Dwight Rashad v. Blaine Lafler

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 12a0093p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
DWIGHT RASHAD ,
Petitioner-Appellant,
v.
BLAINE LAFLER ,
Respondent-Appellee.
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No. 09-2371
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 2:08-cv-14983—Victoria A. Roberts, District Judge.
Argued: March 8, 2012
Decided and Filed: April 5, 2012
Before: MOORE, SUTTON and DONALD, Circuit Judges.
_________________
COUNSEL
ARGUED: Katie N. Steffes, SMIETANKA, BUCKLEITNER, STEFFES & GEZON,
Grandville, Michigan, for Appellant. Andrea M. Christensen, OFFICE OF THE
MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellee. ON BRIEF:
Katie N. Steffes, SMIETANKA, BUCKLEITNER, STEFFES & GEZON, Grandville,
Michigan, for Appellant. Andrea M. Christensen, OFFICE OF THE MICHIGAN
ATTORNEY GENERAL, Lansing, Michigan, for Appellee.
_________________
OPINION
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SUTTON, Circuit Judge. Dwight Rashad, a Michigan prisoner serving a life
sentence for possessing more than 650 grams of cocaine, filed a petition for a writ of
habeas corpus. See 28 U.S.C. § 2254. The district court denied the petition. We affirm.
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I.
At 9:30 p.m. on September 7, 1988, Dwight Rashad pulled up to his girlfriend’s
house in suburban Detroit and proceeded inside carrying a black briefcase. As luck
would have it, the police were conducting surveillance of the house and had a warrant
to search it for evidence of drug trafficking. Officers executed the warrant thirty minutes
later. A drug-sniffing dog reacted positively to a locked closet in the basement, and
when officers pried off the lock they found several kilograms of cocaine inside.
Continuing their search of the house, officers opened Rashad’s black briefcase and found
a key inside that opened the cocaine-filled closet in the basement. Officers arrested
Rashad and impounded his car. A few weeks later, based on a separate warrant, they
searched the car, where they found several kilograms of cocaine hidden behind a quarter
panel.
The State charged Rashad with possession of more than 650 grams of cocaine
with intent to deliver it. In April 1989, a jury convicted him of the lesser-included
offense—possession of more than 650 grams of cocaine. At the time, this offense
required a mandatory sentence of life in prison without the possibility of parole. See
Harmelin v. Michigan, 501 U.S. 957, 961 n.1 (1991). Yet the trial court held that the
sentence violated the state constitution’s ban on cruel and unusual punishment and
sentenced Rashad to 40 to 100 years in prison instead.
Rashad appealed the conviction, and the State cross-appealed the trial court’s
ruling that the mandatory life sentence was unconstitutional. In June 1992, the Michigan
Court of Appeals affirmed Rashad’s conviction but reversed his sentence, holding that
a mandatory life sentence did not violate the state constitution. The Michigan Supreme
Court denied leave to appeal in May 1993.
Rashad waited more than a decade for the trial court to resentence him.
Prompted by a motion for resentencing filed by Rashad in March 2004, the court held
a new sentencing hearing in May 2004. Two significant changes in Michigan’s
sentencing laws had taken place over the prior twelve years. First, in June 1992, the
Michigan Supreme Court held that the without-parole component of this kind of life

