Holder v. Bauman

Filing 21

OPINION and ORDER Denying 1 Petition for Writ of Habeas Corpus and Granting a Certificate of Appealability. Signed by District Judge Robert H. Cleland. (CGre)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

GREGORY LEWIS HOLDER,
Petitioner,
v.

Case No. 09-10954

CATHERINE S. BAUMAN,
Respondent.
/
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
AND GRANTING A CERTIFICATE OF APPEALABILITY
This habeas corpus petition may illustrate better than most the importance of
making a contemporaneous accurate record, and the dubious wisdom of judges and
attorneys discussing plea bargains and sentencing practices other than in court. Also, it
makes clear the dispositive power of unambiguous statements and solemn
acknowledgments that are recorded. On March 15, 2009, Petitioner Gregory Lewis
Holder filed a petition for the writ of habeas corpus pursuant to 28 U.S.C. § 2254,
challenging his plea-based convictions for drug and firearm offenses committed in
Genesee County, Michigan. Petitioner alleges that his guilty plea was involuntary and
that his trial attorney misled him about the sentence the judge would impose.
Respondent Catherine S. Bauman has filed a response in opposition to the petition.
The court concludes that Petitioner’s sworn statements on the record at his guilty plea
amply demonstrate that he understood then that there was, in fact, no off-the-record
sentencing deal or similar judicial commitment, and he is not entitled to habeas relief.
The petition will be denied.

I. BACKGROUND
In 2006, Petitioner was charged in the Genesee County Circuit Court (Case No.
06-18371) with the following eight crimes: (1) conspiracy to possess with intent to
deliver 1,000 or more grams of cocaine; (2) possession with intent to deliver 1,000 or
more grams of cocaine; (3) felon in possession of a firearm; (4) carrying a concealed
weapon; (5) possession of a firearm during the commission of, or attempt to commit, a
felony; (6) possession with intent to deliver marijuana; (7) possession with intent to
deliver ecstasy; and (8) possession with intent to deliver methamphetamine. The Court
will refer to this state court case as Case A. Attorney Neil Rockind represented
Petitioner in Case A.
In another case in Genesee County Circuit Court (Case No. 06-18335), Petitioner
was represented by attorney Jeffrey Skinner and charged with delivery of 50 to 449
grams of cocaine. The Court will refer to this case as Case B. In a third case in
Genesee County Circuit Court (Case No. 06-18836), Petitioner was charged with
delivery of 450 to 999 grams of cocaine.
On January 9, 2007, Petitioner pleaded guilty under oath to counts two, three,
and five of Case A. Those counts charged Petitioner with possession with intent to
deliver 1,000 or more grams of cocaine, Mich. Comp. Laws § 333.7401(2)(a)(i), felon in
possession of a firearm, Mich. Comp. Laws § 750.224f, and possession of a firearm
during the commission of, or attempt to commit, a felony, Mich. Comp. Laws §
750.227b. Petitioner also pleaded guilty, as charged, to delivery of 50 to 449 grams of
cocaine, Mich. Comp. Laws § 333.7401(2)(a)(ii), in Case B.
In exchange for Petitioner’s plea, the prosecutor dismissed case number 062

