Aurich v. Rapelje
OPINION and ORDER denying 1 Petition for Writ of Habeas Corpus, denying certificate of appealability and denying leave to proceed on appeal in forma pauperis Signed by District Judge Bernard A. Friedman. (CMul)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case No. 09-cv-10717
HON. BERNARD A. FRIEDMAN
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS,
DENYING CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO
PROCEED ON APPEAL IN FORMA PAUPERIS
This matter is before the Court on petitioner’s application for habeas relief pursuant to 28
U.S.C. § 2254. Petitioner pled guilty in the Oscoda Circuit Court to one count of armed robbery.
Mich. Comp. Laws § 750.529. The state circuit court sentenced him to a term of 14-to-30 years in
prison. The petition raises six claims: (1) petitioner’s guilty plea was involuntary; (2) the circuit
court erred in sentencing petitioner; (3) petitioner was denied the effective assistance of counsel
prior to his plea; (4) petitioner involuntarily waived his right to challenge his extradition from
Florida; (5) the arrest warrant used to extradite petitioner was fraudulent; and (6) petitioner has
demonstrated cause for not raising his third, fourth, and fifth claims during his direct appeal in the
state courts. The Court will deny the petition because none of these claims are meritorious. The
Court also declines to issue a certificate of appelability and will deny leave to proceed on appeal in
Petitioner was originally charged as a second time felony offender with two counts of
armed robbery and commission of a felony with a firearm after his participation in the armed
robbery of a grocery store. Rather than stand trial, petitioner agreed to a plea bargain.
At the plea hearing, the prosecutor put the terms of the agreement on the record.
Petitioner would plead guilty to one count of armed robbery and, in exchange, the prosecutor
agreed to dismiss the second armed robbery count as well as the habitual offender and firearm
charges. Petitioner and defense counsel acknowledged the terms of the agreement.
The circuit court then placed petitioner under oath. He denied that there were any other
terms of the agreement. The circuit court informed petitioner that he faced up to life in prison,
and petitioner acknowledged his understanding of the terms of the plea. Petitioner denied that
anyone had promised him anything or coerced him in anyway to obtain his guilty plea. The
circuit court also informed petitioner of the trial rights he was waiving by entering his plea,
whereupon petitioner indicated his assent to the plea agreement.
Petitioner then gave a detailed factual basis for the crime. He described how he and his
accomplice went into a grocery store to rob it. His accomplice was armed with a handgun, and
he pointed it at the two people present in the store. Petitioner then used duct tape to tie the hands
of the victims. The two men then stole money and lottery tickets and left the store. The circuit
court accepted the plea.
After the hearing, defense counsel requested that petitioner be freed on bond so that he
could receive surgery on his shoulder. The circuit court denied the motion because petitioner
had fled to Florida after photographs of him committing the robbery were publicized.
At the sentencing hearing, petitioner never expressed his desire to withdraw from the
plea. He informed the circuit court that he had cooperated with the sheriff’s department with the
hope of receiving a lighter sentence. The state circuit court adjourned the sentencing hearing to
obtain information from the sheriff’s department, but it was later revealed that no promises of
leniency were made. After resolving any objections to the sentencing guideline scoring, the
circuit court sentenced petitioner to 14-to-30 years incarceration.
Following his guilty plea and sentence, petitioner requested and was appointed appellate
counsel who filed a motion for withdrawal of the plea and resentencing. The circuit court held a
hearing on the motion and denied the requested relief.
Petitioner then filed an application for leave to appeal in the Michigan Court of Appeals
raising the following claims:
I. Petitioner should be allowed to withdraw his involuntary guilty plea where: 1)
he could not have been guilty of felony firearm in the first instance where he did
not possess the gun; 2) trial counsel calculated his guidelines range incorrectly
and petitioner relied on the misrepresentation when he pled; 3) he received
ineffective assistance of counsel; and where 4) promises of leniency, surgery and
medications were made to him by the police for his cooperation and plea which
he also relied upon and never materialized.
II. Petitioner should be resentenced where: 1) he was incorrectly scored for a
charge which was deferred or dismissed pursuant to MCL 769.51 and MCL
750.81; 2) the trial court sentenced him based on an incorrect guidelines range
and incorrect information; 3) he was promised leniency by the police if he
cooperated and he relied on that promise; 4) his co-defendant possessed the
firearm and provided the firearm and received a lower sentence; and where 5)
mitigating circumstances exist to sentence petitioner to the lower end of his
The Michigan Court of Appeals denied the application for leave to appeal “for lack of
merit in the grounds presented.” People v. Aurich, No. 277964 (Mich. Ct. App. Aug 8, 2007).
