Burley v. Prelesnik

Filing 39

MEMORANDUM and ORDER Denying 1 Petition for Writ of Habeas Corpus and Denying Petitioner's Discovery Motions re 28 MOTION for Leave for Discovery, 29 MOTION for leave to take depositions, 30 MOTION for copies of all Rule 5 Materials filed in this Court and 38 MOTION for Court to Take Judicial Notice and Declining to Issue a Certificate of Appealability Signed by District Judge Avern Cohn. (JOwe)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

EDWARD DONALD BURLEY,
Petitioner,
Case No. 11-CV-11258
v.

HON. AVERN COHN

JOHN PRELESNIK,
Respondent.
__________________________________/

MEMORANDUM AND ORDER
DENYING PETITION FOR WRIT OF HABEAS CORPUS (Doc. 1)
AND
DENYING PETITIONER’S DISCOVERY MOTIONS (Docs. 28, 29, 30) AND MOTION
FOR JUDICIAL NOTICE (Doc. 38)
AND
DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY
I. Introduction
This is a habeas case under 28 U.S.C. § 2254. Edward Donald Burley,
(“Petitioner”), is a state inmate at the Ionia Correctional Facility in Ionia, Michigan, in
which he is serving a sentence of eighteen years, nine months to forty years in prison
for conspiracy to commit armed robbery, in violation of M.C.L. §§ 750.157a; 750.529.
Petitioner has filed a pro se petition for writ of habeas corpus claiming that he is
incarcerated in violation of his constitutional rights. Respondent, through the Attorney
General’s Office, filed a response, arguing that petitioner’s claims are procedurally
defaulted, non-congnizable and/or without merit. For the reasons which follow, the

petition will be denied. Petitioner’s discovery motions and motion for judicial notice will
also be denied. Finally, the Court will decline to issue a certificate of appealability.
II. Procedural History
A. Trial Court Proceedings
On June 24, 2004, petitioner pleaded guilty to the above charge in the Genesee
County Circuit Court as part of a plea agreement. In exchange for his plea, the
prosecutor agreed to dismiss two additional charges of armed robbery and safebreaking
against petitioner. The prosecutor also agreed to dismiss an habitual offender charge
against petitioner.
As a further part of the plea agreement, petitioner agreed to provide truthful
testimony and cooperation to the police regarding two armed robberies that had taken
place in Port Huron. The prosecutor stated on the record that the trial court agreed to
consider petitioner’s cooperation with the police in imposing a guideline sentence on
petitioner. Defense counsel clarified that the plea agreement called for the trial court to
sentence petitioner within the sentencing guidelines range. Defense counsel further
indicated that he was going to ask the trial court to consider petitioner’s cooperation with
the police at sentencing by asking for a less than the maximum of the guidelines.
In response to the trial court’s questioning regarding the plea agreement,
petitioner indicated that he understood the terms of the plea agreement. The trial court
stated he would be accepting petitioner’s plea “on the basis that your sentence would
be within the sentencing guidelines.” (Tr. 6/24/2004, pp. 10-12). After advising
petitioner of the rights that he would waive by pleading guilty, the trial court asked
petitioner if “anybody made you any promises or do you have any expectations from
2

your plea that we haven’t covered here?” Petitioner replied: “No, sir.” (Id., pp. 13-14).
Petitioner made out a factual basis for the plea by acknowledging that he and his
co-defendant had planned on robbing Damons Restaurant. Petitioner admitted that he
went to Damons with his co-defendant and that the two men robbed the victims by
placing masks over their heads and taking a pipe and other utensils with them.
Petitioner indicated that he committed the robbery to obtain money for drugs. Petitioner
stated that approximately $ 15,000.00 was split between himself, his co-defendant, his
co-defendant’s wife, and his girlfriend. (Id., pp. 14-17).
On July 24, 2004, petitioner was sentenced to eighteen years, nine months to
forty years in prison, as noted above.
B. Appellate Proceedings
Petitioner filed an appeal with the Michigan Court of Appeals. In lieu of granting
petitioner’s application for leave to appeal, the court of appeals remanded petitioner’s
case to the circuit court for resentencing because the “sentencing judge
failed to articulate the basis on which he resolved the challenges to the scoring of the
sentencing guidelines, and ha[d] since retired.” People v. Burley, No. 264009 (Mich. Ct.
August 29, 2005). Petitioner was resentenced on February 22, 2006 to the same
sentence.
Petitioner again appealed his conviction and sentence, which was affirmed.
People v. Burley, No. 273477 (Mich. Ct. App. February 27, 2007). The Michigan
Supreme Court denied leave to appeal. People v. Burley, 478 Mich. 930 (2007).
Petitioner then filed an original and two supplemental post-conviction motions for
relief from judgment with the trial court, which were denied. People v. Burley, No. 043

