Calhoun v. Tribley

Filing 28

MEMORANDUM OPINION and ORDER Denying 1 Petition for Writ of Habeas Corpus and Granting in part a Certificate of Appealability. Signed by District Judge Arthur J. Tarnow. (CPic)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

IMARI CALHOUN,
Case Number: 2:11-CV-13565
HON. ARTHUR J. TARNOW

Petitioner,
v.
LINDA TRIBLEY,
Respondent.
/

OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS
CORPUS AND GRANTING IN PART A CERTIFICATE OF APPEALABILITY
Petitioner Imari Calhoun has filed a pro se petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. At the time he filed the petition, Petitioner was in the
custody of the Michigan Department of Corrections.1 Petitioner challenges his conviction
for assault with intent to do bodily harm less than murder on the grounds that an
insufficient factual basis supported the plea, the plea was involuntary, the trial court
lacked jurisdiction, he acted in self-defense, and cumulative error denied him his right to
due process. Respondent, through the Attorney General’s Office, has filed an answer in
opposition to the petition arguing that some of the claims are untimely, unexhausted,
and/or procedurally defaulted and that all of the claims are meritless. The Court denies

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Petitioner has since been discharged from custody. His discharge does not defeat
§ 2254's “in custody” requirement because the requirement is satisfied as long as a
petitioner was incarcerated at the time a petition is filed. Spencer v. Kemna, 523 U.S. 1, 7
(1998).

the petition and grants in part and denies in part a certificate of appealability.
I. Background
Petitioner’s conviction arises from the assault of Paul Castonguay in Detroit on
December 17, 2006. Castonguay testified at the preliminary examination that, on that
date, he was visiting a friend on Rutland Street in Detroit. At approximately 2:30 a.m.,
Castonguay stepped outside. He was approached by Petitioner, who Castonguay knew
lived in the neighborhood. Petitioner asked Castonguay to drive him somewhere, but
Castonguay declined. Petitioner continued to pester Castonguay for a ride. Finally,
Castonguay asked Petitioner what part of no he did not understand. Castonguay testified
that Petitioner then punched him in the face. Castonguay told Petitioner to leave him
alone; he did not want to fight. Petitioner held a knife in his hand and lunged at
Castonguay. Castonguay attempted to protect himself and the two men fell to the ground.
Petitioner stabbed Castonguay three or four times. Castonguay pleaded with Petitioner
not to stab him any more. Petitioner lunged at him again. Castonguay was able to flee
into the home where he called police. He was transported by ambulance to a hospital
where he was treated for multiple stab wounds. Castonguay’s injuries were severe. His
spleen was removed, and he spent a week in intensive care on a ventilator.
Petitioner was charged in Wayne County Circuit Court with assault with intent to
murder and felonious assault. On April 24, 2008, Petitioner pleaded guilty in Wayne
County Circuit Court to assault with intent to do great bodily harm less than murder. In
exchange for Petitioner’s plea, the prosecutor dismissed a charge of assault with intent to
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murder, assault with a dangerous weapon and a third habitual offender enhancement. On
May 9, 2008, he was sentenced to five to ten years in prison.
Several months after sentencing, Petitioner filed a motion to withdraw his plea and
for a Ginther hearing. The trial court denied the motion and denied a subsequent motion
for reconsideration. Petitioner then filed an application for leave to appeal in the
Michigan Court of Appeals. He raised a single claim:
This Court must vacate Mr. Calhoun’s conviction for assault with intent to
do great bodily harm less than murder because there is an insufficient
factual basis for the plea.
The Michigan Court of Appeals denied leave to appeal. People v. Calhoun, No.
299688 (Mich. Ct. App. Sept. 16, 2010).
Petitioner sought leave to appeal in the Michigan Supreme Court. He raised the
claim raised in the Michigan Court of Appeals and two additional claims: (i) his plea was
involuntary because counsel was ineffective; and (ii) appellate counsel was ineffective in
failing to raise this claim in the Michigan Court of Appeals. The Michigan Supreme
Court denied leave to appeal. People v. Calhoun, 488 Mich. 1049 (2011).
Petitioner then filed this habeas petition. He raised claims regarding the
sufficiency of the factual basis for his plea, voluntariness of the plea and ineffective
assistance of counsel. Respondent filed a motion to dismiss on the ground that the second
claim was not fully exhausted. The Court found the claims raised in the petition were not
fully exhausted, but, because dismissal of the petition might jeopardize the timeliness of a
future habeas petition, the Court denied the motion to dismiss, and stayed the proceeding.
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5/18/12 Order (ECF No. 19).
Petitioner filed a motion for relief from judgment in the trial court. He raised these
claims: (i) ineffective assistance of appellate counsel; and (ii) plea was rendered
involuntary by trial counsel’s ineffectiveness. The trial court denied relief from
judgment. 9/13/12 Opinion (ECF No. 27-3). Petitioner filed an application for leave to
appeal in the Michigan Court of Appeals, raising the same claims raised in the trial court
motion. The Michigan Court of Appeals denied leave to appeal. People v. Calhoun, No.
313107 (Mich. Ct. App. Aug. 22, 2013) (ECF No. 27-4). The Michigan Supreme Court
also denied leave to appeal. People v. Calhoun, 495 Mich. 903 (Mich. Nov. 23, 2013).
Petitioner then filed a motion to lift the stay in this case and an amended petition.
The Court granted the motion and reopened this proceeding. 3/21/14 Order (ECF No.
24). The petition raises these claims:
I.

