Petition for Writ of Certiorari — Mauricio Lucas-Lopez, Petitioner v. Tony Trierweiler, Warden

Case: 19-1032 Document: 5-2 Filed: 03/28/2019 Page: 1

FILED

No. 19-1032

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Mar 28, 2019

DEBORAH S. HUNT, Clerk

MAURICIO LUCAS-LOPEZ,

Petitioner-Appellant,

ORDER

V.

TONY TRIERWEILER, Warden,

Respondent-Appellee.

Mauricio Lucas-Lopez, a Michigan state prisoner, appeals a district court judgment

denying his petition for a writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254. The court

construes the notice of appeal as an application for a certificate of appealability. See Fed. R. App.

P. 22(b)(2).

In 2016, ajury convicted Lucas-Lopez of first-degree criminal sexual conduct and seconddegree criminal sexual conduct. He was sentenced to twenty-five to fifty years of imprisonment.

His'conviction was upheld on direct appeal in the state courts. He then filed this petition for federal

habeas corpus relief, raising the same claims he had presented in his direct appeal: 1) he was

entitled to a lesser-included-offense instruction; 2) the twenty-five-year mandatory minimum

sentence violated the separation-of-powers doctrine; and 3) the sentence violated the Eighth

Amendment. The district court screened the petition and denied it without service on the

respondent.

To be entitled to a certificate of appealability, Lucas-Lopez must show that reasonable

jurists would find the district court's assessment of his claims debatable or wrong. See Slack v.

McDaniel, 529 U.S. 473, 484 (2000).

Case: 19-1032 Document: 5-2 Filed: 03/28/2019 Page: 2

No. 19-1032

-2Reasonable jurists would not debate the district court's conclusion that, to the extent LucasLopez was repeating the claims presented on direct appeal and decided under Michigan law, such

as whether he was entitled to a lesser-included-offense instruction and whether the mandatoryminimum sentence violated the separation-of-powers doctrine, the state court's decision was

binding and any perceived error of state law was not a basis for federal habeas relief. See Bradshaw

v. Richey, 546 U.S. 74, 76 (2005); Austin v. Jackson, 213 F.3d 298, 302 (6th Cir. 2000).

Reasonable jurists would also not debate rejection of the claims if construed as raising questions

under federal law because there is no clearly established federal law requiring lesser-includedoffense instructions in non-capital cases, see 28 U.S.C. § 2254(d)(1); McMullan v. Booker, 761

F.3d 662, 667 (6th Cir. 2014), and the twenty-five-year minimum sentence is not so grossly

disproportionate as to violate the Eighth Amendment. See Austin, 213 F.3d at 302. Because

reasonable jurists would not find the district court's assessment of the claims debatable or wrong,

the application for a certificate of appealability is DENIED.

ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk

Case 1:18-cv-01189-JTN-ESC ECF No. 4 filed 12/04/18 PagelD.45 Page 1 of 9

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

MAURICIO LUCAS-LOPEZ,

Petitioner,

Case No. 1:18-cv-1 189

V.

Honorable Janet T. Neff

TONY TRIER WElLER,

Respondent.

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. Fermi, 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 concludes that the petition must be dismissed

because it fails to raise a meritorious federal claim.

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Discussion

I.

Factual allegations

Petitioner Mauricio Lucas-Lopez is incarcerated with the Michigan Department of

Corrections at the Bellamy Creek Correctional Facility (IBC) in Ionia County, Michigan. In 2016,

Petitioner was charged with first-degree criminal sexual conduct (CSC-1), Mich. Comp. Laws

§ 750.520b(2)(b), and second-degree criminal sexual conduct (CSC-TI), Mich. Comp. Laws

§ 750.520c(2)(b), based on allegations by the daughter of Petitioner's former girlfriend. In a jury

trial before the Kent County Circuit Court, the victim testified that Petitioner had sexually abused

her from the time she was 4 or 6 years old until she was 8 years old. On one occasion, Petitioner

brought her into a bedroom, took her clothes off, and penetrated her vagina with his finger and

with his penis.

The jury convicted Petitioner of both counts. On October 25, 2016, the court

sentenced Petitioner to 25 to 50 years' imprisonment for the CSC-I conviction and 7 1/2 to 15

years' imprisonment for the CSC-II conviction.

Petitioner appealed his conviction and sentence to the Michigan Court of Appeals

and the Michigan Supreme Court. The Michigan Court of Appeals affirmed the trial court's

judgment on February 15, 2018. The Michigan Supreme Court denied leave to appeal on July 3,

2018.

Petitioner subsequently filed his habeas corpus petition, raising the same three

grounds for relief that he raised on appeal:

[Petitioner] was denied a fair trial because the jury was not instructed on

second-degree CSC as a lesser charge to first-degree CSC.

The 25 year mandatory minimum sentence provided for under Mich. Comp.

Law. Ann. § 750.250b(2)(B), violates the separation of powers doctrine.

