Heximer v. Berghuis

Filing 91

MEMORANDUM OPINION and ORDER Denying 1 Petition for Writ of Habeas Corpus, Declining to Issue a Certificate of Appealability, Granting Leave to Appeal In Forma Pauperis, Denying Motion to Show Cause 49 , Denying Motion to Vacate Judgment 51 , and Denying the Motions for Immediate Consideration 48 83 . Signed by District Judge Arthur J. Tarnow. (CPic)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ROBERT JAY HEXIMER,
Petitioner,
v.

Civil No. 2:08-CV-14170
HONORABLE ARTHUR J. TARNOW
UNITED STATES DISTRICT JUDGE

JEFFREY WOODS,
Respondent.
__________________________________/
OPINION AND ORDER DENYING THE PETITION FOR WRIT OF HABEAS CORPUS,
DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY, GRANTING LEAVE
TO APPEAL IN FORMA PAUPERIS, DENYING MOTION TO SHOW CAUSE [DKT.
49], DENYING MOTION TO VACATE JUDGMENT [DKT. 51], AND DENYING THE
MOTIONS FOR IMMEDIATE CONSIDERATION [DKT ## 48, 83]
Robert Jay Heximer, (“Petitioner”), presently confined at the Chippewa
Correctional Facility in Kincheloe, Michigan, has filed a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254. 1 In his application, filed pro se, petitioner challenges his
conviction for solicitation to commit murder, M.CL.A. 750.157b; first-degree home
invasion, M.C.L.A. 750.110a(2); and felonious assault, M.C.L.A. 750.82. For the
reasons stated below, the petition for writ of habeas corpus is DENIED.

1

When petitioner originally filed his petition for writ of habeas corpus, he was
incarcerated at the West Shoreline Correctional Facility, but has since been transferred
to the Chippewa Correctional Facility. The only proper respondent in a habeas case is
the habeas petitioner’s custodian, which in the case of an incarcerated habeas
petitioner would be the warden of the facility where the petitioner is incarcerated. See
Edwards Johns, 450 F. Supp. 2d 755, 757 (E.D. Mich. 2006); See also Rule 2(a), 28
foll. U.S.C. § 2254. Therefore, the Court substitutes Warden Jeffrey Woods in the
caption.

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Heximer v. Woods, U.S.D.C. No. 08-14170
I. Introduction
Petitioner pleaded nolo contendere to the above charges in the Livingston
County Circuit Court. In exchange for his plea, the prosecutor agreed that petitioner’s
minimum sentence on the solicitation to commit murder charge would be no greater
than fourteen years. The parties further agreed that the sentences would run
concurrently on all three charges. The prosecutor further agreed to a conditional plea
which would allow petitioner to preserve the right to appeal his claim that he had been
entrapped by a jailhouse informant to solicit his ex-wife’s murder. On February 12,
2007, petitioner was sentenced to fourteen to thirty five years in prison on the
solicitation to commit murder conviction, seven and a half to twenty years on the firstdegree home invasion conviction, and two and a half to four years on the felonious
assault conviction. Sentences to run concurrently.
Petitioner filed a direct appeal to the Michigan Court of Appeals, in which he
raised a claim of entrapment and a claim that the trial court had erroneously ordered
petitioner to pay attorney fees without first determining his ability to pay. The Michigan
Court of Appeals remanded the matter to the trial court to assess petitioner’s ability to
reimburse the county for attorney fees and denied leave to appeal with respect to the
entrapment claim. People v. Heximer, No. 283686 (Mich.Ct.App. May 21, 2008).
Petitioner then filed a a pro se application for leave to appeal to the Michigan
Supreme Court. While the application was still pending before that court, petitioner filed
a petition for writ of habeas corpus, in which he sought habeas relief on the two claims
that he had raised before the Michigan Court of Appeals, as well as an additional ten

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Heximer v. Woods, 2:08-CV-14170
claims that he raised for the first time in his application for leave to appeal to the
Michigan Supreme Court.
This dismissed petitioner’s habeas application, on the ground that petitioner had
failed to exhaust his state court remedies with respect to the twelve claims that he had
raised in his habeas petition. See Heximer v. Berghuis, No. 2008 WL 4539431 (E.D.
Mich. October 6, 2008).
Petitioner appealed the Court’s dismissal to the United States Court of Appeals
for the Sixth Circuit. On August 30, 2010, the parties jointly moved for the Sixth Circuit
to remand the matter to this Court, on the ground that petitioner had now exhausted his
state court remedies. Heximer v. Berghuis, U.S.C.A. 09-1069 (6th Cir. August 30, 2010).
The Michigan Supreme Court, in fact, denied petitioner’s application for leave to appeal
on October 27, 2008. People v. Heximer, 482 Mich. 1034, 757 N.W.2d 92 (2008).
This Court reinstated the petition to the Court’s active docket and ordered a
responsive pleading from respondent. Heximer v. Berghuis, No. 2010 WL 4973748
(E.D. Mich. November 30, 2010).
On January 20, 2011, petitioner filed a memorandum of law in support of the
petition for writ of habeas corpus.
On January 28, 2011, respondent filed an answer to the petition for writ of
habeas corpus. Petitioner has filed several replies to the answer.

