Thompkins v. Ludwick

Filing 16

OPINION AND ORDER DENYING 1 Petition for Writ of Habeas Corpus AND DENYING CERTIFICATE OF APPEALABILITY. Signed by District Judge Gerald E. Rosen. (RGun)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MARK THOMPKINS,
Petitioner,

Case No. 2:08-CV-14809
HONORABLE GERALD E. ROSEN
CHIEF UNITED STATES DISTRICT JUDGE

v.

NICK J. LUDWIG,
Respondent.
______________________________/
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND
DENYING CERTIFICATE OF APPEALABILITY
I. Introduction
Petitioner, Mark Thompkins, filed this case under 28 U.S.C. § 2254. Petitioner is a
state inmate currently incarcerated at the Cooper Street Correctional Facility in Jackson,
Michigan. Petitioner pled no contest in Wayne Circuit Court to the offense of larceny from
a person. MICH. COMP. LAWS § 750.357. The trial court sentenced him as a fourth habitual
offender to six-to-fifteen years in prison. Petitioner seeks a writ of habeas corpus on the
grounds that: (1) he involuntarily pled no-contest, (2) the trial court violated Michigan's 180day speedy trial rule, and (3) the trial court did not give him credit for time served while
awaiting trial. For the reasons stated below, the Court denies the petition. The Court also
declines to issue Petitioner a certificate of appealability.
II. Background
The charges against Petitioner resulted from an incident in which he drove off in a
woman's parked pick-up truck with her young child. The driver of the vehicle and her son
became lost driving home from the airport. She stopped in the parking lot of a restaurant
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to use a payphone and left her six-year-old son in the rear passenger seat of her unlocked
and running truck. Petitioner approached the woman and pretended to use the payphone
next to her. He then climbed into the driver's seat of the vehicle. The woman screamed
that her son was inside and pounded on the windows, but Petitioner locked the doors and
drove away. A bystander chased the vehicle on foot. About a block away, Petitioner
stopped, removed the victim's purse from the vehicle, and ran away. The pursuing
bystander walked the woman's son back, and the police arrived shortly thereafter.
Petitioner was apprehended and the woman identified him at a lineup.
Petitioner was charged with kidnapping, unlawfully driving away an automobile, and
two counts of larceny. Defense counsel filed a motion to dismiss the kidnapping charge.
He asserted that insufficient evidence was offered at the preliminary examination to show
that Petitioner intended to take the child. The trial court granted the motion, prompting a
quick settlement of the remaining charges.
Petitioner entered into a plea bargain whereby he agreed to plead no-contest to onecount of larceny with a six-to-fifteen year sentence agreement in exchange for dismissal
of the remaining charges.
At the plea hearing Petitioner was placed under oath. The trial court informed
Petitioner of the terms of the deal, including the sentencing agreement, and Petitioner
indicated his understanding. Petitioner stated that he did not have any questions about his
rights and understood that they would be waived. The following colloquy then occurred:
The Court: Is it your own choice to plead no contest?
Petitioner: Yes, Your Honor.
The Court: Has anyone threatened you to make this plea?
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Petitioner: No, Sir.
The Court: To get you to make this plea?
Petitioner: No, Sir.
The Court: Has anyone promised you anything beyond what is in the plea
agreement?
Petitioner: No, Sir.
The Court: Has anyone used any undue influence or force against you that
is causing you to make this plea?
Petitioner: No, Sir.
The Court: Do you offer your plea freely and voluntarily?
Petitioner: Yes, Sir.
The Court: Do you understand that if your plea is the result of any
undisclosed promises or threats, you must disclose them to me now,
otherwise you will be giving up the claim that it was because of those
promises or threats and not your own choice to enter the plea?
Petitioner: Yes, Sir.
Plea Transcript at 14-15.