This Court must vacate the Petitioner’s conviction for “assault with intent to
do great bodily harm,” because there is an insufficient factual basis for the
plea that was rendered.

II.

The petitioner was deprived of his constitutional rights of the V, VI, and
XIV Amendment of the United States, because of last resort, and distress
pleadings in the instant case, when counsel for the petitioner failed to
adequately represent him and the case at true crucial stages, and his plea
was completely involuntary, where it is clearly requiring withdrawal and/or
reversal.

III.

Petitioner should be permitted to withdraw his plea based upon the state
court’s radical jurisdictional defect, Petitioner’s claim of self-defense, and
the cumulative effect of errors.

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II. Standard
This habeas petition is reviewed under the exacting standards set forth in the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. No. 104-132,
110 Stat. 1214 (Apr. 24, 1996). Under AEDPA, a federal court cannot grant habeas relief
with respect to any claim adjudicated on the merits in a state-court proceeding unless the
state adjudication of the claim either:
(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.
28 U.S.C. § 2254(d)(1), (2).
“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
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. “A state court’s determination that a claim lacks merit
precludes federal habeas relief so long as ‘fairminded jurists could disagree’ on the
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correctness of the state court’s decision.” Harrington v. Richter, 562 U.S.86, 101 (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). To obtain relief under § 2254(d)(2), a petitioner must show an unreasonable
determination of fact and that the resulting state court decision was “based on” that
unreasonable determination. Rice v. White, 660 F.3d 242, 250 (6th Cir. 2012).
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).

