Malloy v. Scutt

Filing 13

OPINION and ORDER (1) Denying Petition for Writ of Habeas Corpus 1 , (2) Declining to Issue a Certificate of Appealability, and (3) Denying Permission to Proceed in Forma Pauperis on Appeal. Signed by District Judge Nancy G. Edmunds. (JCur)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MELVIN DEON MALLOY, #429478
Petitioner,

Case Number 12-11509
Honorable Nancy G. Edmunds

v.
DEBORAH SCUTT,
Respondent.
________________________________/

OPINION AND ORDER (1) DENYING PETITION FOR WRIT OF HABEAS CORPUS,
(2) DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY, AND (3) DENYING
PERMISSION TO PROCEED IN FORMA PAUPERIS ON APPEAL
This is a habeas corpus action brought by a state prisoner pursuant to 28 U.S.C. §
2254. Petitioner pled guilty in the Monroe Circuit Court of two counts of breaking and
entering with intent to commit larceny, MICH. COMP. LAWS § 750.110. The trial court
sentenced him as a second-time habitual felony offender to two concurrent terms of 28
months-to-15 years in prison. The petition enumerates eight claims: (1) Petitioner is entitled
to withdraw his plea because he is actually innocent; (2) Petitioner was denied the effective
assistance of counsel at the plea proceeding; (3) Petitioner’s plea was involuntary because
he was under the influence of psychotropic medications; (4) Petitioner’s plea bargain was
illusory; (5) the trial judge was biased and imposed a harsh sentence as a result; (6)
Petitioner’s trial counsel was ineffective; (7) the prosecutor would not be prejudiced if
Petitioner is allowed to withdraw his plea; and (8) Petitioner is entitled to resentencing
before a different judge. The petition will be denied because Petitioner’s first two claims do
not merit habeas corpus relief and because review of Petitioner’s remaining claims is