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Heximer v. Woods, 2:08-CV-14170
Petitioner appears to seek habeas relief on the following twenty two claims that
he has articulated in his memorandum of law in support of his petition for writ of habeas
corpus:2
I. Whether the Government’s failure to comply with two discovery demands,
and produce Brady and/or Giglio material, and its destruction of evidence
violated the due process rights of the Petitioner – requires the dismissal of
charges.
II. Whether the complete absence of counsel during a critical stage
mandates a presumption of prejudice, for purposes of Sixth Amendment
deprivation of counsel claim, and requires automatic reversal.
III. Whether the State’s failure to provide unbiased and impartial judge(s) is
a structural defect that violated due process, and requires automatic reversal.
IV. Whether counsel’s failure to subject the prosecution’s case to meaningful
adversarial testing constitutes an actual or constructive denial of counsel,
and requires automatic reversal.
V. Whether the State’s knowing exploitation of the opportunity to confront the
accused without counsel present circumvents the Sixth Amendment, and
mandates reversal.
VI. Whether the initial entry to Mr. Heximer’s home was in absence of
probable cause and requires suppression of all evidence, both tangible and
testimonial, under both the exclusionary rule and fruit-of-the-poisonous-tree
doctrine?
VII. Whether the complaint(s) against Mr. Heximer are insufficient because
they fail to meet the probable cause requirement contained in Rule four of the
Federal Rules of Criminal Procedure: Giordenello v. United States and the
Fourth Amendment.

2

In his original habeas petition, petitioner sought habeas relief on twelve
grounds which are identical to the claims that he raises in his memorandum of law.
Because the claims that were raised in his original petition are duplicative of the claims
raised by petitioner in his memorandum of law, it would be repetitive to list these claims
separately, as respondent has done in the answer.

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Heximer v. Woods, 2:08-CV-14170
VIII. Whether the initial entry, seizure, and multiple searches – in absence
of any warrant, consent or probable cause and exigent circumstances –
violated the Fourth Amendment and requires suppression of all evidence,
both direct and derivative, tangible and testimonial.
IX. Whether the subsequent search warrant – premised on illegally obtained
evidence; an affidavit that contains both false statements and deliberate
omissions of crucial facts; and knowledge acquired during unlawful entry and
searches – was valid, and requires suppression of all evidence, both direct
and derivative, tangible and testimonial.
X. Whether the arrest warrant(s) – premised on insufficient complaint(s);
illegally obtained evidence; no competent witness; phrased in conclusory
language; and lack of judicial signature – are valid under the Fourth
Amendment, and holds no legal basis for detention.
XI. Whether there is sufficient evidence to sustain a conviction or order a
new trial once the court finds the police violated the Fourth Amendment and
orders suppression of all evidence, both direct and derivative, tangible and
testimonial.
XII. Whether the judgments are void where the court lacked jurisdiction of
the subject matter, or of the parties, or acted in an manner inconsistent with
due process.
XIII. Whether trial counsel’s performance was deficient, falling below
reasonable professional standards – denying Mr. Heximer his fundamental
right to the effective assistance of counsel guaranteed by the Sixth
Amendment, and requires reversal.
XIV. Whether appellate counsel’s performance was deficient, falling below
reasonable professional standards – denying Mr. Heximer his fundamental
right to the effective assistance of counsel guaranteed by the Sixth
Amendment, and requires reversal.
XV. Whether the State violated Mr. Heximer’s Fifth Amendment rights
through use of their agent, cellmate of Mr. Heximer, who was acting by
prearrangement and incriminating statements were obtained.
XVI. Whether the State violated Mr. Heximer’s Sixth Amendment rights
where their agent circumvented the right to counsel to deliberately elicit
information.

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Heximer v. Woods, 2:08-CV-14170
XVII. Whether the State violated Mr. Heximer’s Fourth Amendment rights
where they placed a transmitting device on their agent to record
conversations between their agent and Mr. Heximer, without a warrant or
consent form, after the right to counsel had attached.
XVIII. Whether the trial court abused its discretion for: (1) failure to certify its
disqualification; (2) failure to rule on discovery demands motion; (3) denial of
counsel change; (4) admission of evidence that was tainted, incomplete and
no proper foundation laid; (5) failure to rule on impeachment of Agent Hunt
under MRE 609; (6) failure to enforce sequestration order; (7) denial of
entrapment motion; (8) failure to properly accommodate Mr. Heximer’s
hearing loss; (9) awarding exclusive use of the marital home – an alleged
crime scene – to the alleged victim the day after Mr. Heximer’s unlawful
seizure and detention; and (10) excessive bail.
XIX. Whether the prosecution committed prosecutorial misconduct by: (1)
initiating charges in absence of probable cause; (2) violations of discovery,
Brady/Giglio, and destruction of evidence; (3) circumvention of counsel; (4)
deliberately elicited information; 5) evidentiary issues; (6) failure to disclose
agreement with prosecution witness (Hunt); (7) perjured testimony; (8)
search warrant affidavit contains false statements and deliberate omissions;
(9) invalid arrest warrant; and (10) invalid search warrant.
XX. Whether the use of “testimonial” statements in the police report, where
that report was taken from a file and utilized by another officer – who had not
conducted any investigation nor had any personal knowledge of facts – to
swear to the complaint; and exculpatory evidence was withheld by the
prosecution in that Mr. Heximer could not confront that evidence, violates the
confrontation clause.
XXI. Whether Mr. Heximer was entrapped, as a matter of law, where law
enforcement officials originate the criminal design (through Agent Hunt),
implant the disposition to commit a criminal act – then instigate and induce
the commission of the crime so that the government may prosecute.
XXII. Whether the 44th Circuit Court is required to honor a “contract” for the
repayment of attorneys fees.
II. Standard of Review
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

