Zaker v. McQuiggin

Filing 16

OPINION and ORDER DENYING 15 MOTION for Evidentiary Hearing, MOTION for Discovery, the Petition for a Writ of Habeas Corpus and a Certificate of Appealability. Signed by District Judge Nancy G. Edmunds. (CHem)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

THOMAS ZAKER,
Case Number: 2:11-CV-10753

Petitioner,

HONORABLE NANCY G. EDMUNDS

v.
GREG MCQUIGGIN,
Respondent.
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OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS
CORPUS AND DENYING CERTIFICATE OF APPEALABILITY
Petitioner Thomas Zaker has filed a petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2254. Petitioner is currently incarcerated at the Ojibway Correctional
Facility in Marenisco, Michigan. Petitioner challenges his convictions for first-degree
criminal sexual conduct and second-degree criminal sexual conduct. For the reasons set
forth below, the Court denies the petition.
I. Background
Petitioner was charged in Wayne County Circuit Court with first- and seconddegree criminal sexual conduct. Petitioner filed a pre-trial motion to suppress his
custodial statement. Following a hearing, the trial court denied the motion. Petitioner
then pled no contest in Wayne County Circuit Court to first-degree criminal sexual
conduct and second-degree criminal sexual conduct pursuant to a sentencing agreement
providing that he would be sentenced to 9 to 15 years for each conviction, to be served

concurrently. On May 1, 2007, Petitioner was sentenced in accordance with the
sentencing agreement.
Petitioner then filed a motion to withdraw his plea, claiming that the plea was not
knowingly or voluntarily entered because his attorney incorrectly informed him that he
could raise a claim on appeal challenging the admissibility of his confession. The trial
court denied the motion.
Petitioner filed an application for leave to appeal in the Michigan Court of
Appeals, raising this claim:
The trial court erred in denying defendant’s motion to withdraw his plea
when the plea was not knowingly, understandingly, and/or voluntarily
made, and defendant was under the impression he could appeal and argue
his pretrial motions.
The Michigan Court of Appeals denied leave to appeal for lack of merit in the
grounds presented. People v. Zaker, No. 283719 (Mich. Ct. App. Apr. 14, 2008).
Petitioner filed an application for leave to appeal in the Michigan Supreme Court.
He raised the claim raised in the Michigan Court of Appeals and the following additional
claims:
I.

Trial court did not follow the parameters of M.C.R. 6.302(b). Trial court
did not follow subrules (b)(3) and (b)(5) and address defendant orally on
record about waiver of right to appeal.

II.

Defendant was under impression he could appeal his pretrial motions during
the appeal process.

III.

Counsel’s ineffective assistance due to being overburdened in course of the
instant case. Counsel was attorney for the defendant in three capital cases
running simultaneously on date of trial for defendant.
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IV.

Out of court statements made to police were obtained in violation of
Miranda rule. Failure of counsel to object in court, courts’ failure to review
audio-taped version of defendant’s out of court statements to police.
Defendant requested an attorney during the investigation.

V.

Ineffective assistance of counsel due to being misinformed and ill advised
during the plea process.

VI.

Comments made by trial judge in pretrial motion to reduce bond caused
defendant to fear more years of confinement if found guilty by a jury.
Judge coerced defendant to enter plea of nolo contendere.

VII.

Courts’ possible abuse of discretion in denial of withdrawal of plea
agreement during post conviction motion to withdraw plea.

The Michigan Supreme Court denied leave to appeal. People v. Zaker, 482 Mich.
1013 (2009).
Petitioner then filed a motion for relief from judgment in the trial court. He raised
the same claims raised in his application for leave to appeal to the Michigan Supreme
Court. The trial court denied the motion. People v. Zaker, No. 06-11379-01 (May 11,
2009). Petitioner filed an application for leave to appeal in the Michigan Court of
Appeals. He raised the same claims raised in the trial court and a claim of ineffective
assistance of counsel. The Michigan Court of Appeals denied leave to appeal. People v.
Zaker, No. 292898 (Mich. Ct. App. Apr. 16, 2010).
Petitioner filed an application for leave to appeal to the Michigan Supreme Court.
He raised the issues raised in the Michigan Court of Appeals. He also raised two new
issues:
I.

