Wade v. Romanowski

Filing 37

OPINION and ORDER Granting 30 MOTION to correct the record, Denying 35 MOTION for Evidentiary Hearing, Denying 1 Petition for Writ of Habeas Corpus, and Declining to Issue a Certificate of Appealability or Leave to Appeal In Forma Pauperis. Signed by District Judge Sean F. Cox. (JMcC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DIONE WADE,
Petitioner,
CIVIL NO. 2:12-CV-14713
HONORABLE SEAN F. COX
UNITED STATES DISTRICT COURT

v.
KENNETH ROMANOWSKI,
Respondent.
________________________________/

OPINION AND ORDER ON REMAND DENYING THE PETITION FOR WRIT
OF HABEAS CORPUS, GRANTING THE MOTION TO CORRECT THE
RECORD, DENYING THE MOTION FOR AN EVIDENTIARY HEARING, AND
DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY OR LEAVE TO
APPEAL IN FORMA PAUPERIS
This matter is on remand from the United States Court of Appeals for the Sixth
Circuit. Dione Wade, (“petitioner”), presently incarcerated at the Handlon Correctional
Facility in Ionia, Michigan, filed a petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. In his application, filed both pro se and through attorney Douglas R. Mulkoff,
petitioner challenges his conviction for three counts of second-degree murder, Mich. Comp.
Laws, § 750.317, one count of assault with intent to commit murder, Mich. Comp. Laws, §
750.83; one count of armed robbery, Mich. Comp. Laws, § 750.529; and four counts of
possession of a firearm in the commission of a felony [felony-firearm], second offense, Mich.
Comp. Laws, § 750.227b. For the reasons stated below, the petition for writ of habeas
corpus is DENIED WITH PREJUDICE.

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I. Background
Petitioner was originally charged with three counts of first-degree murder, one count
of assault with intent to commit murder, one count of armed robbery, and four counts of
felony-firearm, second offense.
On March 8, 2010, petitioner pleaded guilty to three reduced charges of second-degree
murder and to the other charges, in exchange for dismissal of the three first-degree murder
charges and an habitual offender enhancement. The parties also agreed that petitioner would
be sentenced to 40 to 80 years in prison on the second-degree murder charges, 20 to 50 years
on the assault with intent to murder and robbery counts, and a consecutive 5 year sentence
on the felony-firearm counts. (Tr. 3/8/10, pp. 3-9). At the plea hearing, petitioner responded
to the trial judge’s questions. Petitioner told the judge that he was satisfied with his
attorney’s service, understood the charges and maximum sentences, had discussed the plea
bargain with his attorney and understood the agreement, understood the rights he was
waiving by pleading guilty, had not been threatened or coerced into pleading guilty, was
pleading guilty of his own free will, and had not been promised anything other than the
agreement placed on the record. (Id., pp. 4-6, 10-11).
On March 30, 2010, petitioner was sentenced in accordance with the agreement.
Petitioner did not file a direct appeal from his conviction. Petitioner, with the
assistance of counsel, filed a motion for relief from judgment pursuant to M.C.R. 6.500, et.
seq. In his motion for relief from judgment, petitioner claimed that he was not mentally