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III. Discussion
A. Statute of Limitations
Respondent first argues that the claims contained in Petitioner’s third claim for
habeas relief are barred by the statute of limitations. The statute of limitations does not
constitute a jurisdictional bar to habeas review, a federal court, can, in the interest of
judicial economy, proceed to the merits of a habeas petition. See Smith v. State of Ohio
Dept. of Rehabilitation, 463 F.3d 426, 429, n. 2 (6th Cir. 2006) (quoting Trussell v.
Bowersox, 447 F.3d 588, 590 (8th Cir. 2006)). Thus, the Court need not resolve the
dispute over the timeliness of the habeas application. Assuming without deciding that the
issues raised in Petitioner’s third claim are timely, the claims fail on the merits. See Ahart
v. Bradshaw, 122 Fed. App’x 188, 192 (6th Cir. 2005).
B. Factual Basis for Guilty Plea
Petitioner first argues that the trial court erred in accepting his guilty plea because
there was an insufficient factual basis to support his plea. Specifically, he claims that
there was no evidence to support the intent element of assault with intent to do great
bodily harm less than murder. This claim is not cognizable on habeas review. “‘[T]here
is no constitutional requirement that a trial judge inquire into the factual basis of a plea.’”
Bonior v. Conerly, 416 F. App’x 475, 478 (6th Cir. Nov. 17, 2010), quoting Roddy v.
Black, 516 F.2d 1380, 1385 (6th Cir. 1975); see also Post v. Bradshaw, 621 F.3d 406, 427
(6th Cir. 2010). Thus, a state trial judge’s failure to conduct an on-the-record inquiry into
the factual basis of a plea does not serve as a basis for federal habeas corpus relief.
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Bonior, 416 F. App’x at 478.
C. Voluntariness of Plea
Petitioner next argues that his guilty plea was rendered involuntary by counsel’s
ineffectiveness. He argues that counsel was ineffective because he failed to investigate
the case, was unprepared to call witnesses Reginald Wallace and Michael Johnson who
would have bolstered his self-defense claim, essentially abandoned Petitioner, and gave
questionable advice to Petitioner. He argues that if counsel had been performing
competently, he would have proceeded to trial and presented a self-defense claim.
Respondent argues that this claim is 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
economy are best served by addressing the merits of this claim.
Petitioner focuses his argument on a change in his representation during the pretrial period. He argues that attorney Joshua Chartier abandoned him nine days before trial
and that he was, therefore, forced to plead guilty because neither Chartier nor his
substitute counsel, Earl Washington, obtained the presence of defense witnesses who
would have supported a defense of self-defense or otherwise effectively investigated the
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case. The record shows that both attorneys were aware of the potential for a self-defense
claim and there is no indication that either attorney was lacking in pre-trial preparation.
To show a violation of the Sixth Amendment right to effective assistance of
counsel, a petitioner must establish that his attorney’s performance was deficient and that
the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S.
668, 687 (1984). In guilty plea cases, the “performance” prong requires showing that
defense counsel’s representation fell below an objective standard of reasonableness or
was outside the range of competence demanded of attorneys in criminal cases. Hill v.
Lockhart, 474 U.S. 52, 56-59 (1985). The “prejudice” prong “focuses on whether
counsel’s constitutionally ineffective performance affected the outcome of the plea
process.” Id. at 59. The petitioner must show “a reasonable probability that, but for
counsel’s errors, he would not have pleaded guilty and would have insisted on going to
trial.” Id.
Petitioner was represented by attorney Earl Washington at the preliminary
examination held on December 10, 2007 (ECF No. 15-2). On December 17, 2007, he
was represented by Joshua Chartier (ECF No. 15-3). Chartier’s representation continued
through sometime in February 2008, when Chartier left the State Defender’s Office. See
10/5/08 Letter from Joshua Chartier, ECF No. 27-2, Pg. ID 252. In response to an inquiry
from Petitioner’s then-attorney, Chartier stated that he prepared an outgoing
memorandum upon his departure from the State Defender’s Office detailing relevant
information about the case, including the names and addresses of potential witnesses. Id.
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He attached a copy of the memorandum prepared in Petitioner’s case, which lists three
potential witnesses, including Reginald Wallace and Michael Johnson. Id. at 253. The
memorandum also raises the possibility of a self-defense argument. Id. The record
shows that Earl Washington represented Petitioner after Chartier left the State Defender’s
Office. The record does not show when Washington was appointed and Petitioner claims
that he was not aware that Chartier had been replaced by Washington until nine days
before the date set for trial. Although Petitioner claims that neither Chartier nor
Washington investigated the possibility of presenting a self-defense claim, the record
contradicts this argument. Chartier’s memorandum cites witnesses Wallace and Johnson
and the possibility of a self-defense claim. Washington filed a witness list, naming
Wallace and Cordell Stafford (Cordell would, the defense believed, testify that, contrary
to the victims’ testimony, Petitioner and the victim knew each other prior to the assault),
showing that he was familiar with the case and potential defenses. Moreover,
Washington had represented Petitioner at the preliminary examination. Therefore, he was
familiar with the victim’s testimony. Based upon this record, the Court finds no
indication that either Chartier or Washington abandoned Petitioner or were unprepared
for trial.
The Court also finds unpersuasive Petitioner’s argument that he was pressured into
entering a plea by defense counsel’s warnings that if he proceeded to trial and was found
guilty, he would be sentenced to a minimum of twenty to thirty years’ imprisonment. In
denying Petitioner’s motion to withdraw his plea, the trial court held that this assessment
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of the minimum sentence Petitioner faced had he proceeded to trial was accurate. See
5/29/09 Tr. at 4, ECF No. 15-8, Pg. ID 195. Counsel’s warning provided Petitioner with
accurate information upon which to base his decision whether to plead guilty. The desire
to avoid a lengthy sentence does not render a plea involuntary.
D. Alleged Jurisdictional Defect
Petitioner next argues that a radical jurisdictional defect rendered the trial court
without jurisdiction. He bases this claim on alleged deficiencies in the arrest warrant.
“‘[F]ederal habeas corpus relief does not lie for errors of state law.’” Estelle v. McGuire,
502 U.S. 62, 67 (1991), quoting Lewis v. Jeffers, 497 U.S. 764, 780 (1990). Habeas
review “is limited to deciding whether a conviction violated the Constitution, laws, or
treaties of the United States,” and does not encompass reexamining state-court
determinations of state-law issues. Id. at 68. The determination whether a state court had
jurisdiction under state law is properly made by the state courts, not the federal judiciary.
Wills v. Egeler, 532 F.2d 1058, 1059 (6th Cir. 1976). See also Poe v. Caspari, 39 F.3d
204, 207 (8th Cir. 1994) (“Jurisdiction is no exception to the general rule that federal
courts will not engage in collateral review of state court decisions based on state law: The
adequacy of an information is primarily a question of state law and we are bound by a
state court’s conclusion respecting jurisdiction. . . . This determination of jurisdiction is
binding on this [federal] court.”) (internal quotation omitted). Habeas relief is denied on
this claim.