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sentence violated the state constitution’s ban on cruel and unusual punishment and
mandated that parole be made available to defendants convicted under the statute.
People v. Bullock, 485 N.W.2d 866, 877–78 (Mich. 1992). Second, in March 2003, the
Michigan legislature amended the State’s drug laws to eliminate the mandatory-life
component of such sentences. Under the new statute, a defendant convicted of
possessing 450 to 1000 grams of a controlled substance is not subject to a mandatory
minimum and is subject to a statutory maximum of 30 years in prison. Mich. Comp.
Laws § 333.7403(2)(a)(ii). Applying the (constitutional) statutory penalties in effect
when Rashad committed his crime, the trial court resentenced him to life in prison with
the possibility of parole.
Rashad appealed his new sentence, arguing that the trial court should have
sentenced him under the no-mandatory-minimum version of Michigan’s drug laws.
Reviewing this argument for plain error because Rashad had not raised it in the trial
court, the Michigan Court of Appeals affirmed Rashad’s sentence on the ground that the
new sentencing provisions do not apply retroactively to defendants who committed their
crimes and were convicted before the amendments went into effect. The Michigan
Supreme Court denied leave to appeal.
In December 2008, Rashad filed a federal habeas petition raising six errors: two
concerning the jury instructions given at his original trial; two challenging his sentence
of life in prison with the possibility of parole; one challenging the admission of evidence
seized during the search of the house; and one alleging ineffective assistance of appellate
counsel. The district court denied Rashad’s petition, and we granted a certificate of
appealability.
II.
At the outset, the State urges us not to reach the merits of three of Rashad’s
claims—two jury instructions, one evidentiary ruling—on the ground that AEDPA’s
statute of limitations bars consideration of them. AEDPA requires a state prisoner to file
a habeas petition within one year of “the date on which the judgment became final by
the conclusion of direct review or the expiration of the time for seeking such review.”

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28 U.S.C. § 2244(d)(1)(A). Rashad’s judgment, as the State sees it, became final in
1993 after the state appellate courts affirmed his conviction, giving him until April 24,
1997—one year after AEDPA’s effective date—to file his petition. See Searcy v.
Carter, 246 F.3d 515, 517 (6th Cir. 2001). If the State is correct, Rashad missed the
deadline by more than a decade. One premise of the State’s argument is straightforward:
A judgment in a criminal case typically becomes final after direct review by the state
courts and the United States Supreme Court or at the end of the time for seeking such
review. See Jimenez v. Quarterman, 555 U.S. 113, 119–20 (2009).
Another premise is not. Although the Michigan appellate courts affirmed
Rashad’s conviction in 1993, they threw out his sentence and remanded the case for
resentencing. When does a petitioner’s “judgment bec[o]me final,” § 2244(d)(1)(A), in
this setting? After direct review of the conviction? Or after direct review of the new
sentence imposed at resentencing?
Burton v. Stewart, 549 U.S. 147 (2007) (per curiam), it seems to us, shows that
the judgment becomes final after direct review of the new sentence. A jury convicted
Burton of rape, robbery and burglary in 1994. The state appellate courts affirmed his
conviction but vacated his sentence, and the trial court resentenced him in March 1998.
Burton filed an unsuccessful habeas petition in December 1998 challenging his
conviction, and he filed another petition in 2002 challenging the constitutionality of his
new sentence. Id. at 149–52. The Court held that Burton’s 2002 petition was “second
or successive” because it, like his previous petition, challenged his 1998 judgment. Id.
at 153. Rejecting Burton’s submission that he had to file the first petition challenging
his conviction in 1998 or the claims would have been time-barred, the Court said that for
purposes of AEDPA’s statute of limitations, “[f]inal judgment in a criminal case means
sentence. The sentence is the judgment.” Id. at 156. The clock thus “did not begin until
both his conviction and sentence became final by the conclusion of direct review . . . [,]
which occurred well after Burton filed his 1998 petition.” Id. at 156–57.
Burton’s situation parallels Rashad’s in all material ways. Burton’s 1998 petition
raised claims challenging his conviction from several years before, but the statute of