The trial court accepted Petitioner's plea and found that it was

made voluntarily and without any undue influence, compulsion, or duress.
Petitioner moved to withdraw his plea at sentencing on the grounds that his attorney
had forced him to accept the plea bargain. The trial court denied the motion:
I'm not satisfied that a requisite showing has been made that there's any
basis to withdraw the plea. Nothing has been presented to the Court on that
issue other than you relaying what he maintains is what he says, that his
attorney scared him. I don't find that to be sufficient on an evidentiary
grounds to cause me to allow him to set aside his plea.
Sentencing Transcript, at 7. The court then sentenced Petitioner under the terms of the
agreement.
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Petitioner filed a delayed application for leave to appeal with the Michigan Court of
Appeals, raising one issue:
I. Whether [Petitioner] is entitled to jail credit for this case since his parole status
was closed on the prior case?
The Michigan Court of Appeals denied the application for leave to appeal "for lack
of merit in the grounds presented." People v. Thompkins, No. 270925 (Mich. Ct. App. July
18, 2006). Petitioner filed an application for leave to appeal in the Michigan Supreme Court
and raised the same claim, but it was denied by form order. People v. Thompkins, No.
131870 (Mich. Sup. Ct. Oct. 31, 2006).
Petitioner then filed a motion for relief from judgment in the trial court, in which he
raised the following three issues:
I. The trial court abused its discretion and reversibly erred in denying the
defense motion to dismiss the charges with prejudice due to a 180-day
violation.
II. The trial court violated Petitioner's due process rights by denying
Petitioner's motion for plea withdrawal, where defense trial counsel had
coerced Petitioner into pleading guilty.
III. Where Petitioner's assigned counsel for his direct appeal by leave failed
to adequately federalize his issue and failed raised two meritorious
constitutional issues, Petitioner was denied due process by counsel's failure
to raise Issue I and II, which resulted in a deprivation of Petitioner's
constitutional rights to appeal, and to the effective assistance of counsel on
appeals.
The trial court denied Petitioner's motion, and Petitioner filed a delayed application
for leave to appeal in the Michigan Court of Appeals. It was denied because Petitioner had
"failed to meet the burden of establishing entitlement to relief under Mich. Ct. R. 6.508(D)."
People v. Thompkins, No. 281974 (Mich. Ct. App. Nov. 19, 2007). Petitioner attempted to
appeal this decision to the Michigan Supreme Court, but it denied relief by use of the same
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form order. People v. Thompkins, No. 136305 (Mich. Sup. Ct. Apr. 25, 2008).
Petitioner enumerates six, overlapping claims in his petition:
I. The trial court violated Petitioner's due process rights by denying the
motion for plea withdrawal when the plea was involuntary.
II. The trial court erred when it failed to grant credit from the time that the
prosecution knew or should have known that the Michigan Department of
Corrections had custody of Petitioner.
III. Petitioner was denied due process by appellate counsel's failure to raise
the above issues, which resulted in a deprivation of Petitioner's constitutional
rights to appeal, and to the effective assistance of counsel on appeal.
IV. The trial court abused its discretion and reversibly erred in denying the
defense motion to dismiss the charges with prejudice due to a 180-day
violation.
V. The trial court violated Petitioner's due process rights by denying
Petitioner's motion for plea withdrawal, where defense trial counsel had
coerced Petitioner into pleading guilty.
VI. Petitioner's appellate counsel was ineffective for failing to raise the
meritorious constitutional issues presented above in Claims I and II.