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competent to plead guilty, that counsel was ineffective for failing to object to petitioner’s
competency to plead guilty or for failing to request a competency examination by an
independent forensic examiner, and that the plea bargain was illusory. The trial court denied
the motion. People v. Wade, Nos. 09-005717-01, 09-25120-01, 10-1398-01, 10-2254-01
(Wayne County Circuit Court July 27, 2011).
Petitioner filed an application for leave to appeal to the Michigan Court of Appeals,
in which he raised the following claim:
Did the trial court commit clear error when it denied the motion for relief from
judgment and did not even grant a hearing to the defendant on his motion?
The Michigan Court of Appeals denied petitioner’s application for leave to appeal.
People v. Wade, No. 305910 (Mich. Ct. App. Dec. 27, 2011).
Petitioner then filed an application for leave to appeal to the Michigan Supreme Court,
in which he presented the four claims that he raised in the habeas petition. The Michigan
Supreme Court denied petitioner leave to appeal. People v. Wade, 493 Mich. 854, 820
N.W.2d 792 (2012).
Petitioner sought habeas relief on the following grounds:
I. Did the trial court commit clear error when it denied the motion for relief
from judgment and did not even grant a hearing to the defendant on his
motion?
II. Defendant wasn’t competent to stand trial nor enter a knowing, intelligent
and voluntary plea.
III. The failure by defense counsel to raise objections to defendant’s
competency and to request a competency examination by an independent
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forensic examiner, thus deprived defendant of a substantial defense which
clearly showed ineffective assistance of counsel.
IV. The obvious question of whether the plea and sentencing agreement that
was entered into amounted to an illusory bargain, was raised but not ruled on
by the trial court.
This Court denied petitioner’s first claim on the ground that errors in state postconviction proceedings are non-cognizable on habeas review. Wade v. Romanowski, No.
2:12-CV-14713, 2013 WL 3724789, at * 2-3 (E.D. Mich. July 15, 2013). This Court ruled
that petitioner’s remaining claims were procedurally defaulted because petitioner did not
properly exhaust these claims in that he did not properly raise them in his application for
leave to appeal before the Michigan Court of Appeals, because he did not include these
claims in the heading or statement of questions of his brief, and no longer had a remedy to
properly exhaust these claims. The Court further found that petitioner failed to establish
cause for failing to properly exhaust these claims or prejudice, so as to excuse his procedural
default. The Court further ruled that petitioner failed to present any new reliable evidence
to support any assertion of innocence which would allow this Court to consider his second
through fourth claims as a ground for a writ of habeas corpus in spite of the procedural
default. Id., * 3-5.
Significantly, this Court also included the following statement in denying habeas
relief:
Finally, 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 second through fourth claims would not
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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
883, 891 (6th Cir. 2007). For the reasons stated by the Wayne County Circuit
Court in rejecting petitioner’s post-conviction motion and by the Assistant
Michigan Attorney General in her answer to the petition for writ of habeas
corpus, petitioner has failed to show that his second through fourth claims
have any merit. Petitioner is not entitled to habeas relief on his remaining
claims.
Id. at * 5 (emphasis added).
Petitioner filed a notice of appeal with the Sixth Circuit. A majority of the Sixth
Circuit reversed the Court. The Sixth Circuit ruled that petitioner had properly presented his
second through fourth claims in his brief before the Michigan Court of Appeals, even though
he did not raise the claims in his statement of questions, as required by Michigan Court rules
and as required to satisfy the exhaustion requirement. See e.g., Wagner v. Smith, 581 F. 3d
410, 415-16 (6th Cir. 2009). The Sixth Circuit believed that it was sufficient that petitioner
raised these claims in the “body of his brief.” The Sixth Circuit further held that there was
no procedural default because the Michigan Court of Appeals did not expressly base its
decision to deny petitioner’s post-conviction appeal on the ground that he failed to raise his
second through fourth claims in the statement of questions. The Sixth Circuit remanded the
case to this Court to appoint counsel and to address the merits of petitioner’s second through
fourth claims. Wade v. Romanowski, No. 13-2073, * 4 (6th Cir. April 8, 2015). The Sixth
Circuit did not mention the fact that this Court at the end of the opinion did reject petitioner’s
second through fourth claims on the merits, at least in connection with finding that petitioner
failed to satisfy the prejudice prong of the procedural default rule.
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Judge McKeague dissented from the majority’s ruling. Judge McKeague questioned
the rationale to remand in light of the utter meritlessness of petitioner’s claims. The Court
quotes it in its entirety:
The majority remands for a determination on the merits when it is clear from
the record that the undisputed facts demonstrate that Wade’s petition is
meritless. Because a remand would be fruitless, I respectfully dissent.