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Heximer v. Woods, 2:08-CV-14170
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;
or
(2)
resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.
28 U.S.C. § 2254(d); Harpster v. State of Ohio, 128 F. 3d 322, 326 (6th Cir. 1997).
Additionally, this Court must presume the correctness of state court factual
determinations. 28 U.S.C. § 2254(e)(1).
A decision of a state court is "contrary to" clearly established federal law if the
state court arrives at a conclusion opposite to that reached by the Supreme Court on a
question of law or if the state court decides a case differently than the Supreme Court
has on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 40506 (2000). An "unreasonable application" occurs when “a state court decision
unreasonably applies the law of [the Supreme Court] to the facts of a prisoner’s case.”
Id. at 409. A federal habeas court may not “issue the writ simply because that court
concludes in its independent judgment that the relevant state-court decision applied
clearly established federal law erroneously or incorrectly." Id. at 410-11.
However, when a state court fails to adjudicate a habeas petitioner’s claim on
the merits, federal habeas review is not subject to the deferential standard contained in
§ 2254(d) and a federal court is required to review that claim de novo. See Cone v.
Bell, 129 S. Ct. 1769, 1784 (2009); Wiggins v. Smith, 539 U.S. 510, 534 (2003);
McKenzie v. Smith, 326 F. 3d 721, 726 (6th Cir. 2003). In the present case, the

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Heximer v. Woods, 2:08-CV-14170
Michigan Court of Appeals and the Michigan Supreme Court denied petitioner’s claims
by form order. In this case, “there are simply no results, let alone reasoning, to which
this court can defer. Without such results or reasoning, any attempt to determine
whether the state court decision ‘was contrary to, or involved an unreasonable
application of clearly established Federal law,’ 28 U.S.C. § 2254(d)(1), would be futile.”
McKenzie, 326 F. 3d at 727; See also Maples v. Stegall, 340 F.3d 433, 437 (6th Cir.
2003)(Michigan courts' failure to consider the petitioner's ineffective assistance of
counsel claims rendered the AEDPA's deferential standard of review inapplicable, thus,
the Sixth Circuit would review petitioner’s claims under a de novo standard); Daniel v.
Palmer, 719 F. Supp. 2d 817, 825-26 (E.D. Mich. 2010)(same). Accordingly, this Court
cannot apply the deferential standard of review contained in the AEDPA but must
review de novo petitioner’s claims. 3
3

The Court is aware that respondent’s counsel failed to address the merits of
some of the issues that were raised in the petition, even though she was clearly aware
of all of petitioner’s claims. Respondent’s counsel simply chose to argue that all of
petitioner’s claims had been waived by his nolo contendere plea. As will be discussed
below, most of petitioner’s claims were waived by his plea, however, several were not.
Respondent’s counsel did not address the merits of these claims. Petitioner, however, is
not entitled to habeas relief because of respondent counsel’s failure to effectively
respond to these claims, because to do so “would be tantamount” to granting a default
judgment to petitioner in this case, which is a form of relief unavailable in habeas
proceedings. See Ward v. Wolfenbarger, 323 F. Supp. 2d 818, 828, n. 6 (E.D. Mich.
2004); modified on other grds, 340 F. Supp. 2d 773 (E.D. Mich. 2004); Alder v. Burt,
240 F. Supp. 2d 651, 677 (E.D. Mich. 2003)(both citing to Allen v. Perini, 424 F. 2d 134,
138 (6th Cir. 1970)); See also Gordon v. Duran, 895 F. 2d 610, 612 (9th Cir. 1990)(failure
of state to respond to five of eight claims raised in habeas petition did not entitle habeas
petitioner to default judgment on those claims). While respondent counsel’s failure to
address some of these claims demonstrates a lack of respect for the Court, as well as a
lack of regard for the gravity of the matters raised in this case, See Carpenter v.
Vaughn, 888 F. Supp. 635, 648 (M.D. Pa. 1994), it would not provide petitioner a basis

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Heximer v. Woods, 2:08-CV-14170
III. Discussion
A. The motion to show cause.
Petitioner has filed a motion to show cause, in which he asks this Court to hold
respondent in contempt for failing to provide the Rule 5 materials to this Court.
The habeas corpus rules require respondents to attach the relevant portions of
the transcripts of the state court proceedings, if available, and the court may also order,
on its own motion, or upon the petitioner’s request, that further portions of the
transcripts be furnished. Griffin v. Rogers, 308 F. 3d 647, 653 (6th Cir. 2002); Rules
Governing § 2254 Cases, Rule 5, 28 U.S.C. foll. § 2254.
A review of the court’s docket indicates that the Rule 5 materials were provided
to this Court by respondent on May 7, 2010, before this case had even been remanded
back by the Sixth Circuit. [See Dkt. Entry # 18]. Accordingly, there is no reason to
compel the production of these documents or to hold respondent in contempt.
Petitioner’s motion to order respondent to file the specified Rule 5 materials or to hold
him in contempt will therefore be denied. See e.g. Burns v. Lafler, 328 F. Supp. 2d 711,
717-18 (E.D. Mich. 2004).

B. The excessive bail claims have been mooted by petitioner’s conviction.
In his eighteenth claim, petitioner alleges that the trial judge set an excessive
bail.

for habeas relief.

