Mercado v. Harry

JULIO ENRIQUE MERCADO, Petitioner, v. SHIRLEE HARRY, Respondent.

Case No. 1:17-cv-989

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

November 27, 2017

Honorable Paul L. Maloney

OPINION

This is a habeas corpus action brought by a state prisoner under 28 U.S.C. § 2254. Promptly after the filing of a petition for habeas corpus, the Court must undertake a preliminary review of the petition to determine whether "it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court." Rule 4, RULES GOVERNING § 2254 CASES; see 28 U.S.C. § 2243. If so, the petition must be summarily dismissed. Rule 4; see Allen v. Perini, 424 F.2d 134, 141 (6th Cir. 1970) (district court has the duty to "screen out" petitions that lack merit on their face). A dismissal under Rule 4 includes those petitions which raise legally frivolous claims, as well as those containing factual allegations that are palpably incredible or false. Carson v. Burke, 178 F.3d 434, 436-37 (6th Cir. 1999). After undertaking the review required by Rule 4, the Court will dismiss Petitioner's habeas petition.

Discussion

I. Factual allegations

Petitioner Julio Enrique Mercado is incarcerated with the Michigan Department of Corrections at the Earnest C. Brooks Correctional Facility, (LRF) in Muskegon Heights, Michigan. On March 15, 2013, a Kent County Circuit Court jury, found Petitioner guilty of two counts of armed robbery, MICH. COMP. LAWS § 750.529, one count of conspiracy to commit armed robbery, MICH. COMP. LAWS § 750.157a, one count of assault with intent to rob while armed, MICH. COMP. LAWS § 750.89, and one count of possession of a firearm during the commission of a felony, MICH. COMP. LAWS § 750.227b. On April 16, 2013, the court sentenced Petitioner as a habitual offender-third offense, MICH. COMP. LAWS § 769.11, to two years' imprisonment for the felony-firearm conviction, consecutive to four concurrent sentences of 25 to 50 years for each of the remaining convictions.

With the assistance of appointed counsel, Petitioner appealed his convictions and sentences to the Michigan Court of Appeals. Petitioner filed one brief through counsel and one supplemental Standard 4 brief.¹ Petitioner raised several issues, including the single issue he raises in his habeas petition: Petitioner's conspiracy conviction violates due process because it is not supported by sufficient evidence. (Pet., ECF No.1, PageID.2.) The court of appeals affirmed the trial court by opinion issued October 28, 2014.

Petitioner then filed a pro per application for leave to appeal in the Michigan Supreme Court raising the same issues he had raised in the Michigan Court of Appeals. That court denied leave by order entered May 28, 2015.

On October 9, 2015, Petitioner filed a motion for relief from judgment in the trial court raising a Confrontation Clause challenge to the admission of an out-of-court statement and seeking resentencing under People v. Lockridge, 870 N.W.2d 502 (Mich. 2015), a case decided on July 29, 2015. The trial court denied relief by opinion and order entered October 26, 2015. With respect to the Lockridge issue, the court stated:

[T]his Court would have imposed the same sentence even in the absence of the unconstitutional constraint found invalid in Lockridge. After witnessing the trial and hearing arguments regarding sentencing, the Court considered the guidelines and determined what would be a reasonable and appropriate sentence in light of the circumstances. Even if the guidelines were not mandatory at that time, this valid sentence would not have changed.

People v. Mercado, No. 12-08826-FC (Kent Cty. Cir. Ct. Oct. 26, 2015).² Petitioner filed applications for leave to appeal in the Michigan Court of Appeals and the Michigan Supreme Court. Those courts denied leave by orders entered April 11, and December 28, 2016, respectively.

Petitioner's convictions were based upon an incident in Grand Rapids, Michigan. The Michigan Court of Appeals concisely described the underlying facts as follows:

[Petitioner] and three males approached Wilmar Lima-Pelaez and Xavier Pagan while they were walking down Division Street in Grand Rapids. [Petitioner] pointed a gun at Lima-Pelaez and demanded that he hand over money. Lima-Pelaez removed $100 from his wallet, and [Petitioner] took the money. While [Petitioner] was taking Lima-Pelaez's money, the other three males were attacking Pagan. Miguel Aguilar-Jimenez, a friend of Lima-Pelaez and Pagan, walked up to the scene and saw [Petitioner] and the other males demanding money from Pagan. [Petitioner] threatened to kill Lima-Pelaez if Aguilar-Jimenez and Pagan refused to give him more money. [Petitioner] pointed his gun at Aguilar-Jimenez, and Aguilar-Jimenez handed his wallet to [Petitioner], who took $20. [Petitioner] dropped his gun, and the three other males ran after the gun. [Petitioner] recovered the gun and pistol-whipped Aguilar-Jimenez. [Petitioner] and the other males thereafter ran away from the scene.

People v. Mercado, No. 315152, 2014 WL 5464948, at *1 (Mich. Ct. App. Oct. 28, 2014).

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 "clearly established" 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. Lopez v. Smith, 135 S. Ct. 1, 3 (2014); Bailey, 271 F.3d at 655. 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 (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. ___, 134 S. Ct. 1697, 1705 (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); 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. Concurrent sentencing doctrine

The "concurrent sentencing doctrine" invests the court with discretion to decline to hear a substantive challenge to a conviction when the sentence on the challenged conviction is being served concurrently with an equal or longer sentence on a valid conviction. See United States v. Hughes, 964 F.2d 536, 541 (6th Cir. 1992); Dale v. Haeberlin, 878 F.2d 930, 935 n.3 (6thCir. 1989). The doctrine has its origins in appellate practice applicable to direct review of criminal cases. See Benton v. Maryland, 395 U.S. 784, 788-91 (1969); Hirabayashi v. United States, 320 U.S. 81 (1943). In these cases, the Supreme Court and the Sixth Circuit have declined to review convictions on one count where the presence of a valid concurrent count is sufficient to retain the defendant in custody. See, e.g., Hirabayashi, 320 U.S. at 105; United States v. Burkhart, 529 F.2d 168, 169 (6th Cir. 1976). The standard guiding the court's discretion is whether there is any possibility of an adverse "collateral consequence" if the conviction is allowed to stand. See Hughes, 964 F.2d at 541; Dale, 878 F.2d at 935 n.3; ...