                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 13a0646n.06
                                   No. 11-1856
                                                                                      FILED
                           UNITED STATES COURT OF APPEALS                          Jul 11, 2013
                                FOR THE SIXTH CIRCUIT                       DEBORAH S. HUNT, Clerk

SYLVESTER WASHINGTON,                           )
                                                )
       Petitioner-Appellant,                    )          ON APPEAL FROM THE UNITED
                                                )          STATES DISTRICT COURT FOR
v.                                              )          THE WESTERN DISTRICT OF
                                                )          MICHIGAN
GREG MCQUIGGIN,                                 )
                                                )
       Respondent-Appellee.                     )



BEFORE: CLAY and COOK, Circuit Judges; and OLIVER, District Judge.*

                                      I. INTRODUCTION

       OLIVER, District Judge. Petitioner-Appellant Sylvester Washington appeals the district

court’s summary dismissal, with prejudice, of his 28 U.S.C. § 2254 petition for a writ of habeas

corpus alleging both ineffective assistance of appellate counsel and an unconstitutional court order

to pay a portion of his court-appointed attorney’s fees. For the following reasons, we AFFIRM the

district court’s dismissal of Washington’s ineffective assistance of counsel claim and DISMISS

Washington’s attorney’s fees claim without prejudice for lack of subject matter jurisdiction.

                                      II. BACKGROUND

                            A. Factual and Procedural Background

       On March 21, 2007, after Washington pleaded guilty to one count of armed robbery and one

count of domestic violence, the Jackson County, Michigan, Circuit Court sentenced him to



       *
         The Honorable Solomon Oliver, Jr., Chief Judge, United States District Court for the
Northern District of Ohio, sitting by designation.
consecutive prison terms of 285–360 months for the armed robbery count and 16–24 months for the

domestic violence count. The court ordered Washington, who had been represented by a court-

appointed attorney, to pay $944.00 in attorney’s fees, $472.00 for each conviction.

        Washington’s court-appointed appellate counsel filed a notice of appeal on March 18, 2008,

and raised two issues. First, his counsel argued that the sentencing court had improperly scored the

armed robbery offense under Michigan’s sentencing guidelines.1 Second, Washington’s appellate

counsel argued that the sentencing court had erred in ordering Washington to pay attorney’s fees

because it had not determined his ability to pay and because Washington was in fact indigent and

could not pay the fees. The Michigan Court of Appeals rejected Washington’s appeal on May 8,

2008; Washington filed a pro se appeal to the Michigan Supreme Court, which was denied on

September 28, 2009.

        Washington sought state collateral review and, again appearing pro se, filed a motion for

relief from judgment on November 17, 2009. Washington argued that his sentence violated the

Tanner rule (described in detail below) and that his appellate counsel was constitutionally

ineffective for failing to raise the Tanner issue on direct appeal. As codified, the Tanner rule states,

“[t]he court shall not impose a minimum sentence . . . that exceeds 2/3 of the statutory maximum

sentence.” Mich. Comp. Laws § 769.34(2)(b). Washington’s armed robbery sentence (punishable

by “imprisonment for life or any term of years”) was 285–360 months’ imprisonment; 285 is more

than two thirds of 360—therefore, Washington argued, his sentence violated the Tanner rule.




       1
         Michigan’s guidelines use a points-based system to determine the applicable sentencing
range (points are roughly analogous to offense levels under the federal guidelines); the sentencing
court had scored Washington’s armed robbery offense as involving “aggravated physical abuse”
pursuant to Offense Variable 7, Mich. Comp. Laws § 777.37(a)

                                                   2
       The circuit court denied Washington’s motion for relief from judgment. The Michigan Court

of Appeals and Supreme Court both denied Washington leave to appeal the circuit court’s ruling;

the Michigan Supreme Court used its denial to affirm that the Tanner rule did not apply to offenses,

like armed robbery, “punishable by imprisonment for life or any term of years.”

       On May 27, 2011, Washington filed a pro se habeas petition in the United States District

Court for the Western District of Michigan. The court summarily dismissed the petition under Rule

4 of the Rules Governing Section 2254 Cases in the United States District Courts and denied

Washington a certificate of appealability. Washington appealed, and this court granted a certificate

of appealability only in regard to Washington’s claims that he was denied the effective assistance

of appellate counsel and that he was unconstitutionally required to pay his court-appointed

attorney’s fees.

                                       B. The Tanner Rule

       The Tanner rule (also sometimes called the two-thirds rule) was first announced in People

v. Tanner, 199 N.W.2d 202 (Mich. 1972), and later codified in Mich. Comp. Laws § 769.34(2)(b).

