Barlow v. Howes

Filing 9

OPINION and ORDER denying 1 Petition for Writ of Habeas Corpus, denying a certificate of appealability, granting leave to proce3ed in forma pauperis on appeal. Signed by District Judge George Caram Steeh. (DWor)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

RAYMOND WAYNE BARLOW,
Petitioner,
v.

CASE NO. 09-10884
HONORABLE GEORGE CARAM STEEH

CAROL HOWES,
Respondent.
_______________________________/
OPINION AND ORDER
DENYING THE HABEAS CORPUS PETITION,
DENYING A CERTIFICATE OF APPEALABILITY, BUT
GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
Raymond Wayne Barlow (“petitioner”) is a state prisoner at Lakeland
Correctional Facility in Coldwater, Michigan. He has filed a pro se habeas corpus
petition pursuant to 28 U.S.C. § 2254. The pleading challenges petitioner’s convictions
for armed robbery, assault with intent to commit murder, and possession of a firearm
during the commission of a felony (felony firearm). Warden Carol Howes (“respondent”)
urges the Court through counsel to deny the petition.
Having reviewed the pleadings and record, the Court concludes that petitioner is
not entitled to the relief he seeks. Accordingly, the petition will be denied.
I. Background
A. The Facts
Petitioner was charged in Wayne County, Michigan with one count of armed
robbery, two counts of assault with intent to commit murder, two counts of felonious

assault, and one count of felony firearm. The charges arose from an incident in Lincoln
Park, Michigan on July 1, 2005. The record indicates that Petitioner removed five sets of
cologne from a Sears department store that day without paying for the items. When a
loss-prevention officer confronted him outside the store, he dropped the merchandise
and attempted to walk away. The officer grabbed petitioner by one arm, and a second
loss-prevention officer grabbed petitioner by the other arm. Petitioner managed to
reach into his pants pocket and pull out a gun. He shot one of the officers two times
and then left in a van driven by another person. One of the loss-prevention officers
observed the licence plate number on the van, and the police determined that petitioner
was the suspect. They found him hiding in his home on July 6, 2005.
Following his arrest, petitioner made a statement to the police in which he
admitted that he went to Sears to steal cologne because he needed money and he
knew that he could sell the cologne. He claimed that he forgot he had the gun in his
pants and that the gun accidentally discharged when he took it out of his pocket and
struggled with the loss-prevention officers.
B. The Plea, Sentence, and Appeals
On September 29, 2005, petitioner pleaded no contest in Wayne County Circuit
Court to armed robbery, Mich. Comp. Laws § 750.529, one count of assault with intent
to commit murder, Mich. Comp. Laws § 750.83, and felony firearm, Mich. Comp. Laws §
750.227b. In return, the prosecutor dismissed the two felonious assault charges and
one count of assault with intent to commit murder. In addition, the trial court agreed to
sentence petitioner to two years for the felony firearm conviction, followed by concurrent
terms of 126 months (ten and half years) to thirty years for the armed robbery and
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assault charges. On October 14, 2005, the trial court sentenced Petitioner pursuant to
the plea and sentencing agreement.
In an application for leave to appeal, petitioner argued through counsel that he
was sentenced on the basis of conduct not admitted at his plea, nor found by a jury
beyond a reasonable doubt. The Michigan Court of Appeals denied leave to appeal for
lack of merit in the ground presented. See People v. Barlow, No. 270970 (Mich. Ct.
App. July 28, 2006). On October 31, 2006, the Michigan Supreme Court denied leave
to appeal because it was not persuaded to review the issue. See People v. Barlow, 477
Mich. 918; 722 N.W.2d 816 (2006).
On November 26, 2007, petitioner filed a motion for relief from judgment in which
he alleged that (1) he was denied his constitutional right to effective assistance of
counsel where the factual basis for his plea was not supported by the record, (2) he was
improperly charged, and (3) he was denied his right to plead no contest to the correct
charge due to prosecutorial misconduct. The trial court denied petitioner’s motion after
concluding that petitioner’s attorneys were not ineffective and that petitioner had failed
to show “cause” for not raising his claims on appeal and actual prejudice from the
alleged irregularities.
In a subsequent appeal from the trial court’s order, petitioner alleged that he was
improperly charged and that his plea was involuntary because he was charged under
the wrong statute. The Michigan Court of Appeals denied leave to appeal for failure to
establish entitlement to relief under Michigan Court Rule 6.508(D). See People v.
Barlow, No. 284726 (Mich. Ct. App. Sept. 23, 2008).
Petitioner raised the same issues in the Michigan Supreme Court, along with two
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new issues, which alleged ineffective assistance of counsel and prosecutorial
misconduct. The Michigan Supreme Court denied leave to appeal for failure to
establish entitlement to relief under Michigan Court Rule 6.508(D). See People v.
Barlow, 483 Mich. 894; 760 N.W.2d 485 (2009).
C. The Habeas Petition and Answer
Petitioner filed his habeas corpus petition on March 9, 2009. He alleges that: (1)
he was denied his constitutional right to effective assistance of counsel by counsel’s
failure to investigate, to assert a viable defense, and to present mitigating evidence at
sentencing; (2) his plea was involuntary because he was charged under the wrong
statute; and (3) his appellate attorney was ineffective for failing to raise a claim
challenging the sufficiency of the evidence.
Respondent argues in her answer to the petition that petitioner’s claims lack
merit and are unexhausted or procedurally defaulted. The doctrines of exhaustion of
state remedies and procedural default are not jurisdictional requirements. Pudelski v.
Wilson, 576 F.3d 595, 606 (6th Cir. 2009), cert. denied, __ U.S. __, 130 S. Ct. 3274
(2010). Thus, there is no need to consider whether petitioner’s claims are exhausted or
procedurally defaulted. The Court will proceed to address petitioner’s claims on their
merits, using the following standard of review.
II. Standard of Review
State prisoners are entitled to the writ of habeas corpus only if the state court’s
adjudication of their 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
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(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 proceedings.

