Beiruti v. Davis
OPINION AND ORDER Denying re 1 Petition for Writ of Habeas Corpus filed by Nagash Ahmed Beiruti, and Denying a Certificate of Appealability, and Granting Petitioner Leave to Appeal In Forma Pauperis. Signed by District Judge Marianne O. Battani. (BThe)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NAGASH AHMED BEIRUTI,
CIVIL NO. 2:10-CV-13848
HONORABLE MARIANNE O. BATTANI
UNITED STATES DISTRICT COURT
OPINION AND ORDER DENYING THE PETITION FOR WRIT OF HABEAS
CORPUS, DENYING A CERTIFICATE OF APPEALABILITY, AND GRANTING
PETITIONER LEAVE TO APPEAL IN FORMA PAUPERIS
Nagash Ahmed Beiruti, (“Petitioner”), confined at the Newberry
Correctional Facility in Newberry, Michigan, has filed a petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254. In his application, filed pro se, petitioner
challenges his conviction for aggravated stalking, M.C.L.A. 750.441i; and being a
second felony habitual offender, M.C.L.A. 760.10. For the reasons stated below,
the petition for writ of habeas corpus is DENIED.
Petitioner pleaded guilty to the above charges on October 10, 2008 in the
Wayne County Circuit Court, pursuant to a sentence agreement made with the
trial court judge pursuant to People v. Cobbs, 443 Mich. 276; 505 N.W. 2d 208
(1993). Prior to the plea, petitioner’s counsel requested a preliminary sentencing
evaluation pursuant to Cobbs by filling out a Request by Defendant For
Statement of Preliminary Evaluation of Sentence. The trial court judge indicated
on the form that petitioner’s sentencing guidelines range was ten to twenty eight
months. The judge further indicated that she would agree to a sentence of ten
months to seven and one half years in the MDOC [Michigan Department of
At the time of the plea, the parties indicated that petitioner would be
pleading guilty to the charges pursuant to the trial court judge’s sentencing
evaluation. (Plea Tr. , p. 4). The following exchange took place between the
THE COURT: We have had a chance to discuss the circumstances of
this case up here at side bar and I have given the defendant a Cobbs
evaluation through his attorney, of course.
The guidelines are 10 to 28 months. And my Cobbs evaluation is that
I will sentence him to the bottom of the guidelines, that is 10 months
provided he has absolutely no contact with the victims of this stalking.
And if he does have any contact with these victims in any way, then I
am - - I will sentence him to the 28 months as the bottom of the
guidelines instead of the 10 months.
MS. TINK [THE PROSECUTOR]: . . . Just to clarify, that was 10
months to seven and a half years.
THE COURT: Correct.
MS. TINK: And not just 10 months in the jail.
THE COURT: Yes. In the Wayne - - yes. Which, of course, I would
have to do that but I would be required to do that, yes, in prison.
Request by Defendant for Statement of Preliminary Evaluation of Sentence, dated October 10,
2008, See Dkt. # 8-5 of this Court’s docket.
MR. PERLMAN [DEFENSE COUNSEL(speaking to the court appointed
interpreter]: Please ask Mr. Beiruti if he understands that.
MR. PERLMAN: Does he want to go along with that?
(Id. at pp. 5-6).
The trial judge subsequently asked petitioner whether he “fully and
completely” understood the plea agreement, to which petitioner replied that he
did. In response to the trial judge’s question, petitioner also indicated that he
understood the Cobbs evaluation. (Id. at p. 7).
The trial judge then advised petitioner of the rights that he would relinquish
by pleading guilty. (Id. at pp. 7-9). In response to a question from the judge,
petitioner again indicated that he understood the plea that he had been offered.
(Id. at p. 9). Petitioner further indicated that no promises, other than the ones
placed on the record or written down in the plea agreement or Cobbs evaluation,
had been made to induce his plea of guilty. (Id. at p. 10).
At the time of sentencing, petitioner moved to withdraw his plea of guilty,
claiming that he never agreed to the sentence of ten months to seven and one
half years in prison, having been lead to believe by his counsel that he would
receive ten months in the county jail in exchange for his plea. (Tr. 11/5/2008, pp.
4-7). The trial judge denied the motion to withdraw, finding that petitioner had
been informed of what his sentence would be if he pleaded guilty pursuant to the
Cobbs agreement and that he completely understood the plea agreement. (Id. at
pp. 6-7, 9). Petitioner was sentenced to ten months to seven and one half years
in prison. (Id. at pp. 9-10).
