Childress v. Palmer
OPINION AND ORDER Denying Petition for Writ of Habeas Corpus and Denying Certificate of Appealability. Signed by District Judge Sean F. Cox. (JMcC)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case Number: 2:12-14914
HONORABLE SEAN F. COX
OPINION AND ORDER DENYING PETITION FOR WRIT OF
HABEAS CORPUS AND DENYING CERTIFICATE OF APPEALABILITY
Rushad Childress is a state inmate at the Thumb Correctional Facility in Lapeer,
Michigan. In 2012, he filed a petition for a writ of habeas corpus in this Court, challenging
his convictions for assault with intent to murder and felony firearm. 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. Respondent has now filed
an answer in opposition to the petition. For the reasons set forth below, the Court denies the
Petitioner was charged in Genesee County Circuit Court as a third habitual offender
with assault with intent to commit murder, felon in possession of a firearm, and felony
firearm in connection with a shooting at a Family Dollar Store on June 10, 2008. Tony
Dillard was shot four times, but survived the shooting. On July 12, 2010, Petitioner pleaded
no contest to assault with intent to commit murder and felony firearm, pursuant to a plea
agreement whereby the prosecutor dismissed the felon-in-possession charge, agreed not to
add a concealed-weapons charge, and not to pursue habitual offender status for sentencing
The agreement also provided for a sentence of no fewer than 13 years’
imprisonment for the assault conviction and the statutorily mandated two-year sentence for
the felony-firearm conviction. On April 25, 2011, Petitioner was sentenced to 13 to 20 years’
imprisonment for the assault conviction and 2 years’ imprisonment for the felony firearm
Petitioner filed a motion to withdraw his plea, which the trial court denied. Petitioner
then filed an application for leave to appeal in the Michigan Court of Appeals. The Michigan
Court of Appeals denied leave to appeal. People v. Childress, No. 307058 (Mich. Ct. App.
June 25, 2012). Petitioner filed an application for leave to appeal in the Michigan Supreme
Court, where leave to appeal was also denied. People v. Childress, 491 Mich. 944 (Mich.
June 25, 2012).
Petitioner then filed this habeas corpus petition, raising these claims:
Conflict of interest.
Deficient attorney performance.
Ineffective assistance of counsel.
Deficient attorney performance at hearing to withdraw plea.
Respondent filed a motion to dismiss on exhaustion grounds. In response, Petitioner
sought a stay of the proceedings to allow him to return to state court and exhaust his remedies
there. The Court denied Respondent’s motion to dismiss and granted a stay in this matter.
(ECF No. 11). Petitioner filed a motion for relief from judgment in the trial court, raising the
same claims raised in his habeas petition. The trial court denied the motion. See 11/4/13 Op.
& Order Denying Motion for Relief from Judgment (ECF No. 16-3). The Michigan Court
of Appeals denied Petitioner’s application for leave to appeal from the trial court’s decision.
See 4/7/14 Order (ECF No. 16-4). The Michigan Supreme Court also denied leave to appeal.
People v. Childress, 497 Mich. 951 (Mich. Feb. 3, 2015).
Petitioner then filed a motion to lift stay in this Court. The Court granted the motion
and directed Respondent to file an answer to the petition. Respondent has filed an answer
and submitted the relevant state court record. Petitioner filed a reply to the answer.
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 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 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, 131 S. Ct. at 786–87.
Additionally, a state court’s factual determinations are entitled to a 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). Moreover, habeas review is “limited to the record that was before
the state court.” Cullen v. Pinholster, — U.S. —, 131 S.Ct. 1388, 1398 (2011).
Petitioner raises four claims for habeas corpus relief, all of which concern the alleged
ineffectiveness of Petitioner’s first and substitute defense attorneys. Petitioner argues that
his first attorney was ineffective during the plea process and that counsel labored under a
conflict of interest during the hearing on Petitioner’s motion to withdraw his plea. He argues
that substitute counsel, who was appointed to represent Petitioner during proceedings related
to Petitioner’s motion to withdraw his plea, was ineffective for failing to file a new or
supplemental motion to withdraw his plea. The Court finds no basis for relief on any of these
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 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 [has] emphasized that the 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 (internal
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 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.; see also Smith v. United States, 348 F.3d 545,
551-52 (6th Cir. 2003).