barred by his failure to present them to the state courts during his direct appeal. The Court
will also deny Petitioner a certificate of appealability and permission to proceed in forma
pauperis on appeal.
I. Background
According to Petitioner’s sworn testimony at the guilty plea hearing, he and another
man attempted to burglerize two stores in Monroe, Michigan. On both occassions, the other
man threw a brick threw the window of the stores and went inside with the intent to steal
while Petitioner waited outside and acted as look-out. On both occasions an alarm was
triggered and the men fled.
As a result of this conduct, Petitioner was charged with two counts of breaking and
entering with intent to commit larceny and with being a fourth-time habitual felony offender.
Petitioner was also charged in another file with failure to register as a sex offender.
Pursuant to a plea bargain, Petitioner pled to the two counts of breaking and
entering, and the prosecutor agreed to reduce the habitual offender charge to a secondtime offense as opposed to a fourth-time offense. There was no sentencing agreement.
The prosecutor also agreed to dismiss the sex offender registry charge against Petitioner.
Both Petitioner and his counsel signed a plea bargain form setting forth these terms.
After Petitioner was placed under oath, he confirmed that he understood the plea
bargain and that it was his intent to enter into it. The trial court asked Petitioner whether he
understood the charges and potential penalties as stated on the record—up to 15 years in
prison, and Petitioner indicated his understanding. Petitioner indicated that he was pleading
guilty to both charges.
Petitioner affirmed he had a chance to review his trial rights, understood them, and
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agreed to waive them. Petitioner denied that anyone promised him anything in addition to
the plea bargain as stated on the record. He denied he was threatened into pleading guilty.
Petitioner was asked whose “final choice” it was to plead guilty, and Petitioner responded
that it was his. Petitioner confirmed he had enough time to meet with his attorney and that
his right to counsel was satisfied.
After Petitioner described his involvement in the crimes, the trial court asked counsel
whether there were any undisclosed inducements, promises, or threats made. Counsel
denied that there were. The court then found the plea was voluntarily, understandingly and
knowingly made.
At sentencing, defense counsel noted the sentence recommended was at the top
of the legislative sentencing guidelines but asked that the court consider sentencing
Petitioner to twelve months in jail or a short prison term. The trial court noted Petitioner’s
“poor prior record” which included prior incarceration and poor performance while on
probation. Noting the sentencing guidelines’ range for the minimum sentence was 10-to-28
months, the trial court sentenced Petitioner to two concurrent terms of 28 months-to-15
years, the maximum possible sentence without exceeding the guideline range.
After sentencing, Petitioner filed a motion to withdraw his plea, claiming that he did
not commit the offenses. Petitioner claimed his attorney instructed him what to say at the
plea proceeding and that his attorney assured Petitioner that his sentence would be limited
to “county time.” After hearing oral argument on the motion, the trial court denied it for lack
of merit. The court indicated it reviewed the transcript of the plea proceeding and
determined Petitioner was advised of all of his rights as required by the Michigan Court
Rules, including the possible penalty. Tr. 2/13/09, pp. 5-7.
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The trial court further stated:
[Petitioner] was told that he was giving up any claim that the pleas
were the result of any other promises not disclosed to me, or that it was not
his own choice to enter the pleas.
He said that he understood all these rights and that he was giving
them up. He told me that no one promised him anything other than the plea
bargain. He told me that he was - - that it was his own choice to plead. He
said he had enough time to talk with his attorney and was satisfied he was
given his rights to [an] attorney.
[Petitioner] gave me a detailed factual description of what he said - what he did . . . to make him guilty of both charges. All of this was doen