18836, which charged Petitioner with delivery of 450 to 999 grams of cocaine, and
counts one, four, six, seven, and eight of Case A. The prosecutor also agreed not to
seek consecutive sentences or sentencing enhancement as a result of Petitioner’s
status as a habitual offender and repeat drug offender.
Petitioner attempted to withdraw his plea on the date of sentencing, alleging that
his anticipated sentence was more than an agreed-upon sentence of two years in prison
for the felony firearm conviction and fifteen years in prison for the other crimes. On
March 22, 2007, the trial court heard oral arguments and denied Petitioner’s motion to
withdraw the plea. The trial court then sentenced Petitioner to imprisonment in Case A
to 225 to 475 months for possession with intent to deliver 1,000 grams or more of
cocaine, one to five years for felon-in-possession of a firearm, and a consecutive term
of two years for possession of a firearm during the commission of a felony. The trial
court sentenced Petitioner to a concurrent sentence of 99 to 240 months for delivery of
50 to 449 grams of cocaine in Case B.
Petitioner raised his habeas claims in applications for leave to appeal. The
Michigan Court of Appeals denied leave to appeal for lack of merit in the grounds
presented. See People v. Holder, No. 278965 (Mich. Ct. App. Aug. 7, 2007); People v.
Holder, No. 278967 (Mich. Ct. App. Aug. 24, 2007). On December 20, 2007, the
Michigan Supreme Court denied leave to appeal because it was not persuaded to
review the issues. See People v. Holder, 742 N.W.2d 126 (Mich. 2007); People v.
Holder, 742 N.W.2d 124 (Mich. 2007).
In March of 2009, Petitioner filed two separate habeas corpus petitions, one for
Case A and one for Case B. The petition challenging Case A was given United States
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District Court number 09-10954 and assigned to this court. Case B was given United
States District Court number 09-10973 and assigned to another judge in this District.
After case number 09-10973 was reassigned to this court as a companion case, the
court dismissed that case and directed Petitioner to incorporate all his claims in an
amended petition filed in case number 09-10954. Petitioner complied with the court’s
order, and Respondent filed an answer in opposition to the amended petition. The case
is now ready to be adjudicated.
II. STANDARD OF REVIEW
“The statutory authority of federal courts to issue habeas corpus relief for
persons in state custody is provided by 28 U.S.C. § 2254, as amended by the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).” Harrington v. Richter,
131 S. Ct. 770, 783 (2011). Pursuant to § 2254, state prisoners are not entitled to the
writ of habeas corpus unless 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

(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). In addition, “where 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)).
Petitioner alleges that § 2254(d) does not apply here because the state courts
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did not address the merits of his claims. It is true that both state appellate courts merely
issued one-sentence orders denying leave to appeal. Nevertheless, “[w]hen a federal
claim has been presented to a state court and the state court has denied relief, it may
be presumed that the state court adjudicated the claim on the merits in the absence of
any indication or state-law procedural principles to the contrary.” Harrington, 131 S. Ct.
at 784-85. Petitioner presented his claims to the Michigan Court of Appeals and to the
Michigan Supreme Court. Neither court stated that Petitioner’s claims were barred from
review by a procedural error. The Court therefore presumes that the state appellate
court orders were adjudications on the merits and that the deference due under §
2254(d) applies here.
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 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, 131 S. Ct. at 786. To obtain a writ of habeas corpus from
a federal court, a state prisoner must show that the state court’s ruling on a claim “was
so lacking in justification” that it resulted in “an error well understood and comprehended
in existing law beyond any possibility for fairminded disagreement.” Id. at 786-87.
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III. DISCUSSION
A. Voluntariness of the Plea
Petitioner contends that his trial attorney informed him that he would receive a
sentence of fifteen years for the drug conviction in Case A. Petitioner alleges that, as a
result of this incorrect information, his guilty plea was involuntary and a violation of his
constitutional right to due process.
Because a guilty plea involves a waiver of constitutional rights, it must be a
knowing, voluntary, and intelligent act done with sufficient awareness of the relevant
circumstances and likely consequences. Brady v. United States, 397 U.S. 742, 748
(1970). The defendant must appreciate the consequences of his plea, waive his rights
without being coerced, and understand the rights that he is surrendering. Ruelas v.
Wolfenbarger, 580 F.3d 403, 408 (6th Cir. 2009), cert. denied, 130 S. Ct. 3322 (2010).
“A guilty plea can be involuntary as a result of the ineffective assistance of counsel.”
United States v. Gardner, 417 F.3d 541, 545 (6th Cir. 2005). But “a ‘plea of guilty
entered by one fully aware of the direct consequences’ of the plea is voluntary in a
constitutional sense ‘unless induced by threats . . . , misrepresentation . . . , or perhaps
by promises that are by their nature improper as having no proper relationship to the
prosecutor’s business.’” Bousley v. United States, 523 U.S. 614, 619 (1998) (quoting
Brady, 397 U.S. at 755)). The voluntariness of a plea is determined by considering all
the relevant circumstances surrounding the plea. Brady, 397 U.S. at 749.
At the plea proceeding in this case, the prosecutor thoroughly explained the
terms of the plea agreement and specifically stated that there was no sentencing or