First, Petitioner argues that his original attorney was ineffective and his plea was
involuntary because counsel misled Petitioner as to the time he would actually serve in
prison. Petitioner states that counsel informed him that the State’s economic crisis would
result in him serving less than his minimum sentence. A trial attorney’s erroneous advice
regarding the consequences of a guilty plea may render the representation constitutionally
defective. See Padilla v. Kentucky, 559 U.S. 356, 368-371 (2010) (holding that failure to
advise of deportation consequences of guilty plea resulted in constitutionally defective
representation). A trial court’s proper plea colloquy ordinarily 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). In cases challenging the voluntariness of a plea agreement, a petitioner
is bound by any in-court statements made regarding the petitioner’s understanding of the
plea. Id. at 564. “If we were to rely on [petitioner’s] alleged subjective impression rather
than the record, we would be rendering the plea colloquy process meaningless. . . . ‘[W]here
the court has scrupulously followed the required procedure, the defendant is bound by his
statements in response to that court’s inquiry.’” Id. at 566 quoting Baker v. United States,
781 F.2d 85, 90 (6th Cir. 1986).
The trial court denied Petitioner’s motion to withdraw his plea because the plea
colloquy showed that Petitioner was fully and accurately informed of the sentence he would
receive and Petitioner denied that any promises were made to him other than those stated on
the record. See 3/25/11 Op. & Order (ECF No. 21-14). The plea hearing transcript supports
the trial court’s finding. Petitioner stated he understood the plea agreement and that no
promises outside those stated on the record had been made to him. Petitioner is bound by
these in-court statements and his contention that counsel was deficient in advising him
regarding the sentence he would receive fails based on this admission. See Ramos, 170 F.3d
Second, Petitioner argues that defense counsel Major White labored under a conflict
of interest during the hearing on Petitioner’s motion for withdrawal of plea. Petitioner sought
to withdraw his plea on the ground that White incorrectly informed him that the State of
Michigan would reinstate good-time credit and that he could therefore expect to serve less
time than the fifteen years provided by the plea agreement. Two hearings were conducted
regarding Petitioner’s motion. At the first, Petitioner was formally represented by White, but
argued the motion himself. The trial court judge asked White whether he had informed
Petitioner that he would be eligible for good time credit. White replied that the possibility
of good-time credit was briefly discussed after the plea was entered as a potential solution
to the overcrowding of Michigan’s prisons. See 9/27/10 Transcript at 7, ECF No. 21-7, Pg.
ID 403. The trial court appointed Neil Szabo as substitute counsel to represent Petitioner on
January 3, 2011. (ECF No. 21-13). Petitioner was represented by Szabo at a second hearing
regarding the motion was held at the end of January.
A criminal defendant is entitled to the effective assistance of counsel free from
conflict. Holloway v. Arkansas, 435 U.S. 475, 483-84 (1978). In Cuyler v. Sullivan, 446
U.S. 335, 345-50 (1980), the Supreme Court held that prejudice is presumed if counsel is
burdened by an actual conflict of interest. The presumption of prejudice applies only if the
defendant demonstrates that counsel: (1) “actively represented conflicting interests;” and (2)
that “an actual conflict of interest adversely affected his lawyer’s performance.” Id. at 350,
348. Even assuming that defense counsel White actively represented conflicting interests at
the first hearing on Petitioner’s motion to withdraw plea, Petitioner has not shown that his
attorney’s conflict adversely affected his performance. Petitioner was represented by
different counsel during the second hearing on his motion to withdraw plea. No new
evidence or arguments not presented at the first hearing were presented at the second. In
addition, no evidence was presented that an alleged conflict adversely affected the first
attorney’s performance at the prior hearing and the Court finds none. The state court’s
determination that this claim lacked merit is not contrary to or an unreasonable application
of Supreme Court precedent.
Petitioner’s third and fourth claims concern substitute counsel Szabo’s representation
and are essentially the same claim. Petitioner argues that Szabo was ineffective when
representing him during his plea withdrawal proceedings because he failed to file a new
motion for plea withdrawal or to supplement Petitioner’s motion. Respondent first argues
that this claim is procedurally defaulted. “[F]ederal courts are not required to address a
procedural-default issue before deciding against the petitioner on the merits.” Hudson v.
Jones, 351 F.3d 212, 215 (6th Cir. 2003), citing Lambrix v. Singletary, 520 U.S. 518, 525
(1997). “Judicial economy might counsel giving the [other] question priority, for example,
if it were easily resolvable against the habeas petitioner, whereas the procedural-bar issue
involved complicated issues of state law.” Lambrix, 520 U.S. at 525. In this case, the Court
finds that the interests of judicial economy are best served by addressing the merits of this
Petitioner’s allegations that Szabo was ineffective in failing to file a new or
supplemental motion for plea withdrawal or calling former defense counsel as a witness are
conclusory and lack factual support. He fails to specifically identify additional claims that
should have been raised in a new or supplemental motion or what additional information may
have been elicited by former defense counsel’s testimony. “[C]onclusory and perfunctory
claims” such are these are insufficient to overcome the presumption of reasonable
professional assistance afforded attorneys under Strickland. Habeas relief is denied.
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 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.
Accordingly, it is ORDERED that the petition for a writ of habeas corpus and a
certificate of appealability are DENIED.
Dated: February 16, 2017
s/Sean F. Cox
Sean F. Cox
U. S. District Judge
I hereby certify that on February 16, 2017, the foregoing document was served on counsel
of record via electronic means and upon Rushad Childress via First Class mail at the address
Rushad Childress 651842
THUMB CORRECTIONAL FACILITY
3225 JOHN CONLEY DRIVE
LAPEER, MI 48446
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