Moore v. Berghuis
Filing
12
MEMORANDUM OPINION and ORDER Denying 1 Petition for Writ of Habeas Corpus, Declining to Issue a Certificate of Appealability, and Granting Leave to Appeal in Forma Pauperis. Signed by District Judge Arthur J. Tarnow. (CPic)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
GACOLBY TARSHAR MOORE,
Petitioner,
v.
Civil No. 2:13-CV-12225
HONORABLE ARTHUR J. TARNOW
UNITED STATES DISTRICT JUDGE
RANDALL HAAS,
Respondent.
__________________________________/
OPINION AND ORDER DENYING THE PETITION FOR WRIT OF HABEAS
CORPUS, DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY, AND
GRANTING LEAVE TO APPEAL IN FORMA PAUPERIS
Gacolby Tarshar Moore, (“Petitioner”), presently confined at the G. Robert
Cotton Correctional Facility in Jackson, Michigan, has filed a petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2254. 1 In his application, filed pro se,
petitioner challenges his conviction for possession with intent to deliver or
manufacture 50 to 449 grams of cocaine, M.C.L.A. 333.7401(2)(a)(3), delivery or
manufacture of less than 50 grams of cocaine, M.CL.A. 333.7401(2)(a)(4),
1
When petitioner originally filed his petition for writ of habeas corpus, he
was incarcerated at the Brooks Correctional Facility, but has since been
transferred to the Cotton Correctional Facility. The only proper respondent in a
habeas case is the habeas petitioner’s custodian, which in the case of an
incarcerated habeas petitioner would be the warden of the facility where the
petitioner is incarcerated. See Edwards Johns, 450 F. Supp. 2d 755, 757 (E.D.
Mich. 2006); See also Rule 2(a), 28 foll. U.S.C. § 2254. Therefore, the Court
substitutes Warden Randall Haas in the caption.
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resisting and obstructing a police officer, M.C.L.A. 750.81(d)(1), and being a
fourth felony habitual offender, M.C.L.A. 769.12. For the reasons stated below,
the petition for writ of habeas corpus is DENIED.
I. Background
Petitioner pleaded guilty to the above offenses in the Oakland County
Circuit Court at his final pre-trial conference. In exchange for his guilty plea, the
trial judge entered into a Cobbs agreement with petitioner where he agreed to
sentence him within the sentencing guidelines range for his offenses. 2 (Tr.
1/16/09, pp. 12-13). Petitioner was ultimately sentenced as a fourth habitual
offender to concurrent sentences of 12 to 30 years for each of the cocaine
convictions and 2-15 years for the resisting and obstructing a police officer
conviction. (Tr. 3/20/09, p. 13).
Following his conviction and sentence, petitioner filed a pro se delayed
application for leave to appeal in the Michigan Court of Appeals. The Michigan
Court of Appeals dismissed the appeal, because it was filed more than 12 months
2
In People v. Cobbs, 443 Mich. 276, 505 N.W.2d 208 (1993), the
Michigan Supreme Court authorized a judge to preliminarily indicate the
appropriate length of sentence, but if the defendant subsequently pleads guilty
and the judge determines that the sentence must exceed the preliminary
evaluation, the defendant has an absolute right to withdraw the plea. See M.C.R.
6.310(B)(2)(b); Wright v. Lafler, 247 F. Appx 701, 703, n.1 (6th Cir. 2007).
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after the judgment of sentence, making it untimely. People v. Moore, No. 298130
(Mich. Ct. App. July 13, 2010).
Petitioner filed an application for leave to appeal in the Michigan Supreme
Court. The Michigan Supreme Court held that the Oakland Circuit Court erred in
failing to timely appoint appellate counsel and remanded the case back to the
Oakland Circuit Court to appoint counsel and file whatever appropriate
postconviction motions and appeal in the Michigan Court of Appeals may be
appropriate. People v. Moore, 488 Mich. 946, 790 N.W.2d 681 (Mich. 2010).
Petitioner, with the benefit of appellate counsel, filed a motion to withdraw
his guilty plea in the Circuit Court, which was denied. People v. Moore, No.
08222486-FH (Oakland County Circuit Court, August 19, 2011). The Michigan
appellate courts denied petitioner leave to appeal. People v. Moore, No. 306899
(Mich. Ct. App. December 12, 2011); lv. den. 491 Mich. 922, 812 N.W.2d 760
(2012).