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Cobbs1 agreement. Both of the attorneys representing Petitioner assured the trial court
that the prosecutor had accurately explained the plea agreement. (Jan. 9, 2007 Tr., 56.)
Petitioner was twenty-nine years old at the time. The trial court informed him of
the maximum penalty for each of the offenses to which he was pleading guilty.
Petitioner testified that he understood the plea agreement and agreed with it. Petitioner
stated, as had his two attorneys, that no promises had been made to him, other than
those which resulted from the plea bargaining process and which were stated there on
the record. Petitioner said that it was his own choice to plead guilty and that his plea
was freely, understandingly, and voluntarily made. He maintained that there had been
no undue influence, compulsion, or duress used against him to force him to plead guilty,
and he said that he was pleading guilty because he was guilty. (Id. at 6-12.)
The record, as summarized above, shows that Petitioner entered his plea of
guilty with sufficient awareness of all the relevant circumstances and the likely
consequences. There is no support in the transcript of the plea proceeding for
Petitioner’s contention that he was promised a sentence of fifteen years for the drug
offense. His possible subjective belief that he would receive such a sentence on the
drug charges must be disregarded because “the record as a whole shows no objective
basis for the belief.” Carwile v. Smith, 874 F.2d 382, 384 (6th Cir. 1989). If this court

1

See People v. Cobbs, 505 N.W.2d 208, 212 (Mich. 1993) (acknowledging that,
“[a]t the request of a party, and not on the judge’s own initiative, a judge may state on
the record the length of sentence that, on the basis of the information then available to
the judge, appears to be appropriate for the charged offense”) (emphasis omitted).
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were to rely on Petitioner’s subjective impression that there was such an agreement, the
court “would be rendering the plea colloquy process meaningless, for any convict who
alleges that he believed the plea bargain was different from that outlined in the record
could withdraw his plea, despite his own statements during the plea colloquy . . .
indicating the opposite.” Ramos v. Rogers, 170 F.3d 560, 566 (6th Cir. 1999). “This
[the court] will not do, for the plea colloquy process exists in part to prevent petitioners .
. . from making the precise claim that is today before [the court].” Id.
Petitioner’s “[s]olemn declarations in open court” that his plea was freely,
understandingly, and voluntarily made, “carry a strong presumption of verity.”
Blackledge v. Allison, 431 U.S. 63, 74 (1977). Therefore, the court rejects Petitioner’s
allegation that his guilty plea was involuntary due to allegedly being informed that he
would receive a sentence of fifteen years for the drug conviction in Case A.
B. Trial Counsel
Petitioner alleges in a related claim that his trial attorney was constitutionally
ineffective for leading him to believe that his sentence would be fifteen years on the
drug count in Case A with an additional two years for the felony firearm count.
Petitioner claims that he would have gone to trial had it not been for his attorney’s
misinformation.
“A failure to provide professional guidance to a defendant regarding his sentence
exposure prior to a plea may constitute deficient assistance.” Moss v. United States,
323 F.3d 445, 474 (6th Cir. 2003) (citing Magana v. Hofbauer, 263 F.3d 542, 550 (6th
Cir. 2001)). However, under Strickland v. Washington, 466 U.S. 668, 687 (1984), a
petitioner must demonstrate “that counsel’s performance was deficient” and “that the
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deficient performance prejudiced the defense.” 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, 56-59 (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 demonstrate “a
reasonable probability that, but for counsel’s errors, he would not have pleaded guilty
and would have insisted on going to trial.” Id.
In a sentencing memorandum filed in the trial court, attorney Neil Rockind
retrenched from his statements at the guilty plea proceeding and alleged that, during
plea negotiations, the trial court had agreed to sentence Petitioner to fifteen years plus
two additional years for the felony firearm offense. (See Mar. 22, 2007 Tr., 17.)
Rockind goes on to say in his memorandum that, in reliance on the trial court’s
representations, he informed Petitioner that he would receive a minimum sentence of
seventeen years (fifteen years for the principal charges and two years for the felonyfirearm charge).
Petitioner’s other trial attorney, Jeffrey Skinner, stated in an affidavit he filed in
the trial court that he recalled the trial court saying fifteen years plus two years for the
felony firearm charge was “reasonable.” (Id.) Skinner’s affidavit said also that the trial
court had “no difficulty” with the proposed sentence and that the court asked the parties
for a reminder before sentencing. (Id.) At the March 22, 2007 hearing, attorney Skinner
said that in view of Petitioner’s recent remarks, “I feel like now . . . I need to take a
defensive position . . . and start making a record” of efforts to counsel Petitioner. (Id. at
9