Until 2004, courts had construed Tanner and its statutory analog to apply to all offenses except those

for which “the only punishment prescribed is imprisonment for life or those providing for a

mandatory minimum.” People v. Shegog, 205 N.W.2d 278, 281 (Mich. Ct. App. 1972) (emphasis

added); see also People v. Babcock, 666 N.W.2d 231, 255 n.7 (Mich. 2003). Whether the Tanner

rule applied to a particular offense therefore depended on the wording of the relevant provision of

the Michigan penal code; for example, Tanner did not apply to first degree murder, which “shall be

punished by imprisonment for life,” Mich. Comp. Laws § 750.316(1), but did apply to armed

robbery (Washington’s offense), which is “punishable by imprisonment for life or any term of

years,” § 750.529. People v. Reid, 642 N.W.2d 678 (Mich. 2002), and People v. Irving, 641 N.W.2d

                                                  3
858 (Mich. 2002), mark the terminus of this now-defunct case line, the last two cases where the

Michigan Supreme Court applied the Tanner rule to offenses punishable by “life or any term of

years.”

          The Michigan Supreme Court shifted course in 2004. In People v. Powe, 679 N.W.2d 67

(Mich. 2004), the court declared the Tanner rule inapplicable to offenses punishable by

imprisonment for “life or any term of years”—which included armed robbery. The court reaffirmed

this interpretation of the Tanner rule in People v. Drohan, 715 N.W.2d 778, 790 n.14 (Mich. 2006),2

and People v. Harper, 739 N.W.2d 523, 534 n.31 (Mich. 2007).3

          However, the court appeared to reverse itself in People v. Floyd, 751 N.W.2d 34 (Mich.

2008), vacated by People v. Floyd (Floyd II), 804 N.W.2d 564, 564 (Mich. 2011). In Floyd, the

court vacated a 62-year minimum sentence because it exceeded two-thirds of the 80-year maximum

established by the trial court, “in violation of MCL 769.34(2)(b) and . . . Tanner,” even though one

of the offenses was punishable by life or a term of years. Floyd, 751 N.W.2d at 34. The court did

not mention Powe, Drohan, or Harper. Nonetheless, Floyd post-dated those decisions, and some

lower courts held that it had overruled them. People v. Lewis, No. 294687, 2011 WL 561596 at *7

(Mich. Ct. App. Feb. 17, 2011); People v. Miller, No. 293404, 2010 WL 4905081 at *4 (Mich. Ct.

App. Dec. 2, 2010). As noted below, the Michigan Supreme Court vacated the Tanner portion of



          2
         “We recently held that [the Tanner rule] does not apply when a defendant is convicted of
a crime punishable with imprisonment for ‘life or any term of years’ because the minimum will
never exceed 2/3 of the statutory maximum sentence of life.” Drohan, 715 N.W. at 790 n.14 (citing
Powe, 679 N.W.2d 67).
          3
          “[The Tanner rule] does not apply when a defendant is convicted of an offense punishable
by a prison sentence of ‘life or any term of years’ because the minimum will never exceed 2/3 of
the statutory maximum sentence of life authorized by the jury verdict.” Harper, 739 N.W.2d at 534
n.31 (citing Drohan, 715 N.W.2d at 778 n.14).

                                                 4
Floyd as inconsistent with Powe, Drohan, and Harper subsequent to Washington’s filing for post-

conviction relief in state court.

        The circuit court judge who reviewed Washington’s motion for relief from judgment found

that his appellate counsel “acted in accordance with the law as it stood at the time the appeal was

filed and argued” because, citing Harper, “the law regarding the 2/3 Rule was settled . . . .” Finding

no error and no prejudice, the court denied Washington’s motion. In light of his citation to Harper

and his conclusion that the law was settled, the judge clearly relied on the Michigan Supreme

Court’s prior decisions in Powe and Drohan. The court found that Tanner did not apply to

Washington’s sentence because armed robbery carries a maximum sentence of “life or any term of

years.” Mich. Comp. Laws § 750.529. Indeed, apart from finding that Powe controlled at the time

of Washington’s direct appeal, the court concluded that the subsequent decision in Floyd had not

overruled Powe. Finding no error and no prejudice, the court denied Washington’s motion. The

Michigan Court of Appeals and Supreme Court both denied Washington leave to appeal the circuit

court’s ruling.