The Michigan Court of Appeals erred by not accepting defendant’s motion
for reconsideration . . . when it was timely filed.
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II.

Defendant has established entitlement to relief from judgment of his
convictions and sentence.

The Michigan Supreme Court denied leave to appeal. People v. Zaker, 488 Mich.
871 (Mich. Sept. 27, 2010).
Petitioner then filed the pending habeas petition. He raises these claims:
I.

Whether Petitioner was denied his basic fundamental right to effective
assistance of counsel as guaranteed by both state and federal constitutions,
when trial counsel was ineffective at critical pre-trial stages and that his
professional performance was substandard and fell below an objective
standard of reasonableness?

II.

Was it error for the trial court to deny Petitioner’s motion to withdraw his
plea when the plea was not knowingly, understandingly and voluntarily
made in violation of his fundamental right to due process of law guaranteed
under the 5th Amendment of the Constitution of the United States?

III.

Was Petitioner denied his fundamental right to due process of law under the
5th Amendment of the U.S. Constitution by the trial court’s abuse of
discretion and coercion during the pre-trial hearings?

II. Petitioner’s Motions for Evidentiary Hearing and for Discovery
Petitioner has filed a consolidated motion for evidentiary hearing and for
discovery. He seeks an evidentiary hearing regarding all of the claims raised in his
petition. Petitioner seeks discovery of the rape kit and toxicology report.
When a petitioner seeks habeas relief on a claim that has been “adjudicated on the
merits in state court proceedings,” 28 U.S.C. § 2254(d)(1), federal court review “is
limited to the record that was before the state court that adjudicated the claim on the
merits.” Cullen v. Pinholster, __ U.S. __, 131 S. Ct. 1388, 1398 (2011). If a petitioner
raises a claim not adjudicated on the merits by the state courts, the federal court has
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discretion to consider new evidence under 28 U.S.C. § 2254(e)(2). Id. at 1401. Section
2254(e)(2) bars a federal court from holding an evidentiary hearing unless the petitioner
satisfies certain statutory requirements.
In this case, the state courts adjudicated Petitioner’s claims. Petitioner seeks relief
under § 2254(d)(1), arguing that the state court’s adjudication was an unreasonable
application of clearly established Federal law. “[E]vidence introduced in federal court
has no bearing on § 2254(d)(1) review.” Id. at 1400. Thus, under Pinholster, the Court’s
review is confined to the record before the state courts and the Court denies Petitioner’s
request for an evidentiary hearing. Id. at 1398.
Petitioner also moves for discovery of the rape kit and toxicology report. “A
habeas petitioner, unlike the usual civil litigant in federal court, is not entitled to
discovery as a matter of ordinary course.” Bracy v. Gramley, 520 U.S. 899, 904 (1997).
Rule 6 of the Rules Governing Section 2254 Cases provides that a habeas court may
authorize a party to conduct discovery upon a showing of good cause. 28 U.S.C. foll. §
2254, Rule 6(a). “Rule 6 embodies the principle that a court must provide discovery in a
habeas proceeding only ‘where specific allegations before the court show reason to
believe that the petitioner may, if the facts are fully developed, be able to demonstrate
that he is . . . entitled to relief.’” Williams v. Bagley, 380 F.3d 932, 975 (6th Cir. 2004),
quoting Bracy v. Gramley, 520 U.S. 899, 908-09 (1997). “Rule 6 does not ‘sanction
fishing expeditions based on a petitioner's conclusory allegations.’” Id., quoting Rector v.
Johnson, 120 F.3d 551, 562 (5th Cir. 1997). If a petitioner had the opportunity to develop
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the facts in the state courts but failed to do so, discovery may be barred by 28 U.S.C. §
2254(e)(2)(A)(ii). Here, Petitioner fails to make a showing that the discovery he requests
was unavailable to him in state court. Therefore, the discovery requests will be denied.
III. Standard
The petitioner’s claims are reviewed against the standards established by the
Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat.
1214 (AEDPA). The AEDPA provides:
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 –
(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).
“A state court’s decision is ‘contrary to’ . . . clearly established law if it ‘applies a
rule that contradicts the governing law set forth in [Supreme Court cases]’ or if it
‘confronts a set of facts that are materially indistinguishable from a decision of [the
Supreme] Court and nevertheless arrives at a result different from [this] precedent.’”
Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003) (per curiam) (quoting Williams v. Taylor,
529 U.S. 362, 405-06 (2000)). “[T]he ‘unreasonable application’ prong of the statute