Petitioner has now filed a petition for writ of habeas corpus, in which he
seeks relief on the following grounds:
I. Moore must be allowed to withdraw his guilty plea due to ineffective
assistance of counsel where defense counsel failed to allow full
adjudication of his Fourth Amendment suppression motion and defense
counsel deceived defendant concerning full adjudication of the
suppression motion prior to entering the guilty plea.
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II. Defense counsel was ineffective for not informing Moore about a
conditional plea, where Moore could preserve his Fourth Amendment
suppression motion on appeal.
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 “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
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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
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theories are inconsistent with the holding in a prior decision” of the Supreme
Court. Id.
In the present case, the Michigan Court of Appeals on petitioner’s direct
appeal denied petitioner’s application for leave to appeal in a form order “for lack
of merit in the grounds presented.” The Michigan Supreme Court subsequently
denied petitioner leave to appeal in a standard form order without any extended
discussion. Determining whether a state court’s decision resulted from an
unreasonable legal or factual conclusion, as would warrant federal habeas relief,
does not require that there be an opinion from the state court that explains the
state court’s reasoning. Harrington, 131 S. Ct. at 784. “Where a state court’s
decision is unaccompanied by an explanation, the habeas petitioner’s burden
still must be met by showing there was no reasonable basis for the state court to
deny relief.” Id. In fact, when a habeas petitioner has presented a federal claim
to a state court and that state court has denied relief, “it may be presumed that
the state court adjudicated the claim on the merits in the absence of any
indication or state-law procedural principles to the contrary.” Id. at 784-85. That
presumption may be overcome only when there is a reason to think that some
other explanation for the state court’s decision is more likely. Id. at 785.
In the present case, the AEDPA deferential standard of review applies to
petitioner’s case where the Michigan Court of Appeals rejected petitioner’s
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appeal “for lack of merit in the grounds presented” and the Michigan Supreme
Court subsequently denied leave to appeal in a standard form order, because
these orders amounted to a decision on the merits. See Werth v. Bell, 692 F. 3d
486, 492-94 (6th Cir. 2012); Hardaway v. Robinson, 655 F.3d 445, 447, 449 n. 1
(6th Cir. 2011).
III. Discussion
The Court will discuss petitioner’s two claims together for judicial clarity.
Petitioner contends that he should be permitted to withdraw his guilty plea for
two reasons. First, petitioner contends that his trial counsel was ineffective for
advising him to plead guilty before a previously filed motion to suppress the
evidence had been ruled on by the trial judge. Petitioner further alleges that his
trial counsel deceived him into believing that the judge had already denied the
motion to suppress the evidence. Secondly, petitioner contends that trial
counsel was ineffective for failing to inform petitioner about the option of a
conditional guilty plea, which would have allowed petitioner to preserve his
Fourth Amendment suppression motion on appeal.
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 demonstrate that, considering all of the circumstances,
counsel’s performance was so deficient that the attorney was not functioning as
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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, 131 S. Ct. at 792). 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).
More importantly, on habeas review, “the question ‘is not whether a
federal court believes the state court’s determination’ under the Strickland
standard ‘was incorrect but whether that determination was unreasonable-a
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substantially higher threshold.’” Knowles v. Mirzayance, 556 U.S. 111, 123
(2009)(quoting Schriro v. Landrigan, 550 U.S. 465, 473 (2007)). “The pivotal
question is whether the state court’s application of the Strickland standard was
unreasonable. This is different from asking whether defense counsel’s
performance fell below Strickland’s standard.” Harrington v. Richter, 131 S. Ct.
at 785. Indeed, “because the Strickland standard is a general standard, a state
court has even more latitude to reasonably determine that a defendant has not
satisfied that standard.” Knowles, 556 U.S. at 123 (citing Yarborough v.
Alvarado, 541 U.S. 652, 664 (2004)). Pursuant to § 2254(d)(1) standard, a
“doubly deferential judicial review” applies to a Strickland claim brought by a
habeas petitioner. Id. This means that on habeas review of a state court
conviction, “[A] state court must be granted a deference and latitude that are not
in operation when the case involves review under the Strickland standard
itself.”Harrington, 131 S. Ct. at 785. “Surmounting Strickland's high bar is never
an easy task.” Id. at 788 (quoting Padilla v. Kentucky, 130 S. Ct. 1473, 1485
(2010)).