Wade first claims that he was incompetent to stand trial or enter a plea. A
defendant is competent to do so if he “has (1) sufficient present ability to
consult with a lawyer with a reasonable degree of rational understanding, and
(2) a rational and factual understanding of the proceedings against him.”
United States v. Abdulmutallab, 739 F.3d 891, 899 (6th Cir. 2014) (citing
Dusky v. United States, 362 U.S. 402 (1960); Godinez v. Moran, 509 U.S. 389,
399 (1993)). A state court’s competency determination is a factual finding
entitled to a presumption of correctness by a federal habeas court, rebuttable
only by clear and convincing evidence. See Cowans v. Bagley, 639 F.3d 241,
248 (6th Cir. 2011).
In denying his motion for relief from judgment, the trial court found Wade to
be competent based on several psychological reports from state agencies. In
Wade’s initial competency determination, the state agency concluded that
Wade was incompetent to stand trial, but that his competency could be restored
with treatment. Wade was then admitted to a facility for treatment, but was
dismissed one week later when it was determined that not only was he
competent but that he was likely malingering and feigning symptoms. Another
evaluation confirmed his competence, but concluded that he may not be
“capable of assisting in his defense in a rational manner” and that he may be
“disruptive or uncooperative during proceedings.” But significantly, the report
corroborated the conclusion that he was malingering, finding that any
disruptive behavior would be a result of his own decision-making rather than
any underlying psychological symptoms. Despite this evidence, Wade disputes
the reasonableness of the state’s determination, asserting that he is currently
being housed in a state correctional facility for prisoners with serious mental
illness, that his trial attorney had doubts about his competence, and that he
laughed when he entered into his plea agreement in court, mistakenly believing
he would be paroled. This evidence is not sufficient to undermine the
reasonableness of the trial court’s finding, supported by multiple psychological
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reports, that Wade was competent to stand trial and enter a guilty plea.
Wade also claims that he did not enter a knowing and voluntary guilty plea.
It is the state’s burden to show that a guilty plea is voluntary and intelligent.
The state typically satisfies this burden by producing a transcript of the
sentencing hearing evidencing that the plea was made voluntarily and
knowingly. See McAdoo v. Elo, 365 F.3d 487, 494 (6th Cir. 2004). When the
state has done so, the state court’s factual finding is “accorded a presumption
of correctness”and a habeas petitioner faces a “heavy burden” in seeking to
overturn his or her plea. Garcia v. Johnson, 991 F.2d 324, 326, 328 (6th Cir.
1993).
Here, the trial transcript shows that the court explained extensively the charges
against him, the potential penalties he could face, the effect of his plea
agreement, and the rights he would be waiving. Critically, the court asked
Wade if he was entering the plea voluntarily and whether he understood its
impact; Wade replied affirmatively to both questions. Wade has not presented
sufficient evidence to overcome this showing.
Wade also brings an ineffective-assistance-of-trial-counsel claim, arguing that
his counsel failed to raise objections based on his competency. An attorney is
constitutionally ineffective if his representation was objectively unreasonable
and prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 688
(1984). Because the trial court determined that Wade was competent following
a state mental health evaluation, his attorney had scant basis to lodge
objections about his competence. The state court’s denial of this claim was not
unreasonable.
Finally, Wade claims that his plea bargain was illusory because it had no real
value. A plea agreement that is illusory is not made knowingly and
voluntarily. United States v. Randolph, 230 F.3d 243, 251 (6th Cir. 2000).
Here, Wade faced several counts of first-degree murder, which carry a
mandatory sentence of life-without-parole under Michigan Compiled Laws §
750.316. His plea agreement, though, permitted him to plead guilty to
second-degree murder with the possibility of parole. The potential for parole
was a “bargained-for benefit” of the plea bargain. McAdoo, 365 F.3d at 498.
Thus, the plea agreement was not illusory. See id.
Again, the state court’s decision was not unreasonable. For these reasons, I
would deny the petition on the merits. I accordingly dissent.
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Wade, Slip. Op. at * 5-7 (McKeague, J., dissenting).
On remand, the Court appointed the Federal Public Defender to represent petitioner.
The Federal Public Defender subsequently filed a motion to correct the record and a motion
to withdraw as counsel due to a breakdown in the attorney-client relationship. The motion
to withdraw was granted. The motion to correct the record is pending. Mr. Mulkoff was
appointed to replace the Federal Defender Office. Mr. Mulkoff filed a motion for an
evidentiary hearing. Respondent opposes the motion.
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
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
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“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, 559 U.S. 766, 773
(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, 562 U.S. 86, 101
(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. at 102 (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