Petitioner subsequently filed an application for leave to appeal in the Michigan Supreme Court,
raising the same claims. The Michigan Supreme Court denied the application by form order.
People v. Aurich, 480 Mich. 959 (2007) (table).
Petitioner then filed the instant habeas petition, raising identical grounds for relief.
Thereafter, petitioner filed a motion to stay the proceedings in this Court and return to the state
courts to raise additional claims. The Court granted the motion, and the case was held in
abeyance while Petitioner pursued post-conviction review in the state courts.
Petitioner returned to the circuit court and filed a motion for relief from judgment, raising
the following claims:
I. Petitioner was denied the effective assistance of counsel where trial counsel: (1)
failed to request a Franks hearing to challenge the validity of warrant’s affidavit;
and (2) failed to request a psychiatric evaluation on defendant to see if he was
competent to stand trial.
II. Petitioner’s due process rights were violated when he was forced to waive his
right to an extradition hearing to receive medical treatment without counsel
present due to severe mental and physical duress petitioner’s waiver was
involuntary. Petitioner was unaware of the rights he was forfeiting by waiver of
III. Petitioner’s due process rights were violated when a fraudulent arrest warrant
used to gain an extradition order was obtained under false pretense; arrest warrant
contained perjuries by Sgt. J. Allie of the Oscoda County Sheriff’s Department.
IV. Petitioner has established an entitlement to relief from judgment of his
conviction and sentence by demonstrating good cause for failure to raise his
present claim on direct appeal or in a prior motion and actual prejudice from the
alleged irregularities in this criminal process.
The circuit court denied the motion for relief from judgment, stating that petitioner failed
“to establish any of the three basic provisions” of Michigan Court Rule 6.508(D)(3). People v.
Aurich, Oscoda County No. 06-945-FH (September 24, 2009). Petitioner then filed an
application for leave to appeal in the Michigan Court of Appeals, which was denied “for failure
to establish entitlement to relief under MICH. CT. R. 6.508(D).” People v. Aurich, No. 300374
(Mich. Ct. App. January 5, 2011). Petitioner applied for leave to appeal this decision in the
Michigan Supreme Court, where his application was also denied under Rule 6.508(D). People v.
Aurich, 489 Mich. 991 (2011) (table).
Petitioner then reopened the instant proceeding raising the same issues that he argued
before the state courts on direct and post-conviction review.
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 court
arrives at a conclusion opposite to that reached by the United States 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).
“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, 786 (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 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. at 786.
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. Therefore, in order to obtain habeas relief 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.”
Id. at 786-787.
Claims Challenging Petitioner’s Guilty Plea
Most of petitioner’s claims seek to invalidate his guilty plea. He claims that his plea is
involuntary because: (1) he was improperly charged with felony-firearm; (2) his trial counsel
promised him a lower sentence than he received; (3) police promised him leniency in exchange
for his cooperation; (4) he was illegally arrested and his counsel failed to challenge it; (5) his
counsel failed to challenge his competency to stand trial or plead guilty; and (6) petitioner was
illegally extradited from Florida. None of these claims merit relief.
“A plea of guilty is more than a confession which admits that the accused did various
acts; it is itself a conviction; nothing remains but to give judgment and determine punishment.”
Boykin v. Alabama, 395 U.S. 238, 242 (1969). Due to the impact of such a plea on a defendant’s
constitutional rights, a federal court on habeas corpus review may only overturn a conviction
based upon a guilty plea if it is found that the plea violated a petitioner’s constitutional right to
due process. Brady v. United States, 397 U.S. 742, 747 (1970).
A plea of guilty or no contest is invalid unless it is entered by a defendant knowingly,
intelligently, voluntarily, and without coercion. Bousley v. United States, 523 U.S. 614, 618
(1998); Brady, 397 U.S. at 747; Boykin, 395 U.S. at 242; Stumpf v. Mitchell, 367 F.3d 594, 600
(6th Cir. 2004). In order to withstand a post-conviction challenge to the voluntariness of the
plea, the record must clearly evidence the willingness of the petitioner to enter into the plea.
Boykin, 395 U.S. at 242.
In a federal habeas corpus proceeding in which a petitioner challenges the validity of a
guilty plea, it is the duty of the respondent to demonstrate that the guilty plea was entered
knowingly, intelligently and voluntarily. This is accomplished with the submission of a
presumptively correct plea proceeding transcript. Stumpf, 367 F.3d at 600 (citing Garcia v.