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limitations had not yet started to run because direct review of the new sentence he
received on resentencing was not yet complete. So too here. Rashad filed his petition
within the limitations period after direct review of his new sentence ended. Rashad
timely filed all of his claims, including those challenging the underlying conviction.
A contrary approach would require Rashad to bifurcate the claims arising from
his criminal case into distinct judgments—one related to the conviction, one related to
the sentence. Yet the AEDPA statute of limitations speaks of one “judgment,”
§ 2244(d)(1)(A), not many. And Burton tells us the “judgment in a criminal case means
sentence.” 549 U.S. at 156. Besides splitting each criminal judgment into two, the
State’s approach would require petitioners to comply with different limitations clocks
for each judgment and, it is worth adding, would require the State to defend two cases
rather than one. That approach would not advance “AEDPA’s goal of streamlining
federal habeas proceedings,” Rhines v. Weber, 544 U.S. 269, 277 (2005), as it would
force prisoners who have their convictions affirmed but their sentences vacated—a “not
uncommon situation,” Burton, 549 U.S. at 154—to file dual petitions. A fair reading of
the language of AEDPA together with Burton does not support this approach, and
neither do the decisions of any other circuits. To our knowledge, all of the circuits to
address this question after Burton agree that the limitations clock in this setting begins
after the new sentence. See Scott v. Hubert, 635 F.3d 659, 666 (5th Cir. 2011);
Villaneda v. Tilton, 432 F. App’x 695, 695 (9th Cir. 2011) (government conceded
judgment did not become final until after resentencing); Ferreira v. Sec’y, Dep’t of
Corr., 494 F.3d 1286, 1292–93 (11th Cir. 2007); cf. United States v. Carbajal-Moreno,
332 F. App’x 472, 474–76 (10th Cir. 2009) (reaching same result based on similar
language in 28 U.S.C. § 2255(f)(1)).
Contrary to the State’s argument, Bachman v. Bagley, 487 F.3d 979 (6th Cir.
2007), does not point in a different direction. The Ohio appellate courts affirmed
Bachman’s rape conviction and life sentence in 1997. Id. at 980. Bachman filed a
habeas petition challenging his conviction more than a year after his conviction and
sentence became final, but he argued that the petition was not time-barred because the

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trial court’s designation of him as a “sexual predator” under a new state law in April
2004 reset the statute of limitations. Id. at 980–81. We rejected the argument, holding
that Bachman’s “designation as a sexual predator started the running of a ne[w] statute
of limitations period with respect to challenges to [that] designation only—not with
respect to challenges to his underlying conviction.” Id. at 983. Bachman differs from
today’s case because the state appellate courts affirmed Bachman’s conviction and his
sentence on the first round of direct review. His judgment thus became final upon the
conclusion of that first round of direct review, Burton, 549 U.S. at 156–57, and he could
not use his subsequent designation as a sexual predator to reopen his final conviction.
Here, by contrast, Rashad’s judgment did not become final after his first round of direct
review because he no longer was subject to a sentence. The judgment became final upon
the conclusion of direct review of the new sentence he received at resentencing. See id.
at 156–57. Rashad timely filed all of his claims.
III.
Jury Instructions. At the conclusion of Rashad’s 1989 trial, the court instructed
the jury (1) that it could convict Rashad of the lesser-included offense of possession if
it did not find him guilty of possession with intent to deliver, and (2) that it could convict
him if it found that he aided and abetted the drug offense. Rashad seeks habeas relief
on both instructions, contending that the State charged him only with possession with
intent to deliver and the State introduced no evidence at trial that he was an aider and
abetter. The Michigan Court of Appeals upheld both instructions under state law
because the evidence introduced at trial supported liability as an aider and abettor, see
People v. Mann, 236 N.W.2d 509, 511 (Mich. 1975), and liability under the offense of
possession, see People v. Mendoza, 664 N.W.2d 685, 688 (Mich. 2003) (instruction on
lesser-included offense appropriate if supported by the evidence); see also People v.
Leighty, 411 N.W.2d 778, 784 (Mich. Ct. App. 1987) (instruction on cognate offense
appropriate if supported by the evidence).
Generally speaking, a state court’s interpretation of the propriety of a jury
instruction under state law does not entitle a habeas claimant to relief. 28 U.S.C.