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or theories are inconsistent with the holding in a prior decision” of the Supreme Court. Id.
Habeas relief is not appropriate unless each ground which supported the state court’s
decision is examined and found to be unreasonable under the AEDPA. See Wetzel v.
Lambert, 132 S. Ct. 1195, 1199 (2012).
“[I]f this standard is difficult to meet, that is because it was meant to be.” Harrington,
562 U.S. at 102. 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.
at 102-03 (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, 562 U.S. at 103. As long as it is within the “realm
of possibility” that fairminded jurists could find the state court decision to be reasonable,

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a habeas petitioner is not entitled to relief from his conviction. See Woods v. Etherton, No.
15-723, 2016 WL 1278478, at *3 (U.S. April 4, 2016).
III. Discussion
A. The motion to correct the record is GRANTED.
Petitioner’s first attorney filed a motion to correct the record to reflect the fact that
contrary to petitioner’s allegations made in his original petition and before the state courts,
trial counsel did request and obtain an independent forensic examination as to petitioner’s
competency. The order appointing Dr. Steven R. Miller is attached to the motion. Dr.
Miller met with petitioner on November 23, 2009, after which he issued a report on
December 4, 2009, in which Dr. Miller determined that petitioner was mentally competent
to stand trial.
Rule 7 (a) of the Rules Governing § 2254 Cases, 28 U.S.C. foll. § 2254, indicates that
if a habeas petition is not summarily dismissed, the district court judge “may direct the
record be expanded by the parties by the inclusion of additional materials relevant to the
determination of the merits of the petition.” A federal district court judge may employ a
variety of measures to avoid the necessity of an evidentiary hearing in a habeas case,
including the direction to expand the record to include evidentiary materials that may
resolve the factual dispute without the need for an evidentiary hearing. Blackledge v.
Allison, 431 U.S. 63, 81-82 (1977). The decision whether to expand a habeas record is
within the sound discretion of the district court. See West v. Bell, 550 F.3d 542, 551 (6th Cir.

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2008).
The Court grants the motion to correct the record, because it will aid in the resolution
of petitioner’s claims.
B. The motion for an evidentiary hearing is DENIED.
In his motion for an evidentiary hearing, petitioner now concedes that his trial
attorney obtained a court order granting him an independent forensic evaluation, which was
conducted by Dr. Miller. Dr. Miller in his report claims that he met with petitioner for 2 ½
hours, after which he found him competent to stand trial. Petitioner claims in an affidavit
signed on February 23, 2016 that Dr. Miller only met with him for 15 to 20 minutes.
Petitioner contends that if his own recollections are correct, he was denied due process
because he never received an adequate independent forensic evaluation. Petitioner requests
an evidentiary hearing to resolve the potential conflict between Dr. Miller’s statement that
he met with petitioner for 2 ½ hours and petitioner’s claim that the two met for only 15 to
20 minutes.
Petitioner is not entitled to an evidentiary hearing because he never raised a claim
before the state courts alleging the inadequacy of Dr. Miller’s independent forensic
evaluation and no longer has an available state court remedy with which to do so.
A state prisoner seeking federal habeas relief must first exhaust his available state
court remedies before raising a claim in federal court. 28 U.S.C. § 2254(b) and (c); Picard
v. Connor, 404 U. S. 270, 275-78 (1971). A prisoner confined pursuant to a Michigan

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conviction must raise each habeas issue in both the Michigan Court of Appeals and in the
Michigan Supreme Court before seeking federal habeas corpus relief. See Mohn v. Bock,
208 F. Supp. 2d 796, 800 (E.D. Mich. 2002).
Petitioner never raised a claim before the Michigan courts alleging that Dr. Miller’s
independent competency evaluation was inadequate. Petitioner no longer has any available
state court remedies with which to exhaust this claim. Under M.C.R. 6.502(G)(1), a
criminal defendant in Michigan is only permitted to file one post-conviction motion for
relief from judgment. See Gadomski v. Renico, 258 F. App’x 781, 783 (6th Cir. 2007);
Hudson v. Martin, 68 F. Supp. 2d 798, 800 (E.D. Mich. 1999). Petitioner is not entitled to
an evidentiary hearing because he did not exhaust any claim involving the alleged
inadequacy of Dr. Miller’s competency evaluation with the state courts and is now
procedurally barred under Michigan law from raising this claim. See e.g. Alley v. Bell, 307
F. 3d 380, 388-90 (6th Cir. 2002).
C. Claims # 2 and # 4. The involuntary plea claims.
The Court consolidates petitioner’s second and fourth claims for judicial economy.
In his second claim, petitioner alleges that his plea was involuntary because he was not
mentally competent to plead guilty. In his fourth claim, petitioner contends that his plea was
involuntary, because the plea and sentence bargain was illusory.
Initially, the Court observes that petitioner has no federal constitutional right to
withdraw his guilty plea. See Hynes v. Birkett, 526 F. App’x 515, 521 (6th Cir. 2013).

