Cook v. Romanowski

Filing 11

OPINION and ORDER Denying 1 Petition for Writ of Habeas Corpus and Denying Certificate of Appealability. Signed by District Judge Sean F. Cox. (JMcC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ANTONIO COOK,
Case Number: 2:12-10383
HONORABLE SEAN F. COX

Petitioner,
v.
KEN ROMANOWSKI,
Respondent.
/

OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS
CORPUS AND DENYING CERTIFICATE OF APPEALABILITY
Petitioner Antonio Cook has filed a petition for a writ of habeas corpus under 28
U.S.C. § 2254. Petitioner is in the custody of the Michigan Department of Corrections
pursuant to convictions on five counts of armed robbery, for which he is serving
concurrent sentences of 14 to 30 years’ imprisonment. He seeks habeas relief on four
separate grounds. Respondent argues that the claims are procedurally defaulted and
meritless. For the reasons below, the Court denies the petition and denies a certificate of
appealability.
I. Background
Petitioner pleaded guilty in Monroe County Circuit Court to five counts of armed
robbery in connection with the armed robbery of the same bank on two separate
occasions. The pleas were entered pursuant to a sentencing agreement that set a
minimum sentence not to exceed 15 years and a maximum sentence not to exceed 30

years. On June 27, 2008, Petitioner was sentenced to 14 to 30 years’ imprisonment for
each of the convictions, to be served concurrently.
Petitioner filed an application for leave to appeal in the Michigan Court of
Appeals. He raised these claims:
I.

Former trial counsel was ineffective for characterizing the prosecution’s
case as “airtight,” failing to conduct discovery, and failing to counsel
Defendant on the legal mechanism by which to challenge a suggestive
identification procedure.

II.

Defendant was denied due process and the effective assistance of counsel
because the prosecution failed to provide exculpatory material necessary for
an intelligent decision regarding Defendant’s waiver of trial by his
subsequent guilty plea.

The Michigan Court of Appeals denied leave to appeal. People v. Cook, No.
292831 (Mich. Ct. App. Aug. 13, 2009).
Petitioner filed an application for leave to appeal in the Michigan Supreme Court.
He raised the same claims raised in the Michigan Court of Appeals and two additional
claims not relevant to his habeas petition. The Michigan Supreme Court denied leave to
appeal. People v. Cook, 485 Mich. 979 (2009).
Petitioner then filed a motion for relief from judgment in the trial court, raising
claims that the state court lacked subject-matter jurisdiction and his conviction violated
the Double Jeopardy Clause. The trial court denied the motion. People v. Cook, Nos. 0836732-FC & 08-36734-FC (Monroe County Cir. Ct. July 6, 2010). The Michigan Court
of Appeals denied Petitioner’s application for leave to appeal. People v. Cook, No.
300139 (Mich. Ct. App. June 24, 2011). The Michigan Supreme Court also denied leave
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to appeal. People v. Cook, 490 Mich. 969 (Mich. 2011).
Petitioner then filed the pending habeas petition. He raises these claims:
I.

Ineffective assistance of counsel – trial counsel was ineffective for
characterizing the prosecution’s case as “air tight”; failing to conduct
discovery before advising Petitioner to plead guilty.

II.

Petitioner was denied due process because the prosecution failed to provide
exculpatory material.

III.

Subject-matter jurisdiction: The right of the State court to prosecute
Petitioner for committing a federal crime.

IV.

Double jeopardy.

