017, Petitioner reported to Judge Jaklevic for sentencing. At the hearing, Judge Jaklevic referenced the sentencing guidelines and articulated the factors he must consider in determining a minimum sentence, including proportionality; "protection of the society; reformation or rehabilitation of the offender . . . ; deterrence of others; and discipline or punishment." (ECF No. 9-3, PageID.121.) Judge Jaklevic explained further:

[I]f I'm going to depart from the guidelines I like to have a good reason[,] and why I don't feel the guidelines are proportional to what it should be, is you have a terrible history on probation. You don't follow any court's orders. You had a personal protection in this case; you weren't following that. Every one of your cases you messed up on, on probation just about.

* * *

I try to - I run a sobriety court here, I try to work with people; I try to give them a second chance, but your problems are more than just drinking. Okay? It's more than just alcohol. You engage in criminal behavior. It's not just alcohol for you. I don't know what - why you continue to break the law. I wish you wouldn't. I'm sure your family would want you around. It sounds like that's great that you're working now. I applaud you for that. Had it not been for that, I'd probably be giving you more time than I'm about to. Okay?

(Id., PageID.122-123.) Soon thereafter, Judge Jaklevic sentenced Petitioner to a minimum of 40 months up to a maximum 60 months in prison. (ECF No. 9-3, PageID.123-124.)

Petitioner filed a delayed application for leave to appeal with the Michigan Court of Appeals, which the court denied on January 2, 2018. (ECF No. 9-4, PageID.126.) Petitioner then filed an application for leave to appeal with the Michigan Supreme Court, which that court denied on July 3, 2018. (ECF No. 9-5, PageID.197.) Both of Petitioner's applications for leave to appeal filed with the state appellate courts cited the same three grounds presented in his habeas petition. (ECF No. 9-4, PageID.137; ECF No. 9-5, PageID.205.)

In short, Petitioner filed the instant habeas corpus petition again challenging Judge Jaklevic's decision to sentence Petitioner to a minimum of 40 months in prison, which was an upward departure from the guidelines. According to the Sentencing Information Report, the sentencing guidelines specified a range for Petitioner's minimum sentence of 10 to 28 months. (ECF No. 9-5, PageID.252.)

In addition to challenging the minimum sentence directly as unreasonable and disproportionate, Petitioner challenges the minimum sentence on due process grounds alleging Judge Jaklevic, the sentencing judge, had previously prosecuted Petitioner's prior driving offenses—presumably Petitioner's drunk driving offenses in 2004 and 2011. Petitioner also contends that his trial counsel failed to offer effective assistance because he did not object to the appointment of the Judge Jaklevic to Petitioner's case.

II. AEDPA standard

This action is governed by the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. 104-132, 110 Stat. 1214 (AEDPA). The AEDPA "prevents federal habeas 'retrials'" and ensures that state court convictions are given effect to the extent possible under the law. Bell v. Cone, 535 U.S. 685, 693-94 (2002). An application for writ of habeas corpus on behalf of a person who is incarcerated pursuant to a state conviction cannot be granted with respect to any claim that was adjudicated on the merits in state court unless the adjudication: "(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 upon an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." 28 U.S.C. § 2254(d). This standard is "intentionally difficult to meet." Woods v. Donald, 575 U.S. ___, 135 S. Ct. 1372, 1376 (2015) (internal quotation omitted).

The AEDPA limits the source of law to cases decided by the United States Supreme Court. 28 U.S.C. § 2254(d). This Court may consider only the holdings, and not the dicta, of the Supreme Court. Williams v. Taylor, 529 U.S. 362, 412 (2000); Bailey v. Mitchell, 271 F.3d 652, 655 (6th Cir. 2001). In determining whether federal law is clearly established, the Court may not consider the decisions of lower federal courts. Williams, 529 U.S. at 381-82; Miller v. Straub, 299 F.3d 570, 578-79 (6th Cir. 2002). Moreover, "clearly established Federal law" does not include decisions of the Supreme Court announced after the last adjudication of the merits in state court. Greene v. Fisher, 565 U.S. 34, 37-38 (2011). Thus, the inquiry is limited to an examination of the legal landscape as it would have appeared to the Michigan state courts in light of Supreme Court precedent at the time of the state-court adjudication on the merits. Miller v. Stovall, 742 F.3d 642, 644 (6th Cir. 2014) (citing Greene, 565 U.S. at 38).

A federal habeas court may issue the writ under the "contrary to" clause if the state court applies a rule different from the governing law set forth in the Supreme Court's cases, or if it decides a case differently than the Supreme Court has done on a set of materially indistinguishable facts. Bell, 535 U.S. at 694 (citing Williams, 529 U.S. at 405-06). "To satisfy this high bar, a habeas petitioner is required to 'show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.'" Woods, 135 S. Ct. at 1376 (quoting Harrington v. Richter, 562 U.S. 86, 103 (2011)). In other words, "[w]here the precise contours of the right remain unclear, state courts enjoy broad discretion in their adjudication of a prisoner's claims." White v. Woodall, 572 U.S. 415, 424 (2014) (internal quotations omitted).

The AEDPA requires heightened respect for state factual findings. Herbert v. Billy, 160 F.3d 1131, 1134 (6th Cir. 1998). A determination of a factual issue made by a state court is presumed to be correct, and the petitioner has the burden of rebutting the presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Davis v. Lafler, 658 F.3d 525, 531 (6th Cir. 2011) (en banc); Lancaster v. Adams, 324 F.3d 423, 429 (6th Cir. 2003); Bailey, 271 F.3d at 656. This presumption of correctness is accorded to findings of state appellate courts, as well as the trial court. See Sumner v. Mata, 449 U.S. 539, 546 (1981); Smith v. Jago, 888 F.2d 399, 407 n.4 (6th Cir. 1989).

III. Unreasonable and Disproportionate Minimum Sentence

Petitioner's first ground for relief argues that the minimum term of his sentence is unreasonable and...