Petitioner’s conviction was affirmed on appeal. People v. Beiruti, No.
294603 (Mich.Ct.App. December 9, 2009); lv. den. 486 Mich. 903; 780 N.W. 2d
Petitioner seeks a writ of habeas corpus on the following grounds:
I. Petitioner's guilty plea was not knowing and voluntary, thereby
resulting in a denial of his right to due process.
II. The trial court erred when it denied petitioner's request to
withdraw his guilty plea prior to sentencing.
II. Standard of Review
28 U.S.C. § 2254(d), as amended by The Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA), imposes the following standard of review for
An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be
granted with respect to any claim that was adjudicated on the merits
in State court proceedings unless the adjudication of the claim–
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
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.
A decision of a state court is “contrary to” clearly established federal law if
the state court arrives at a conclusion opposite to that reached by the Supreme
Court on a question of law or if the state court decides a case differently than the
Supreme Court has on a set of materially indistinguishable facts. Williams v.
Taylor, 529 U.S. 362, 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 (2010)((quoting Lindh v.
Murphy, 521 U.S. 320, 333, n. 7 (1997); Woodford v. Viscotti, 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
“[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. 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)). Indeed, a “readiness to attribute error [to a state court]
is inconsistent with the presumption that state courts know and follow the law.”
Woodford, 537 U.S. at 24. 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.” Harrington, 131 S. Ct. at 786-87.
The Court will consolidate petitioner’s two claims together because they
are interrelated. Petitioner contends that he should have been permitted to
withdraw his plea of guilty, claiming that his plea was not knowingly and
voluntarily made, because he believed that under the terms of the Cobbs
agreement, he would receive ten months in the county jail, as opposed to ten
months to seven and one half years in prison.
Initially, the Court observes that petitioner has no absolute right to
withdraw his guilty plea. See Shanks v. Wolfenbarger, 387 F. Supp. 2d 740, 748,
655 (E.D. Mich. 2005)(internal citations omitted). Therefore, unless the plea
violated a clearly-established constitutional right, whether to allow the withdrawal
of a criminal defendant’s guilty plea is discretionary with the state trial court. Id.
A plea of guilty must be knowingly and voluntarily made. The defendant
must be aware of the “relevant circumstances and likely consequences” of his
plea. Hart v. Marion Correctional Institution, 927 F. 2d 256, 257 (6th Cir. 1991).
The defendant must also be aware of the maximum sentence that can be
imposed for the crime for which he is pleading guilty. King v. Dutton, 17 F. 3d
151, 154 (6th Cir. 1994). When a petitioner brings a federal habeas petition
challenging his plea of guilty, the state generally satisfies its burden by
producing a transcript of the state court proceedings showing that the plea was
made voluntarily. Garcia v. Johnson, 991 F. 2d 324, 326 (6th Cir. 1993). The
factual findings of a state court that the guilty plea was properly made are
generally accorded a presumption of correctness. Petitioner must overcome a
heavy burden if the federal court is to overturn these findings by the state court.
Id. Additionally, a habeas petitioner bears a heavy burden of rebutting the
presumption that his guilty plea, as evidenced by the plea colloquy, is valid. See
Hastings v. Yukins, 194 F. Supp. 2d 659, 669 (E.D. Mich. 2002).
It is only when the consensual character of a guilty plea is called into
question that the validity of a guilty plea may be impaired. Mabry v. Johnson,
467 U.S. 504, 508-509 (1984). A plea of guilty 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 or her own counsel, must stand unless
induced by threats (or promises to discontinue improper harassment),
misrepresentation (including unfulfilled or unfulillable promises), or perhaps by
promises that are by their nature improper as having no proper relationship to
the prosecutor’s business (i.e. bribes). Id. at 509 (quoting Brady v. United States,
397 U.S. 742, 755 (1970)). A federal court will uphold a state court guilty plea if
the circumstances demonstrate that the defendant understood the nature and
consequences of the charges and voluntarily chose to plead guilty. See
Hastings, 194 F. Supp. 2d at 669.
Petitioner contends that his plea was involuntary because he believed that
the Cobbs agreement that he and his counsel entered into with the trial judge
called for him to receive ten months in the county jail, as opposed to a prison
sentence of ten months to seven and one half years.