III. Standard of Review
Review of this case is governed by the Antiterrorism and Effective Death Penalty Act
of 1996 (“AEDPA”). Pursuant to the AEDPA, Petitioner is entitled to a writ of habeas
corpus only if he can show that the state court's adjudication of his claims on the merits(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).
A decision of a state court is "contrary to" clearly established federal law if the state
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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, 405-06 (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.
The Supreme Court has explained that "[a] federal court's collateral review of a
state-court decision must be consistent with the respect due state courts in our federal
system." Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). The "AEDPA thus imposes a
'highly deferential standard for evaluating state-court rulings,' and 'demands that state-court
decisions be given the benefit of the doubt.'" Renico v. Lett, 130 S.Ct. 1855, 1862, 176 L.
Ed. 2d 678 (2010)((quoting Lindh v. Murphy, 521 U.S. 320, 333, n. 7 (1997); Woodford v.
Visciotti, 537 U.S. 19, 24 (2002) (per curiam)). "[A] state court's determination that a claim
lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on
the correctness of the state court's decision." Harrington v. Richter, 131 S.Ct. 770, No.
2011 WL 148587, * 11 (U.S. 2011)(citing Yarborough v. Alvarado, 541 U.S. 652, 664
(2004)). The Supreme Court has emphasized "that even a strong case for relief does not
mean the state court's contrary conclusion was unreasonable." Id. (citing Lockyer v.
Andrade, 538 U.S. 63, 75 (2003). Furthermore, pursuant to § 2254(d), "a habeas court
must determine what arguments or theories supported or . . . could have supported, the
state court's decision; and then it must ask whether it is possible fairminded jurists could
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disagree that those arguments or theories are inconsistent with the holding in a prior
decision" of the Supreme Court. Id. "[I]f this standard is difficult to meet, that is because
it was meant to be." Harrington, 131 S. Ct. 770.
Although 28 U.S.C. § 2254(d), as amended by the AEDPA, does not completely bar
federal courts from relitigating claims that have previously been rejected in the state courts,
it preserves the authority for a federal court to grant habeas relief only "in cases where
there is no possibility fairminded jurists could disagree that the state court's decision
conflicts with" the Supreme Court's precedents. Id. Indeed, "Section 2254(d) reflects the
view that habeas corpus is a 'guard against extreme malfunctions in the state criminal
justice systems,' not a substitute for ordinary error correction through appeal." Id. (citing
Jackson v. Virginia, 443 U.S. 307, 332, n. 5 (1979))(Stevens, J., concurring in judgment)).
Therefore, in order to obtain habeas relief in federal court, a state prisoner is required to
show that the state court's rejection of his claim "was so lacking in justification that there
was an error well understood and comprehended in existing law beyond any possibility for
fairminded disagreement." 131 S.Ct. at 786-787.
IV. Discussion
A. No Contest Plea
Petitioner's first and fifth claims assert that he involuntarily pled no contest as the
result of threats made by his trial attorney. Respondent asserts that the claims are barred
from review because they were not raised during his appeal of right.
Under the procedural default doctrine, a federal habeas court will not review a
question of federal law if the state court's decision rests on a substantive or procedural
state law ground that is independent of the federal question and is adequate to support the
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judgment. See Coleman v. Thompson, 501 U.S. 722, 729 (1991). A court must look to the
last reasoned state court decision to determine if it rests on a substantive or procedural
state law ground. Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991).
Respondent correctly notes that Petitioner's first and fifth claims were raised for the
first time in Petitioner's motion for relief from judgment, but contrary to his assertion, the
appellate court orders denying post-conviction relief under Michigan Court Rule 6.508(d)
did not rely on a state procedural ground. See Guilmette v. Howes, 624 F. 3d 286, 291 (6th
Cir. 2010). This Court must "therefore look to the last reasoned state court opinion to
determine the basis for the state court's rejection" of Petitioner's claims. Id. The trial court's