13795-FC (Genesee County Cir. Ct. July 7, 2008); People v. Burley, No. 04-13795-FC
(Genesee County Cir. Ct. Nov. 10, 2009). The Michigan appellate courts denied
petitioner leave to appeal. People v. Burley, No. 296840 (Mich. Ct. App. June 24,
2010); lv. den. 488 Mich. 1045 (2011).
C. Habeas Proceedings
Petitioner has now filed a petition for writ of habeas corpus, presenting fifteen
(15) claims, phrased by petitioner as follows:
I. Petitioner is entitled to resentencing because he was denied his right of
meaningful allocution.
II. Petitioner is entitled to withdraw his guilty plea where the prosecutor
recommended the court impose a sentence exceeding the statutory
guidelines range in clear violation of the terms of the plea agreement.
III. Petitioner is constitutionally entitled to the enforcement of his plea
agreement.
IV. Petitioner was sentenced based on inaccurate information and was not
afforded the opportunity to refute the prosecutor’s false and misleading
statements at sentencing.
V. Petitioner’s due process rights were clearly violated when he was denied
a meaningful appeal by court officials when they improperly filed his
preliminary examination transcript in the wrong file and this error was not
detected until after his state court appeals.
VI. Petitioner did not understand the consequences of his plea to conspiracy
to commit armed robbery. He did not understand the consequences of the
sentencing agreement that was an intricate part of the plea agreement. He
is entitled to an opportunity to withdraw his guilty plea or resentencing.
VII. The guilty plea was illusionary as it had no value and the prosecution
held it out to have more value than it actually did.
VIII. Petitioner was deprived of exculpatory evidence by the prosecutor
and/or police and the prosecutor acted in bad faith by destroying exculpatory
evidence.
4

IX. Petitioner was denied a meaningful appeal due to appellate counsel’s
ineffectiveness.
X. Petitioner’s claim of actual innocence is supported by credible, newly
discovered evidence, the state’s withholding of exculpatory evidence, the
government’s fabrication of evidence, and fraud upon the court.
XI. The court upon resentencing breached the terms of the plea agreement
when it did not consider the extent of petitioner’s cooperation with the police
in other criminal matters.
XII. Petitioner’s statutory guidelines were improperly scored for offense
variable (OV) 13.
XIII. Petitioner’s due process rights were violated by government officials
when they failed to disclose evidence that a promise of leniency was made
to one of their key witnesses in exchange for his testimony against Petitioner.
Robert McAlkich was offered 58 months in prison for his fabricated testimony
implicating Petitioner.
XIV. Prosecutors perpetrated a fraud upon the court when they submitted
evidence that was intentionally false, willfully blind to the truth, and was in
reckless disregard for the truth, and was positive averment and concealment
when they were under a duty to disclose.
XV. Petitioner’s due process rights were violated when state prosecutors
failed to disclose impeachment evidence to the defense that their star
witness had been committed to a mental health institution where Mary
McAlkich testified under oath that she had never been committed to a mental
health facility at the preliminary examination. The prosecutor knew or should
have known that she had been institutionalized in a mental institution.
Petitioner has also filed several discovery related motions and a motion for judicial
notice.
III. Standard of Review
28 U.S.C. § 2254(d) imposes the following standard of review for habeas cases:

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
5

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 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, 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." 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.
6

Ct. 770, 786 (2011)(citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The
Supreme Court has emphasized “that even a strong case for relief does not mean the
state court’s contrary conclusion was unreasonable.” Id. (citing Lockyer v. Andrade,
538 U.S. 63, 75 (2003). Furthermore, pursuant to § 2254(d), “a habeas court must
determine what arguments or theories supported or...could have supported, the state
court’s decision; and then it must ask whether it is possible fairminded jurists could
disagree that those arguments or theories are inconsistent with the holding in a prior
decision” of the Supreme Court. Id.
“[I]f this standard is difficult to meet, that is because it was meant to be.”
Harrington, 131 S. Ct. at 786. Although 28 U.S.C. § 2254(d), as amended by the
AEDPA, does not completely bar federal courts from relitigating claims that have
previously been rejected in the state courts, it preserves the authority for a federal
court to grant habeas relief only “in cases where there is no possibility fairminded
jurists could disagree that the state court’s decision conflicts with” the Supreme
Court’s precedents. Id. 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)). Thus, 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
7

fairminded disagreement.” Harrington, 131 S. Ct. at 786-87.
IV. Analysis
As an initial matter, petitioner has raised multiple claims. For judicial clarity, the
Court has organized and addressed related claims together.
A. Claims II., III., VI., VII., and XI. - Challenges to the Plea
1.
Petitioner challenges the validity of his guilty plea in his second, third, sixth,
seventh, and eleventh claims. Initially, 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.
8