Johnson, 991 F.2d 324, 326 (6th Cir. 1993)). The totality of the circumstances surrounding the
entry of a plea must show that the plea was not coerced by threats or misrepresentations and that
the defendant was informed of all the direct consequences of the plea, Brady, 397 U.S. at 755;
Stumpf, 367 F.3d at 609, including potential maximum sentences, King v. Dutton, 17 F.3d 151,
154 (6th Cir. 1994), as well as mandatory minimum sentences, United States v. Stubbs, 279 F.3d
402, 412 (6th Cir. 2002). A ruling by a state court upholding the validity of the guilty plea is
presumed correct, unless there is a showing that the plea proceeding transcript insufficiently
demonstrated that the plea was entered knowingly, intelligently and voluntarily. Stumpf, 367
F.3d at 600 (citing Garcia, supra at 326-27).
Upon reviewing the record, the Court finds that many of petitioner’s arguments are
foreclosed by the proper plea colloquy conducted by the state circuit court. Petitioner first
claims that because he was not personally armed with a firearm during the robbery, the felonyfirearm charge was improper and, therefore, dismissal of the invalid firearm charge rendered the
plea agreement illusory. This contention, however, is belied by the fact that the prosecutor
dismissed several other offenses that were unrelated to the possession of a firearm. Thus, the
plea was not illusory because petitioner received a real, tangible benefit by the dismissal of these
other charges in exchange for his plea of guilty. See McAdoo v. Elo, 365 F.3d 487 (6th Cir.
Petitioner next asserts that defense counsel informed him that he would receive a lower
sentence than what was actually imposed. He also maintains that he was promised leniency by
the police. Nonetheless, these allegations are contradicted by the plea colloquy in which
petitioner denied that he was promised anything other than what was placed on the record. Mere
post hoc claims of a petitioner that a plea agreement was different than what appeared on the
record cannot, standing alone, overcome the presumption that the guilty plea was valid.
Ramos v. Rogers, 170 F.3d 560, 566 (6th Cir. 1999). Consequently, these claims are also
Since the remainder of petitioner’s contentions involve events that occurred prior to the
plea, they are waived. Tollett v. Henderson, 411 U.S. 258, 267 (1973); see also U.S. v. Martin,
526 F. 3d 926, 932 (6th Cir. 2008). Pre-plea claims of ineffective assistance of trial counsel are
also waived by a guilty plea. See United States v. Stiger, 20 F. App’x 307, 309 (6th Cir. 2001);
see also 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 and resulting from his trial counsel’s alleged ineffective assistance, were foreclosed by his
In the present case, petitioner did not indicate any disagreement with defense counsel’s
performance prior to the plea. He never claimed any error in the extradition proceeding, or that
his arrest was illegal, and the record is devoid of any indication that counsel was incompetent.
Petitioner’s participation during the plea colloquy, especially his detailed and responsive
answers regarding the factual basis for the crime, undermine any claim that his counsel should
have raised an issue regarding his competency prior to the plea. Moreover, the propriety of
petitioner’s arrest and extradition, coupled with defense counsel’s failure to mount a challenge
thereto, relate to pre-plea matters that were waived when petitioner decided to avail himself of
the plea bargain.
Claims Challenging Petitioner’s Sentence
In seeking to overturn his sentence, petitioner argues that: (1) the circuit court incorrectly
scored the sentencing guidelines regarding the use of a firearm; (2) he was promised leniency by
the police; (3) his accomplice received a lesser sentence although he was more culpable; and (4)
there were mitigating circumstances that the state circuit court failed to consider.
A habeas petitioner’s claim that the trial court violated state law when sentencing him is
not cognizable in habeas corpus proceedings. See Branan v. Booth, 861 F.2d 1507, 1508 (11th
Cir. 1988); Haynes v. Butler, 825 F.2d 921, 924 (5th Cir. 1987). Federal habeas courts have no
authority to interfere with perceived errors in state law unless the petitioner is denied
fundamental fairness in the trial process. See Estelle v. McGuire, 502 U.S. 62, 67-68,(1991);
Serra v. Michigan Department of Corrections, 4 F.3d 1348, 1354 (6th Cir. 1993). Petitioner’s
claim that the circuit court improperly scored the guidelines range pertains to issues of state law
that are not cognizable on habeas review. See Cook v. Stegall, 56 F. Supp. 2d 788, 797 (E.D.
Mich. 1999) (claim that sentencing court departed from Michigan sentencing guidelines presents
an issue of state law only and is not cognizable in federal habeas review); Welch v. Burke, 49 F.