28 U.S.C. § 2254(d).
A state court’s decision 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. Rather, that application must
also be unreasonable.” Id. at 411. “[W]here factual findings are challenged, the habeas
petitioner has the burden of rebutting, by clear and convincing evidence, the
presumption that the state court’s factual findings are correct.” Goodwin v. Johnson,
632 F.3d 301, 308 (6th Cir. 2011) (citing 28 U.S.C. § 2254(e)(1) and Landrum v.
Mitchell, 625 F.3d 905, 914 (6th Cir. 2010)).
“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, __ U.S. __, __, 131 S. Ct. 770, 786 (2011). To
obtain a writ of habeas corpus from a federal court, a petitioner must show that the state
court’s decision “was so lacking in justification” that it resulted in “an error well
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understood and comprehended in existing law beyond any possibility for fairminded
disagreement.” Id. at 786-87.
III. Discussion
The essence of petitioner’s three claims is that, at most, he is guilty of retail
fraud, not armed robbery. At the time of petitioner’s plea, the elements of armed
robbery were: (1) the use of force or violence or assaulting anyone present or putting
the person in fear, (2) in the course of committing a larceny, (3) while in possession of a
dangerous weapon or an article used or fashioned to lead any person present to
reasonably believe that the article was a dangerous weapon or while representing that
he or she is in possession of a dangerous weapon. Mich. Comp. Laws §§ 750.529 and
750.530; People v. Chambers, 277 Mich. App. 1, 7; 742 N.W.2d 610, 614 (2007); Mich.
CJI2d 18.1. The phrase “in the course of committing a larceny” encompasses “acts that
occur in an attempt to commit the larceny, or during commission of the larceny, or in
flight or attempted flight after the commission of the larceny, or in an attempt to retain
possession of the property.” Mich. Comp. Laws § 750.530(2).
The record before the Court reveals that, in the course of committing a larceny,
petitioner assaulted a loss-prevention officer to facilitate his escape. He took property
out of Sears without paying for it and when he was grabbed by two loss-prevention
officers, he pulled a gun out of his pocket, and shot an officer two times in an attempt to
escape. Thus, the elements of armed robbery were satisfied. Having reached this
conclusion, the Court will proceed to address petitioner’s claims about his attorneys and
his plea.
A. Trial Counsel
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Petitioner alleges that his trial attorney deprived him of effective assistance of
counsel by failing to investigate a viable defense to the charges and by failing to present
mitigating evidence at sentencing. According to petitioner, if counsel had investigated
the facts and become familiar with the evidence, she would have realized that
petitioner’s conduct was nothing more than retail fraud. Petitioner contends that his
attorney advised him to plead no contest to a crime that never existed and that counsel
presented no mitigating evidence at sentencing, such as the fact that he abandoned the
property and accidentally fired the gun.
1. Clearly Established Federal Law
To prevail on a claim of ineffective assistance of counsel, a petitioner must
demonstrate “that counsel’s performance was deficient” and “that the deficient
performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687
(1984). In guilty plea cases, the “performance” prong requires showing that defense
counsel’s representation fell below an objective standard of reasonableness or was
outside the range of competence demanded of attorneys in criminal cases. Hill v.
Lockhart, 474 U.S. 52, 56-58 (1985). The “prejudice” prong “focuses on whether
counsel’s constitutionally ineffective performance affected the outcome of the plea
process.” Id. at 59. The petitioner must show “a reasonable probability that, but for
counsel’s errors, he would not have pleaded guilty and would have insisted on going to
trial.” Id.