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, 508509 (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.
2.
In his second and third claims, petitioner argues that he is entitled to withdraw
his guilty plea because the prosecutor breached the terms of the plea agreement at
petitioner’s re-sentencing by asking the trial court to consider departing above the
sentencing guidelines range. At the beginning of the re-sentencing, the trial court
indicated that the sentencing guidelines range, regardless of how Offense Variable 14
was scored, would be 135 to 225 months. (Tr. 2/22/2006, pp. 3-4). After hearing
petitioner’s lengthy allocution, the prosecutor argued that the plea agreement had not
9

called for the trial court to consider a guidelines sentence and that there were grounds
for the trial court to consider departing above the guidelines range and imposing a
sentence of 30 to 50 years. (Id., pp. 52-56). The trial court ultimately re-sentenced
petitioner to 225 months, or eighteen years, nine months, to forty years in prison. In so
doing, the trial court explained that he honored the original plea agreement by not
going above the sentencing guidelines. (Id., pp. 61-63). 1
A prosecutor’s breach of the terms of a plea agreement does not retroactively
cause the defendant's guilty plea, when it was entered, to have been unknowing or
involuntary. In fact, it is precisely because a defendant’s guilty plea was knowing and
voluntary that the prosecutor is required to uphold its side of a plea bargain. See
Puckett v. U.S., 556 U.S. 129, 137-38 (2009). The appropriate remedy for a
prosecutor’s breach of a plea agreement is either specific performance of the
agreement or an opportunity to withdraw the plea. See Santobello v. New York, 404
U.S. 257, 263 (1971). However, the appropriate remedy for the breach of a plea
agreement lies within the trial court’s discretion. See Santobello, 404 U.S. at 263; See
also Peavy v. United States, 31 F.3d 1341, 1346 (6th Cir.1994)(the choice between the
two remedies of specific performance or plea withdrawal is not up to the defendant but,
rests instead with “the sound discretion” of the trial court.). More importantly, a
defendant whose plea agreement has been broken by the prosecution will not always

1

Under Michigan law, only the minimum sentence must presumptively be set
within the appropriate sentencing guidelines range. See People v. Babcock, 469 Mich.
247, 255, n. 7 (2003)(citing M.C.L. § 769.34(2)). The maximum sentence is not
determined by the trial court but is set by law. See People v. Claypool, 470 Mich. 715,
730, n. 14 (2004)(citing M.C.L. § 769.8).
10

be able to show prejudice, so as to obtain relief, either because he obtained the
benefits contemplated by plea agreement anyway, or because he likely would not have
obtained those benefits in any event. See Puckett, 556 U.S. at 141-42.
Petitioner is not entitled to habeas relief on his second and third claims for two
reasons. First, even if the prosecutor breached the plea agreement at his resentencing did not render his original plea involuntary. Puckett, 556 U.S. at 137-38.
Secondly, petitioner is unable to show that he was prejudiced by the breach because
the trial court re-sentenced him within the sentencing guidelines range of 135 to 225
months, thereby complying with the terms of the original plea agreement. Under the
circumstances, any breach of plea agreement did not prejudice petitioner, so as to
allow him to withdraw his plea. See U.S. v. Keller, 665 F. 3d 711, 714-15 (6th Cir.
2011); cert. den. 132 S.Ct. 2714 (2012)(defendant’s substantial rights had not been
affected by government’s plain error in arguing for sentence that exceeded range
previously determined according to terms of plea agreement, since court sentenced
defendant only to upper limit of agreed range, his sentence was lower than that
anticipated by plea agreement at time that he signed it, and his sentence did not
exceed upper limit of presentence report calculation which, when adopted by court,
became new agreed range).
4.
In his sixth claim, petitioner says that his plea was involuntary because his
attorney promised him that he would only receive eleven years on the minimum
sentence if he pleaded guilty and further informed petitioner that the prosecutor
promised to recommend a sentence at the low end of the sentencing guidelines if
11

petitioner cooperated with the police.
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.
Here, the only agreement between the parties at the time of the guilty plea with
respect to sentencing was that petitioner would be sentenced within the sentencing
guidelines range. Defense counsel indicated that he was going to ask the trial court to
consider petitioner’s cooperation with the police at sentencing by asking the judge to
“go away from the maximum of the guidelines in terms of considering that cooperation.”
Defense counsel further indicated that he was “not asking [the court] to commit to do
that, only that you would consider it in terms of his cooperation at the time of
12

sentencing.” There was no agreement made by the prosecutor on the record that she
was going to ask the trial court to consider a sentence at the low end of the sentencing
guidelines in exchange for petitioner’s cooperation with the police. 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 eleven years in prison or that the
prosecutor would request a sentence at the low end of the sentencing guidelines if he
pleaded guilty. Finally, petitioner expressly denied that any promises other than those
that had been stated on the record had induced him to plead guilty.
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). Therefore, 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 thorough plea colloquy. Id.
Here, the trial court advised the petitioner of the maximum penalty for the crime
that he was pleading guilty. The entire terms of the plea and sentence agreement
were placed on the record. Petitioner denied that any other promises had been made
to get him to plead guilty other than the terms of the plea agreement which had been
placed on the record. Petitioner would therefore not be entitled to the withdrawal of his
plea based on his allegation that his attorney gave him misleading sentencing
information where petitioner was given the correct information regarding the plea
agreement by the judge at the time of the plea and petitioner expressly denied the
existence of other representations or promises at the time of his plea. See United
13