Respondent has filed a response arguing that the claims are meritless and that two
of the claims are procedurally defaulted. The Court finds it unnecessary to address the
question of procedural default. It is not a jurisdictional bar to review of the merits of an
issue, Howard v. Bouchard, 405 F.3d 459, 476 (6th Cir. 2005), and “federal 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)). Application of a procedural bar would not affect
the outcome of this case, and it is more efficient to proceed directly to the merits.
II. 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
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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
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.’” Id. at 520-21 (citations omitted); see also
Williams, 529 U.S. at 409. “A state court’s determination that a claim lacks merit
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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
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) and Dickens v. Jones, 203 F. Supp. 2d 354,
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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).
III. Discussion
A. Ineffective Assistance of Counsel Claim
Petitioner argues that he was denied his right to the effective assistance of counsel.
He claims that counsel was ineffective because counsel mischaracterized the
prosecution’s case as “airtight” and failed to conduct discovery.
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”
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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. On habeas review, the Court employs a “doubly deferential standard of review
that gives both the state court and the defense attorney the benefit of the doubt.” Burt v.
Titlow, __ U.S. __, 134 S. Ct. 10, 13 (2013).
The trial court held an evidentiary hearing on Petitioner’s ineffective assistance of
counsel claims. Defense counsel testified regarding the discovery received, his
evaluation of the strength of the evidence implicating Petitioner, and the lengthy potential
sentence faced by Petitioner. Defense counsel acknowledged inconsistencies among the
various witnesses’ description of the suspect and the discrepancies between those
descriptions and Petitioner’s physical appearance. Defense counsel also testified that he
did not see anything in the photographic array that would have prompted him to request a
Wade hearing. Finally, defense counsel considered the anticipated testimony of an FBI
agent and a parole officer particularly damaging. Both witnesses would have testified
that the perpetrator depicted in the bank surveillance video appeared to be Petitioner. In
consideration of all of the foregoing, counsel advised Petitioner that pleading guilty was a
prudent choice.
Following the evidentiary hearing, the trial court found counsel’s performance
adequate. The trial court found no deficiencies in defense counsel’s investigation. The
trial court found credible counsel’s testimony that he discussed the relative weaknesses of
the eyewitness testimony with Petitioner. The trial court also found persuasive defense
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counsel’s evaluation of the anticipated testimony of an FBI agent and a parole officer.
The trial court concluded that the strong evidence of Petitioner’s guilt coupled with the
possible 337-month minimum sentence faced if he proceeded to trial rendered defense
counsel’s assessment of the case and recommendation that Petitioner plead guilty
reasonable and indicative of capable representation.
There is nothing in the record to demonstrate that petitioner received ineffective
assistance of counsel under either prong of Strickland. The Court concludes that the state
court’s determination that petitioner received the effective assistance of counsel was
neither contrary to, or an unreasonable application of, federal law as established by the
Supreme Court in Strickland v. Washington and Hill v. Lockhart. Petitioner is not entitled
to relief on this claim.
B. Brady Violation Claim
In his second claim, Petitioner argues that the State violated Brady v. Maryland,
373 U.S. 83 (1963), when it failed to disclose allegedly exculpatory information.
Specifically, Petitioner identifies the State’s failure to turn over police reports consisting
of a photograph and physical description of a 2002 corporeal lineup participant identified
by two witnesses as the robber. While defense counsel was aware that there had been a
lineup in 2002 which did not contain Petitioner, only a one-page summary of the
corporeal lineup was produced to him before the plea was entered. The police reports
were ultimately produced to the defense in June 2009, in response to Petitioner’s Motion
to Vacate Convictions Due to Brady Violation. The additional police reports showed that
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the individual identified from the lineup by two witnesses was 6' 1" tall, although the
witnesses, at the time of the robbery, described the perpetrator as being 5' 4" tall.
Petitioner argues that, if he had known about these discrepancies, he would have known
that the case against him was not as strong as characterized by his attorney and he would
not have entered a plea.
“[T]he Constitution does not require the Government to disclose material
impeachment evidence prior to entering a plea agreement with a criminal defendant.”
United States v. Ruiz, 536 U.S. 622, 633 (2002). “When a defendant pleads guilty he or
she, of course, forgoes not only a fair trial, but also other accompanying constitutional
guarantees.” Id. at 629. “Given the seriousness of the matter, the Constitution insists,
among other things, that the defendant enter a guilty plea that is ‘voluntary’ and that the
defendant must make related waivers ‘knowing[ly], intelligent[ly], [and] with sufficient
awareness of the relevant circumstances and likely consequences.’” Id. (quoting Brady,
397 U.S. at 748). The Court ruled that “impeachment information is special in relation to
the fairness of a trial, not in respect to whether a plea is voluntary.” Id.
The evidence at issue here may have been used to impeach the testimony of
identification witnesses. But, under Ruiz, the prosecution is not required to disclose
material impeachment evidence prior to entering a plea agreement.
Moreover, even if the evidence at issue here could be considered exculpatory
substantive evidence, Petitioner fails to state a claim. Several courts have concluded that
there is no clearly established federal constitutional right to the disclosure of Brady
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material prior to the entry of a guilty plea, without regard to whether the material is
exculpatory or impeachment evidence. See Friedman v. Rehal, 618 F.3d 142, 154, n.4&5
(2d Cir. 2010) (suggesting that Ruiz applies to exculpatory and impeachment evidence
because the Supreme Court “has consistently treated exculpatory and impeachment
evidence in the same way for the purpose of defining the obligation of a prosecutor to
provide Brady material prior to trial . . . and the reasoning underlying Ruiz could support
a similar ruling for a prosecutor’s obligations prior to a guilty plea.”); United States v.
Moussaoui, 591 F.3d 263, 285-86 (4th Cir. 2010) (suggesting that there is no right to
exculpatory evidence at the guilty plea stage but declining to resolve the issue); United
States v. Conroy, 567 F.3d 174, 179 (5th Cir. 2009) (“[Petitioner] argues that the
limitation of the Court’s discussion [in Ruiz ] to impeachment evidence implies that
exculpatory evidence is different and must be turned over before entry of a plea. Ruiz
never makes such a distinction nor can this proposition be implied from its discussion.”).
Given the lack of any Supreme Court precedent requiring Brady material to be disclosed
prior to the entry of a guilty plea, and the split among courts on this issue, it cannot be
said that clearly established federal law requires the prosecution to turn over exculpatory
evidence prior to entry of a plea. Therefore, Petitioner has not alleged a violation of
clearly established federal law under § 2254(d)(1). Habeas relief is denied on this claim.