6.) Attorney Skinner also stated on the record that “a year from now I’m going to be
sitting in that witness chair and there’s going to be a SADO attorney standing here, and
. . . I don’t need that aggravation.” (Id.) Defense attorney Rockind minutes later
explained that he had “done a lot of soul-searching” and that in his filings in support of
Petitioner he was attempting “to be honest with the court as to how we saw things.” (Id.
at 6-7.)
Petitioner relies on Rockind’s and Skinner’s recollection that there was an off-therecord agreement to sentence him to a total of seventeen years in prison. Standing in
the way of the attorneys’ point of view, however, is the recorded plea proceeding in
which Mr. Cassady, the assistant prosecutor specifically stated, among other things,
that there was no sentencing agreement. (Jan. 9, 2007 Tr. 5.) The defense attorneys
each concurred. (Id. at 6.) Immediately after prosecutor said that there is no Cobbs or
sentence agreement, the trial court asked each defense attorney, in turn, “has Mr.
Cassady accurately stated the plea agreement? (Id.) Attorney Skinner in response
said, “he has,” and attorney Rockind said “yes.” (Id.)
When the trial court asked Petitioner whether he was saying that no other
promises had been made to him other than those stated on the record, Petitioner
replied in the affirmative. (Id. at 10-11.) Petitioner is simply bound by the statements he
made in response to the court’s inquiry during the plea colloquy. Ramos, 170 F.3d at
566. At the March 22, 2007 hearing, there was no explanation offered by the attorneys
casting doubt on their stated agreement with Cassady’s assertion that there were no
sentence deals. If Petitioner is bound by his statements under oath, it would seem only
equitable that officers of the court—even though they were not required to testify under
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oath as was the Petitioner—should be equally bound by their admissions on the same
record. But even if they are not, their client is. United States v. Johnson, 752 F.2d 206,
210-11 (6th Cir. 1985) (“Statements of an attorney that are directly related to the
litigation at hand have been held to be within the attorney's scope of authority and
binding on the client.”).
Furthermore, a minimum sentence of fifteen years would have been less than the
suggested sentencing guidelines range. At the hearing on Petitioner’s motion to
withdraw his plea, the trial judge explained that he may have agreed to a sentence at
the bottom of whatever the sentencing guidelines turned out to be. ( Mar. 22, 2007 Tr.,
18.)
Now what I recall about the discussion that had was that we there was
some discussion that was had about what possible sentence Mr. Holder
would have; and I am certain that what I said to you guys is that I don’t
have a problem with sentencing him at the bottom end of the guidelines;
that’s what I normally will say, whatever those guidelines are; and I may
have asked, what the guidelines and, um, I’m not recalling what was
represented to me in terms of what the guidelines were, but if it was
represented that the—that the minimum was fifteen years, then that would
be a representation that counsel would have made to me; and that’s
where Mr. Skinner is hearing the fifteen years and two and maybe that’s
where you come up with it, also, Mr. Rockind, because I probably asked,
well what are his guidelines, which is my normal, typical practice . . . .
(Id. at 18-19.)
But the trial court stated that it “knew for a fact” that it did not agree to sentence
Petitioner below the sentencing guideline range because the court “would never enter
into an agreement to sentence someone below the guideline range knowing that there
are no circumstances that I can state on the record to justify deviating below without the
prosecutor’s permission.” (Id. at 18)
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[T]he Court cannot sit here and say its gonna sentence someone below
the guideline range without getting permission from the prosecutor or
some kind of agreement, unless the Court is convinced that it has
substantial and compelling reasons to deviate below the guideline range.
And, when you look at this case, there just are no reasons under any
circumstances to deviate below the guidelines.
So the Court knows for a fact—its not that I don’t recall, it’s not that
I’m guessing, this Court knows for a fact that it did not agree to sentence
the Defendant below the guideline range; that’s just not my practice. It