States v. Todaro, 982 F. 2d 1025, 1029-30 (6th Cir. 1993).
5.
In his eleventh claim, petitioner says that both the original sentencing judge and
the judge at re-sentencing breached the plea agreement by failing to consider his
cooperation with the police in fashioning his sentence.
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.
However, in this case the only agreement made by the parties at the time of
sentencing was that petitioner would be sentenced within the sentencing guidelines
range. Although defense counsel advised the trial judge that he would be seeking a
sentence at the low end of the sentencing guidelines based on petitioner’s cooperation
with the police, defense counsel acknowledged that he was not committing the trial
court to doing that. A “clear reading” of the plea agreement shows that there was no
promise by the trial judge that he would sentence petitioner to a sentence at the low
end of the sentencing guidelines based on petitioner’s cooperation with the police.
Petitioner has therefore failed to show that the original terms of the plea agreement
were breached by either the original judge at sentencing or the successor judge at
14

resentencing. Myers, 159 F. Supp. 2d at 628.
6.
In his seventh claim, petitioner contends that the plea was illusory. A plea
agreement is entered into involuntarily and unknowingly if the defendant is unaware
that the prosecution’s promise is illusory. See United States v. Randolph, 230 F.3d
243, 250-51 (6th Cir. 2000). Illusory representations made by the prosecutor to induce
a defendant to waive his right to trial and enter a guilty plea have been found to
constitute coercion justifying the withdrawal of a guilty plea. See Spearman v. United
States, 860 F. Supp. 1234, 1249 (E.D. Mich. 1994).
In petitioner’s case, the prosecutor agreed to dismiss two criminal charges and
a supplemental information charging petitioner with being an habitual offender. The
parties also agreed that petitioner’s sentence would be within the sentencing
guidelines. Because petitioner derived a real benefit from his plea bargain in this case,
his plea was not illusory. He is therefore not entitled to habeas relief on his seventh
claim.
B. Claims VIII., XIII, XIV, and XV. - Exculpatory Evidence
1.
In his eighth, thirteenth, fourteenth, and fifteenth claims, petitioner contends that
his plea was involuntary because the prosecutor allegedly withheld exculpatory
evidence from him.2
2

Respondent contends that some of these claims are procedurally defaulted
because petitioner failed to raise these claims either on direct appeal or in his postconviction motions and no longer has an available state court remedy to exhaust these
claims. Procedural default is not a jurisdictional bar to review of a habeas petition the
15

Suppression by the prosecution of evidence favorable to the defendant upon
request violates due process, where the evidence is material to either guilt or
punishment of the defendant, irrespective of the good or bad faith of the prosecution.
Brady v. Maryland, 373 U.S. 83, 87 (1963); See also Giglio v. United States, 405 U.S.
150, 154 (1972)(exculpatory evidence includes “evidence affecting” witness
“credibility,” where the witness’ “reliability” is likely “determinative of guilt or
innocence”). There are three components of a true Brady violation: (1) the evidence at
issue must be favorable to the accused, either because it is exculpatory or because it
is impeaching; (2) the evidence must have been suppressed by the state, either willfully
or inadvertently; and (3) prejudice must have ensued. Strickler v. Greene, 527 U.S.
263, 281-82 (1999).
In Brady, the Supreme Court explained that “[a] prosecution that withholds
evidence on demand of an accused which, if made available, would tend to exculpate
him ... helps shape a trial that bears heavily on the defendant.” Brady, 373 U.S. at
87–88 (emphasis added). Similarly, in United States v. Agurs, 427 U.S. 97, 103-04
(1976), the Supreme Court indicated that the rule that prohibits the use of perjured
testimony, upon which the Brady rule was founded, is based on the idea that the use of

merits. See Trest v. Cain, 522 U.S. 87, 89 (1997). In addition, “[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. Because the procedurally defaulted claims appear to be
interrelated with the non-defaulted claims, it is more efficient to address the merits of
any allegedly defaulted claims.
16