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permits a federal habeas court to ‘grant the writ if the state court identifies the correct
governing legal principle from [the Supreme] Court but unreasonably applies that
principle to the facts’ of petitioner’s case.” Wiggins v. Smith, 539 U.S. 510, 520 (2003)
(quoting Williams, 529 U.S. at 413). However, “[i]n order for a federal court find a state
court’s application of [Supreme Court] precedent ‘unreasonable,’ the state court’s
decision must have been more than incorrect or erroneous. The state court’s application
must have been ‘objectively unreasonable.’” Wiggins, 539 U.S. at 520-21 (citations
omitted); see also Williams, 529 U.S. 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 v. Richter, __ U.S. __, 131
S. Ct. 770, 789 (2011), quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004).
“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. . . . As a condition for obtaining habeas corpus from a federal
court, a state prisoner must show that the state court’s ruling on the claim being presented
in federal court 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 786-87 (internal quotation omitted).
Section 2254(d)(1) limits a federal habeas court’s review to a determination of
whether the state court’s decision comports with clearly established federal law as
determined by the Supreme Court at the time the state court renders its decision. See
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Williams, 529 U.S. at 412. Section 2254(d) “does not require citation of [Supreme
Court] cases – indeed, it does not even require awareness of [Supreme Court] cases, so
long as neither the reasoning nor the result of the state-court decision contradicts them.”
Early v. Packer, 537 U.S. 3, 8 (2002). “[W]hile the principles of “clearly established
law” are to be determined solely by resort to Supreme Court rulings, the decisions of
lower federal courts may be instructive in assessing the reasonableness of a state court’s
resolution of an issue.” Stewart v. Erwin, 503 F.3d 488, 493 (6th Cir. 2007), citing
Williams v. Bowersox, 340 F.3d 667, 671 (8th Cir. 2003); Dickens v. Jones, 203 F. Supp.
2d 354, 359 (E.D. Mich. 2002).
Lastly, a federal habeas court must presume the correctness of state court factual
determinations. See 28 U.S.C. § 2254(e)(1). A petitioner may rebut this presumption
only with clear and convincing evidence. Warren v. Smith, 161 F.3d 358, 360-61 (6th
Cir. 1998).
IV. Discussion
A. Ineffective Assistance of Counsel Claim
Petitioner argues for habeas relief because, he claims, he received ineffective
assistance of counsel. Specifically, Petitioner argues that his attorney was ineffective in:
(i) incorrectly advising him he could obtain appellate review of the trial court’s denial of
his motion to suppress even after entry of an unconditional plea; (2) failing to present an
expert witness regarding alcohol withdrawal at the Walker hearing; and (3) being
overburdened with three serious criminal cases at the same time.
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Generally, to prevail on an ineffective assistance of counsel claim on habeas
review, a petitioner must demonstrate (1) that “counsel’s representation fell below an
objective standard of reasonableness,” and (2) that “there is a reasonable probability that,
but for counsel's unprofessional errors, the result of the proceeding would have been
different.” Strickland v. Washington, 466 U.S. 668, 687-88 (1984).
The two-part Strickland test applies to claims of ineffective assistance of counsel
based upon counsel’s conduct prior to the entry of a plea. Hill v. Lockhart, 474 U.S. 52,
58-59 (1985). In the context of guilty pleas, the first half of the Strickland test is the same
standard set forth above. Id. The second, or “prejudice,” requirement, on the other hand,
focuses on whether counsel’s constitutionally ineffective performance affected the
outcome of the plea process. In other words, in order to satisfy the "prejudice"
requirement, the defendant must show that there is a reasonable probability that, but for
counsel's errors, he would not have pleaded guilty and would have insisted on going to
trial. Id.
Respondent argues that these claims are procedurally defaulted. “[F]ederal courts
