Brown v. Rivard

Filing 30

OPINION and ORDER Denying 1 Petition for Writ of Habeas Corpus and Denying Certificate of Appealability. Signed by District Judge Denise Page Hood. (SBur)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

RUFUS BROWN,
Case Number: 2:12-CV-13638
Honorable Denise Page Hood

Petitioner,
v.
STEVE RIVARD,
Respondent.
/

OPINION AND ORDER DENYING PETITION FOR WRIT OF
HABEAS CORPUS AND DENYING CERTIFICATE OF APPEALABILITY
Rufus Brown is a state inmate incarcerated at the Cooper Street Correctional
Facility in Jackson, Michigan. In 2012, Petitioner filed a petition for a writ of
habeas corpus in this Court, challenging his convictions for four counts of uttering
and publishing, conspiracy to commit uttering and publishing, and conducting a
criminal enterprise. Petitioner then sought a stay to allow him to exhaust
unexhausted claims in state court. The Court granted the stay and administratively
closed the matter. After exhausting state court remedies, Petitioner moved to
reopen this proceeding. The Court reopened the matter and permitted Petitioner to
file an amended petition raising an additional claim. Respondent has now filed a
supplemental answer in opposition to the petition. For the reasons set forth below,

the Court denies the petition.
I.

Background
Petitioner’s convictions arise from Petitioner’s involvement in using checks

that were not his and which he was not authorized to use to purchase goods from
various stores. Petitioner and two friends, Teresa Fisher and McClinnon Smith
traveled to Michigan from Chicago for the purpose of purchasing merchandise
from retailers with these checks. At his plea hearing, Petitioner admitted to writing
a check for $1,212.18, on June 14, 2009, at a Wal-Mart in Benton Township.
Petitioner said the check had been found by a friend and the name on the account
was Michael Lorrento. Petitioner signed Lorrento’s name on the check. On the
same date, Petitioner went to Lowe’s in Benton Township, and wrote another
check on Lorrento’s account. This check was for $1,035.45. Petitioner presented
the check to the cashier after signing Lorrento’s name, but was unable to purchase
the merchandise because Lowe’s did not accept the check. Petitioner and Teresa
Fisher then agreed that Fisher would present a check from the account of Angela
Bogdanas to Lowe’s to try to purchase merchandise on Bogdanas’ account. Fisher
presented a check in the amount of $1,026.48, but Lowe’s also declined to accept
her check. The trio then went to Meijer’s, also in Benton Township, for the
purpose of having Fisher again try to purchase merchandise with one of Bogdanas’
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checks. She was successful this time in purchasing merchandise for $490.13. The
next target was Staples, where Petitioner, using fake ID, presented himself to the
clerk as Michael Lorrento and purchased $632.48 worth of merchandise.
Petitioner pleaded guilty in Berrien County Circuit Court to four counts of
uttering and publishing, Mich. Comp. Laws § 750.249, conspiracy to commit
uttering and publishing, Mich. Comp. Laws § 750.157a, Mich. Comp. Laws §
750.249, and conducting a criminal enterprise, Mich. Comp. Laws § 750.159i(1).
On February 22, 2010, he was sentenced to 2 to 14 years’ imprisonment for each
uttering and publishing conviction, 23 months to 5 years for the conspiracy to
commit uttering and publishing conviction, and 10 to 20 years for the conducting a
criminal enterprise conviction.
Petitioner filed a delayed application for leave to appeal in the Michigan
Court of Appeals, raising these claims: (i) guilty pleas not supported by the record;
(ii) Double Jeopardy violation; (iii) ineffective assistance of trial counsel; and (iv)
Michigan Court of Appeals abused its discretion in failing to appoint counsel. The
Michigan Court of Appeals denied leave to appeal. People v. Brown, No. 302656
(Mich. Ct. App. Nov. 3, 2011). The Michigan Supreme Court denied Petitioner’s
application for leave to appeal. People v. Brown, 491 Mich. 908 (Mich. April 23,
2012).
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Petitioner filed a motion for relief from judgment in the trial court, raising
these claims: (i) ineffective assistance of trial counsel; (ii) abusive prosecution; and
(iii) guilty plea not supported by a sufficient factual basis. The trial court denied
the motion. People v. Brown, No. 2009-002727 (Berrien County Cir. Ct. March 23,
2011). Petitioner did not seek leave to appeal this decision.
Petitioner then filed a habeas corpus petition in this Court. After the case
was stayed, Petitioner returned to state court and filed a second motion for relief
from judgment, arguing that the sentencing judge did not have proper jurisdiction
over his case. The trial court denied the motion as an improper successive motion
for relief from judgment. See 4/7/14 Order Denying Successive Motion for Relief
from Judgment (ECF No. 25-3). The Michigan Court of Appeals dismissed
Petitioner’s application for leave to appeal because, under Mich. Ct. R.
6.502(G)(1), no appeal may be taken from the denial or rejection of a successive
motion for relief from judgment. People v. Brown, No. 322842 (Mich. Ct. App.
Sept. 19, 2014) (ECF No. 25-8). Petitioner did not seek leave to appeal in the
Michigan Supreme Court. See 1/20/15 Affidavit of Larry Royster, Michigan
Supreme Court Clerk (ECF No. 25-9).
Petitioner’s habeas petition raises these claims:
I.