An unfulfilled state promise obtained in return for a guilty plea will entitle a
habeas petitioner to habeas relief. Myers v. Straub, 159 F. Supp. 2d 621, 627
(E.D. Mich. 2001). Moreover, any promises made by a judge in the course of a
guilty plea colloquy operate as a promise made by the state in exchange for a
defendant’s waiver of rights and guilty plea. See Spencer v. Superintendent,
Great Meadow Correctional Facility, 219 F. 3d 162, 168 (2nd Cir. 2000).
However, a federal court sitting in habeas review should not “lightly find
misrepresentation in a plea agreement.” Myers, 159 F. Supp. 2d at 627.
In the present case, prior to pleading guilty, petitioner and his counsel
signed a Request by Defendant For Statement of Preliminary Evaluation of
Sentence. On this form, the trial judge indicated that she would sentence
petitioner to ten months to seven and one half years in prison if petitioner
pleaded guilty. At the time of petitioner’s guilty plea, the trial judge indicated on
the record that she would sentence petitioner to ten months if he pleaded guilty.
The prosecutor clarified that the Cobbs agreement called for a sentence of ten
months to seven and one half years in prison and not just ten months in jail. The
trial judge, in response to the prosecutor’s remark, acknowledged that under the
terms of the agreement, she would be required to send petitioner to prison. In
response to the trial judge’s inquiry, petitioner indicated that he understood this.
Petitioner later indicated that he completely and fully understood the plea
agreement and the Cobbs evaluation. In response to a question from the trial
judge, petitioner for a third time indicated that he understood the plea
agreement. Petitioner further indicated that no additional promises had been
made, other than the ones placed on the record or written down in the plea
agreement or Cobbs evaluation, to induce his plea of guilty. Nothing in the
record indicates that petitioner was promised a sentence of ten months in the
county jail if he pleaded guilty.
Absent extraordinary circumstances, or some other explanation as to why
a defendant did not reveal other terms when specifically asked to do so by the
trial court, a plea agreement consists of the terms revealed in open court, where
the trial court scrupulously follows the required procedure for taking the
defendant’s plea. Baker v. United States, 781 F. 2d 85, 90 (6th Cir. 1986);
Hastings v. Yukins, 194 F. Supp. 2d at 669. Because a plea bargain is
contractual in nature, it would violate established contract-law standards to
permit a defendant to attempt to prove that a plea agreement is otherwise than it
unambiguously appears on a thorough record. Baker, 781 F. 2d at 90. Plea
agreements are to be strictly construed. See United States v. Brummett, 786 F.
2d 720, 723 (6th Cir. 1986). A term of a plea agreement “that is unambiguous on
its face and agreed to by the defendant in open court will be enforced.” McAdoo
v. Elo, 365 F. 3d 487, 497 (6th Cir. 2004). Moreover, “[T]he United States
Constitution does not require judges to explain the meaning of ...unambiguous
terms during the plea colloquy in order to combat alleged misinformation that is
not revealed on the record.” Id.
In the present case, the only agreement made by the trial judge at the time
of the guilty plea was that petitioner would receive ten months to seven and one
half years in prison if he pleaded guilty. The prosecutor, in fact, clarified on the
record that the Cobbs evaluation offered by the judge called for petitioner to
receive a prison sentence of ten months to seven and one half years in prison,
as opposed to a sentence of ten months in the county jail. A “clear reading” of
the plea agreement shows that there was no promise by the prosecutor or the
trial judge that petitioner would receive a sentence of ten months in jail if he
pleaded guilty. Petitioner has therefore failed to show that the original terms of
the plea agreement were breached by the prosecutor or the trial judge. Myers,
159 F. Supp. 2d at 628. Moreover, petitioner would not be entitled to relief on
his claim, where petitioner expressly denied the existence of any off-the-record
promises at the time of his plea, when queried by the trial judge. See Phipps v.
Romanowski, 566 F. Supp. 2d 638, 647 (E.D. Mich. 2008); See also Shanks,
387 F. Supp. 2d at 751. In light of the fact that petitioner was advised by the trial
judge, both on the record and in the preliminary sentencing evaluation form, that
he would receive ten months to seven and one half years in prison if he pleaded
guilty, petitioner has failed to show that he reasonably believed that he would
receive a sentence of ten months in the county jail by pleading guilty. McAdoo,
365 F. 3d at 497. Because the trial court judge clearly indicated that she would
sentence petitioner to ten months to seven and one half years in prison and
petitioner expressly denied the existence of any other promises at the time of the
plea, petitioner is unable to show that the trial court breached the sentencing
agreement entered into pursuant to Cobbs or that petitioner had any reasonable
belief that he would be sentenced to ten months in the county jail. See Wright v.