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§ 2254(a); Estelle v. McGuire, 502 U.S. 62, 67–68 (1991). The exception is when the
instruction is so flawed as a matter of state law as to “infect[] the entire trial” in such a
way that the conviction violates federal due process. Henderson v. Kibbe, 431 U.S. 145,
154 (1977). Rashad has not met this burden. Rashad did not lack notice that he could
be convicted of possession of cocaine, even though the State charged him only with
possession with intent to deliver. As the names of the offenses suggest, the former is a
“necessarily included lesser offense of [the latter] because the only distinguishing
characteristic is the additional element of intent to deliver.” People v. Torres, 564
N.W.2d 149, 153 (Mich. Ct. App. 1997). And a conviction on the lesser-included
offense does not violate Michigan law or the United States Constitution. The aiding-
and-abetting instruction likewise was fair game, especially given the reality that one of
Rashad’s defenses was that someone else placed the cocaine in the basement closet. The
government was entitled to respond to this defense by contending that it failed even on
its own terms through an aiding-and-abetting theory of liability.
Search and Seizure. Rashad argues that the state trial court erred by admitting
evidence found in his briefcase—namely the key to the cocaine-filled closet in the
basement—because the search violated the Fourth Amendment. Long-standing
precedent precludes us from granting habeas relief based on a state court’s failure to
apply the exclusionary rule of the Fourth Amendment, unless the claimant shows that
the State did not provide him “an opportunity for full and fair litigation of [his] Fourth
Amendment claim.” Stone v. Powell, 428 U.S. 465, 494 (1976). Rashad cannot rise to
this challenge. The trial court rejected Rashad’s Fourth Amendment claims on forfeiture
grounds because his attorney did not show up at the hearing designed to consider them.
And the Michigan Court of Appeals rejected the claims on the merits, holding that “the
briefcase was properly within the scope of the warrant” because it could have contained
drugs, and the officers’ “hypertechnical violation” of a state statute requiring officers to
inventory all items seized during a search did not require suppression. R. 10-17, at 2,
4. Rashad had ample opportunities to present these claims in state court, precluding
habeas relief. Stone, 428 U.S. at 495.

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Sentencing Claims. Rashad raises two challenges to his life sentence. He first
argues that the trial court should have resentenced him under Michigan’s amended drug
laws (which carry no mandatory minimum) rather than the law that was in force at the
time of his offense and conviction (which carried a mandatory minimum of life in
prison). The Michigan Court of Appeals has held that Michigan’s amended sentencing
laws do not apply retroactively, which is to say they do not apply to defendants who
were convicted before the amendment. See, e.g., People v. Doxey, 687 N.W.2d 360, 365
(Mich. Ct. App. 2004). Rashad does not cite any precedent from the United States
Supreme Court requiring the retroactive application of state sentencing laws. Nor are
we aware of any such authority. To the contrary, courts generally presume that
“legislation, especially of the criminal sort, is not to be applied retroactively” unless the
legislature clearly requires otherwise. Johnson v. United States, 529 U.S. 694, 701
(2000). Federal law does not entitle Rashad to retroactive application of Michigan’s
amended sentencing laws.
Rashad also claims that the disparity between the sentence he received under
Michigan’s old sentencing regime and the sentence an offender would receive under the
new regime violates equal protection and due process. But the federal Constitution does
not require “that two persons convicted of the same offense receive identical sentences.”
Williams v. Illinois, 399 U.S. 235, 243 (1970). Rashad persists that he received a harsher
sentence for mere possession under the old regime than what someone convicted of
possession with intent to deliver would receive under the new regime. But Michigan’s
new drug laws, like its old ones, do not establish that possession of a large amount of
cocaine is a less serious offense than possession with intent to deliver a large amount of
cocaine. Defendants whose offenses involve more than 450 grams of cocaine face the
same sentencing range under either statute. Compare Mich. Comp. Laws
§ 333.7401(2)(a)(ii) (possession with intent to deliver), with id. § 333.7403(2)(a)(ii)
(possession). That Rashad, as an earlier offender, received a higher sentence than later
offenders does not violate the Federal Constitution. See Doe v. Mich. Dep’t of State
Police, 490 F.3d 491, 504 (6th Cir. 2007). Because this claim lacks merit, so too does
Rashad’s final claim that his appellate counsel performed ineffectively by failing to raise

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the argument in the state appellate courts. See Ludwig v. United States, 162 F.3d 456,
459 (6th Cir. 1998).
IV.
For these reasons, we affirm.

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