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Heximer v. Woods, 2:08-CV-14170
Petitioner’s conviction has rendered moot any constitutional claims regarding his
pre-trial bail. See U.S. v. Manthey, 92 Fed. Appx. 291, 297 (6th Cir. 2004)(citing Murphy
v. Hunt, 455 U.S. 478, 481 (1982)(“Hunt’s claim to pretrial bail was moot once he was
convicted”)).
C. Petitioner’s claims which challenge pre-plea deprivations of his
constitutional rights have been waived by his nolo contendere plea.
Petitioner has brought a number of claims which allege violations to his
constitutional rights that occurred prior to the entry of his nolo contendere plea.
Because many of these claims are duplicative and often overlap with other claims, for
judicial clarity, this Court will summarize these claims rather than recite them again
verbatim or reference them by number. In a number of his claims, petitioner alleges
that the criminal complaint that was filed in this case was defective and thus deprived
the state court of jurisdiction over his case. Petitioner further alleges several Fourth
Amendment violations by the police. Petitioner further alleges that his Fifth
Amendment right against self-incrimination and his Sixth Amendment right to counsel
were violated when the police used a jailhouse informant to obtain incriminating
information from petitioner. Petitioner further claims that the prosecutor committed
misconduct. Petitioner further argues that in the absence of the illegally obtained
evidence in this case, there was insufficient evidence to convict him of these offenses.
Petitioner next contends that the magistrate judge should have recused himself from
petitioner’s preliminary examination because of a prior business dealing between the
two men and that the circuit court judge should have recused himself from petitioner’s

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Heximer v. Woods, 2:08-CV-14170
case because he simultaneously presided over the divorce case between petitioner
and the victim and in fact awarded the marital home to petitioner. Petitioner lastly
contends that trial counsel was ineffective for various reasons. Respondent contends
that these claims have been waived by petitioner’s plea of nolo contendere. With
several exceptions, the Court agrees.
A properly invoked guilty plea normally forecloses conviction challenges based
on antecedent non-jurisdictional errors. Tollett v. Henderson, 411 U.S. 258, 267 (1973);
Seeger v. Straub, 29 F. Supp. 2d 385, 390 (E.D. Mich. 1998). A guilty plea represents
a break in the chain of events which has proceeded it in the criminal process; when a
criminal defendant has solemnly admitted in open court that he or she is in fact guilty of
the offense which he or she is charged, the defendant may not thereafter raise
independent claims relating to the deprivation of constitutional rights which occurred
prior to the entry of the guilty plea. Tollett, 411 U.S. at 267. A nolo contendere plea
also constitutes a waiver of all non-jurisdictional defects. United States v. Freed, 688 F.
2d 24, 25 (6th Cir. 1982); See also Shanks v. Wolfenbarger, 387 F. Supp. 2d 740, 747
(E.D. Mich. 2005). 4
4

The Court is aware that the prosecutor agreed that petitioner’s plea could be
conditioned upon his right to raise an entrapment claim on appeal. Petitioner’s
conditional plea did not preserve any of the additional pre-plea constitutional
deprivations because the only issue that the parties agreed to preserve for appeal was
petitioner’s claim that he had been entrapped into soliciting his wife’s murder. A
conditional guilty plea requires the agreement of the defendant, the prosecution, and the
court. See People v. Andrews, 192 Mich. App. 706, 707; 481 N. W. 2d 831 (1992).
Petitioner’s nolo contendere plea waived appellate review of any of these additional
constitutional claims, because his plea was conditioned on only his right to raise an
entrapment claim. See People v. Wynn, 197 Mich. App. 509, 510; 496 N.W. 2d 799

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Heximer v. Woods, 2:08-CV-14170
Under Michigan law, a plea to the information waives any challenge to
irregularities in the complaint. See U.S. ex rel. Penachio v. Kropp, 448 F.2d 110, 111
(6th Cir. 1971); Rogers v. Kropp, Warden, 387 F. 2d 374, 375 (6th Cir. 1968). Because
petitioner pleaded nolo contendere to the charges without ever challenging the alleged
deficiencies with the criminal complaint, petitioner is precluded from obtaining habeas
relief on these issues.
Moreover, petitioner’s claim that the trial court lacked jurisdiction to try his case
because of alleged deficiencies in the complaint raises an issue of state law, because it
questions the interpretation of Michigan law, and is therefore not cognizable in federal
habeas review. The determination of whether a state court is vested with jurisdiction
under state law over a criminal case is a function of the state courts, not the federal
courts. Wills v. Egeler, 532 F. 2d 1058, 1059 (6th Cir. 1976); See also Daniel v.
McQuiggin, 678 F.Supp. 2d 547, 553 (E.D. Mich. 2009). The Sixth Circuit has noted
that “[a] state court's interpretation of state jurisdictional issues conclusively establishes
jurisdiction for purposes of federal habeas review.” Strunk v. Martin, 27 Fed. Appx.
473, 475 (6th Cir. 2001). Petitioner’s claim that the trial court lacked jurisdiction to try
his case raises an issue of state law, because it questions the interpretation of
Michigan law, and is therefore not cognizable in federal habeas review. See United
States ex. rel. Holliday v. Sheriff of Du Page County, Ill., 152 F. Supp. 1004, 1013
(N.D. Ill. 2001); Cf. Toler v. McGinnis, 23 Fed. Appx. 259, 266 (6th Cir. 2001)(district

(1992).