In order to satisfy the prejudice requirement for an ineffective assistance
of counsel claim in the context of a guilty plea, the defendant must show that
there is a reasonable probability that, but for counsel’s errors, he or she would
not have pleaded guilty, but would have insisted on going to trial. Premo v.
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Moore, 131 S. Ct. 733, 743 (2011)(citing Hill v. Lockhart, 474 U.S. 52, 58-59
(1985). An assessment of whether a defendant would have gone to trial but for
counsel’s errors “will depend largely on whether the affirmative defense likely
would have succeeded at trial.” Hill, 474 U.S. at 59.
Petitioner first contends that trial counsel was ineffective for advising him
to plead guilty before the trial judge had an opportunity to rule on his motion to
suppress the evidence and for deceiving petitioner into thinking that the trial
judge had already denied the motion.
Petitioner is not entitled to habeas relief on this claim. Petitioner’s
counsel, Richard H. Morgan, Jr., had filed a motion to suppress the evidence.
Although the judge never conducted an evidentiary hearing nor had adjudicated
the motion, the judge had informed the prosecutor and defense counsel that
based on his review of the testimony from the preliminary examination, the
motion to suppress would not be successful. People v. Moore, No. 08222486FH, Slip. Op. at * 2 (Oakland County Circuit Court, August 19, 2011); See also
Affidavit of Richard H. Morgan, Jr., dated August 2, 2011. 3 Counsel in his
affidavit indicated that after the trial judge informed him that he was not going to
grant the motion, he spoke with petitioner and informed him that the judge was
3
Petitioner’s Appendix K.
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going to deny the motion and petitioner’s choices were either to plead guilty or
proceed to trial.
Counsel’s alleged error in advising petitioner to plead guilty before the
judge formally ruled on the motion to suppress the evidence did not prejudice
petitioner, so as to support petitioner’s ineffective assistance claim, because
even if counsel had advised petitioner that the motion to suppress was still
pending, at most petitioner may have delayed entry of his guilty plea until
receiving a formal denial of the motion from the judge. See Gingras v. Weber,
543 F. 3d 1001, 1004 (8th Cir. 2008). Indeed, there has been no showing from
petitioner that had he awaited a ruling on the motion to suppress the evidence
and the motion had been formally denied, that he would have elected to go to
trial. To the contrary, petitioner indicates that when he believed that the motion
to suppress had been denied, he agreed to plead guilty. Under the
circumstances, petitioner is unable to show that he was prejudiced by counsel’s
recommendation to plead guilty before the motion to suppress had been
adjudicated. Id.
Moreover, in light of the fact that the trial judge had informed defense
counsel that he was going to deny the motion to suppress, counsel was not
deficient in advising petitioner to plead guilty. To prove that counsel’s failure to
litigate a Fourth Amendment claim competently is the principal claim of
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ineffectiveness, a defendant must also prove that his Fourth Amendment claim is
meritorious and that there is a reasonable probability that the verdict would have
been different absent the excludable evidence, in order to demonstrate actual
prejudice. Kimmelman v. Morrison, 477 U.S. 365, 375 (1986); See also Mack v.
Jones, 540 F. Supp. 2d 840, 848 (E.D. Mich. 2008). In light of the fact that the
judge had indicated that he would deny the motion to suppress the evidence,
petitioner is unable to show that he was prejudiced by counsel’s failure to await a
formal ruling on the motion to suppress prior to advising petitioner to plead guilty.
Petitioner further contends that trial counsel was ineffective for failing to
advise him of his right to seek a conditional guilty plea in order to preserve his
Fourth Amendment claim for appeal.
Although Michigan law permits the entry of a conditional plea to preserve
an issue for appeal, it is well settled that a conditional guilty plea requires the
agreement of the defendant, the prosecution, and the court. People v. Lannom,
441 Mich. 490, 493, n. 5; 490 N.W.2d 396 (1992); People v. Reid, 420 Mich.
326, 337; 362 N.W.2d 655 (1984); People v. Andrews, 192 Mich. App. 706, 707;
481 N. W. 2d 831 (1992); People v. Kelley, 181 Mich. App. 95, 97; 449 N.W.2d
109 (1989); M.C.R. 6.301(C)(2); See also Brown v. Trombley, No. 2007 WL
1013687, *3 (E.D. Mich. March 29, 2007). Michigan law parallels Fed.Rule
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Crim. P. 11(a)(2), which states that “[w]ith the consent of the court and the
government, a defendant may enter a conditional plea of guilty.”