under oath. Defense counsel and the Prosecutor both indicated that there
were no other promises, threats or inducements, other than those stated on
the record.
At the sentencing on July 31st , 2008 the [Petitioner] knew of the
recommendation by Probation for a prison sentence, but he had nothing to
say when he was given opportunity to do so.
Now on the basis of this motion . . . is primarily the [Petitioner] claims he is
not guilty and that Defense Counsel told him to plead guilty and that he said
what his attorney told him to say, and coincidentally the [Petitioner’s]
statements during his plea substantially corresponded to what he told the
police in his confession, which would have been prior to appointment . . . of
his Defense Counsel.
It is clear that the [Petitioner’s] plea was voluntarily and
understandingly made. For this Court to give any credibility to his claims I
would have to find that he lied to the police, that he lied to me under oath,
and that his attorney lied to me when he said that there were no other
promises made to induce the pleas.
Further, given all these circumstances, as well as the excellent plea
bargain the [Petitioner] was given, it would be frivolous to find that the advice
afforded by Defense Counsel was not within the normal range of
competence.
Tr. 2/13/09, pp. 5-7.
Thereafter, Petitioner filed an application for leave to appeal in the Michigan Court
of Appeals, which raised the following claims:
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I. [Petitioner] should be allowed to withdraw his plea based upon his claim of
actual [innocence].
II. [Petitioner] should be allowed to withdraw his plea as he was denied the
effective assistance of counsel.
The Michigan Court of Appeals affirmed Petitioner’s conviction in an unpublished
summary order for “lack of merit in the grounds presented.” People v. Malloy, No.
293313(Mich. Ct. App. Sept. 30, 2009). Petitioner subsequently filed an application for
leave to appeal in the Michigan Supreme Court which raised the same claims. The
Michigan Supreme Court denied the application because it was not persuaded that the
question presented should be reviewed by the Court. People v. Malloy, 458 Mich. 1081
(2010) (table).
Petitioner returned to the trial court and filed a motion for relief from judgment, which
contained the following claims:
I. Due process requires plea withdrawal where [Petitioner] was taking
psychotropic medication and the court failed to ascertain [Petitioner’s] mental
state at the time of the plea proceeding.
II. [Petitioner] must be permitted to withdraw his guilty plea because the so
called plea “bargain” held no benefit for him. [Petitioner’s] plea was
involuntary, unknowing, and unintelligent, in violation of the state and federal
due process clauses, where it was premised on this illusory bargain and
where he was given inadequate time and inadequate assistance from
counsel in considering it.
III. [Petitioner] was denied a fair judge and the appearance of justice where
the sentencing judge erred in denying [Petitioner’s] motion to withdraw plea.
IV. The trial court erred in denying [Petitioner’s] motion to withdraw his guilty
plea where his plea was rendered unknowing and unintelligent by defense
counsel’s ineffective representation.
V. If [Petitioner] is allowed to withdraw his plea, the prosecution will not be
substantially prejudiced.
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VI. [Petitioner] is entitled to a resentencing before a different judge because
[Petitioner] was denied his constitutional rights to an impartial judge and
effective attorney.
The trial court denied the motion for relief from judgment in a written opinion. The
opinion addresses each of the claims on the merits. On the last page of its opinion, the
court also stated that Petitioner also had not demonstrated good cause or actual prejudice
for his failure to raise the claims during his direct appeal.
Petitioner then filed an application for leave to appeal in the Michigan Court of
Appeals which was denied “for failure to establish entitlement to relief under Mich. Ct. R.
6.508(D).” People v. Malloy, No.299693 (Mich. Ct. App. June 8, 2011). Petitioner applied
for leave to appeal this decision in the Michigan Supreme Court, but it was also denied with
citation to Mich. Ct. R. 6.508(D). People v. Malloy, 490 Mich. 968 (2011) ( table).