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Heximer v. Woods, 2:08-CV-14170
court lacked authority on habeas review to review petitioner’s claim that the state court
erred in refusing to instruct jury on the requirements for extraterritorial jurisdiction,
because the claim was contingent upon an interpretation of an alleged violation of state
law).
Petitioner’s nolo contendere plea waived any Fourth Amendment challenges to
the legality of his arrest or the search. See e.g. United States v. Herrera, 265 F.3d 349,
351 (6th Cir. 2001)(“It is elemental that a guilty pleading defendant may not appeal an
adverse pre-plea ruling on a suppression of evidence motion unless he has preserved
the right to do so by entering a conditional plea of guilty in compliance with
Fed.R.Crim.P. 11(a)(2)”); See also U.S. v. Kirksey, 118 F.3d 1113, 1114-15 (6th Cir.
1997). The Michigan Supreme Court has also held that an unconditional plea of guilty
waives review of Fourth Amendment challenges to the legality of an arrest or a search.
See People v. New, 427 Mich. 482, 494; 398 N.W.2d 358 (1986).
Petitioner’s various Fifth Amendment challenges involve non-jurisdictional
issues which would likewise be waived by his nolo contendere plea. See e.g. Reed v.
Henderson, 385 F. 2d 995, 996 (6th Cir. 1967)(an alleged Miranda violation is not a
jurisdictional issue and is waived by a guilty plea); Williams v. Anderson, 498 F. Supp.
151, 152 (E.D. Mich. 1980)(entry of guilty plea precluded collateral habeas corpus
attack on alleged coerced confession). Petitioner’s related claim that the police
violated his Sixth Amendment right to counsel by using a jailhouse informant to obtain
incriminating information from petitioner is likewise waived by petitioner’s nolo
contendere plea, because it involves conduct that occurred prior to the entry of

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petitioner’s plea. See e.g. Mitchell v. Superior Court for Santa Clara County, State of
Cal., 632 F.2d 767, 770 (9th Cir. 1980).
Petitioner’s prosecutorial misconduct claims were also waived by his nolo
contendere plea, because they all involve alleged prosecutorial misconduct that
happened prior to petitioner’s entry of his plea. A plea of guilty or nolo contendere
waives a defendant’s right to claim pre-plea claims of prosecutorial misconduct. See
U.S. v. Ayantayo, 20 Fed. Appx. 486, 487-88 (6th Cir. 2001).
Petitioner further claims that in the absence of any illegally obtained evidence,
there was insufficient evidence to convict him of these charges. By entering a nolo
contendere plea, petitioner has waived his right to challenge the sufficiency of the
evidence to convict him of these charges. See United States v. Manni, 810 F.2d 80, 84
(6th Cir. 1987); See also U.S. v. Hawkins, 8 Fed. Appx. 332, 334 (6th Cir. 2001).
Petitioner’s claim that the district court judge and the circuit court judge should
have recused themselves from petitioner’s case has likewise been waived by
petitioner’s nolo contendere plea, because petitioner entered his plea knowing that the
district judge had owed him money and that the circuit judge had presided over his
divorce case and had ruled adversely against him at the entrapment hearing. See Bray
v. Sowders, 810 F.2d 199 (Table); No. 1986 WL 16209, * 1 (6th Cir. November 17,
1986).
Finally, pre-plea claims of ineffective assistance of trial counsel like the ones
complained of by petitioner are considered nonjurisdictional defects that are waived by
a guilty plea. See United States v. Stiger, 20 Fed. Appx. 307, 309 (6th Cir. 2001);

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Heximer v. Woods, 2:08-CV-14170
Siebert v. Jackson, 205 F. Supp. 2d 727, 733-34 (E.D. Mich. 2002)(habeas petitioner’s
claims regarding alleged deprivations of his constitutional rights that occurred before
his guilty plea, as a result of his trial counsel’s alleged ineffective assistance, were
foreclosed by his guilty plea).
Thus, petitioner’s claims involving the alleged ineffective assistance of counsel that
occurred prior to the entry of his plea are waived.
Petitioner, however, has also alleged that trial counsel was ineffective for
advising him to plead nolo contendere. Because this claim goes to the voluntariness of
petitioner’s plea, this claim would not be waived by the plea and will be addressed
below. The Court also notes that petitioner’s ineffective assistance of appellate
counsel claim would not be waived by his nolo contendere plea. Lastly, petitioner’s
entrapment claims are preserved because the prosecutor agreed to a conditional plea
with respect to this claim.
D. Petitioner’s remaining ineffective assistance of counsel claims are
meritless.
As part of petitioner’s thirteenth claim that he raises in his memorandum of law,
petitioner contends that trial counsel was ineffective for advising him to plead nolo
contendere, rather than go to trial. Petitioner also alleges that he was deprived of the
effective assistance of appellate counsel.
The Sixth Amendment guarantees the accused in a criminal prosecution the
right to the effective assistance of counsel. Strickland v. Washington, 466 U.S. 668
(1984). Strickland sets forth a two-part test for assessing claims of ineffective

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assistance. First, did the attorney make errors “so serious that counsel was not
functioning as the counsel guaranteed by the Sixth Amendment,” 466 U.S. at 687. To
establish deficient performance under this prong of Strickland, the defendant must
show that his attorney’s representation “fell below an objective standard of
reasonableness.” Id., at 688. The second prong of Strickland examines whether the
defendant was prejudiced by counsel’s deficient performance. To meet the prejudice
standard, a “defendant must show that there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have been different.
A reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Id. at 694. The Strickland standard applies as well to claims of ineffective
assistance of appellate counsel. See Whiting v. Burt, 395 F. 3d 602, 617 (6th Cir. 2005).
Petitioner initially contends that his trial counsel was ineffective for advising him
to plead nolo contendere, rather than take the case to trial.
The Supreme Court has recently noted that:
Acknowledging guilt and accepting responsibility by an early plea respond
to certain basic premises in the law and its function. Those principles are
eroded if a guilty plea is too easily set aside based on facts and
circumstances not apparent to a competent attorney when actions and
advice leading to the plea took place. Plea bargains are the result of
complex negotiations suffused with uncertainty, and defense attorneys must
make careful strategic choices in balancing opportunities and risks. The
opportunities, of course, include pleading to a lesser charge and obtaining
a lesser sentence, as compared with what might be the outcome not only at
trial but also from a later plea offer if the case grows stronger and
prosecutors find stiffened resolve. A risk, in addition to the obvious one of
losing the chance for a defense verdict, is that an early plea bargain might
come before the prosecution finds its case is getting weaker, not stronger.
The State’s case can begin to fall apart as stories change, witnesses
become unavailable, and new suspects are identified.