Petitioner’s guilty plea to counts 4, 5, and 7 is not supported by the
record and constitutes a miscarriage of justice.
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II.

III.

Trial counsel was ineffective for failing to object to (a) improper
acceptance of a guilty plea and (b) abuse of prosecutorial charging
discretion; and for failing to safeguard Petitioner’s right to
appointment of appellate counsel.

IV.

The trial court abused its discretion by refusing to appoint counsel.

V.

II.

The prosecutor abused his discretion and violated double jeopardy by
adding counts 4, 5, and 7 in this case.

Petitioner was denied his due process rights to a fair trial when he
never received a preliminary examination or arraignment on the
criminal conspiracy count and, therefore, jurisdiction was not
conferred on the lower court.

Standard
Review of this case is governed by the Antiterrorism and Effective Death

Penalty Act of 1996 (“AEDPA”). Under the AEDPA, a state prisoner is entitled to
a writ of habeas corpus only if he can show that the state court’s adjudication of his
claims –
(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).
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
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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 (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 408. “[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 411.
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, 559 U.S. 766, 773 (2010) (quoting Lindh v. Murphy, 521 U.S. 320, 333 n. 7
(1997); Woodford v. Visciotti, 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, 562 U.S. 86, 101 (2011). The Supreme Court
has emphasized “that even a strong case for relief does not mean the state court's
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contrary conclusion was unreasonable.” Id. at 102. 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 th[e Supreme] Court.” Id.
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” Supreme Court precedent.
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. (quoting Jackson v. Virginia,
443 U.S. 307, 332 n. 5 (1979)) (Stevens, J., concurring)). 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.” Id. at 103.
Additionally, a state court’s factual determinations are entitled to a
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presumption of correctness on federal habeas review. See 28 U.S.C. § 2254(e)(1).
A petitioner may rebut this presumption with clear and convincing evidence. See
Warren v. Smith, 161 F.3d 358, 360-61 (6th Cir. 1998).
III.

Discussion
A.

Factual Basis for Plea

Petitioner’s first claim concerns the factual basis for his plea. He argues that
there was an insufficient factual basis to support his guilty plea for two counts of
uttering and publishing and criminal conspiracy. 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). 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. Bonior, 416 F. App’x at 478.
To the extent that Petitioner claims that he is innocent of these crimes, this
would not render his plea involuntary. 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
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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). Therefore, Petitioner’s claim of actual
innocence is not cognizable on habeas review. See Herrera v. Collins, 506 U.S.
390, 400 (1993) (“Claims of actual innocence based on newly discovered evidence
have never been held to state a ground for federal habeas relief absent an
independent constitutional violation occurring in the underlying state criminal
proceeding.”).
B.