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Unless a petitioner’s guilty plea otherwise violated a clearly-established constitutional right,
whether to allow the withdrawal of a habeas petitioner’s guilty plea is discretionary with the
state trial court. See Shanks v. Wolfenbarger, 387 F. Supp. 2d 740, 748(E.D. Mich. 2005).
A guilty plea that is entered in state court must be voluntarily and intelligently made.
See Shanks, 387 F. Supp. 2d at 749; Doyle v. Scutt, 347 F. Supp. 2d 474, 482 (E.D. Mich.
2004)(both citing Boykin v. Alabama, 395 U.S. 238, 242 (1969)). In order for a plea of
guilty to be voluntarily and intelligently made, the defendant must be aware of the “relevant
circumstances and likely consequences” of his plea. Hart v. Marion Correctional Institution,
927 F. 2d 256, 257 (6th Cir. 1991). The defendant must also be aware of the maximum
sentence that can be imposed for the crime for which he or she is pleading guilty. King v.
Dutton, 17 F. 3d 151, 154 (6th Cir. 1994). When a petitioner brings a federal habeas
petition challenging his plea of guilty, the state generally satisfies its burden by producing
a transcript of the state court proceedings showing that the plea was made voluntarily.
Garcia v. Johnson, 991 F. 2d 324, 326 (6th Cir. 1993). The factual findings of a state court
that the guilty plea was properly made are generally accorded a presumption of correctness.
Petitioner must overcome a heavy burden if the federal court is to overturn these findings
by the state court. Id.
Petitioner alleges in his second claim that his plea was involuntary because he was
not mentally competent to plead guilty.
A defendant may not be put to trial unless he or she has a sufficient present ability

14

to consult with his or her lawyer with a reasonable degree of rational understanding and a
rational as well as a factual understanding of the proceedings against him. Cooper v.
Oklahoma, 517 U.S. 348, 354 (1996). The competency standard for pleading guilty is the
same as the competency for standing trial and is not a higher standard. Godinez v. Moran,
509 U.S. 389, 398 (1993).
A habeas petitioner’s mental competency claims “can raise issues of both substantive
and procedural due process.” Hastings v. Yukins, 194 F. Supp. 2d 659, 670 (E.D. Mich.
2002). A habeas petitioner may make a procedural competency claim by alleging that the
state trial court failed to conduct a competency hearing after the petitioner’s mental
competency was put in issue. However, to succeed on the procedural claim, a habeas
petitioner must establish that the state trial judge ignored facts which raised a “bona fide
doubt” regarding petitioner’s competency to stand trial. Walker v. Attorney General for the
State of Oklahoma, 167 F. 3d 1339, 1343 (10th Cir. 1999)(internal citations omitted);
Hastings, 194 F. Supp. 2d at 670. Evidence of a defendant’s irrational behavior, his
demeanor at trial, and any prior medical opinions on competence to stand trial are all
relevant in determining whether further inquiry by a trial court on a defendant’s mental state
is required, but even one of these factors standing alone, may in some circumstances, be
sufficient to trigger a further inquiry into a defendant’s mental fitness to stand trial. Drope
v. Missouri, 420 U.S. 162, 180 (1975). However, there are no fixed or immutable signs
which invariably indicate the need for a further inquiry to determine the fitness to proceed.