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Premo v. Moore, 131 S. Ct. 733, 741 (2011).
The Supreme Court further admonished:
These considerations make strict adherence to the Strickland standard all
the more essential when reviewing the choices an attorney made at the plea
bargain stage. Failure to respect the latitude Strickland requires can create
at least two problems in the plea context. First, the potential for the
distortions and imbalance that can inhere in a hindsight perspective may
become all too real. The art of negotiation is at least as nuanced as the art
of trial advocacy and it presents questions farther removed from immediate
judicial supervision. There are, moreover, special difficulties in evaluating
the basis for counsel’s judgment: An attorney often has insights borne of
past dealings with the same prosecutor or court, and the record at the
pretrial stage is never as full as it is after a trial. In determining how
searching and exacting their review must be, habeas courts must respect
their limited role in determining whether there was manifest deficiency in
light of information then available to counsel. AEDPA compounds the
imperative of judicial caution.
Second, ineffective-assistance claims that lack necessary foundation may
bring instability to the very process the inquiry seeks to protect. Strickland
allows a defendant “to escape rules of waiver and forfeiture,”. Prosecutors
must have assurance that a plea will not be undone years later because of
infidelity to the requirements of AEDPA and the teachings of Strickland. The
prospect that a plea deal will afterwards be unraveled when a court
second-guesses counsel’s decisions while failing to accord the latitude
Strickland mandates or disregarding the structure dictated by AEDPA could
lead prosecutors to forgo plea bargains that would benefit defendants, a
result favorable to no one.
Premo, 131 S. Ct. at 741-42 (internal citations and quotations omitted).
Moreover, in order to satisfy the prejudice requirement for an ineffective
assistance of counsel claim in the context of a guilty plea, the defendant must show
that there is a reasonable probability that, but for counsel’s errors, he or she would not
have pleaded guilty or nolo contendere, but would have insisted on going to trial.
Premo, 131 S. Ct. at 743 (citing Hill v. Lockhart, 474 U.S. 52, 58-59 (1985). An
assessment of whether a defendant would have gone to trial but for counsel’s errors

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“will depend largely on whether the affirmative defense likely would have succeeded at
trial.” Hill, 474 U.S. at 59. The Sixth Circuit has interpreted Hill to require a federal
habeas court to always analyze the substance of the habeas petitioner’s underlying
claim or defense to determine whether but for counsel’s error, petitioner would likely
have gone to trial instead of pleading guilty or nolo contendere. See Maples v. Stegall,
340 F. 3d at 440. The petitioner must therefore show a reasonable probability that but
for counsel’s errors, he would not have pleaded guilty or nolo contendere, because
there would have been a reasonable chance that he would have been acquitted had he
insisted on going to trial. Doyle v. Scutt, 347 F. Supp. 2d 474, 484 (E.D. Mich. 2004).
Petitioner has failed to show a reasonable probability that he could have
prevailed had he insisted on going to trial, or that he would have received a lesser
sentence than he did by pleading nolo contendere. See Shanks v. Wolfenbarger, 387
F. Supp. 2d at 750.
With respect to the home invasion and felonious assault charges, petitioner
contends that the police entered his house illegally and that his resulting arrest was the
fruit of that illegal arrest. The Supreme Court has held that “[T]he ‘body’ or identity of a
defendant or respondent in a criminal or civil proceeding is never itself suppressible as
a fruit of an unlawful arrest, even if it is conceded that an unlawful arrest, search, or
interrogation occurred.” INS v. Lopez-Mendoza, 468 U.S. 1032, 1039 (1984).
Petitioner does not deny that he broke into his ex-wife’s house and assaulted her with a
knife. The mere fact that petitioner may have been illegally arrested would not have

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prevented his ex-wife and any other witnesses from testifying concerning the home
invasion and felonious assault charges.
With respect to the solicitation to commit murder charge, the Court is aware that
petitioner raised an entrapment claim. However, in Michigan, the defense of
entrapment is decided by the judge, not the jury. See People v. D'Angelo, 401 Mich.
167, 173-76, 257 N.W.2d 655 (1977); See also People v. Woods, 241 Mich. App. 545,
216; 616 N.W.2d 211 (2000). Petitioner had already conducted a hearing on his
entrapment claim before the trial judge, who rejected the claim. Petitioner could not
present his entrapment claim again to the jury.
Moreover, in the present case, trial counsel negotiated a plea bargain in which
petitioner pleaded nolo contendere to solicitation to commit murder, which carries up to
life in prison, first-degree home invasion, and felonious assault, in exchange for which
the prosecutor agreed that petitioner’s minimum sentence would not exceed fourteen
years. The prosecutor further agreed that the three sentences would run concurrently
with one another. 5 Finally, defense counsel was able to get the prosecutor to agree to
allow petitioner’s plea be conditioned on his right to appeal the entrapment issue to the
Michigan appellate courts. Trial counsel’s advice to petitioner to accept the plea
agreement, which limited petitioner’s sentence exposure while still preserving his right
to appeal the denial of his entrapment motion, which if successful on appeal would

5

M.C.L.A. 750.110a(8) permits a trial court, in its discretion, to order a term of
imprisonment for first-degree home invasion to be served consecutively to any term of
imprisonment imposed for any other criminal offense arising from the same transaction.

