Petition for Writ of Certiorari — Randy R. Smith, Petitioner v. Michigan

CONCLUSION

The petition. for a writ of certiorari should be granted.

Respectfully submitted,

PIki__

Court of Appeals, State of Michigan

1) 1 I) DI

People of MI v Randy R Smith

Henry William Saad

Presiding Judge

Docket No. 335033

Deborah A. Servitto

Elizabeth L. Gleicher

Judges

2003-193910-FC

LC No.

The Court orders that the motion to waive fees is GRANTED and fees are WAIVED for

this appeal only.

The delayed application for leave to appeal is DENIED because defendant has failed to

establish that the trial court erred in denying the motion for relief from judgment.

The motion for judgment on the pleadings is DENIED.

Presiding Judge

S

Of THE S

TORMI

A true copy entered and certified by Jerome W. Zimmer Jr., Chief Clerk, on

1

DEC 12 2016

Date

Chie lerk

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STATE OF MICHIGAN

IN THE CIRCUIT COURT FOR THE COUNTY OF OAKLAND

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff,

V.

Case No. 03-193910-FC

Hon. James M. Alexander

RANDY SMITH, MDOC 9494672,

Defendant.

OPINION AND ORDER DENYING

DEFENDANT'S MOTION FOR RELIEF FROM JUDGMENT

This matter is before the Court on Defendant's Motion for Relief from Judgment. In his

motion, Defendant asks the Court to resentence him in light of the claim that People v Lockridge,

498 Mich 358; 870 NW2d 502 (2015) announced a retroactive change in the law that applies to his

case. It plainly appears from the face of the materials examined pursuant to MCR 6.504(B)(1) that

Defendant is not entitled to relief. MCR 6.508(B).

As stated, Defendant claims that Lockridge announced a retroactive change in the law that

and requires that he be resentenced. Defendant, however, admits in his motion that Lockridge "has

not yet been given retroactive effect."

In Lockridge,

the Michigan Supreme Court held the Michigan sentencing-guidelines scheme

unconstitutional in part. The Court held that the guidelines minimum range

constitutes a "mandatory minimum," and when calculated including offense variables

[OVs] "scored on the basis of facts not admitted by the defendant [i.e., at a guilty

plea] or found beyond a reasonable doubt by the jury," that mandatory nature of the

range violates the defendant's right to jury trial. To remedy this problem, the Court

held that in this situation the guidelines are advisory only, and so in this situation "the

sentencing court may exercise its discretion to depart from that guidelines range

without articulating substantial and compelling reasons for doing so." The sentence is

reviewed on appeal for "reasonableness." Gillespie Mich. Crim. L. & Proc. Prac.

Deskbook § 20:115.

Defendant now concludes that Lockridge constitutes a retroactive change in the law that, if

applied, would have resulted in a different (presumably better) sentence.

In People v Maxson, 482 Mich 385, 387-388; 759 NW2d 817 (2008), our Supreme Court

explained the federal test for retroactivity:

"New legal principles, even when applied retroactively, do not apply to cases already

closed." Reynoldsville Casket Co vHyde, 514U.S. 749, 758; 115 S Ct 1745; 131 L

Ed 2d 820 (1995). This is because "at some point, 'the rights of the parties should be

considered frozen' and a 'conviction.. final. " Id., quoting United States v Estate of

Donnelly, 397 U.S. 286, 296; 90 S Ct 1033; 25 L Ed 2d 312 (1970) (Harlan, J.,

concurring). There are, however, "certain special concerns-- related to collateral

review of state criminal convictions-- that affect which cases are closed, for which

retroactivity-related purposes, and under what circumstances." Id.

.

The Maxson Court then cited to Teague v Lane, 489 US 288; 109 S Ct 1060; 103 L Ed 2d

334 (1989), which "set forth the federal standard for determining whether a rule regarding criminal

procedure should be applied retroactively to cases in which a defendant's conviction has become

final." Maxson, 482 Mich at 388.

The United States Supreme Court in Beard v Banks, 542 US 406,413; 124 S Ct 2504; 159 L

Ed 2d 494 (2004) summarized the Teague process as follows:

Under Teague, the determination whether a constitutional rule of criminal procedure

applies to a case on collateral review involves a three-step process. First, the court

must determine when the defendant's conviction became final. Second, it must

ascertain the legal landscape as it then existed and ask whether the Constitution, as

interpreted by the precedent then existing, compels the rule. That is, the court must

decide whether the rule is actually new. Finally, if the rule is new, the court must

consider whether it falls within either of the two exceptions to nonretroactivity.

Beard, 542 US at 411 (internal quotations and citations omitted).

2

Under the first step, the Court finds that Defendant's conviction and sentence were final

when the Supreme Court denied his application for leave to appeal in 2004 (Docket No. 125532).

Beard, 542 US at 411 (reasoning "State convictions are final 'for purposes of retroactivity analysis

when the availability of direct appeal to the state courts has been exhausted and the time for filing a

petition for a writ of certiorari has elapsed or a timely filed petition has been finally denied."

(quoting Caspari v Bohlen, 510 US 383, 390, 127 LEd2d236, 114 S Ct 948 (1994))).