2

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III.

The mandatory minimum under Mich. Comp. Law. Ann. § 750.250b(2)(B)

is cruel and/or unusual punishment in violation of the state and federal

constitutions.

(Pet., ECF No. 1, PagelD.5, 7, 8.)

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 (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

3

Case 1:18-cv-01189-JTN-ESC ECF No. 4 filed 12/04/18 PagelD.48 Page 4 of 9

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); 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.

Ground I: Lesser-included offense instruction

Petitioner argues that the trial court denied him a fair trial because it did not provide

the jury with an instruction that the jury could convict Petitioner of CSC-II, a lesser offense than

4

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CSC-I. Petitioner contends that the jury might have convicted him of CSC-II instead of CSC-I if

given the proper instruction.

In Michigan, a lesser-included offense instruction is proper when "'the charged

greater offense requires the jury to find a disputed factual element that is not part of the lesser

included offense and a rational view of the evidence would support it." People v. Lucas-Lopez,

No. 337603, 2018 WL 910470, at *2 (Mich. Ct. App. Feb. 15, 2018) (quoting People v. Cornell,

646 N.W.2d 127, 139 (Mich. 2002)). But "[a] lesser offense jury instruction may not be given for

a cognate lesser offense [, which] is an offense that contains an element not found in the greater

offense." Id. (citing People v. Heft, 829 N.W.2d 266, 270 (Mich. 2012)).

As Petitioner acknowledges in his brief in support of his petition, the Michigan

Court of Appeals rejected Petitioner's argument by relying on the Michigan Supreme Court's

holding in People v. Lemons, 562 N.W.2d 447 (Mich. 1997), that CSC-II is a cognate lesser offense

of CSC-I, not a lesser-included offense. Petitioner believes that Lemons was wrongly decided, but

this Court does not have authority to question the state court's interpretation of its own law.

Bradshaw v. Richey, 546 U.S. 74, 76 (2005); Estelle v. McGuire, 502 U.S. 62, 68 (1991). The

question of whether CSC-II is a lesser-included offense of CSC-I or a cognate offense is purely an

issue of state law. A decision by the Michigan Supreme Court on this issue is binding on this

Court. See Wainwright v. Goode, 464 U.S. 78, 84 (1983) ("[T]he views of the state's highest court

with respect to state law are binding on the federal courts."). Thus, this Court is bound by Lemons

and the state court's application of it to Petitioner's case.

Moreover, even if the state court had decided this issue incorrectly, Petitioner still

would not be entitled to relief. This Court may only grant relief on the basis of federal law clearly

established by the Supreme Court, but there is no clearly established federal law supporting--

5

Case 1:18-cv-01189-JTN-ESC ECF No. 4 filed 12/04/18 Page ID.50 Page 6 of 9

Petitioner's claim. "The Supreme Court.

.

.

has never held that the Due Process Clause requires

instructing the jury on a lesser included offense in a non-capital case. Simply put, 'the Constitution

does not require a lesser-included offense instruction in non-capital cases." McMullan v. Booker,

761 F.3d 662, 667 (6th Cir. 2014) (quoting Campbell v. Coyle, 260 F.3d 531, 541 (6th Cir. 2001)).

Accordingly, for all the foregoing reasons, Petitioner's claim is meritless.

Ground II: Mandatory minimum sentence violates separation of powers

doctrine

Petitioner argues that the mandatory minimum sentence for a CSC-I conviction

violates the separation of powers doctrine of the Michigan constitution. This claim is not

cognizable in this action. "[A] federal court may issue the writ to a state prisoner 'only on the

ground that he is in custody in violation of the Constitution or laws or treaties of the United

States." Wilson v. Corcoran, 562 U.S. 1, 5 (2010) (quoting 28 U.S.C. § 2254(a)). A habeas

petition must "state facts that point to a 'real possibility of constitutional error." Blackledge v.

Allison, 431 U.S. 63, 75 n.7 (1977) (quoting Advisory Committee Notes on Rule 4, Rules

Governing Habeas Corpus Cases). The federal courts have no power to intervene on the basis of

a perceived error of state law. Wilson, 562 U.S. at 5; Bradshaw, 546 U.S. at 76; Estelle, 502 U.S.

at 67-68; Pulley v. Harris, 465 U.S. 37, 41(1984). Thus, the Court does not have power to correct

an alleged violation of the Michigan Constitution. See Austin v. Jackson, 213 F.3d 298, 302 (6th

Cir. 2000) (rejecting state prisoner's claim asserting a violation of the separation of powers).

Ground III: Mandatory minimum sentence is cruel and unusual

punishment

Petitioner asserts that the mandatory minimum sentence of 25 years' imprisonment

for his CSC-I conviction is cruel and unusual punishment, in violation of the Michigan constitution

and the Eighth Amendment to the United States Constitution.