Petitioner was not prejudiced by defense counsel’s failure to negotiate a
conditional plea agreement that would have preserved his rights to appeal the
denial of his motion to suppress, absent any showing that counsel could have
successfully negotiated such plea agreement. See U.S. v. Moya, 676 F. 3d
1211, 1214 (10th Cir. 2012); See also U.S. v. Alvarez-Quiroga, 901 F. 2d 1433,
1437 (7th Cir. 1990)(failure of defendant's attorney to seek conditional plea
agreement could not be charged to attorney incompetence so as to render guilty
plea involuntary due to erroneous advice of counsel; conditional plea is not just
choice of defendant, but rather, requires that both Government and court find
such plea acceptable). Petitioner is not entitled to habeas relief on his claims.
A certificate of appealability.
A habeas petitioner must receive a certificate of appealability (“COA”) in
order to appeal the denial of a habeas petition for relief from either a state or
federal conviction. 4 28 U.S.C. §§ 2253(c)(1)(A), (B). A court may issue a COA
4
Effective December 1, 2009, the newly created Rule 11 of the Rules
Governing Section 2254 Cases in the United States District Courts, 28 U.S.C. foll.
§ 2254, provides that “[t]he district court must issue or deny a certificate of
appealability when it enters a final order adverse to the applicant.” Rule 11(a), 28
U.S.C. foll. § 2254.
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“only if the applicant has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). When a federal district court rejects
a habeas claim on the merits, the substantial showing threshold is met if the
petitioner demonstrates that reasonable jurists would find the district court's
assessment of the constitutional claim debatable or wrong. See Slack v.
McDaniel, 529 U.S. 473, 484-85 (2000). “A petitioner satisfies this standard by
demonstrating that ... jurists could conclude the issues presented are adequate
to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S.
322, 327 (2003). In applying this standard, a district court may not conduct a full
merits review, but must limit its examination to a threshold inquiry into the
underlying merit of the petitioner's claims. Id. at 336-37.
The Court will deny a certificate of appealability, because jurists of reason
would not find the Court’s resolution of the claims to be debatable.
Although this Court will deny a certificate of appealability to petitioner, the
standard for granting an application for leave to proceed in forma pauperis (IFP)
is a lower standard than the standard for certificates of appealability. See Foster
v. Ludwick, 208 F. Supp. 2d 750, 764 (E.D. Mich. 2002)(citing United States v.
Youngblood, 116 F. 3d 1113, 1115 (5th Cir. 1997)). Whereas a certificate of
appealability may only be granted if petitioner makes a substantial showing of
the denial of a constitutional right , a court may grant IFP status if it finds that an
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appeal is being taken in good faith. Id. at 764-65; 28 U.S.C. § 1915(a)(3); Fed.
R.App.24 (a). “Good faith” requires a showing that the issues raised are not
frivolous; it does not require a showing of probable success on the merits.
Foster, 208 F. Supp. 2d at 765. Although jurists of reason would not debate this
Court’s resolution of petitioner’s claims, the issues are not frivolous; therefore,
an appeal could be taken in good faith and petitioner may proceed in forma
pauperis on appeal. Id.
IV. CONCLUSION
For the reasons stated above, this Court concludes that Petitioner Moore
is not entitled to federal-habeas relief on the claims presented in his petition.
Accordingly, IT IS ORDERED that the petition for writ of habeas corpus is
DENIED WITH PREJUDICE. (Dkt. # 1).
IT IS FURTHER ORDERED that a certificate of appealability is DENIED.
IT IS FURTHER ORDERED that petitioner will be granted leave to appeal
in forma pauperis.
S/Arthur J. Tarnow
Arthur J. Tarnow
Dated: October 29, 2013
Senior United States District Judge
I hereby certify that a copy of the foregoing document was served upon parties/counsel of record on
October 29, 2013, by electronic and/or ordinary mail.
S/Catherine A. Pickles
Judicial Assistant
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