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C. Subject-Matter Jurisdiction
Petitioner contends that the state court lacked jurisdiction because the crime of
bank robbery is a federal, not state, crime. To the contrary, an act may be criminal under
the laws of both state and federal sovereigns. Heath v. Alabama, 474 U.S. 82, 88-89
(1985). Both Congress and the State may punish the crime of bank robbery. Westfall v.
United States, 274 U.S. 256, 258-59 (1927). Accordingly, this claim is meritless.
D. Double Jeopardy Clause
Finally, Petitioner argues that his convictions for five counts of armed robbery
arising from two bank robberies violates his right to be free from Double Jeopardy. He
claims that the bank, not its employees, were robbed.
The Double Jeopardy Clause of the Fifth Amendment provides, “No person . . .
shall . . . be subject for the same offense to be twice put in jeopardy of life or limb.” U.S.
Const. Amend. V. This clause affords defendants protection against three basic harms:
second prosecution for the same offense after acquittal, second prosecution for the same
offense after conviction, and multiple punishments for the same offense. Brown v. Ohio,
432 U.S. 161, 165 (1977). “Because the substantive power to prescribe crimes and
determine punishments is vested with the legislature . . . , the question under the Double
Jeopardy Clause whether punishments are ‘multiple’ is essentially one of legislative
intent.” Ohio v. Johnson, 467 U.S. 493, 499 (1984). In determining whether the
Michigan legislature intended to authorize cumulative punishments in the circumstances
presented here, this Court is “bound by a state court's determination of the legislature’s
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intent.” Banner v. Davis, 886 F.2d 777, 779-80 (6th Cir. 1989); see also McCloud v.
Deppisch, 409 F.3d 869, 874 (7th Cir. 2005) (holding that a federal court is “bound by”
state court’s interpretation of legislative intent).
When a state statute is at issue, as in this case, the state courts’ interpretation of the
statute controls. E.g., Ohio v. Johnson, 467 U.S. 493, 499 (1984) (“We accept, as we
must, the Ohio Supreme Court’s determination that the Ohio Legislature did not intend
cumulative punishment for the two pairs of crimes involved here.”); Banner v. Davis, 886
F.2d 777, 780 (6th Cir. 1989) (“Under the double jeopardy clause, when evaluating
whether a state legislature intended to prescribe cumulative punishments for a single
criminal incident, a federal court is bound by a state court's determination of the
legislature’s intent.”).
The Michigan Supreme Court has concluded that under the armed robbery statute,
the “appropriate ‘unit of prosecution’ is the person assaulted and robbed.” People v.
Wakeford, 418 Mich. 95, 112 (1983). “[T]he essence of armed robbery is not that the
property belonged to the victim, but rather that it belonged to someone other than the
thief.” People v. Rodgers, 248 Mich. App. 702, 711 (Mich. Ct. App. 2001). This Court is
bound by the Michigan Supreme Court’s determination of the intent of the Michigan
legislature. Banner, 886 F.2d at 780. Because that legislative intent has been decided by
the Michigan Supreme Court, Petitioner’s double jeopardy claim fails.

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IV. Certificate of Appealability
“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. Title 28 U.S.C. § 2253 governs appeals in § 2254 proceedings and
provides, in pertinent part: “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). The Supreme Court has explained that when a district court denies a
habeas petition on the merits of the claims presented, a certificate may issue if the
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,
120 S. Ct. 1595, 1604 (2000). If a petitioner makes the requisite showing and a district
court grants a certificate of appealability, the court must indicate the specific issue or
issues for which the applicant made a substantial showing of the denial of a constitutional
right. 28 U.S.C. § 2253(c)(3).
For the reasons stated in this Opinion and Order, the Court finds that Petitioner has
failed to make a substantial showing of the denial of a constitutional right. Therefore, a
certificate of appealability shall not issue in this case.

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V. Conclusion
Accordingly, IT IS ORDERED that the petition for a writ of habeas corpus is
DENIED and the matter is DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED.

S/Sean F. Cox
Sean F. Cox
United States District Judge
Dated: March 5, 2014
I hereby certify that on March 5, 2014, a copy of the foregoing document was served upon
counsel of record via electronic means and upon Antonio Cook via First Class Mail at the
address below:
Antonio Cook
181461
G. Robert Cotton Correctional Facility
3500 N. Elm Road
Jackson, MI 49201
S/Jennifer McCoy
Case Manager

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