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Heximer v. Woods, 2:08-CV-14170
have led to the dismissal of the solicitation to commit murder charge, was not
unreasonable. Accordingly, petitioner is not entitled to habeas relief on this claim.
Petitioner next contends that he was deprived of the effective assistance of
appellate counsel, because she only raised two claims on his appeal before the
Michigan Court of Appeals, namely, his entrapment claim and his claim involving the
Court’s assessment of court-appointed attorney fees.
The Sixth Amendment guarantees a defendant the right to the effective
assistance of counsel on the first appeal by right. Evitts v. Lucey, 469 U.S. 387, 396397 (1985). However, court appointed counsel does not have a constitutional duty to
raise every nonfrivolous issue requested by a defendant. Jones v. Barnes, 463 U.S.
745, 751 (1983).
The Sixth Circuit Court of Appeals has identified the following factors to be
considered in determining whether appellate counsel was constitutionally ineffective in
failing to raise certain issues on appeal:
1. Were the omitted issues significant and obvious?
2. Was there arguably contrary authority on the omitted issues?
3. Were the omitted issues clearly stronger than those presented?
4. Were the omitted issues objected to at trial?
5. Were the trial court's rulings subject to deference on appeal?
6. Did appellate counsel testify in a collateral proceeding as to his appeal
strategy and, if so, were the justifications reasonable?
7. What was appellate counsel's level of experience and expertise?
8. Did the petitioner and appellate counsel meet and go over possible
issues?

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Heximer v. Woods, 2:08-CV-14170
9. Is there evidence that counsel reviewed all the facts?
10. Were the omitted issues dealt with in other assignments of error?
11. Was the decision to omit an issue an unreasonable one which only an
incompetent attorney would adopt?
Mapes v. Coyle, 171 F. 3d 408, 427-428 (6th Cir. 1999).
Petitioner first contends that appellate counsel was ineffective for failing to raise
any claims regarding the allegedly defective criminal complaint, the alleged Fourth
Amendment violations, the alleged Fifth Amendment violations, the claim involving the
use of the jailhouse informant to obtain incriminating information from petitioner, and
trial counsel’s ineffectiveness for failing to challenge the legality of the search of
petitioner’s house and his arrest, trial counsel’s alleged deficiencies in preparing for
and conducting the entrapment hearing, and trial counsel’s failure to move to recuse
either the district court or circuit court judges. Petitioenr further claims that appellate
counsel was ineffective for failing to obtain the lower court records that would be
necessary to present these claims. Petitioner claims that his appellate counsel
informed him that she would not raise these claims because they had been waived by
petitioner’s nolo contendere plea.
As mentioned in Section C, supra, appellate review of these various claims was
waived by petitioner’s nolo contendere plea. An appellate counsel is not ineffective for
failing to raise a claim on direct appeal that would be considered to have been waived
by the defendant’s guilty or nolo contendere plea, i.e., a non-jurisdictional claim. See
Triplet v. Franklin, 365 Fed. Appx. 86, 95 (10th Cir. 2010). Because the omitted claims

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Heximer v. Woods, 2:08-CV-14170
were waived by petitioner’s nolo contendere plea, appellate counsel was not ineffective
for failing to raise these claims on petitioner’s direct appeal.
To the extent that petitioner is alleging that appellate counsel was ineffective for
failing to raise on direct appeal petitioner’s claim that trial counsel was ineffective for
advising him to plead nolo contendere, this Court has found that claim to be without
merit. Because petitioner has failed to show that his trial counsel was ineffective in
advising him to plead nolo contendere, petitioner is unable to establish that appellate
counsel was ineffective for failing to raise this ineffective assistance of trial counsel
claim on petitioner’s direct appeal. See Johnson v. Smith, 219 F. Supp. 2d 871, 883
(E.D. Mich. 2002).
Petitioner next contends that appellate counsel was ineffective for failing to file
an application for leave to appeal on his behalf with the Michigan Supreme Court
following the denial of his appeal by the Michigan Supreme Court.
A criminal defendant does not have a constitutional right to counsel to pursue
discretionary state appeals. Wainwright v. Torna, 455 U.S. 586, 587-88 (1982). “The
right to appointed counsel extends to the first appeal of right, and no further.”
Pennsylvania v. Finley, 481 U.S. 551, 555 (1987). Because there is no constitutional
right to the effective assistance of counsel on a discretionary appeal, petitioner cannot
claim that counsel was ineffective for failing to file an application for leave to appeal
with the Michigan Supreme Court. Wainwright v. Torna, 455 U.S. at 587-88; 102 S. Ct.
at 1301; See also Harris v. Stegall, 157 F. Supp. 2d 743, 750 (E.D. Mich. 2001).