2. Application
The two loss-prevention officers involved in this case identified petitioner at the
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preliminary examination as the man whom they attempted to apprehend for larceny at
the Sears store on July 1, 2005. Petitioner subsequently confessed to the police that he
went to Sears to steal cologne. He also admitted that he pulled the gun out of his
pocket when confronted by two men and that the gun discharged accidentally. He went
on to say that, during the struggle, he fired one more time and then fled the area.
These facts and other facts set forth in the police reports and at the preliminary
examination indicate that petitioner was guilty of armed robbery. He possessed a gun
and assaulted a person in the course of committing a larceny. The larceny was
complete when he exited the store without paying for the cologne, and even if he were
deemed to have abandoned the cologne, “a completed larceny is no longer required for
a conviction of armed robbery.” People v. Williams, 288 Mich. App. 67, 73; 792 N.W.2d
384, 387 (2010), application for leave to appeal granted, 489 Mich. 856; 795 N.W.2d 15
(2011).
As for petitioner’s claim that the gun discharged accidentally, the testimony at the
preliminary examination suggested otherwise. David DeGraff testified that petitioner
pointed a handgun at him. He later realized that he had been shot in the leg and in the
arm. (Tr. July 19, 2005, at 29-32, 41.) Martiel Hollis testified that petitioner reached for
his pocket and subsequently “directed” or pointed a gun at Mr. DeGraff. (Id. at 59-60,
85.)
Because the facts supported the charges and because the plea and sentencing
agreement were favorable, trial counsel was not ineffective for recommending that
petitioner plead no contest. Petitioner’s conduct amounted to more than mere retail
fraud, and there was no viable defense to the charges inasmuch as he admitted to
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pulling the gun out of his pocket and was observed pointing the gun at one of the lossprevention officers.
As for counsel’s failure to present mitigating evidence at sentencing, there was
little need to present mitigating evidence because the parties and the trial court had
already agreed to a sentence of 126 months to thirty years plus two years for the felony
firearm conviction. Furthermore, the trial court sua sponte acknowledged that petitioner
had no prior felony convictions and that the crimes was out of character for him. The
court also opined that petitioner should be given a “break” for taking responsibility for his
actions. The court then sentenced petitioner to a minimum sentence at the bottom of
the sentencing guidelines.
The Court concludes that trial counsel’s performance at sentencing was not
deficient and that the alleged deficiency did not prejudice Petitioner. The Court further
concludes that trial counsel was not ineffective for recommending that petitioner plead
no contest. Petitioner, therefore, has no right to relief on the basis of his first claim.
B. The Plea
The second habeas claim alleges that petitioner’s plea was involuntary and
illusory because he was charged with the wrong statute and is actually innocent of
armed robbery. A guilty or no contest plea must be a knowing, voluntary, and intelligent
act done with sufficient awareness of the relevant circumstances and likely
consequences, because the plea is a waiver of various federal constitutional rights.
Brady v. United States, 397 U.S. 742, 748 (1970); Fautenberry v. Mitchell, 515 F.3d
614, 636-37 (6th Cir. 2008). The voluntariness of a plea is “determined only by
considering all of the relevant circumstances surrounding it.” Brady, 397 U.S. at 749.
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The facts, as alleged at the preliminary examination and in the police report,
supported all three of petitioner’s convictions. Thus, petitioner has failed to demonstrate
that he was charged with the wrong statute and is actually innocent of the crimes for
which he was sentenced. Petitioner also has failed to show that his plea was illusory.