II. Standard of Review
28 U.S.C. § 2254(d), as amended by The Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA), imposes the following standard of review for 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
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
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court arrives at a conclusion opposite to that reached by the Supreme Court on a question
of law or if the state court decides a case differently than the Supreme Court has on a set
of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). An
"unreasonable application" occurs when "a state court decision unreasonably applies the
law of [the Supreme Court] to the facts of a prisoner's case." Id. at 409. A federal habeas
court may not "issue the writ simply because that court concludes in its independent
judgment that the relevant state-court decision applied clearly established federal law
erroneously or incorrectly." Id. at 410-11.
The Supreme Court has explained that "[A] federal court's collateral review of a
state-court decision must be consistent with the respect due state courts in our federal
system." Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). The "AEDPA thus imposes a
'highly deferential standard for evaluating state-court rulings,'and 'demands that state-court
decisions be given the benefit of the doubt.'" Renico v. Lett, 130 S. Ct. 1855, 1862
(2010)((quoting Lindh v. Murphy, 521 U.S. 320, 333, n. 7 (1997); Woodford v. Viscotti, 537
U.S. 19, 24 (2002)(per curiam)). "[A] state court's determination that a claim lacks merit
precludes federal habeas relief so long as 'fairminded jurists could disagree' on the
correctness of the state court's decision." Harrington v. Richter, 131 S. Ct. 770, 786
(2011)(citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The Supreme Court has
emphasized "that even a strong case for relief does not mean the state court's contrary
conclusion was unreasonable." Id. (citing Lockyer v. Andrade, 538 U.S. 63, 75 (2003).
Furthermore, pursuant to § 2254(d), "a habeas court must determine what arguments or
theories supported or...could have supported, the state court's decision; and then it must
ask whether it is possible fairminded jurists could disagree that those arguments or theories
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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
fairminded disagreement." Harrington, 131 S. Ct. at 786-87.

III. Discussion
A. Claims I and II - Validity of Guilty Plea
Petitioner’s first two habeas claims attack the validity of his guilty plea. His first claim
asserts that he is actually innocent. Petitioner states that he never participated in the
crimes and left his partner before he broke into the stores. Petitioner’s second claim asserts
that his trial counsel was ineffective for telling him that he would only receive “county time”
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if he pled guilty, and for telling him how to answer the questions during the plea hearing
despite his innocence. Both claims were presented to the state courts in Petitioner’s motion
to withdraw his plea and on direct appeal. Respondent argues that the state courts
reasonably rejected the claims on the merits.
Petitioner's assertion that his guilty plea must be set aside because he is innocent
does not state a claim for habeas relief. Claims of actual innocence have "never been held
to state a ground for federal habeas relief absent an independent constitutional violation
occurring in the underlying state criminal proceeding." Herrera v. Collins, 506 U.S. 390, 400
(1993); Cress v. Palmer, 484 F.3d 844, 854-55 (6th Cir. 2007).
Indeed, the United States Supreme Court has explicitly held that a criminal
defendant may constitutionally enter a guilty plea even while protesting his innocence or
declining to admit his commission of the crime. North Carolina v. Alford, 400 U.S. 25, 37-38
(1970). "Because a trial court may accept a guilty plea even when it is coupled with a claim
of innocence, a fortiori a court is not required to permit withdrawal of that plea merely
because a defendant belatedly asserts his innocence." Gunn v. Kuhlman, 479 F. Supp.
338, 344 (S.D.N.Y. 1979) (footnotes omitted).
The only constitutional requirement is that a plea be knowing, intelligent, and
voluntary. Brady v. United States, 397 U.S. 742, 747 (1970). Petitioner has not alleged
facts — much less demonstrated — that his plea does not meet this requirement. The
proper plea colloquy demonstrates that Petitioner voluntarily waived his trial rights and pled
guilty.
Turning to Petitioner’s ineffective assistance of counsel claim, the United States
Supreme Court has set forth a two-part test for evaluating the claim of a habeas petitioner
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who is challenging a guilty or no contest plea on the ground that he was denied the
effective assistance of counsel. First, the Petitioner must establish that "'counsel's
representation fell below an objective standard of reasonableness.'" Hill v. Lockhart, 474
U.S. 52, 57-58 (1985) (quoting Strickland v. Washington, 466 U.S. 668, 688 (1984)).
Second, the Petitioner must demonstrate that counsel's performance resulted in prejudice,
i.e., "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." Hill, 474 U.S. at 59. Significantly,
“where the court has scrupulously followed the required procedure, the defendant is bound
by his statements in response to that court's inquiry.'" Baker v. United States, 781 F.2d 85,
90 (6th Cir. 1986)).
Petitioner claims that he pled guilty in reliance on a promise by his trial counsel that
he would only receive “county time” if he pled guilty. This allegation, however, is
contradicted by Petitioner's testimony at the plea hearing in which he denied that anyone
had promised him anything beyond what was placed on the record at the plea hearing and
acknowledged that the crimes he was pleading guilty to were punishable by up to fifteen
years in prison. Petitioner does not assert that the state trial court failed to engage in a
proper plea colloquy. A state trial court's proper, clear, and thorough plea colloquy cures
any misunderstandings that a defendant may have about the consequences of a plea.
Ramos v. Rogers, 170 F.3d 560, 565 (6th Cir. 1999).
To the extent that petitioner asserts that there were representations made to him by
his attorney that differed from his statements during the plea colloquy, these assertions do
not justify habeas relief. The Sixth Circuit has held, when addressing a petitioner's claim
of a secret plea deal different than that acknowledged by the petitioner at the plea hearing:
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If we were to rely on [petitioner's] alleged subjective impression rather than
the record, we would be rendering the plea colloquy process meaningless,
for any convict who alleges that he believed the plea bargain was different
from that outlined in the record could withdraw his plea, despite his own
statements during the plea colloquy (which he now argues were untruthful)
indicating the opposite. This we will not do, for the plea colloquy process
exists in part to prevent petitioners ... from making the precise claim that is
today before us. "[W]here the court has scrupulously followed the required
procedure, the defendant is bound by his statements in response to that
court's inquiry." Baker, 781 F.2d at 90.
Ramos, 170 F.3d at 566. Accordingly, Petitioner's allegations of off the record
representations of his sentence by his trial counsel were reasonably rejected by the state
courts.