With regard to the second step of the Teague analysis, the real inquiry is whether Lockridge's

outcome was "susceptible to debate among reasonable minds." Butler v McKellar, 494 US 407,415;

110SCt1212; 108 L Ed 2d 347 (1990). Further,

[b]ecause 'it is more difficult

to determine whether [the Supreme Court]

announce[d] a new rule when a decision extends the reasoning of [its] prior cases,',

the 'new rule' principle is designed to 'validate [] reasonable, good-faith

interpretations of existing precedents made by state courts even though they are

shown to be contrary to later decisions." Maxson, 482 Mich at 389-390; quoting

SafflevParks,494U5 484,488; 110 SCt 1257; 108LEd2d415 (1990) and Butler

.

.

.

v McKellar, 494 US at 414.

Before Lockridge, it was entirely reasonable for courts to score Offense Variables without

basing the same on facts not admitted by the defendant or found beyond a reasonable doubt by the

jury. This was, in fact, common!

Further, the existence of a dissenting opinion in Lockridge supports the notion that reasonable

minds could have had an opposite interpretation of the eventual rule announced therein. Maxson, 482

Mich at 390. As a result, the Court concludes that Lockridge does not represent a new rule.

And the Court's conclusion that Lockridge does not represent a "new rule" is consistent with

similar findings in courts addressing the issue. United States District Court Judge Robert Holmes

'Before Lockridge, Michigan courts followed People v Herron, 303 Mich App 392, 405; 845 NW2d 533 (2013)

that Alleyne did not implicate Michigan's sentencing scheme.

'S

Bell (Western District of Michigan) similarly concluded, reasoning in Weissert v. Palmer, No. 1:10CV-851, 2015 WL 5680149, at *7 (W.D. Mich. Sept. 25, 2015):

In July 2015, the Michigan Supreme Court agreed with Petitioner's argument from

2010, finding Michigan's sentencing guidelines constitutionally deficient under

Apprendi and Alleyne. See People v. Lockridge,—Mich.

2015 WL 4562293

(Mich. July 29,2015). Unfortunately for Petitioner, however, Alleyne and Lockridge

were decided after Petitioner's sentencing. Because the constitutional deficiency of

Michigan's sentencing guidelines was not "clearly established Federal law" at the

time of Petitioner's sentencing, even if a court today would find that a Sixth

Amendment violation did occur, Petitioner is not entitled to relief under 28 U.S.C. §

2254(d)(1). See Floyd v. Palmer, No. 13-10050, 2015 WL 4877423, at *9

(E.D.Mich. Aug. 14,2015).

,

Similarly, in this case, Defendant was sentenced years before Lockridge and Alleyne were

decided. Defendant ignores that, assuming arguendo that Alleyne announced anew rule that applies

to his case through Lockridge, he was also sentenced long before Alleyne was decided. As a result, it

would not have applied to him.

Because the Court has concluded that Lockridge does not represent a new rule, it need not

determine "whether it falls within either of the two exceptions to nonretroactivity" under the Teague

analysis. Beard, 542 US at 411.

This is the same conclusion as reached by the Michigan Court of Appeals in People v

Briclçford, unpublished Order of the Couitof Appeals, issued January 12, 2016 (Docket No. 329351)

(holding "The rule announced in People v Lockridge, 498 Mich 358;

-

NW2d

-

(2015) has no

retroactive application to sentences on collateral review." citing Butterworth v United States, 775

F3d 459, 468 (CA 1, 2015); and Simpson v United States, 721 F3d 875, 876 (CA 7, 2013)).

(Remainder of page intentionally left blank.)

4

S.

For the foregoing reasons, Defendant has failed to establish that Lockridge represents

retroactive change in the law, which would require its application to his case. MCR 6.508(G)(2).

As a result, Defendant's Motion for Relief from Judgment is DENIED. It is further Ordered

that the Oakland County Clerk accept Defendant's Motion for filing and waive any filing fee for said

motion.

IT IS SO ORDERED.

August 11, 2016

Date

Hon. James M. Alexander

Hon. James M. Alexander, Circuit Court Judge

A TRUE COPY

LISA BROWN

Oakla nd ount, Cer

-

egister of Deeds

PROOF OF SERVICE

Deputy

I certify that a true copy of this Order was served upon Defendant via first class mail addressed

to: Randy

Smith, MDOC #494672; G. Robert Cotton Correctional Facility; 3510 N. Elm Street. Jackson, MI 48846 on the

day of August, 2016.

-

Date

Court Clerk/Staff Attorney

5

EI

Order

Michigan Supreme Court

Lansing, Michigan

October 31, 2017

Stephen J. Markman,

ChiefJustice

Brian K. Zahra

Bridget M. McCormack

David F. Viviano

Richard H. Bernstein

Joan L. Larsen

Kurtis T. Wilder,

155073

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

Justices

SC: 155073

COA: 335033

Oakland CC: 2003-193910-FC

V

RANDY R. SMITH,

Defendant-Appellant.

On order of the Court, the application for leave to appeal the December 12, 2016

order of the Court of Appeals is considered, and it is DENIED, because the defendant has

failed to meet the burden of establishing entitlement to relief under MCR 6.508(D).

I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the

foregoing is a true and complete copy of the order entered at the direction of the Court.

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October 31,2017

Clerk