just never happened; and that the whole time I’ve been on this Bench,
unless I’ve got permission from the prosecutor—so I know that did not
happen.
...
I don’t really see a basis to allow him to withdraw his plea, because, as
Mr. Cassady has already indicated, the plea that was taken on the record,
the transcript says what it says what it says; and it’s clear that the court
never agreed to any sentence agreement other than I probably did tell you
I would sentence him at the bottom of the guidelines, which to me seem to
be fair, given the whole situation, unless I could—get some other
agreement from the prosecutor’s office, which apparently never happened.
(Id. at 20-21.) The court concluded by stating, “[T]hat’s what happened, and that was . .
. what should have been represented to Mr. Holder; and, in [the court’s] opinion,
probably . . . what was represented to Mr. Holder.” (Id. at 21.)
The trial court’s factual findings as to what occurred during the plea proceeding
were clearly stated, pointedly unequivocal on the relevant points, and may “not be
disturbed unless there was an ‘unreasonable determination of the facts in light of the
evidence presented in the State court proceeding,’ § 2254(d)(2), or unless the habeas
petitioner demonstrates the factual findings incorrect by ‘clear and convincing evidence,’
§ 2254(e).” Cooey v. Coyle, 289 F.3d 882, 907 (6th Cir. 2002). Here, the court has on
the one hand unequivocal statements by the trial judge, against statements on the other
hand made in affidavits by Petitioner’s attorneys, one of whom felt “defensive” and the
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other sought to present his “recollection” running to the contrary of the trial judge’s.
On this record, Petitioner has failed to demonstrate by clear and convincing
evidence that the trial court’s factual findings are incorrect. The record of the plea
proceeding does not support his claim that there was an agreement to sentence him to
fifteen years plus two years for the felony firearm conviction. Although this court
recognizes that the defense attorneys may have believed they heard something hopeful
in terms of a sentence prediction, the weight of the evidence supports a conclusion that
there was no agreement. Neither they nor the Petitioner can escape the force of a
clearly stated record of the proceedings.
The court defers to the trial court’s conclusion that there was no agreement to
sentence Petitioner to a total of seventeen years in Case A. The court also defers to
the trial court’s conclusion that trial counsel in all likelihood correctly represented the
terms of the plea agreement, as set forth on the record, to Petitioner. Trial counsel was
not ineffective, and the state appellate courts’ rejection of Petitioner’s claim was neither
contrary to, nor an unreasonable application of, Strickland v. Washington or Hill v.
Lockhart.
IV. CERTIFICATE OF APPEALABILITY
For Petitioner to seek review of this court’s decision, a Certificate of Appealability
(“COA”) must issue. 28 U.S.C. § 2253(c)(1)(A); Fed. R. App. P. 22(b). For a COA to
issue, Petitioner must make “a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). When a court denies a habeas claim on the merits, the
substantial showing threshold is met if the petitioner demonstrates that reasonable
jurists would find the court’s assessment of the claim debatable or wrong. See Slack v.
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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). Having considered the matter, this court finds that reasonable jurists could
debate its assessment of Petitioner’s habeas claims and will grant a COA on both
claims presented in this case.
V. CONCLUSION
The state appellate courts’ rejection of Petitioner’s claims did not result in
decisions that were contrary to clearly established federal law, unreasonable
applications of federal law, or unreasonable determinations of the facts. Accordingly,
IT IS ORDERED that Petitioner’s amended petition for a writ of habeas corpus
[Dkt. #16] is DENIED.
IT IS FURTHER ORDERED that a certificate of appealability is GRANTED on
both habeas claims presented in this case.

s/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE
Dated: August 31, 2011
I hereby certify that a copy of the foregoing document was mailed to counsel of record
on this date, August 31, 2011, by electronic and/or ordinary mail.
s/Lisa Wagner
Case Manager and Deputy Clerk
[phone]

S:\Cleland\JUDGE'S DESK\C1 ORDERS\09-10954.HOLDER.Deny.2254.bh.4.wpd

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