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Heximer v. Woods, 2:08-CV-14170
Petitioner is not entitled to habeas relief on these ineffective assistance of counsel
claims.
E. Petitioner’s entrapment claims are non-cognizable on habeas review.
In several claims, petitioner alleges that he was entrapped by a jailhouse
informant and the police whom he was working for into soliciting his wife’s murder.
It is well-established that entrapment is not a constitutional defense. See
Hampton v. United States, 425 U.S. 484, 488-91 (1976) (plurality opinion); United
States v. Russell, 411 U.S. 423, 430 (1973); United States v. Tucker, 28 F 3d 1420,
1426-28 (6th Cir. 1994); Seeger v. Straub, 29 F. Supp. 2d at 390-91. In Tucker, the
Sixth Circuit declined to recognize a due process claim based upon a federal
informant’s conduct during a reverse buy operation in which the police would “pose as
sellers of [contraband], set up deals with would-be buyers under carefully controlled
conditions, and arrest the purchasers following the sham sale.” Id. at 1421 (internal
quotation omitted). In examining the defendant’s claim that his due process rights
were violated, the Sixth Circuit Court of Appeals held that the due process claim
involved “nothing more than a claim of entrapment” and therefore failed to state a
constitutional claim. Id. The Sixth Circuit therefore held that a claim of entrapment
does not raise a constitutional claim.
Accordingly, petitioner’s claim that the state court’s denial of his entrapment
defense was clearly erroneous under Michigan law is not cognizable in a federal

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Heximer v. Woods, 2:08-CV-14170
habeas corpus petition. Seeger v. Straub, 29 F. Supp. 2d at 390-91. Petitioner is not
entitled to habeas relief on his entrapment claims.
F. Petitioner is not entitled to habeas relief on his claim involving the
improper assessment of attorney fees.
Petitioner lastly contends that the trial court improperly required petitioner to pay
back court-appointed attorney fees as part of his sentence.
Petitioner would not be able to bring a challenge to the trial court’s allegedly
improper assessment of court-appointed attorney’s fees in his habeas petition,
because petitioner’s claim does not challenge his confinement. See Fisher v. Booker,
No. 2006 WL 2420229, * 9 (E.D. Mich. August 22, 2006). Where a habeas petitioner is
not claiming the right to be released but is challenging the imposition of a fine or other
costs, he or she may not bring a petition for writ of habeas corpus. See United States
v. Watroba, 56 F. 3d 28, 29 (6th Cir. 1995). Petitioner is not entitled to habeas relief on
this claim.
G. The motions to vacate judgment and for immediate consideration.
Petitioner has also filed a motion to vacate judgment and two motions for
immediate consideration. In light of the fact that the Court is denying petitioner habeas
relief, the Court will deny these claims as moot.
IV. Conclusion
Federal Rule of Appellate Procedure 22 provides that an appeal may not
proceed unless a certificate of appealability (COA) is issued under 28 U.S.C. § 2253.

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Heximer v. Woods, 2:08-CV-14170
Rule 11 of the Rules Governing Section 2254 Proceedings, which was amended as of
December 1, 2009, requires that a district court must:
issue or deny a certificate of appealability when it enters a final order
adverse to the applicant.... If the court issues a certificate, the court must
state the specific issue or issues that satisfy the showing required by 28
U.S.C. § 2253(c)(2).
Rule 11, Rules Governing Section 2254 Proceedings.
A certificate of appealability may issue “only if the applicant has made a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
Courts must either issue a certificate of appealability indicating which issues satisfy the
required showing or provide reasons why such a certificate should not issue. 28 U.S.C.
§ 2253(c)(3); Fed. R.App. P. 22(b); In re Certificates of Appealability, 106 F.3d 1306,
1307 (6th Cir. 1997). To receive a certificate of appealability, “a petitioner must show
that reasonable jurists could debate whether (or, for that matter, agree that) the petition
should have been resolved in a different manner or that the issues presented were
adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S.
322, 336 (2003) (internal quotes and citations omitted).
The Court finds that reasonable jurists would not debate that this Court correctly
denied each of Petitioner's claims. Therefore, the Court will deny a certificate of
appealability.
Although this Court will deny a certificate of appealability to petitioner, the
standard for granting an application for leave to proceed in forma pauperis (IFP) is a

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Heximer v. Woods, 2:08-CV-14170
lower standard than the standard for certificates of appealability. See Foster v.
Ludwick, 208 F. Supp. 2d 750, 764 (E.D. Mich. 2002)(citing United States v.
Youngblood, 116 F. 3d 1113, 1115 (5th Cir. 1997)). Whereas a certificate of
appealability may only be granted if petitioner makes a substantial showing of the
denial of a constitutional right , a court may grant IFP status if it finds that an appeal is
being taken in good faith. Id. at 764-65; 28 U.S.C. § 1915(a)(3); Fed. R.App.24 (a).
“Good faith” requires a showing that the issues raised are not frivolous; it does not
require a showing of probable success on the merits. Foster, 208 F. Supp. 2d at 765.
Although jurists of reason would not debate this Court’s resolution of petitioner’s
claims, the issues are not frivolous; therefore, an appeal could be taken in good faith
and petitioner may proceed in forma pauperis on appeal. Id.
V.

ORDER

IT IS ORDERED that the Petition for Writ of Habeas Corpus is DENIED.
IT IS FURTHER ORDERED that the motion to show cause [Dkt. # 49], the motion
to vacate judgment [Dkt. # 51], and the motions for immediate consideration [Dkt. ## 48,
83] are DENIED.
IT IS FURTHER ORDERED That a Certificate of Appealability is DENIED.

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Heximer v. Woods, 2:08-CV-14170
IT IS FURTHER ORDERED that Petitioner will be GRANTED leave to appeal in
forma pauperis.

S/Arthur J. Tarnow
Arthur J. Tarnow
Senior United States District Judge
Dated: March 16, 2012
I hereby certify that a copy of the foregoing document was served upon parties/counsel
of record on , by electronic and/or ordinary mail.
S/Catherine A. Pickles
Judicial Secretary

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