perjured testimony represents “a corruption of the truth-seeking function of the trial
process.” (emphasis added). Finally, in United States v. Bagley, 473 U.S. 667, 678
(1985), the Supreme Court ruled that “suppression of evidence amounts to a
constitutional violation only if it deprives the defendant of a fair trial.” (emphasis
added).
In United States v. Ruiz, 536 U.S. 622 (2002), the Supreme Court held that a
guilty plea is not rendered involuntary by the prosecutor’s failure to disclose
exculpatory impeachment information prior to the entry of the plea. See id. at 628–33.
The Supreme Court noted that “impeachment information is special in relation to the
fairness of a trial, not in respect of whether a plea is voluntary.” Ruiz, 536 U.S. at 629
(emphasis original). The Supreme Court further observed that “it is particularly difficult
to characterize impeachment information as critical information of which the defendant
must always be aware prior to pleading guilty.” Id. at 630.
To the extent that this allegedly withheld evidence is viewed as impeachment
evidence, petitioner would not be entitled to habeas relief because as mentioned
above, the prosecution is not required to disclose material impeachment evidence prior
to entering a plea agreement with a criminal defendant. Ruiz, 536 U.S. at 633; Post v.
Bradshaw, 621 F. 3d 406, 426 (6th Cir. 2010).
Moreover, even if some of this evidence could be characterized as substantive
exculpatory evidence, petitioner would not be entitled to habeas relief. Although the
Supreme Court did not consider in Ruiz whether their holding also applied to the

17

nondisclosure of exculpatory substantive evidence prior to the entry of a guilty plea, 3
the Supreme Court in Ruiz emphasized the Brady rule’s connection to the truth-finding
function of a trial as the rationale behind their decision, which suggested that the
holding in Ruiz extends to exculpatory substantive evidence as well. Significantly, at
some points in their opinion the Supreme Court did not differentiate between the two
types of exculpatory evidence, noting that “due process considerations, the very same
considerations that led this Court to find trial related rights to exculpatory and
impeachment information in Brady and Giglio, argue against the existence of the ‘right’”
to pre-plea disclosure. Ruiz, 536 U.S. at 631. At least one federal circuit court has
suggested that Ruiz applies to substantive exculpatory information as well as to
impeachment information. See Friedman v. Rehal, 618 F.3d 142, 154 and n. 5 (2nd Cir.
2010).

2.
In light of the reasoning of Ruiz, the Supreme Court's repeated description of
Brady as grounded in the right to a fair trial, as well as the fact that the Supreme Court
has yet to require that exculpatory information be disclosed prior to the entry of a guilty
plea, petitioner is not entitled to habeas relief on any of his exculpatory evidence
claims. This is true even if some of the allegedly withheld evidence was viewed as
substantive exculpatory evidence. See Orman v. Cain, 228 F. 3d 616, 620-21 (5th Cir.

3

Justice Thomas, concurring in the judgment, saw no reason to distinguish
between “affirmative defense information” and exculpatory impeachment evidence. See
Ruiz, 536 U.S. at 633-34 (Thomas, J., concurring in the judgment).
18

2000); See also Jones v. Bryant, 27 Fed. Appx. 699, 701 (7th Cir. 2001). This is
particularly so in light of the fact that petitioner pleaded guilty to the conspiracy to
commit armed robbery charge in open court. Jones, 27 Fed. Appx. at 701. Petitioner
is therefore not entitled to habeas relief on his Brady claims.
C. Claims I. , IV. and XII. - Sentencing
Petitioner’s first, fourth, and twelfth claims relate to alleged errors at sentencing.
1.
In his first claim, petitioner contends that he was denied the right to meaningful
allocution at sentencing. There is no constitutional right to allocution under the United
States Constitution. Pasquarille v. United States, 130 F. 3d 1220, 1223 (6th Cir.
1997)(citing to Hill v. United States, 368 U.S. 424, 428 (1962)). Therefore, a trial
court’s failure to afford a defendant the right to allocution raises neither a jurisdictional
or constitutional error cognizable on habeas review. Scrivner v. Tansy, 68 F. 3d 1234,
1240 (10th Cir. 1995); See also Cooey v. Coyle, 289 F. 3d 882, 912 (6th Cir.
2002)(declining to issue certificate of appealability on denial of allocution claim).
Moreover, a review of the re-sentencing transcript establishes that petitioner made an
extensive allocution on his behalf at sentencing. (Tr. 2/22/2006, pp. 40-51). Petitioner
is not entitled to relief on his first claim.
2.
In his fourth claim, petitioner contends that he was sentenced on the basis of
inaccurate information when the prosecutor at resentencing claimed that petitioner had
threatened his co-defendant when she testified at his preliminary examination by