15

Id. There must be some manifestation or conduct on a habeas petitioner’s part “to trigger
a reasonable doubt as to his or her competency.” Hastings v. Yukins, 194 F. Supp. 2d at 671.
A trial court is permitted to rely on its own observations of the defendant’s comportment or
demeanor to determine whether that defendant is competent to stand trial. Id. (citing to
Bryson v. Ward, 187 F. 3d 1193, 1201 (10th Cir. 1999)).
A full competency hearing is necessary only when a court has a reason to doubt a
defendant’s competency to stand trial or to plead guilty. Godinez v. Moran, 509 U.S. at 401,
n. 13. “The due-process right to a fair trial is violated by a court’s failure to hold a proper
competency hearing where there is substantial evidence of a defendant’s incompetency.”
Franklin v. Bradshaw, 695 F.3d 439, 447 (6th Cir. 2012). The question for a reviewing
court is “[w]hether a reasonable judge, situated as was the trial court judge whose failure
to conduct an evidentiary hearing is being reviewed, should have experienced doubt with
respect to competency to stand trial.” Mackey v. Dutton, 217 F.3d 399, 413-14 (6th Cir.
2000)(quoting Williams v. Bordenkircher, 696 F.2d 464, 467 (6th Cir. 1983)(additional
quotation omitted).
“A state-court determination of competence is a factual finding, to which deference
must be paid.” Franklin, 695 F. 3d at 447 (citing Thompson v. Keohane, 516 U.S. 99,
108–11 (1995)). A state court’s factual determination regarding a defendant’s competency
to plead guilty is also entitled to the presumption of correctness in habeas corpus
proceedings. Hastings v. Yukins, 194 F. Supp. 2d at 670. Petitioner has the burden of

16

rebutting the presumption of correctness of the state court’s determination of his
competency by clear and convincing evidence. Doughty v. Grayson, 397 F. Supp. 2d 867,
876 (E.D. Mich. 2005). Moreover, regardless of whether a federal habeas court would reach
a different conclusion regarding a habeas petitioner’s competence to stand trial were it
reviewing the case de novo, the findings of the state court must be upheld unless there is
clear and convincing evidence to the contrary, and this deference must be paid even to
state-court factual findings made on appeal. Franklin, 695 F. 3d at 447.
In rejecting petitioner’s second claim in his post-conviction motion, the state trial
judge made a factual finding that petitioner was competent at the time he entered his guilty
plea. People v. Wade, Nos. 09-005717-01, 09-25120-01, 10-1398-01, 10-2254-01, * 2
(Wayne County Circuit Court July 27, 2011).
Petitioner’s procedural competency claim fails because there is no evidence in the
record which should have raised a bona fide doubt with the trial court as to petitioner’s
competency to plead guilty. Petitioner is not entitled to relief because he failed to show that
the judge was “clearly wrong” in believing the reports finding petitioner competent to stand
trial or that the judge’s decision that petitioner was competent to stand trial or plead guilty
was an unreasonable determination of the facts. See Franklin v. Bradshaw, 695 F.3d at 449.
A habeas petitioner can also raise a substantive competency claim by alleging that
he was tried and convicted while mentally incompetent. However, a habeas petitioner
raising a substantive claim of incompetency is not entitled to a presumption of incompetency

17

and must demonstrate his or her incompetency by a preponderance of the evidence. Walker
v. Attorney General for the State of Oklahoma, 167 F. 3d at 1344; Hastings v. Yukins, 194
F. Supp. 2d at 671. To obtain habeas relief on a substantive incompetence claim, a habeas
petitioner must present evidence which is sufficient “to positively, unequivocally, and
clearly generate a real, substantial and legitimate doubt as to his mental capacity” to stand
trial. Thirkield v. Pitcher, 199 F. Supp. 2d 637, 653 (E.D. Mich. 2002)(internal quotations
omitted). A habeas petitioner is entitled to an evidentiary hearing on the issue of his
competency to stand trial “if he presents sufficient facts to create a real and substantial doubt
as to his competency, even if those facts were not presented to the trial court.” Id. However,
“[A]lthough retrospective determinations of competency are not prohibited, they are
disfavored, and the Court will give considerable weight to the lack of contemporaneous
evidence of petitioner’s incompetence.” Thirkield, 199 F. Supp. 2d at 653.
Petitioner has failed to present evidence which clearly and unequivocally raises a
substantial and legitimate doubt as to his mental capacity to plead guilty. Although the
State Department of Community Health (DCH) issued a report on April 13, 2009 finding
petitioner was not competent to stand trial, the report concluded with the writer’s opinion
that petitioner could “be restored to competency. . . if he was to be provided with
appropriate treatment in a structured residential facility.” 1
Petitioner was then admitted for treatment to the DCH’s Center for Forensic

1

See Petitioner’s Exhibit A-2 attached to the Petition For Writ of Habeas Corpus.