Three counts were dismissed, and the trial court agreed to sentence petitioner at the
bottom of the sentencing guidelines.
The record also indicates that petitioner pleaded no contest voluntarily and
intelligently. He was given notice at the preliminary examination that an individual who
commits a theft while in possession of a dangerous weapon and who uses the handgun
for purposes of flight is guilty of armed robbery. (Tr. July 19, 2005, at 96.)
Petitioner was thirty-eight years old at his subsequent no-contest plea, and he
claimed that he understood the charges to which he was pleading no contest, as well
as, the maximum penalties for the charged offenses. He also claimed to understand the
plea and sentencing agreement, and he agreed to accept the proposed sentence of 126
months to thirty years plus two years for the felony firearm conviction. He further
agreed to have the police report serve as the factual basis for his plea, and he stated
that he understood the constitutional rights that he was waiving by pleading no contest.
He had no questions about his rights, and he said that no one had threatened him or
promised him anything other than what had been discussed in court. When the trial
court asked petitioner whether he knew what was going on and was ready to plead no
contest, petitioner answered, “Yes, your Honor.”
The Court concludes that petitioner’s plea was voluntary, knowing, and intelligent
and not illusory. To the extent that petitioner is claiming there was an insufficient factual
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basis for his plea, his claim is not cognizable on habeas review, because “[t]he
requirement that a sentencing court must satisfy itself that a sufficient factual basis
supports the guilty plea is not a requirement of the Constitution, but rather a
requirement created by rules and statutes.” United States v. Tunning, 69 F.3d 107, 111
(6th Cir. 1995) (citing Higgason v. Clark, 984 F.2d 203, 208 (7th Cir. 1993)).
C. Appellate Counsel
The third and final habeas claim alleges that Petitioner’s appellate attorney was
ineffective for failing to challenge the sufficiency of the evidence supporting the charges
for armed robbery and assault with intent to commit murder. Petitioner maintains that
he should have been charged with retail fraud, not armed robbery.
To prevail on his claim, petitioner must demonstrate that his appellate attorney’s
performance was deficient and that the deficient performance prejudiced the appeal.
Strickland, 466 U.S. at 687; Smith v. Robbins, 528 U.S. 259, 285 (2000) (stating that the
proper standard for evaluating the petitioner’s claim about appellate counsel is that
enunciated in Strickland). Petitioner was not entitled to compel his attorney to raise all
nonfrivolous claims on appeal, Jones v. Barnes, 463 U.S. 745, 751 (1983), and, as
previously explained, the evidence supported the charges. The Court therefore
concludes that appellate counsel was not ineffective for failing to challenge the factual
basis for petitioner’s plea or the sufficiency of the evidence supporting the charges
against petitioner.
IV. Conclusion
The state courts’ rejection of petitioner’s claims did not result in decisions that
were contrary to Supreme Court precedent, an unreasonable application of Supreme
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Court precedent, or an unreasonable determination of the facts. Accordingly, the
petition for a writ of habeas corpus [Dkt. #1] is DENIED.
It is further ORDERED that a certificate of appealability is DENIED because
reasonable jurists would not debate the Court’s assessment of petitioner’s claims, or
conclude that the issues deserve encouragement to proceed further. Slack v.
McDaniel, 529 U.S. 473, 484 (2000). Petitioner nevertheless may proceed in forma
pauperis on appeal because an appeal could be taken in good faith. 28 U.S.C. §
1915(a)(3).
Dated: July 5, 2011
S/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
July 5, 2011, and also to Raymond Barlow at Lakeland
Correctional Facility, 141 First Street, Coldwater, MI 49036, by
electronic and/or ordinary mail.
S/Josephine Chaffee
Deputy Clerk

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