19

making a slicing gesture across his throat and mouthing that he was going to kill her.
A criminal defendant possesses a constitutional right not to be sentenced on the
basis of “misinformation of constitutional magnitude.” Roberts v. United States, 445
U.S. 552, 556 (1980) (quoting United States v. Tucker, 404 U.S. 443, 447 (1972)); see
Townsend v. Burke, 334 U.S. 736, 741 (1948)(stating that reliance on “extensively and
materially false” information, which the prisoner had no opportunity to correct, violates
due process of law). In order to prevail on a claim that a trial court relied on inaccurate
information at sentencing, a habeas petitioner must demonstrate that the sentencing
court relied upon this information and that it was materially false. Collins v. Buchkoe,
493 F. 2d 343, 345-346 (6th Cir. 1974); Welch v. Burke, 49 F. Supp. 2d 992, 1007 (E.D.
Mich. 1999). Where a petitioner fails to demonstrate in his or her petition that the
sentencing court relied upon materially false information in imposing sentence, this
claim is without merit. Thomas v. Foltz, 654 F. Supp. 105, 108 (E.D. Mich. 1987).
Petitioner is not entitled to habeas relief on his claim because he has failed to
show that this information was false or that the trial court relied on this information in
re-sentencing him.
3.
In his twelfth claim, petitioner contends that Offense Variable 13 of the Michigan
Sentencing Guidelines was incorrectly scored. Petitioner has no state created liberty
interest in having the Michigan sentencing guidelines applied rigidly in determining his
sentence. See Thomas v. Foltz, 654 F. Supp. at 106-107. To the extent that petitioner
is claiming that his sentence violates the Michigan state sentencing guidelines, his
claim is not cognizable in a habeas proceeding because it is a state law claim. Id.
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Petitioner’s claim that the sentencing guidelines were incorrectly scored thus fails to
state a claim upon which habeas relief can be granted. Cook v. Stegall, 56 F. Supp. 2d
788, 797 (E.D. Mich. 1999).
D. Claim X. - Actual Innocence
In his tenth claim, petitioner contends that he is actually innocent of the charge
to which he pleaded guilty. In Herrera v. Collins, 506 U.S. 390, 400 (1993), the
Supreme Court held that claims of actual innocence based on newly discovered
evidence fail to state a claim for federal habeas relief absent an independent
constitutional violation occurring in the underlying state criminal proceeding. Federal
habeas courts sit to ensure that individuals are not imprisoned in violation of the
constitution, not to correct errors of fact. Id., See also Hence v. Smith, 37 F. Supp.2d
970, 980 (E.D. Mich. 1999). Freestanding claims of actual innocence are not
cognizable on federal habeas review, absent independent allegations of constitutional
error at trial. See Cress v. Palmer, 484 F. 3d 844, 854-55 (6th Cir. 2007)(collecting
cases). As such, petitioner is not entitled to habeas relief on this ground.
Moreover, the Supreme Court’s subsequent decision in House v. Bell, 547 U.S.
518 (2006) does not alter the Court’s adjudication of petitioner’s claim, as the Supreme
Court again in that case declined to resolve whether a habeas petitioner may bring a
freestanding claim of actual innocence. Id. at 554-55. Although the Supreme Court in
House noted that “in a capital case a truly persuasive demonstration of ‘actual
innocence’ made after trial would render the execution of a defendant unconstitutional,
and warrant federal habeas relief if there were no state avenue open to process such a
claim”, Id. (quoting Herrera, 506 U.S. at 417), the Supreme Court has declined to
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recognize a freestanding innocence claim in habeas corpus, outside of the
death-penalty context. Petitioner would therefore not be entitled to relief for his tenth
claim under available Supreme Court precedent. See Wright v. Stegall, 247 Fed. Appx.
709, 711 (6th Cir. 2007).
E. Claim V. - Missing Transcripts
In petitioner’s fifth claim he contends that he was denied his right to a
meaningful appeal because the preliminary examination transcript was not provided as
part of the lower court record for his appeal.
The Sixth Circuit has stated that “federal habeas relief based on a missing
transcript will only be granted where the petitioner can show prejudice.” See Scott v.
Elo, 302 F. 3d 598, 604 (6th Cir. 2002) (citing Bransford v. Brown, 806 F. 2d 83, 86 (6th
Cir. 1986)). Although the Sixth Circuit has recognized the difficulty in demonstrating
prejudice where the transcripts are missing, a habeas petitioner must nonetheless
“present something more than gross speculation that the transcripts were requisite to a
fair appeal.” See Bransford, 806 F. 2d at 86.
Here, petitioner pleaded guilty to the conspiracy to commit an armed robbery
charge. As the trial court indicated in rejecting petitioner’s claim on post-conviction
review, the preliminary examination trancript’s significance diminished after petitioner
pleaded guilty. Other than speculation, petitioner has failed to show that the
preliminary examination transcript was necessary to appeal his guilty plea and resultant
sentence. Accordingly, petitioner is not entitled to habeas relief on his fifth claim.
F. Claim IX. - Ineffective Assistance of Appellate Counsel