are not required to address a procedural-default issue before deciding against the
petitioner on the merits.” Hudson v. Jones, 351 F.3d 212, 215 (6th Cir. 2003), citing
Lambrix v. Singletary, 520 U.S. 518, 525 (1997). “Judicial economy might counsel
giving the [other] question priority, for example, if it were easily resolvable against the
habeas petitioner, whereas the procedural-bar issue involved complicated issues of state
law.” Lambrix, 520 U.S. at 525. In this case, the Court finds that the interests of judicial
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economy are best served by addressing the merits of Petitioner’s ineffective assistance of
counsel claims.
First, Petitioner argues that his attorney improperly told him that he could appeal
the trial court’s denial of his motion to suppress his custodial statement even though he
entered an unconditional guilty plea. The trial court, in denying Petitioner’s motion to
withdraw his plea, found not credible Petitioner’s claim that his attorney advised him he
could still appeal this issue. A federal court on habeas review does not reweigh or
reevaluate the credibility of witnesses. Nali v. Phillips, 681 F.3d 837, 842 (6th Cir.
2012). A federal court must also presume that a state court’s factual findings are correct.
Clark v. O’Dea, 257 F.3d 498, 506 (6th Cir. 2001). This presumption may be rebutted
only by “clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). Petitioner presents no
clear and convincing evidence to rebut the presumption of correctness afforded the state
court’s finding that counsel did not incorrectly advise Petitioner about his ability to
appeal.
The state court’s factual finding is supported by the plea colloquy. Petitioner
stated that no promises other than those stated on the record had been made to him. If this
court were to rely solely on Petitioner's statement regarding what his attorney told him
and ignore the factual findings of the sentencing judge, who had an opportunity to hear
and observe Petitioner and his attorney, 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
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statements during the plea colloquy . . . indicating the opposite.” Ramos v. Rogers, 170
F.3d 560, 566 (6th Cir.1999). Petitioner has not shown that he was misinformed about
the consequences of his plea or that his attorney’s representation fell below an objective
standard of reasonableness.
Second, Petitioner argues that his attorney was ineffective in failing to present an
expert witness regarding alcohol withdrawal at the suppression hearing. During the
suppression hearing, the medical director of the Wayne County Jails, Dr. Timothy Paul
Barth, was called to testify by the prosecution. He testified regarding Petitioner’s
intoxication at the time of his arrest and the Petitioner’s subsequent development of
discomfort and elevated pulse and blood pressure. Dr. Barth prescribed medication to
alleviate alcohol withdrawal symptoms. Defense counsel vigorously cross-examined Dr.
Barth regarding the severity of Petitioner’s symptoms. Petitioner fails to offer specific
questions Dr. Barth should have been but was not asked. Further, Petitioner fails to
provide any specific information about what an expert witness’s testimony would have
been or how it would have borne upon his case. Petitioner has not established that but for
defense counsel’s alleged errors there is a reasonable probability that the result of the
suppression hearing would have been different, that he would not have pleaded no contest
and would have insisted on going to trial. See Hill, 474 U.S. at 58–59.
Finally, Petitioner argues that counsel was ineffective because, at the time he
represented Petitioner, he was simultaneously the defense attorney in three separate
felony cases. Petitioner provides no specific examples of ways in which counsel’s
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performance was hampered by his caseload. Petitioner identifies no particular actions
counsel failed to take. In short, this claim amounts to nothing more than conclusory
allegations which fall far short of showing counsel was inadequate or that Petitioner was
prejudiced by the failure to call alibi witnesses. See Cross v. Stovall, 238 F. App’x 32, 39