discussion of Petitioner's claims appears to reject them on the merits. The trial court found
that because the claims were meritless, Petitioner could not demonstrate prejudice under
Rule 6.508(D)(3)(b)(ii). The question of whether this decision relies on a procedural ground
is a difficult one. It need not be addressed here because it is simpler to resolve Petitioner's
claims on the merits. While a procedural default issue should ordinarily be resolved first,
"judicial economy sometimes dictates reaching the merits of [a claim or claims] if the merits
are easily resolvable against a petitioner while the procedural bar issues are complicated."
Barrett v. Acevedo, 169 F.3d 1155, 1162 (8th Cir. 1999) (internal citations omitted).
A guilty plea is valid if it is entered voluntarily, knowingly and intelligently, "'with
sufficient awareness of the relevant circumstances and likely consequences.'" Bradshaw
v. Stumpf, 545 U.S. 175, 183 (2005) (quoting Brady v. United States, 397 U.S. 742, 748
(1970)). The same standard applies to a plea of no contest or nolo contendere. See
Fautenberry v. Mitchell, 515 F.3d 614, 636-37 (6th Cir. 2008); North Carolina v. Alford, 400
U.S. 25, 37 (1970) ("An individual accused of crime may voluntarily, knowingly and
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understandingly consent to the imposition of a prison sentence even if he is unwilling or
unable to admit his participation in the acts constituting the crime").
A voluntary plea is entered "'by one fully aware of the direct consequences, including
the actual value of any commitments made to him by the court, prosecutor, or his own
counsel" that is not "induced by threats (or promises to discontinue improper harassment),
misrepresentations (including unfulfilled or unfulfillable promises), or perhaps by promises
that are by their nature improper as having no proper relationship to the prosecutor's
business (e.g. bribes).'"Brady, 397 U.S. at 755, 90 S. Ct at 1472 (quoting Shelton v. United
States, 246 F.2d 571, 572 n. 2 (5th Cir. 1957)).
The state has the burden of showing that the plea was voluntary. Garcia v. Johnson,
991 F.2d 324, 326 (6th Cir. 1993) (citing Boykin v. Alabama, 395 U.S. 238 (1969)). When
the state provides a transcript of the plea proceedings sufficient to show that the plea was
voluntary, and the state court finds as a factual matter that the plea was proper, a
presumption of correctness arises. Id.
With respect to Petitioner's plea of no contest, the trial court found as a factual
matter that it was voluntary. A review of the plea hearing transcript supports this finding.
The transcript reveals no actual or threatened physical harm or mental coercion
overbearing Petitioner's will. It reveals no evidence that Petitioner was so overborne that
he could not rationally weigh the advantages of pleading no contest against the advantages
of going to trial. There is no suggestion of ineffective assistance of counsel at the plea.
In light of Petitioner's plea colloquy, his bare claim that his counsel forced him into pleading
guilty is insufficient to overcome the presumption of truthfulness which attaches to
statements made during the plea colloquy, in which Petitioner denied that any threats had
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been used to get him to enter his plea. The trial court's rejection of Petitioner's claim that
his plea was involuntary was thus consistent with clearly established Supreme Court
precedent and cannot form the basis for granting habeas relief.
B. Jail Credit
Petitioner was on parole at the time he committed the instant offense. After his
arrest, Petitioner alleges that his parole was rescinded but that he was not required to
serve any additional time on that prior sentence. Petitioner's second claim asserts that he
was therefore entitled to sentencing credit. The Michigan Court of Appeals summarily
rejected the claim when it denied his application for leave to appeal "for lack of merit in the
grounds presented." Thompkins, supra.
A federal court may grant a writ of habeas corpus only if the petitioner "is in custody
in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. §§
2241(c)(3), 2254(a). A prisoner generally has no constitutional right to sentencing credit,
although state law may create a liberty interest in sentencing credit protected by the Due
Process Clause. Hansard v. Barrett, 980 F.2d 1059, 1062 (6th Cir. 1992). Petitioner has
not presented any authority standing for the strange proposition that rescinding a prisoner's