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E. Cumulative Effect of Alleged Errors
Finally, Petitioner alleges that he is entitled to habeas relief because the cumulative
effect of the alleged errors deprived him of due process of law. On habeas review, a
claim that the cumulative effect of errors rendered a petitioner’s trial fundamentally unfair
is not cognizable. Sheppard v. Bagley, 657 F.3d 338, 348 (6th Cir. 2011) (citing Moore v.
Parker, 425 F.3d 250, 256 (6th Cir.2005)). Therefore, Petitioner is not entitled to relief
on this claim.
IV. Certificate of Appealability
Before Petitioner may appeal this Court’s dispositive decision, a certificate of
appealability must issue. See 28 U.S.C. § 2253(c)(1)(A); Fed. R.App. P. 22(b). A
certificate of appealability may issue “only if the applicant has made a substantial
showing of the denial of a constitutional right.” 28 U .S.C. § 2253(c)(2). When a court
rejects a habeas claim on the merits, the substantial showing threshold is met if the
petitioner demonstrates that reasonable jurists would find the district court’s assessment
of the constitutional claim debatable or wrong. See Slack v. McDaniel, 529 U.S. 473,
484-85 (2000). “A petitioner satisfies this standard by demonstrating that ... jurists could
conclude the issues presented are adequate to deserve encouragement to proceed further.”
Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). In applying that standard, a district court
may not conduct a full merits review, but must limit its examination to a threshold inquiry
into the underlying merit of Petitioner’s claims. Id. at 336-37. “The district court must
issue or deny a certificate of appealability when it enters a final order adverse to the
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applicant.” Rules Governing § 2254 Cases, Rule 11(a), 28 U.S.C. foll. § 2254.
The Court concludes that reasonable jurists could debate its resolution of
Petitioner’s ineffective assistance of counsel claim, but could not debate its denial of
Petitioner’s remaining claims. Thus, the Court grants in part and denies in part a COA.
The Court grants Petitioner permission to proceed on appeal in forma pauperis. See 28
U.S.C. § 1915(a)(3); Fed. R.App.24 (a).
V. Conclusion
For the reasons stated above, the Court DENIES the petition for a writ of habeas
corpus. The Court GRANTS a certificate of appealability on Petitioner’s ineffective
assistance of counsel claim and DENIES a certificate of appealability with respect to the
remaining claims. Petitioner may proceed on appeal in forma pauperis because an appeal
could be taken in good faith. 28 U.S.C. § 1915(a)(3).

S/Arthur J. Tarnow
Arthur J. Tarnow
Senior United States District Judge
Dated: December 12, 2016
I hereby certify that a copy of the foregoing document was served upon parties/counsel of
record on December 12, 2016, by electronic and/or ordinary mail.
S/Catherine A. Pickles
Judicial Assistant

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