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Psychiatry (CFP) for treatment on May 6, 2009. CFP found indications that petitioner was
malingering. Subsequent psychological testing revealed that “probable feigning of all
symptom types exist [sic]. . .” On May 13, 2009, CFP discharged petitioner with a
recommendation that he was competent to stand trial. 2
The trial court subsequently appointed Dr. Miller to conduct an independent forensic
evaluation. Dr. Miller met with petitioner on November 23, 2009. Dr. Miller issued a report
on December 4, 2009. Dr. Miller found petitioner competent to stand trial and not legally
insane. Significantly, Dr. Miller opined that petitioner was “attempting to manipulate the
assessment process,” “not entirely credible” and most likely “exaggerating symptoms of
mental illness.” 3
A final competency evaluation report was issued in January 2010. Although the
examiner found petitioner to be uncooperative, the examiner found that “it does not appear
that [he] was suffering from severe psychological symptoms of any kind at the time of the
examination.” And although the examiner found that petitioner had not demonstrated “that
he understood the nature of criminal proceedings at the time of the current interview, and
he also did not demonstrate that he would in all respects be capable of assisting in his
defense in a rational manner,” it was the examiner’s opinion that, if petitioner “were to be
disruptive, or uncooperative, . . . this would be a result of a decision on his part to behave

2
3

See Petitioner’s Exhibit A-3 attached to the Petition For Writ of Habeas Corpus.
See Exhibit 5 attached to the Motion for An Evidentiary Hearing.

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inappropriately, rather than being a result of any severe psychological symptoms.” 4
Petitioner has presented no evidence that he was unable to understand the
proceedings against him or assist his attorney. The trial judge engaged in a lengthy colloquy
with petitioner, in which he clearly and lucidly answered the judge’s questions in an
appropriate manner. There is nothing in the record to indicate that petitioner did not
understand the proceedings or responded inappropriately to the judge’s questions or to his
own counsel’s comments. Significantly, nothing in the record establishes that petitioner was
sleeping, drowsy, or unable to participate in the proceedings. Petitioner has presented no
evidence that he was not in possession of his mental facilities at the time that he entered his
plea of guilty, therefore, any “after the fact” incompetency claim would be without merit.
See United States v. Calvin, 20 F. App’x 452, 453 (6th Cir. 2001); Hastings v. Yukins, 194
F. Supp. 2d at 672. Petitioner is not entitled to habeas relief on this claim because there was
nothing in the guilty plea transcript to indicate that he could not understand the proceedings
or was unable to make an intelligent decision to plead guilty. See e.g., Thirkield, 199 F.
Supp. 2d at 653; Hoffman v. Jones, 159 F.Supp.2d 648, 655-57 (E.D. Mich. 2001).
Petitioner is not entitled to habeas relief on his second claim.
In his fourth claim, petitioner argues that the plea bargain was illusory.
A plea agreement is entered into involuntarily and unknowingly if the defendant is
unaware that the prosecution’s promise is illusory. See United States v. Randolph, 230 F.3d

4

See Petitioner’s Exhibit A-3 attached to the Petition For Writ of Habeas Corpus.

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243, 250-51 (6th Cir. 2000). Illusory representations made by the prosecutor to induce a
defendant to waive his right to trial and enter a guilty plea have been found to constitute
coercion justifying the withdrawal of a guilty plea. See Spearman v. United States, 860 F.
Supp. 1234, 1249 (E.D. Mich. 1994).
Petitioner’s plea agreement was not illusory. The prosecutor agreed to dismiss the
original three first-degree murder charges, which carried a mandatory nonparolable life
sentence. The prosecutor also dismissed the habitual offender charge. The plea bargain
called for a sentence agreement of 40 to 80 years on the second-degree murder charges.
This Court concludes that the plea agreement was not illusory because petitioner was
promised the dismissal of charges which therefore amounted to a real, tangible benefit in
consideration for the plea. See Daniels v. Overton, 845 F. Supp. 1170, 1174 (E.D. Mich.
1994). Because petitioner derived a real benefit from his plea bargain in this case, his plea
was not illusory and he is therefore not entitled to habeas relief. See McAdoo v. Elo, 365 F.
3d 487, 498 (6th Cir. 2004).
D. Claim # 3. The ineffective assistance of counsel claim.
In his third claim, petitioner argues that trial counsel was ineffective for failing to
request a competency hearing and for failing to request an independent competency
evaluation.
To show that he was denied the effective assistance of counsel under federal
constitutional standards, a defendant must satisfy a two prong test. First, the defendant must

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demonstrate that, considering all of the circumstances, counsel’s performance was so
deficient that the attorney was not functioning as the “counsel” guaranteed by the Sixth
Amendment. Strickland v. Washington, 466 U.S. 668, 687 (1984). In so doing, the
defendant must overcome a strong presumption that counsel’s behavior lies within the wide
range of reasonable professional assistance. Id. In other words, petitioner must overcome
the presumption that, under the circumstances, the challenged action might be sound trial
strategy. Strickland, 466 U.S. at 689.