(6th Cir. 2007) (holding that conclusory assertions of prejudice are insufficient to satisfy
Strickland’s second prong). Petitioner’s conclusory allegations fail to show ineffective
assistance.
B. Voluntariness of Plea
Next, Petitioner argues that his plea was involuntary because his attorney
incorrectly advised him regarding his ability to appeal the court’s denial of his motion to
suppress.
To be valid, a guilty plea must be voluntarily and intelligently made. Brady v.
U.S., 397 U.S. 742, 748-49 (1970). The plea must be made “with sufficient awareness of
the relevant circumstances and likely consequences.” Id. at 748. The voluntariness of a
plea “can be determined only by considering all of the relevant circumstances
surrounding it.” Id. at 749. A "plea of guilty entered by one fully aware of the direct
consequences" of the plea is voluntary in a constitutional sense, and the mere fact that the
defendant "did not correctly assess every relevant factor entering into his decision" does
not mean that the decision was not intelligent. Id. at 755, 757. “[T]he decision whether
or not to plead guilty ultimately rests with the client.” Lyons v. Jackson, 299 F.3d 588,
598 (6th Cir. 2002).
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The trial court, in denying Petitioner’s motion to withdraw his plea, held that the
plea was voluntarily, knowingly, and understandingly made. The trial court noted that the
record showed that Petitioner was fully aware of the consequences of the no contest plea
versus the potential consequences of proceeding to trial. Additionally, the trial court
rejected Petitioner’s argument that his attorney incorrectly advised him regarding the
impact on his ability to appeal his convictions.
The plea colloquy shows that Petitioner was informed of the maximum possible
sentence he faced. He was also informed of the rights he was waiving by pleading guilty,
such as the right to a trial by jury. The written plea agreement form also informed
Petitioner that he was waiving his appeal as of right by entering a plea. Petitioner
indicated that he understood his rights and was voluntarily waiving them. Additionally,
Petitioner stated that no promises had been made to him in exchange for his plea beyond
those stated on the record. 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, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977).
Having reviewed the record, the Court is satisfied that Petitioner’s plea was
knowing, intelligent and voluntary and that the state court’s opinion finding the same was
not contrary to or an unreasonable application of Supreme Court precedent.
C. Trial Judge’s Conduct
Finally, Petitioner seeks habeas relief on the ground that he was coerced into
pleading guilty by the trial court’s inappropriate comments.
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First, Petitioner argues that the trial court improperly coerced him by stating,
during a hearing on his motion to reduce bond, that if he was convicted and sentenced to
five to fifteen years in prison, he would serve fifteen years. The judge’s comments
simply explained to Petitioner the reality of his situation and the seriousness of the prison
term he faced. Read in context, the trial judge was attempting to persuade Petitioner to
understand the seriousness of both his legal and alcohol problems. The trial judge’s
comments were in no way threatening or coercive.
Second, Petitioner argues that the trial judge’s comments during his motion to
withdraw his plea were inappropriate. Specifically, Petitioner claims that the trial judge
incorrectly believed that Petitioner attempted to abscond from Michigan and was found in
Ohio, driving a rental car and wearing a disguise. Petitioner argues that the trial judge
must have confused him with another defendant and, therefore, relied upon incorrect
information in denying the motion to withdraw. There is no federal constitutional right
that requires a state court to allow a defendant to withdraw a voluntary and intelligent
plea. Carwile v. Smith, 874 F.2d 382, 385–86 (6th Cir. 1989). Therefore, this claim is
not cognizable on federal habeas review.
Finally, Petitioner argues that the trial court erred in failing to sua sponte inquire