        The Michigan Supreme Court soon made clear that Powe, Drohan, and Harper remained

good law. Using its order denying Washington leave to appeal for relief from judgment, the court

found the opportunity to clarify its Tanner jurisprudence: “To the extent People v. Floyd has been

seen as inconsistent with People v. Powe, People v. Drohan, and People v. Harper, it is disavowed.”

People v. Washington, 795 N.W.2d 816, 817 (Mich. 2011) (citations omitted). The court has since

repeatedly reaffirmed that “Tanner does not apply to sentences where the statutory maximum is ‘life

or any term of years.’” Floyd II, 804 N.W.2d at 564 (citation omitted) (vacating the court’s finding

of a violation of the Tanner rule in Floyd, 751 N.W.2d at 34); People v. Lewis, 798 N.W.2d 15

(Mich. 2011).

                                                  5
                                          III. ANALYSIS

         In a habeas proceeding, a district court’s legal conclusions and factual findings are subject

to de novo and clear-error review, respectively. Moore v. Berghuis, 700 F.3d 882, 886 (6th Cir.

2012).

                               A. Ineffective Assistance of Counsel

         28 U.S.C. § 2254(d) governs this court’s review. In relevant part, § 2254(d) states:

         An application for a writ of habeas corpus on behalf of a person in custody pursuant
         to the judgment of a State court shall not be granted with respect to any claim that
         was adjudicated on the merits in State court proceedings unless the adjudication of
         the claim—

         (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 . . . .


Section 2254(d) establishes a “‘difficult to meet’ . . . and ‘highly deferential standard for evaluating

state-court rulings, which demands that state-court decisions be given the benefit of the doubt.’”

Cullen v. Pinholster, 131 S.Ct. 1388, 1398 (2011) (citations omitted).

         Under Strickland v. Washington, 466 U.S. 668 (1984), in order to prove ineffective

assistance of counsel, Washington must show both that his counsel’s performance was

constitutionally “deficient” and that this deficient performance resulted in “prejudice.” The

Strickland standard is “highly deferential,” Strickland, 466 U.S. at 689, and “[s]urmounting

Strickland’s high bar is never an easy task.” Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473,

1485 (2010).

         When evaluated under § 2254(d), a court’s review of a Strickland claim is “doubly

deferential.” Knowles v. Mirzayance, 556 U.S. 111, 123 (2009). The state court’s own Strickland

analysis must receive the benefit of the doubt, and “[t]he question is whether there is any reasonable

                                                   6
argument that counsel satisfied Strickland’s deferential standard.” Harrington v. Richter, 131 S.Ct.

770, 788 (2011).

                                     1. Deficient Performance

       To establish deficient performance, Washington must show that his counsel’s representation

fell so far “below an objective standard of reasonableness” that “counsel was not functioning as the

‘counsel’ guaranteed . . . by the Sixth Amendment.” Strickland, 466 U.S. at 687–8. Counsel’s

performance is measured by “prevailing professional norms” at the time of the alleged errors.

Rickman v. Bell, 131 F.3d 1150, 1154 (6th Cir. 1997). Because Washington alleges ineffective

assistance of appellate counsel, he must demonstrate that his appellate counsel’s decision not to raise

the Tanner issue was objectively unreasonable. See Smith v. Ohio Dep’t of Rehab. & Corr., 463

F.3d 426, 433 (6th Cir. 2006). Relevant considerations include whether the unraised Tanner issue

was “significant and obvious,” whether there was “arguably contrary authority on the omitted

issue[],” and whether the omitted issue was “clearly stronger than those presented.” Mapes v. Coyle,

171 F.3d 408, 427–29 (6th Cir. 1999). Washington must overcome the “‘strong presumption’ that

counsel’s representation was within ‘the wide range’ of reasonable professional assistance.”

Harrington, 131 S.Ct. at 778 (citations omitted). Accordingly, the court must “affirmatively

entertain the range of possible reasons [Washington’s] counsel may have had for proceeding as [she]

did.” Pinholster, 131 S.Ct at 1407 (quotation marks omitted); see also Foust v. Houk, 655 F.3d 524,

538 (6th Cir. 2011).

       Because we are evaluating Washington’s Strickland claim under § 2254(d), the inquiry is

whether there is any reasonable argument that his counsel’s conduct fell within the range of

objectively reasonable appellate advocacy. Harrington, 131 S.Ct. at 788. In fact, not only did the

Michigan Circuit Court find a reasonable argument that Washington’s counsel was not

                                                  7
constitutionally deficient, but the court actually discovered the strongest argument available:

Washington’s Tanner issue was meritless at the time of his appeal.