parole because he commits a new offense acts to discharge him from the remainder of his
prior sentence. In fact, Michigan law requires a parolee to serve the unexpired portion of
his maximum sentence for his prior conviction if he commits a crime while on parole. MICH.
COMP. LAWS 791.238(2). Michigan's jail credit statute does not credit prisoners with time
served for unrelated offenses. MICH. COMP. LAWS 769.11b; People v. Prieskorn, 424 Mich.
327, 344, 381 N.W.2d 646, 652 (1985). Because Michigan law does not create a right to
the credit Petitioner seeks, his claim is not cognizable on habeas review.
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C. 180-Day Rule
Petitioner's fourth claim alleges that he was denied his right to due process because
he was brought to trial in violation of Michigan's 180-day rule. MICH. COMP. LAWS 780.131.
This statute grants state prisoners the right to a trial within 180 days of notice to the
prosecutor that the defendant is detained or incarcerated on another conviction. Petitioner
moved to dismiss the charges on these grounds in the trial court, but the motion was
denied.
"[I]t is not the province of a federal habeas court to reexamine state-court
determinations on state-law questions." Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (per
curiam opinion). A violation of a state speedy-trial law by a state court is non-cognizable
on habeas review. See Norris v. Schotten, 146 F.3d 314, 328 (6th Cir. 1998) (discussing
review of a violation of a state speedy trial law in the context of a habeas proceeding);
Stewart v. Nix, 972 F.2d 967, 970 (8th Cir. 1992) (stating that a petitioner's rights under the
Sixth Amendment are not affected by a state statute); Wells v. Petsock, 941 F.2d 253, 256
(3rd Cir. 1991). Therefore, Petitioner is not entitled to habeas relief for any claimed violation
of Michigan's 180-day rule.
D. Ineffective Assistance of Appellate Counsel
Petitioner's third and sixth claim assert that he was denied the effective assistance
of counsel when his appellate counsel failed to raise claims regarding the voluntariness of
his plea and sentencing credit during Petitioner's direct appeal. This claim is not being
raised as an independent ground for habeas relief, but rather it seeks to demonstrate
"cause" to excuse the alleged procedural default of the underlying claims. Because the
Court did not impose a default and found those claims to be without merit, Petitioner's
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ineffective assistance of appellate counsel claim is moot.
VI. Certificate of Appealability
A petitioner must receive a certificate of appealability ("COA") in order to appeal the
denial of a habeas petition for relief from either a state or federal conviction. 28 U.S.C. §§
2253(c)(1)(A), (B). A court may issue a COA "only if the applicant has made a substantial
showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). When a federal
district court rejects a habeas claim on the merits, the substantial showing threshold is met
if the petitioner demonstrates that reasonable jurists would find the district court's
assessment of the constitutional claim debatable or wrong. See Slack v. McDaniel, 529
U.S. 473, 484-85 (2000). "A petitioner satisfies this standard by demonstrating that jurists
of reason could disagree with the district court's resolution of his constitutional claims or
that jurists could conclude the issues presented are adequate to deserve encouragement
to proceed further." Miller-El v. Cockrell, 537 U.S. 322, 327 (2003)(citation omitted). In
applying this standard, a district court may not conduct a full merits review, but must limit
its examination to a threshold inquiry into the underlying merit of the petitioner's claims. Id.
at 336-37.

The Court concludes that jurists of reason would not find the Court's

assessment of Petitioner's claims debatable or wrong. The Court thus declines to issue
Petitioner a certificate of appealability.

VI. ORDER
Based upon the foregoing, IT IS ORDERED that the petition for a writ of habeas
corpus is DENIED WITH PREJUDICE.

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IT IS FURTHER ORDERED That a certificate of appealability is DENIED.

s/Gerald E. Rosen
Chief Judge, United States District Court
Dated: April 28, 2011
I hereby certify that a copy of the foregoing document was served upon counsel of
record on April 28, 2011, by electronic mail and upon Mark Thompkins, #258525,
Cooper Street Correctional Facility, 3100 Cooper Street, Jackson, MI 49201 by ordinary
mail.
s/Ruth A. Gunther
Case Manager

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