Supp. 2d 992, 1009 (E.D. Mich. 1999); see also Branan, 861 F.2d at 1508 (holding that
misapplication of state sentencing guidelines not cognizable on habeas review).
Furthermore, petitioner’s claim that he was promised leniency is unsupported by the
record. At the sentencing hearing, petitioner asserted that a sheriff’s deputy promised to “put in
a good word” for him. The circuit court asked petitioner to explain, and he responded that he
had attempted to provide the police with information that might be useful in ongoing
investigations. The circuit court adjourned the sentencing hearing, and the deputy was
contacted. As it turned out, none of the information provided by petitioner was useful, and in any
event, no promises were made to petitioner. Petitioner’s subjective expectation that he would
receive some benefit for providing unsolicited and useless information to the authorities did not
require the circuit court to reduce his sentence.
With respect to petitioner’s third argument challenging his sentence, the fact that his codefendant may have been more culpable than petitioner does not entitle him to a lesser sentence.
Wide discretion is accorded a state trial court’s sentencing decision and claims arising out of
those decisions are not generally cognizable upon federal habeas review unless the petitioner can
show that the sentence imposed exceed the statutory limits or is wholly unauthorized by law. See
Lucey v. Lavigne, 185 F. Supp. 2d 741, 745 (E.D. Mich. 2001). Petitioner has made no such
Moreover, there is no federal constitutional requirement that co-defendants receive the
same sentence. When exercising habeas review, federal courts are solely authorized to
determine whether sentences are so disproportionate that they constitute cruel and unusual
punishment under the Eighth Amendment. Disproportionality is examined in relation to the
underlying offense and is not gauged by the sentences received by co-defendants. See United
States v. Easter, 981 F.2d 1549, 1555-56 (10th Cir. 1992). “[C]onstitutional sentencing law does
not address the difference between the sentences of two persons convicted of the same particular
crime, but rather the proportion between the sentence and the type of crime committed.” See
Beachem v. Williams, 351 F. Supp. 2d 793, 820 (N.D. Ill. 2004) (noting that the court could find
no Supreme Court authority which gave special constitutional scrutiny to the disparate sentences
of two participants in a single crime); United States v. McArthur, No. 10-cv-14726, 2011 U.S.
Dist. LEXIS 57598, 2011 WL 2144436, at *1 (E.D. Mich. May 31, 2011) (finding that a claim
that a co-defendant received a lesser sentence was not cognizable on a § 2255 motion).
Ultimately, the fact that the circuit court sentenced petitioner to a greater sentence than his
co-defendant is not contrary to, or an unreasonable application of, clearly established federal
Finally, petitioner asserts that the circuit court failed to consider mitigating circumstances
when it imposed the sentence. This argument fails to state a claim upon which habeas relief can
be granted, because the United States Supreme Court has limited its holding concerning
mitigating evidence to capital cases. See Engle v. United States, 26 F. App’x 394, 397 (6th Cir.
2001) (Eighth Amendment does not require consideration of mitigating factors at sentencing in
non-capital cases). Because petitioner had no constitutional right to an individualized sentence,
no constitutional error resulted from the state circuit court’s failure to consider mitigating
evidence on his behalf. See Hastings v. Yukins, 194 F. Supp. 2d 659, 673 (E.D. Mich. 2002).
Certificate of Appealability
Should the petitioner choose to appeal this Court’s decision, a certificate of appealability
must issue. See 28 U.S.C. § 2253(c)(1)(A); Fed. R. App. P. 22(b). 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). When a court rejects a habeas claim on the merits, the substantial
showing threshold is met if petitioner demonstrates that reasonable jurists would find the district
court’s assessment of the constitutional claims debatable or wrong. See Slack v. McDaniel, 529
U.S. 473, 484-85 (2000). “A petitioner satisfies this standard by demonstrating 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). In applying that 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 petitioner’s claims. Id. at 336-37.
As petitioner has not made a substantial showing of the denial of a constitutional right, a
certificate of appealability is not warranted in this case. Additionally, the petitioner should not
be granted leave to proceed in forma pauperis on appeal, as any appeal would be frivolous. See
Fed. R. App. P. 24(a). Accordingly,
IT IS ORDERED that the petition for a write of habeas corpus is denied;
IT IS FURTHER ORDERED that a certificate of appealability is denied;
IT IS FURTHER ORDERED that permission to proceed in forma pauperis is denied.
_S/ Bernard A. Friedman_________
BERNARD A. FRIEDMAN
SENIOR UNITED STATES DISTRICT JUDGE
Dated:___December 26, 2013__
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