       Washington argues that he would have prevailed on the Tanner issue on direct appeal, but

it is difficult to square this assertion with the facts. Washington’s counsel filed an application for

leave to appeal on March 18, 2008. At that time, the Michigan Supreme Court clearly held that the

Tanner rule “does not apply when a defendant is convicted of an offense punishable by a prison

sentence of ‘life or any term of years’ because the minimum will never exceed 2/3 of the statutory

maximum sentence of life.” Harper, 739 N.W.2d at 534 n.31; see also Drohan, 715 N.W.2d at 790

n. 14; Powe, 679 N.W.2d at 67. Armed robbery is “punishable by imprisonment for life or for any

term of years,” Mich. Comp. Laws § 750.529, and so the Tanner rule did not apply to Washington’s

sentence for that offense.

       In his brief, Washington states that “two of the Michigan Supreme Court’s three most recent

decisions had applied the two-thirds cap to sentences . . . imposed under statutes providing for

imprisonment for ‘life or any term of years.’”4 At oral argument, Washington’s counsel did not deny

that Powe, Drohan, and Harper were the state Supreme Court’s three most recent decisions to

address the Tanner rule, but clarified that he viewed Drohan and Harper’s discussion of the Tanner

rule to be dicta, and that Reid, Irving, and Powe were the most recent pertinent cases because they

had actually applied the Tanner Rule. This contention misses the point. The two cases Washington

cites, Reid and Irving, did indeed apply Tanner to sentences subject to imprisonment for life or any



       4
         Washington’s counsel filed the application for leave to appeal in March 2008 – not March
2007, as Washington states. The error is not crucial, since the relevant law did not change in the
intervening year, see Drohan, 715 N.W.2d at 790 n.14; the only difference is that Michigan Supreme
Court once again (and for the third time) stated that the Tanner rule did not apply to offenses
punishable by a life sentence. Harper, 739 N.W.2d at 534 n.31.

                                                  8
term of years. But Powe marked a clear shift in the law. Reid and Irving pre-dated Powe, and

Powe’s holding that Tanner did not apply to offenses subject to life or any term of years was clearly

decided. Further, Drohan and Harper, the latest two cases to address the question at the time of

Washington’s appeal, confirmed, albeit in dicta, that the Tanner rule did not apply to offenses with

a statutory maximum sentence of life. Harper, 739 N.W.2d at 534 n.31; Drohan, 715 N.W.2d at

790 n. 14; Powe, 679 N.W.2d at 67.

       Given this shift by the highest court of the state, Washington’s counsel could have

reasonably concluded that the Tanner rule no longer applied to her client’s armed robbery sentence

and accordingly decided to focus on issues that would more likely result in some sort of relief. See

Strickland, 466 U.S. at 689. Washington’s counsel faced the Michigan Supreme Court’s statements

that “[the Tanner rule] does not apply when a defendant is convicted of an offense punishable by

a prison sentence of ‘life or any term of years,’” Harper, 739 N.W.2d at 534 n.31 (citing Drohan,

715 N.W.2d at 778 n.14); that “[w]e recently concluded that [the Tanner rule] does not apply when

a defendant is convicted of a crime punishable with imprisonment for ‘life or any term of years’

because the minimum will never exceed 2/3 of the statutory maximum sentence of life,” Drohan,

715 N.W. at 790 n.14 (citing Powe, 679 N.W.2d 67); and that “[s]ince the statutory maximums for

the offenses for which the defendant was convicted are ‘life or any term of years’, the Circuit Court

did not impose sentences that violated [the Tanner rule],” Powe, 679 N.W.2d at 67.

       A reasonably competent attorney could have concluded that the law was settled and that it

was therefore very unlikely that the Michigan Court of Appeals or Supreme Court would have held

that Washington’s sentence violated the Tanner rule. As the Michigan Circuit Court found when

reviewing Washington’s motion for relief from judgment, “the law regarding the 2/3 Rule [i.e., the

Tanner rule] was settled when Defendant’s appeal was argued.” (R.44.) Furthermore, as this court

                                                 9
has stated, “[a]ppellate counsel cannot be found to be ineffective for ‘failure to raise an issue that

lacks merit.’” Shaneberger v. Jones, 615 F.3d 448, 452 (6th Cir. 2010). The Michigan Circuit Court

reasonably concluded that “Defendant’s appellate counsel acted in accordance with the law as it

stood at the time of the appeal.” Therefore, applying the doubly deferential standard of review of

Strickland claims brought under § 2254, we conclude that the state court’s determination was neither

contrary to nor involved an unreasonable application of clearly established federal law. The district

court correctly dismissed Washington’s Strickland claim.