Double Jeopardy/Prosecutor’s Charging Decision

In his second claim for habeas relief, Petitioner argues that his right to be
free from double jeopardy was violated when he was charged with counts 4
(uttering and publishing at Meijer’s), 5 (uttering and publishing at Staples), and 6
(conducting a criminal enterprise). He also argues that the prosecutor amended the
information to include these charges in retaliation for Petitioner’s failure to appear
at a pre-trial hearing.
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
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limb.” 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.1 Brown v.
Ohio, 432 U.S. 161, 165 (1977). Petitioner’s convictions fall into none of these
categories.
Petitioner offers no support for a claim that he cannot be separately punished
for each of the check forgeries because the forgeries occurred on the same day and
were executed in similar manners. The Double Jeopardy Clause “prohibits repeat
trials for the same offense, not for the same conduct.” United States v. Rigas, 605
F.3d 194, 204 (3d Cir. 2010). Here, the convictions arose out of separate offenses,
involved separate locations, and different checks. The Court finds no Double
Jeopardy violation.
Petitioner also claims that these claims were added by amendment to the
information out of prosecutorial vindictiveness. A prosecutor has broad discretion
in deciding what charges to pursue, and the prosecutor's charging decisions are
generally not subject to review by the courts. “[S]o long as the prosecutor has
probable cause to believe that the accused committed an offense defined by statute,

1

The Double Jeopardy Clause is made applicable to the states through the Due Process
Clause of the Fifth Amendment. Benton v. Maryland, 395 U.S. 784 (1969).
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the decision whether or not to prosecute, and what charge to file ... generally rests
entirely in [the prosecutor’s] discretion.” Bordenkircher v. Hayes, 434 U.S. 357,
364 (1978). This “broad discretion” is not “‘unfettered,’ and a decision to
prosecute may not be deliberately based upon the exercise of protected statutory
rights.’” Bragan v. Poindexter, 249 F.3d 476, 481 (6th Cir. 2001), quoting United
States v. Adams, 870 F.2d 1140, 1145 (6th Cir. 1989). To show vindictive
prosecution there must be “(1) exercise of a protected right; (2) a prosecutorial
stake in the exercise of that right; (3) unreasonableness of the prosecutor’s
conduct; (4) the intent to punish the defendant for exercise of the protected right.”
United States v. Suarez, 263 F.3d 468, 479 (6th Cir.2001). “There are two
approaches to showing prosecutorial vindictiveness: a defendant can show (1)
‘actual vindictiveness,’ by producing ‘objective evidence that a prosecutor acted in
order to punish the defendant for standing on his legal rights,’ or (2) ‘a realistic
likelihood of vindictiveness.’” United States v. Dupree, 323 F.3d 480, 489 (6th
Cir. 2003), quoting Bragan, 249 F.3d at 481-82.
Petitioner raised this claim on direct review. The Michigan Court of
Appeals denied this claim “for lack of merit in the grounds presented.” 11/3/11
Order, ECF No. 15-3. The Michigan Court of Appeals’ summary denial of
Petitioner’s claim, despite its brevity, is entitled to deference under § 2254(d).
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Where a state court denies a claim on the merits, but without explanation, “a
habeas court must determine what arguments or theories ... 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
[Supreme Court precedent]. Harrington, 562 U.S. at 102. Accordingly, the
question here is whether any reasonable argument consistent with established
Supreme Court law could support the state court decision summarily rejecting
Petitioner’s claim.
Petitioner fails to show that the additional charges were prompted by
Petitioner’s exercise of any protected right. He offers no evidence that would call
into question the reasonableness of the state court’s decision and the Court discerns
nothing in the record that would do so. The Court concludes, therefore, that this
claim raises no issue on which habeas relief may be granted.
C.

Ineffective Assistance of Counsel Claim

Next, Petitioner argues that his trial attorney performed ineffectively
because he failed to object to the trial court’s acceptance of Petitioner’s guilty plea
and failed to object to the alleged prosecutorial vindictiveness.
The two-prong test set forth in Strickland v. Washington, 466 U.S. 668
(1984), governs claims of ineffective assistance of counsel. Towns v. Smith, 395
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F.3d 251, 258 (6th Cir. 2005). 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, 466 U.S. at 687. An attorney’s performance is deficient if
“counsel’s representation fell below an objective standard of reasonableness.” Id.
at 688. The defendant must show “that counsel made errors so serious that counsel
was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment.” Id. at 687. “Judicial scrutiny of counsel’s performance must be
highly deferential.” Id. at 689. The Supreme Court has “declined to articulate
specific guidelines for appropriate attorney conduct” and instead “emphasized that
“[t]he proper measure of attorney performance remains simply reasonableness
under prevailing professional norms.” Wiggins v. Smith, 539 U.S. 510, 521 (2003)
(quoting Strickland, 466 U.S. at 688).
An attorney’s deficient performance is prejudicial if “counsel’s errors were
so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.”
Strickland, 466 U.S. at 687. The petitioner must show “a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would
have been different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Id. at 694. Unless the petitioner
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demonstrates both deficient performance and prejudice, “it cannot be said that the
conviction [or sentence] resulted from a breakdown in the adversary process that
renders the result unreliable.” Id. at 687.
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.
As discussed above, Petitioner has failed to show that the trial court erred in
accepting his guilty plea or that the inclusion of additional charges was the result
of prosecutorial vindictiveness. Therefore, counsel was not ineffective in failing to
raise these claims.
D.