F. Claims III through VIII - State Post-Conviction Review Claims
Petitioner’s remaining claims were presented to the state courts in his motion for
relief from judgement and the appeal that followed its denial. Respondent asserts that
review of these claims is barred by his procedural default of failing to comply with Michigan
Court Rule 6.508(D)(3), which required him to present these claims to the state courts in
his direct appeal.1
When the state courts clearly and expressly rely on a valid state procedural bar,
federal habeas review is barred unless petitioner can demonstrate "cause" for the default
and actual prejudice as a result of the alleged constitutional violation. Coleman v.
Thompson, 501 U.S. 722, 750-51 (1991).
Michigan Court Rule 6.508(D)(3) provides that a court may not grant relief to a

1

Arguably, some of the claims presented to the state courts in his post-conviction review
proceeding essentially re-raised issues presented on direct appeal. These claims are
meritless for the reasons stated above.
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defendant if the motion for relief from judgment alleges grounds for relief which could have
been raised on direct appeal, absent a showing of good cause for the failure to raise such
grounds previously and actual prejudice resulting therefrom. For purposes of a conviction
following a trial, "actual prejudice" means that "but for the alleged error, the defendant
would have had a reasonably likely chance of acquittal." Mich. Ct. R. 6.508(D)(3)(b)(i).
The Supreme Court has noted that "a procedural default does not bar consideration
of a federal claim on either direct or habeas review unless the last state court rendering a
judgment in the case 'clearly and expressly' states that its judgment rests on the procedural
bar." Harris v. Reed, 489 U.S. 255, 263 (1989). If the last state court judgment contains no
reasoning, but simply affirms the conviction in a standard order, the federal habeas court
must look to the last reasoned state court judgment rejecting the federal claim and apply
a presumption that later unexplained orders upholding the judgment or rejecting the same
claim rested upon the same ground. Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991).
The Michigan Court of Appeals and the Michigan Supreme Court rejected
Petitioner's post-conviction appeal on the ground that "the defendant has failed to meet the
burden of establishing entitlement to relief under M.C.R. 6.508(D)." These orders, however,
did not refer to subsection (D)(3) nor did they mention petitioner's failure to raise these
claims on his direct appeal as their rationale for rejecting his post-conviction claims.
Because the form orders in this case citing Rule 6.508(D) are ambiguous as to whether
they refer to procedural default or a denial of post-conviction relief on the merits, the orders
are unexplained. See Guilmette v. Howes, 624 F.3d 286, 291 (6th Cir. 2010). This court
must "therefore look to the last reasoned state court opinion to determine the basis for the
state court's rejection" of petitioner's claims. Id.
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In the present case, the Monroe Circuit Court judge rejected petitioner's motion for
relief from judgment, finding that Petitioner had not shown “good cause” under Mich. Ct.
R. 6.508(D). This ruling is a clear invocation of the procedural bar set forth in Rule
6.508(D)(3). Petitioner's post-conviction claims are therefore procedurally defaulted. See
Ivory v. Jackson, 509 F. 3d 284, 292-93 (6th Cir. 2007); See also Howard v. Bouchard, 405
F.3d 459, 477 (6th Cir. 2005).
To establish cause to excuse a procedural default, a petitioner must establish that
some external impediment frustrated his ability to comply with the state's procedural rule.
Murray v. Carrier, 477 U.S. 478, 488 (1986). Such reasons include interference by officials,
attorney error rising to the level of ineffective assistance of counsel, or a showing that the
factual or legal basis for a claim was not reasonably available. See McCleskey v. Zant, 499
U.S. 467, 493-94 (1991). Petitioner alleges that he failed to raise these claims on direct
appeal because of ineffective assistance of appellate counsel. However, to serve as cause
to excuse a default, a claim of ineffective assistance of counsel must be properly
exhausted. Edwards v. Carpenter, 529 U.S. 446, 453 (2000); Buell v. Mitchell, 274 F.3d
337, 349 (6th Cir. 2001). Petitioner presented an ineffective assistance of appellate counsel
argument in his motion for relief from judgment, but he did not raise that argument in either
the Michigan Court of Appeals or in the Michigan Supreme Court. Therefore, Petitioner
cannot demonstrate cause to excuse his default.
Even assuming that Petitioner had established cause for his default, he would be
unable to satisfy the prejudice prong of the exception to the procedural default rule,
because his claims would not entitle him to relief. The cause and prejudice exception is
conjunctive, requiring proof of both cause and prejudice. See Matthews v. Ishee, 486 F.3d
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883, 891 (6th Cir. 2007). Petitioner has failed to show that his post-conviction claims have
any merit for the reasons stated by the trial court in its order denying the motion for relief
from judgment. Briefly stated, Petitioner has failed to demonstrate that any medication
rendered his plea involuntary. And contrary to his allegations, Petitioner’s plea bargain was
not illusory. He was originally charged as a fourth time habitual felony offender. The
dismissal of that charge reduced his sentencing exposure. Moreover, sex offender registry
charges were dismissed as part of the bargain. Nor has Petitioner demonstrated that the
trial court was biased against him. Petitioner is therefore not entitled to habeas relief on his
remaining claims.
Additionally, Petitioner has also not shown that a fundamental miscarriage of justice
has occurred if the Court does not review the claim. The miscarriage of justice exception
requires a showing that a constitutional violation probably resulted in the conviction of one
who is actually innocent. See Schlup v. Delo, 513 U.S. 298, 326-27 (1995). "'[A]ctual
innocence' means factual innocence, not mere legal insufficiency." Bousley v. United
States, 523 U.S. 614, 624 (1998). "To be credible, [a claim of actual innocence] requires
petitioner to support his allegations of constitutional error with new reliable
evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts,
or critical physical evidence-that was not presented at trial." Schlup, 513 U.S. at 324.
Petitioner has made no such showing. The claim is barred by procedural default and does
not warrant habeas relief.
The Court denies the petition for writ of habeas corpus.

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IV. Certificate of Appealability
Under 28 U.S.C. § 2253(c)(2), the Court must determine whether a certificate of
appealability should be granted. A certificate should issue if Petitioner has demonstrated
a "substantial showing of a denial of a constitutional right." 28 U.S.C. § 2253(c)(2). To
warrant a grant of the certificate, "[t]he petitioner must demonstrate that reasonable jurists
would find the district court's assessment of the constitutional claims debatable or wrong."
Slack v. McDaniel, 529 U.S. 473 (2000). The Court finds that reasonable jurists could not
conclude that this Court's dismissal of Petitioner's claims was debatable or wrong.
Therefore, the Court will deny Petitioner a certificate of appealability. The Court will also
deny Petitioner permission to proceed on appeal in forma pauperis because any appeal of
this decision would be frivolous
V. Conclusion
Accordingly, the Court DENIES WITH PREJUDICE the petition for a writ of habeas
corpus. The Court further DENIES a certificate of appealability and permission to proceed
on appeal in forma pauperis.
SO ORDERED.

S/Nancy G. Edmunds
Nancy G. Edmunds
United States District Judge
Dated: November 4, 2013
I hereby certify that a copy of the foregoing document was served upon counsel of record
on November 4, 2013, by electronic and/or ordinary mail.
S/Johnetta M. Curry-Williams
Case Manager
Acting in the Absence of Carol A. Hemeyer
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