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1.
In his ninth claim, petitioner alleges that he was denied the effective assistance
of appellate counsel. To show that he was denied the effective assistance of counsel
under federal constitutional standards, a defendant must satisfy a two prong test. First,
the defendant must demonstrate that, considering all of the circumstances, counsel’s
performance was so deficient that the attorney was not functioning as the “counsel”
guaranteed by the Sixth Amendment. Strickland v. Washington, 466 U.S. 668, 687
(1984). In so doing, the defendant must overcome a strong presumption that counsel’s
behavior lies within the wide range of reasonable professional assistance. Id. In other
words, petitioner must overcome the presumption that, under the circumstances, the
challenged action might be sound trial strategy. Strickland, 466 U.S. at 689. Second,
the defendant must show that such performance prejudiced his defense. Id. To
demonstrate prejudice, the defendant must show that “there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different.” Strickland, 466 U.S. at 694. “Strickland’s test for prejudice is a
demanding one. ‘The likelihood of a different result must be substantial, not just
conceivable.’” Storey v. Vasbinder, 657 F.3d 372, 379 (6th Cir. 2011)(quoting
Harrington v. Richter, 131 S. Ct. at 792). The Strickland standard applies as well to
claims of ineffective assistance of appellate counsel. See Whiting v. Burt, 395 F. 3d
602, 617 (6th Cir. 2005).
More importantly, on habeas review, “the question ‘is not whether a federal court
believes the state court’s determination’ under the Strickland standard ‘was incorrect
but whether that determination was unreasonable-a substantially higher threshold.’”
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Knowles v. Mirzayance, 129 S. Ct. 1411, 1420 (2009)(quoting Schriro v. Landrigan,
550 U.S. 465, 473 (2007)). “The pivotal question is whether the state court’s
application of the Strickland standard was unreasonable. This is different from asking
whether defense counsel’s performance fell below Strickland’s standard.” Harrington v.
Richter, 131 S. Ct. at 785. Indeed, “because the Strickland standard is a general
standard, a state court has even more latitude to reasonably determine that a
defendant has not satisfied that standard.” Knowles, 129 S. Ct. at 1420 (citing
Yarborough, 541 U.S.at 664). Pursuant to § 2254(d)(1) standard, a “doubly deferential
judicial review” applies to a Strickland claim brought by a habeas petitioner. Id. This
means that on habeas review of a state court conviction, “[A] state court must be
granted a deference and latitude that are not in operation when the case involves
review under the Strickland standard itself.”Harrington, 131 S. Ct. at 785.
“Surmounting Strickland's high bar is never an easy task.” Id. at 788 (quoting Padilla v.
Kentucky, 130 S. Ct. 1473, 1485 (2010)).
Because of this doubly deferential standard:
“Federal habeas courts must guard against the danger of equating
unreasonableness under Strickland with unreasonableness under § 2254(d).
When § 2254(d) applies, the question is not whether counsel’s actions were
reasonable. The question is whether there is any reasonable argument that
counsel satisfied Strickland’s deferential standard.”
Harrington v. Richter, 131 S. Ct. at 788.
Finally, the Court is aware that “[R]eliance on ‘the harsh light of hindsight’ to cast
doubt” on a direct appeal that concluded over five years ago “is precisely what
Strickland and AEDPA seek to prevent.” Harrington v. Richter, 131 S. Ct. at 789.
2.
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Petitioner initally contends that his appellate counsel was ineffective for failing to
obtain and review the preliminary examination transcript as part of his direct appeal.
The Court has already determined, however, that petitioner has failed to show that the
absence of this preliminary examination transcript prejudiced his right to a meaningful
appeal. Because petitioner has failed to establish that this preliminary examination
transcript would have revealed any reversible error, petitioner is unable to establish
that he was prejudiced by appellate counsel’s failure to obtain and review this
transcript. Thus, appellate counsel was not ineffective in this regard.
Petitioner next contends that his appellate counsel was ineffective for failing to
move to withdraw his plea on the grounds that the agreement was illusory and/or that
the terms of the agreement had been breached. This allegation too fails in light of the
Court’s finding that the plea agreement was not illusory and that petitioner suffered no
prejudice from the prosecutor’s breach of the plea agreement. “[A]ppellate counsel
cannot be found to be ineffective for ‘failure to raise an issue that lacks merit.’”
Shaneberger v. Jones, 615 F. 3d 448, 452 (6th Cir. 2010)(quoting Greer v. Mitchell, 264
F.3d 663, 676 (6th Cir. 2001)). Because petitioner’s plea claims lack merit, appellate
counsel was not deficient in failing to raise these claims on petitioner’s direct appeal.
Petitioner lastly contends that appellate counsel was ineffective in failing to
investigate newly discovered evidence that petitioner claims supports his actual
innocence claim. This allegation lacks merit. There is no evidence that petitioner told
his appellate counsel that he was innocent of the crime that he had pleaded guilty to.