-

-

--

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To the extent Petitioner's claim is based on state law, he does not raise a cognizable

claim. As indicated in the previous section, federal courts do not have power to intervene on the

basis of a perceived violation of state law.

With respect to Petitioner's Eighth Amendment claim, the United States

Constitution does not require strict proportionality between a crime and its punishment. Harmelin

v. Michigan, 501 U.S. 957, 965 (1991); United States v. Marks, 209 F.3d 577, 583 (6th Cir. 2000).

"Consequently, only an extreme disparity between crime and sentence offends the Eighth

Amendment."

Marks, 209 F.3d at 583; see also Lockyer v. Andrade, 538 U.S. 63, 77 (2003)

(gross disproportionality principle applies only in the extraordinary case); Ewing v. California,

538 U.S. 11, 36 (2003) (principle applies only in "the rare case in which a threshold comparison

of the crime committed and the sentence imposed leads to an inference of gross

disproportional ity") (quoting Rummel v. Estelle, 445 U.S. 263, 285 (1980)). A sentence that falls

within the maximum penalty authorized by statute "generally does not constitute 'cruel and

unusual punishment." Austin v. Jackson, 213 F.3d 298, 302 (6th Cir. 2000) (quoting Un ited States

v. Organek, 65 F.3d 60, 62 (6th Cir. 1995)). Ordinarily, "[f]ederal courts will not engage in a

proportionality analysis except in cases where the penalty imposed is death or life in prison without

possibility of parole." United States v. Thomas, 49 F.3d 253, 261 (6th Cir. 1995). Petitioner was

not sentenced to death or life in prison without the possibility of parole, and his sentence falls

within the maximum penalty under state law. Petitioner's sentence therefore does not present the

extraordinary case that runs afoul of the Eighth Amendment's ban on cruel and unusual

punishment. Consequently, Petitioner's claim is meritless.

Conclusion

In light of the foregoing, the Court will summarily dismiss Petitioner's application

pursuant to Rule 4 because it fails to raise a meritorious federal claim.

7

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Certificate of Appealability

Under 28 U.S.C. § 2253(c)(2), the Court must determine whether a certificate of

appealability should be granted. A certificate should issue if Petitioner has demonstrated a

"substantial showing of a denial of a constitutional right." 28 U.S.C. § 2253(c)(2). This Court's

dismissal of Petitioner's action under Rule 4 of the Rules Governing § 2254 Cases is a

determination that the habeas action, on its face, lacks sufficient merit to warrant service. It would

be highly unlikely for this Court to grant a certificate, thus indicating to the Sixth Circuit Court of

Appeals that an issue merits review, when the Court has already determined that the action is so

lacking in merit that service is not warranted. See Love v. Butler, 952 F.2d 10 (1st Cir. 1991) (it

is "somewhat anomalous" for the court to summarily dismiss under Rule 4 and grant a certificate);

Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990) (requiring reversal where court summarily

dismissed under Rule 4 but granted certificate); Dory v. Comm 'r of Corr. of New York, 865 F.2d

44, 46 (2d Cir. 1989) (it was "intrinsically contradictory" to grant a certificate when habeas action

does not warrant service under Rule 4); Williams v. Kuliman, 722 F.2d 1048, 1050 n.1 (2d Cir.

1983) (issuing certificate would be inconsistent with a summary dismissal).

The Sixth Circuit Court of Appeals has disapproved issuance of blanket denials of

a certificate of appealability. Murphy v. Ohio, 263 F.3d 466 (6th Cir. 2001). Rather, the district

court must "engage in a reasoned assessment of each claim" to determine whether a certificate is

warranted. Id at 467. Each issue must be considered under the standards set forth by the Supreme

Court in Slack v. McDaniel, 529 U.S. 473 (2000). Murphy, 263 F.3d at 467. Consequently, this

Court has examined each of Petitioner's claims under the Slack standard. Under Slack, 529 U.S.

at 484, to warrant a grant of the certificate, "[t]he petitioner must demonstrate that reasonable

jurists would find the district court's assessment of the constitutional claims debatable or wrong."

Id. "A petitioner satisfies this standard by demonstrating that.

8

. .

jurists could conclude the issues

Case 1:18-cv-01189-JTN-ESC ECF No. 4 filed 12/04/18 PagelD.53 Page 9 of 9

presented are adequate to deserve encouragement to proceed further." Miller-El v. Cockrell, 537

U.S. 322, 327 (2003). In applying this standard, the Court may not conduct a full merits review,

but must limit its examination to a threshold inquiry into the underlying merit of Petitioner's

claims. Id.

The Court finds that reasonable jurists could not conclude that this Court's

dismissal of Petitioner's claims was debatable or wrong. Therefore, the Court will deny Petitioner

a certificate of appealability.

The Court will enter a judgment and order consistent with this opinion.

Dated: December 4, 2018

Is! Janet T. Neff

Janet T. Neff

United States District Judge

Additional material

from this filing is

available in the

Clerk's Off ice.