into defense counsel’s potential conflict of interest. A criminal defendant is entitled to
the effective assistance of counsel free from conflict. Holloway v. Arkansas, 435 U.S.
475, 483-84 (1978). In Cuyler v. Sullivan, 446 U.S. 335 (1980), the Supreme Court
considered a claim of ineffective assistance of counsel in a case where defense counsel
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represented three codefendants without objection. Id. at 337-38. The Court held: “In
order to establish a violation of the Sixth Amendment, a defendant who raised no
objection at trial must demonstrate that an actual conflict of interest adversely affected his
lawyer’s performance.” Id. at 348. “An ‘actual conflict,’ for Sixth Amendment purposes,
is a conflict of interest that adversely affects counsel's performance.” Mickens v. Taylor,
535 U.S. 162, 171, 172 n. 5. When an actual conflict of interest exists, prejudice is
presumed. Strickland, 466 U.S. at 692.
In short, cases involving an actual conflict of interest have a lessened standard of
proof because prejudice will be presumed upon a showing that a conflict existed which
adversely affected counsel’s performance. However, Cuyler’s lessened standard of proof
has never been extended by the United States Supreme Court to any conflict other than
multiple concurrent representation, also referred to as joint representation. Smith v.
Hofbauer, 312 F.3d 809, 818 (6th Cir. 2002). A “mere theoretical division of loyalties” is
not itself an “actual conflict of interest.” Mickens, 535 U.S. at 171. See also Bray v.
Cason, 375 F. App’x 466, 472 (6th Cir. 2010) (holding “hypothetical conflicts” cannot
establish an actual conflict of interest); Moss v. United States, 323 F.3d 445, 467 n. 23
(6th Cir.2003) (holding the conflict must be “real or genuine, as opposed to [ ]
hypothetical”).
In this case, Petitioner has failed to offer anything more than speculation to support
the claimed conflict of interest. The fact that trial counsel was busy, without more, does
not establish a conflict of interest. See United States v. Zackson, 6 F.3d 911, 921 (2d
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Cir.1993) (“In order to classify [a busy schedule] as a per se sixth amendment violation,
we would have to conclude that virtually all busy defense attorneys ... who have more
than one client ... are inherently incapable of providing an adequate defense....”). In the
absence of any substantive evidence of actual conflict, the court holds that the Michigan
courts did not unreasonably apply Supreme Court precedent in denying this claim.
V. Certificate of Appealability
Federal Rule of Appellate Procedure 22 provides that an appeal may not proceed
unless a certificate of appealability (COA) is issued under 28 U.S.C. § 2253. Rule 11 of
the Rules Governing Section 2254 Proceedings now requires that the court “must issue or
deny a certificate of appealability when it enters a final order adverse to the applicant.”
A COA may be issued “only if the applicant has made a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The substantial showing
threshold is satisfied when a petitioner demonstrates “that reasonable jurists would find
the district court’s assessment of the constitutional claims debatable or wrong.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000).
In this case, the Court concludes that reasonable jurists would not debate the
Court’s conclusion that none of the claims in the habeas petition warrant relief.
Therefore, the Court denies a certificate of appealability.
VI. Conclusion
For the foregoing reasons, IT IS ORDERED that the petition for a writ of habeas
corpus and a certificate of appealability are DENIED and the matter is DISMISSED
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WITH PREJUDICE.
IT IS FURTHER ORDERED that Petitioner’s “Consolidated Motion for
Evidentiary Hearing and Motion for Discovery” [dkt. # 15] is DENIED.

s/Nancy G. Edmunds
Nancy G. Edmunds
United States District Judge
Dated: January 25, 2013

I hereby certify that a copy of the foregoing document was served upon counsel of
record on January 25, 2013, by electronic and/or ordinary mail.
s/Carol A. Hemeyer
Case Manager

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