                                            2. Prejudice

       We resolve Washington’s claim without reaching the prejudice prong of the Strickland test.

Because Washington cannot show deficient performance, there is no need to analyze whether he was

prejudiced. Rayner v. Mills, 685 F.3d 631, 638 n.4 (6th Cir. 2012) (“Of course, a habeas court may

decline to reach the second prong if it finds that the petitioner cannot succeed on the first prong.”)

(citing Rogers v. Shepherd, 438 F. App’x 546, 549 (9th Cir. 2011)).

                                     B. Court-Imposed Fees

       Washington claims that he was unconstitutionally required to pay his court-appointed

counsel’s fees. Michigan Comp. Laws § 769.1k(1) provides that, if a defendant pleads guilty or nolo

contendere, the sentencing court may impose “[t]he expenses of providing legal assistance to the

defendant.” The statute does not require the sentencing court to determine the defendant’s ability

to pay before ordering recoupment of attorney’s fees, and the judge who sentenced Washington did

not conduct such an inquiry.      Michigan Comp. Laws § 769.1l requires the Department of

Corrections to deduct 50% of the funds over $50.00 from a prisoner’s account until the

fee-remittance order is paid, and does not require an ability-to-pay determination before the



                                                 10
deductions begin.5 The State argues that the court does not have subject matter jurisdiction over the

fees claim because he is not claiming the right to be released. We find that the crux of the State’s

argument is correct.

        Under § 2254, subject matter jurisdiction exists “only for claims that a person ‘is in custody

in violation of the Constitution or laws or treaties of the United States.’” Dickerson v. United States,

530 U.S. 428, 439 n.3 (2000) (quoting 28 U.S.C. § 2254(a)). In general, fines or restitution orders

fall outside the scope of the federal habeas statute because they do not satisfy the “in custody”

requirement of a cognizable habeas claim. See United States v. Watroba, 56 F.3d 28 (6th Cir. 1995)

(holding that § 2255 does not grant subject matter jurisdiction over restitution orders); Michaels v.

Hackel, 491 F. App’x 670, 671 (6th Cir. 2012) (stating that a fine is not cognizable under § 2254

and citing Watroba, 56 F.3d at 29); see also Bailey v. Hill, 599 F.3d 976, 979 (9th Cir. 2010)

(holding that fines and restitution orders are not cognizable under § 2254); Washington v. Smith, 564

F.3d 1350, 1350–51 (7th Cir. 2009) (same); Tinder v. Paula, 725 F.2d 801, 804 (1st Cir. 1984)

(collecting cases); Randy Hertz & James S. Liebman, 1 Federal Habeas Corpus Practice and

Procedure § 8.2(e) (6th ed. 2012). Further, “collateral relief from a noncustodial punishment, such

as a fine or restitution order, is not made readily available to a defendant just because he happens

at that time to also be subject to custodial penalties.” Brian R. Means, Federal Habeas Manual §

1:21 (2012 ed.). For habeas purposes, it is difficult to distinguish—and Washington does not

attempt to distinguish—an order imposing attorney’s fees from a fine or restitution order. Although



       5
           We note that Washington challenges the constitutionality of the deduction statute, § 769.1l,
for the first time on appeal. In his direct appeal and his habeas petition, Washington only challenged
the constitutionality of § 769.1k(1), which allowed the sentencing court to issue a fee-remittance
order without first determining the defendant’s ability to pay. (Pet’r’s Br. 16–18, Case 2:11-cv-212,
ECF No. 2 (district court); Appellant’s Br. 7–10 (state direct appeal).)

                                                  11
the question of whether a claim satisfies the “in custody” requirement is to some extent one of

degree, Nelson v. Campbell, 541 U.S. 637, 646 (2004), a fee-repayment order falls outside of even

“the margins of habeas,” id., because it is “not a serious restraint on . . . liberty as to warrant habeas

relief.” Tinder, 725 F.2d at 805; Bailey, 599 F.3d at 979 (quoting Tinder).

         The district court should have dismissed that portion of Washington’s petition for lack of

subject matter jurisdiction. Martin v. Overton, 391 F.3d 710, 714 (6th Cir. 2004). Because

Washington brought his petition pro se, we dismiss the fees claim without prejudice. Id.



                                         IV. CONCLUSION

        We AFFIRM the district court’s dismissal of Washington’s Strickland claim and dismiss

Washington’s attorney’s fees claim without prejudice for lack of subject matter jurisdiction.




                                                   12