25

In a letter to his appellate counsel dated September 1, 2006, 4 petitioner asks appellate
counsel to move to withdraw his plea because the prosecutor had breached the plea
agreement by asking for a sentence above the guidelines range and because the plea
agreement was illusory. Petitioner also complained that he was denied the right to
allocute at sentencing. Nowhere in this letter did petitioner indicate that he was
innocent of the charge or suggest that appellate counsel move to withdraw his plea on
this basis. More importantly, petitioner made out a factual basis for his guilt at the plea
hearing. In light of the fact that petitioner never informed his appellate counsel that he
was innocent of the crime that he had been convicted of, appellate counsel was not
ineffective for failing to seek evidence of petitioner’s innocence or to otherwise
challenge the validity of petitioner’s guilty plea. Compare Carpenter v. Mohr, 163 F. 3d
938, 947 (6th Cir. 1998); rev’d on other grds sub nom Edwards v. Carpenter, 529 U.S.
446 (2000)(appellate counsel’s failure to challenge, on direct appeal, the sufficiency of
evidence supporting conditional guilty plea to aggravated murder, was constitutionally
deficient; reasonably knowledgeable defense attorney would have known that
challenge could and should have been raised under Ohio law, given that defendant
consistently proclaimed his innocence and only entered plea to avoid death penalty,
and that only information presented at culpability hearing was prosecution's recitation
of case, which was not evidence). Petitioner is not entitled to habeas relief on his ninth
claim.
G. Petitioner’s Motions
4

See Petitioner’s Exhibit 4, attached to Petitioner’s Motion to Amend/Supplement
Habeas Petition.
26

1.
Petitioner has filed a motion for discovery, a motion to take interrogatories, and
a motion for copies of all of the Rule 5 materials that have been provided to this Court.
Habeas petitioners have no right to automatic discovery. Stanford v. Parker, 266 F. 3d
442, 460 (6th Cir. 2001). A district court has the discretion, under Rule 6 of the Rules
Governing § 2254 Cases, 28 U.S.C. foll. § 2254, to grant discovery to a petitioner in a
habeas case upon a fact specific showing of good cause. Id. A federal district court
may permit discovery in a habeas case if the petitioner presents specific allegations
which give the court reason to believe that the facts, if fully developed, may lead the
district court to believe that federal habeas relief is appropriate. See Johnson v.
Mitchell, 585 F.3d 923, 934 (6th Cir. 2009); See also Lott v. Coyle, 261 F.3d 594, 602
(6th Cir. 2001). However, Rule 6 of the Habeas Rules does not “sanction fishing
expeditions based on a petitioner’s conclusory allegations.” Williams v. Bagley, 380 F.
3d 932, 974 (6th Cir. 2004)(internal quotation omitted). A habeas petitioner’s
conclusory allegations are insufficient to warrant discovery under Rule 6. Id. Instead,
the petitioner must set forth specific allegations of fact. Id.
Given that the Court has already determined that petitioner’s allegations, even if
true, would not entitle him to habeas relief, petitioner is not entitled to seek discovery in
support of his claims. See Sellers v. U.S., 316 F. Supp. 2d 516, 523 (E.D. Mich. 2004).
2.
Petitioner has also filed a motion for judicial notice. Attached to the motion are
various documents, the majority of which are part of the state court record and
therefore part of the Rule 5 materials. The Court has reviewed the documents and
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concludes that either the documents are already in the record, as part of the Rule 5
materials or as exhibits to other papers previously filed, or not necessary for resolution
of petitioner’s claims. As such, there is no need to take judicial notice of the
documents.
V. Conclusion
For the reasons stated above, petitioner is not entitled to habeas relief on any of
his claims. Accordingly, the petition for a writ of habeas corpus is DENIED.
Petitioner’s motions for discovery and for judicial notice are DENIED.
Furthermore, reasonable jurists would not debate the Court's assessment of
petitioner’s claims, nor conclude that the issues deserve encouragement to proceed
further. The Court therefore DECLINES to grant a certificate of appealability under 28
U.S.C. § 2253(c)(2). 5 See Slack v. McDaniel, 529 U.S. 473, 484 (2000).
SO ORDERED.

Dated: September 7, 2012

S/Avern Cohn
AVERN COHN
UNITED STATES DISTRICT JUDGE

I hereby certify that a copy of the foregoing document was mailed to the attorneys of
record on this date, September 7, 2012, by electronic and/or ordinary mail.

S/Julie Owens
Case Manager, [phone]
5

“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.
28