Lafler, 247 Fed. Appx. 701, 705-07 (6th Cir. 2007).
To the extent that petitioner claims that his trial counsel misled him
regarding the terms of the plea agreement, a state court’s proper plea colloquy
will cure any misunderstandings that a petitioner may have had about the
consequences of the plea. Ramos v. Rogers, 170 F. 3d 560, 565 (6th Cir. 1999).
Thus, a claim of ineffective assistance of counsel predicated on allegedly
misleading information given by counsel about the terms of a plea agreement
can never constitute an “extraordinary circumstance” under Baker when the
court conducts a proper, clear, and through plea colloquy. Id.; Hastings, 194 F.
Supp. 2d 670.
Finally, although petitioner claims that he understood the plea agreement
to guarantee him a sentence of ten months in the county jail, habeas relief
should not be granted by crediting a petitioner’s subjective version of his
understanding of the plea bargain. See Nichols v. Perini, 818 F. 2d 554, 558-59
(6th Cir. 1987); See also Doughty v. Grayson, 397 F. Supp. 2d 867, 881-82 (E.D.
Mich. 2005); Hastings, 194 F. Supp. 2d at 670. Petitioner would therefore not be
entitled to the withdrawal of his plea based on any claim that his attorney gave
him erroneous information concerning the terms of the plea agreement that
petitioner had entered into with the trial judge pursuant to People v. Cobbs
where petitioner was given the correct information concerning the terms of the
plea agreement by the sentencing judge at the time of the plea and petitioner
expressly denied the existence of other representations or promises. See United
States v. Todaro, 982 F. 2d 1025, 1029-30 (6th Cir. 1993); Hastings, 194 F.
Supp. 2d 670. Petitioner is not entitled to habeas relief on his first and second
The Court will deny the petition for writ of habeas corpus. The Court will
also deny a certificate of appealability to petitioner. In order to obtain a
certificate of appealability, a prisoner must make a substantial showing of the
denial of a constitutional right. 28 U.S.C. § 2253(c)(2). To demonstrate this
denial, the applicant is required to show that reasonable jurists could debate
whether, or agree that, the petition should have been resolved in a different
manner, or that the issues presented were adequate to deserve encouragement
to proceed further. Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). When a
district court rejects a habeas petitioner’s constitutional claims on the merits, the
petitioner must demonstrate that reasonable jurists would find the district court’s
assessment of the constitutional claims to be debatable or wrong. Id. at 484.
“The district court must issue or deny a certificate of appealability when it enters
a final order adverse to the applicant.” Rules Governing § 2254 Cases, Rule
11(a), 28 U.S.C. foll. § 2254.
For the reasons stated in this opinion, the Court will deny petitioner a
certificate of appealability because he has failed to make a substantial showing
of the denial of a federal constitutional right. See Millender v. Adams, 187 F.
Supp. 2d 852, 880 (E.D. Mich. 2002).
Although this Court will deny a certificate of appealability to petitioner, the
standard for granting an application for leave to proceed in forma pauperis (IFP)
is a lower standard than the standard for certificates of appealability. See Foster
v. Ludwick, 208 F. Supp. 2d 750, 764 (E.D. Mich. 2002). Whereas a certificate
of appealability may only be granted if petitioner makes a substantial showing of
the denial of a constitutional right , a court may grant IFP status if it finds that an
appeal is being taken in good faith. Id. at 764-65; 28 U.S.C. § 1915(a)(3); Fed.
R.App.24 (a). “Good faith” requires a showing that the issues raised are not
frivolous; it does not require a showing of probable success on the merits.
Foster, 208 F. Supp. 2d at 765. Although jurists of reason would not debate this
Court’s resolution of petitioner’s claims, the issues are not frivolous; therefore,
an appeal could be taken in good faith and petitioner may proceed in forma
pauperis on appeal. Id.
IT IS ORDERED that the Petition for Writ of Habeas Corpus is DENIED.
IT IS FURTHER ORDERED That a Certificate of Appealability is DENIED.
IT IS FURTHER ORDERED that Petitioner will be GRANTED leave to appeal
in forma pauperis.
Dated: May 26, 2011
s/Marianne O. Battani
HONORABLE MARIANNE O. BATTANI
UNITED STATES DISTRICT JUDGE
CERTIFICATE OF SERVICE
I hereby certify that on the above date a copy of this Order was served upon
the Petitioner Nagash Beiruti via ordinary U.S. Mail and to Counsel for the
s/Bernadette M. Thebolt
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