Second, the defendant must show that such

performance prejudiced his defense. Id. To demonstrate prejudice, the defendant must show
that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different.” Strickland, 466 U.S. at 694. “Strickland’s
test for prejudice is a demanding one. ‘The likelihood of a different result must be
substantial, not just conceivable.’” Storey v. Vasbinder, 657 F.3d 372, 379 (6th Cir.
2011)(quoting Harrington, 562 U.S. at 112). The Supreme Court’s holding in Strickland
places the burden on the defendant who raises a claim of ineffective assistance of counsel,
and not the state, to show a reasonable probability that the result of the proceeding would
have been different, but for counsel’s allegedly deficient performance. See Wong v.
Belmontes, 558 U.S. 15, 27 (2009).
As this Court indicated in rejecting petitioner’s second claim, petitioner has presented
no evidence that he was not mentally competent at the time he entered his plea of guilty.
The state trial judge who accepted his plea factually found that petitioner was mentally

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competent at the time that he pleaded guilty and the record from the guilty plea supports this
finding. Counsel’s failure to request a competency hearing did not prejudice petitioner, so
as to support claim of ineffective assistance of counsel, when a “reasonable judge, situated
as was trial judge who accepted defendant’s guilty plea, would not have experienced doubt”
about petitioner’s competency. See Nemzek v. Jamrog, 93 F. App’x 765, 766-67 (6th Cir.
2004).
Petitioner is not entitled to habeas relief on his second ineffective assistance of
counsel claim because his trial attorney did request the appointment of an independent
psychologist to evaluate petitioner, which the judge granted. Dr. Miller examined petitioner
and found him competent to stand trial. Because counsel did obtain an independent
evaluation of petitioner, he is not entitled to relief on this claim.
IV. Conclusion
The Court will deny the petition for writ of habeas corpus. The Court will also deny
a certificate of appealability. In order to obtain a certificate of appealability, a prisoner must
make a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2).
To demonstrate this denial, the applicant is required to show that reasonable jurists could
debate whether, or agree that, the petition should have been resolved in a different manner,
or that the issues presented were adequate to deserve encouragement to proceed further.
Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). When a district court rejects a habeas
petitioner’s constitutional claims on the merits, the petitioner must demonstrate that

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reasonable jurists would find the district court’s assessment of the constitutional claims to
be debatable or wrong. Id. at 484. “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.
For the reasons stated in this opinion, the Court will deny petitioner a certificate of
appealability because reasonable jurists would not find this Court’s assessment of
petitioner’s claims to be debatable or wrong. See Millender v. Adams, 187 F. Supp. 2d 852,
880 (E.D. Mich. 2002). The Court further concludes that petitioner should not be granted
leave to proceed in forma pauperis on appeal, as any appeal would be frivolous. See
Fed.R.App. P. 24(a).
V. CONCLUSION
Accordingly, the Court DENIES WITH PREJUDICE the petition for a writ of
habeas corpus.
The Court GRANTS the motion to correct the record (Dkt. # 30).
The Court DENIES the motion for an evidentiary hearing (Dkt. # 35).
The Court further DENIES a certificate of appealability and leave to appeal in forma
pauperis.
SO ORDERED.
S/Sean F. Cox
Sean F. Cox
United States District Judge
Dated: April 19, 2016
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DIONE WADE,
Petitioner,
CIVIL NO. 2:12-CV-14713
HONORABLE SEAN F. COX
UNITED STATES DISTRICT COURT

v.
KENNETH ROMANOWSKI,
Respondent.
________________________________/

PROOF OF SERVICE
I hereby certify that a copy of the foregoing document was served upon counsel of
record on April 19, 2016, by electronic and/or ordinary mail.
S/J.McCoy
Case Manager

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