Appointment of Appellate Counsel

Next, Petitioner argues that his constitutional right to an appellate attorney
was violated by the trial counsel’s failure to appoint counsel on appeal. The
Michigan Court of Appeals denied this claim in a one-sentence order, but AEDPA
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deference, nevertheless, is given to the decision. Harrington, 562 U.S. at 102.
The Sixth Amendment right to the effective assistance of trial counsel has
been extended to guarantee the effective assistance of counsel on the first appeal
by right from a conviction. Evitts v. Lucey, 469 U.S. 387, 395-97 (1985); Douglas
v. California, 372 U.S. 353, 356(1963). In Halbert v. Michigan, 545 U.S. 605,
609-10,(2005), the Supreme Court held that appointment of counsel is required for
defendants who plead guilty or no contest but seek access to first-tier review of
their convictions in the Michigan Court of Appeals. But a state may impose
reasonable procedural conditions on a criminal defendant’s rights, even if they are
protected by the Constitution. See Taylor v. Illinois, 484 U.S. 400, 412-13 (1988).
Michigan Court Rule 6.425(G) (1)(c) allows a defendant 42 days from the date of
sentencing to request appointment of appellate counsel. “A six-week period to file
a request for appointment of appellate counsel is reasonable and no Supreme Court
holding suggests otherwise.” Lee v. Burt, No. 09-12127, 2011 WL 2580642, *4
(E.D. Mich. June 29, 2011).
Here, the record shows that Petitioner filed a request for counsel
approximately one month after the time for doing so expired. Because petitioner
did not make a timely request for the appointment of appellate counsel, the
Michigan Court of Appeals’ rejection of this claim was not an unreasonable
15

application of clearly established federal law. Petitioner is not entitled to relief on
his first claim.
E.

Trial court’s jurisdiction

Finally, Petitioner argues that the trial court lacked jurisdiction over the
conspiracy count because Petitioner was never arraigned on that count.
Respondent argues that this claim is untimely and procedurally defaulted. The
statute of limitations is not a jurisdictional bar to habeas review. Smith v. State of
Ohio Dep’t of Rehabilitation, 463 F.3d 426, 429 n.2 (6th Cir. 2006). A federal
court may proceed to the merits of a habeas petition rather than resolve the
question of timeliness in the interest of judicial economy. Id. Similarly, “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). Here, the Court
finds that the interests of judicial economy counsel in favor of addressing the
merits of this claim rather than addressing the issues of timeliness or procedural
default.
“‘[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
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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.
IV.

Certificate of Appealability
Federal Rule of Appellate Procedure 22 provides that an appeal may not

proceed unless a certificate of appealability (COA) is issued under 28 U.S.C. §
2253. Rule 11 of the Rules Governing Section 2254 Proceedings now requires that
the Court “must issue or deny a certificate of appealability when it enters a final
order adverse to the applicant.” A COA may be issued “only if the applicant has
made a substantial showing of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2). The substantial showing threshold is satisfied when a petitioner
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demonstrates “that reasonable jurists would find the district court’s assessment of
the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473,
484 (2000).
In this case, the Court concludes that reasonable jurists would not debate the
Court’s conclusion that none of the claims in the habeas petition warrant relief.
Therefore, the Court denies a certificate of appealability.
V.

Conclusion
Accordingly, it is ORDERED that the petition for a writ of habeas corpus

and a certificate of appealability are DENIED.
S/Denise Page Hood
Denise Page Hood
Chief Judge, United States District Court

Dated: October 31, 2016
I hereby certify that a copy of the foregoing document was served upon counsel of
record on October 31, 2016, by electronic and/or ordinary mail.

S/Shawna C. Burns
Case Manager Generalist

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