Bard v. Curtin

Filing 4

OPINION and ORDER Summarily Dismissing 1 Petition for Writ of Habeas Corpus - Signed by District Judge Paul D. Borman. (DTof)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JOSEPH MICHAEL BARD,
Petitioner,

Case No. 2:13-CV-12730
Hon. Paul D. Borman

v.
CINDI CURTIN,
Respondent.
______________________________________/
OPINION AND ORDER SUMMARILY DISMISSING THE PETITION FOR WRIT OF
HABEAS CORPUS, AND DECLINING TO ISSUE A CERTIFICATE OF
APPEALABILITY AND LEAVE TO APPEAL IN FORMA PAUPERIS

Joseph Michael Bard, ("Petitioner"), incarcerated at the Oaks Correctional Facility in
Manistee, Michigan, has filed a petition for writ of habeas corpus. The petition challenges his
April 23, 2013, Oakland Circuit Court guilty plea convictions of armed robbery, MICH. COMP.
LAWS § 750.529, and bank robbery. MICH. COMP. LAWS § 750.531A. Petitioner claims that his
rights under the Double Jeopardy Clause of the Fifth Amendment were violated when he
received two sentences for these offenses that arose from a single incident. The petition for writ
of habeas corpus will be SUMMARILY DENIED.
I. Background
Petitioner plead guilty in the Oakland Circuit Court to bank robbery and armed robbery
arising out of a single incident in which he robbed a teller at a Fifth Third Bank in Pontiac,
Michigan. Following his plea, Petitioner was sentenced to two concurrent terms of 20-to-50
years in prison.

Petitioner filed an application for leave to appeal in the Michigan Court of Appeals,
claiming that his two sentences for the single act violated double jeopardy. The application was
denied “for lack of merit in the grounds presented.” People v. Bard, No. 313277 (Mich. Ct. App.
December 17, 2012). Petitioner then filed an application for leave to appeal in the Michigan
Supreme Court, raising the same claim. That application was denied because the court was “not
persuaded that the question presented should be reveiwed.” People v. Bard, No. 146544 (Mich.
Sup. Ct. April 29, 2013).
II. Discussion
Petitioner fails to state a claim upon which habeas relief can be granted. Federal courts
are authorized to dismiss any habeas petition that appears legally insufficient on its face.
McFarland v. Scott, 512 U.S. 849, 856 (1994). A federal district court is authorized to
summarily dismiss a habeas corpus petition if it plainly appears from the face of the petition or
the exhibits that are attached to it, that the petitioner is not entitled to federal habeas relief. See
Carson v. Burke, 178 F. 3d 434, 436 (6th Cir. 1999); Rules Governing § 2254 Cases, Rule 4, 28
U.S.C. foll. § 2254.
Petitioner claims that his convictions and sentences for both armed robbery and bank
robbery violate the Double Jeopardy Clause of the Fifth Amendment because he committed a
single criminal act.
The test for the multiple-punishment aspect of the Double Jeopardy Clause focuses on
legislative intent. This is because "legislatures, not courts, prescribe the scope of punishments."
Missouri v. Hunter, 459 U.S. 359, 368 (1983). The Fifth Amendment is a check against the
judiciary — it prohibits courts from imposing sentences exceeding "the limits prescribed by the

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legislative branch of government, in which lies the substantive power to define crimes and
prescribe punishments." Jones v. Thomas, 491 U.S. 376, 381 (1989) (citing Ohio v. Johnson, 467
U.S. 493, 499 (1984)).
When a state statute is at issue, as in this case, the state court's interpretation of the statute
controls. Missouri v. Hunter, 459 U.S. 359, 368 (1983) ("[T]he Missouri Supreme Court has
recognized that the legislature intended that punishment for violations of the statutes be
cumulative. We are bound to accept the Missouri court's construction of that State's statutes."
Here, the Michigan Courts have held that the Michigan Legislature intended for multiple
punishments to be imposed for a single incident which violates both the armed robbery and bank
robbery statutes:
The crime of bank robbery can be committed in two forms: the assaultive
form of bank robbery, or the non-assaultive form of safe-breaking. People v.
Cambell, 165 Mich. App. 1, 6 (1987). Because "the proper role of a court is
simply to apply the terms of the statute to the circumstances in a particular case",
People v. McIntire, 461 Mich. 147, 153 (1999), we focus our double jeopardy
analysis on whether the assaultive form of bank robbery and armed robbery are
overlapping offenses.
Comparison of these two offenses leads to the conclusion that convictions
for each require proof of an element the other does not. Our Supreme Court has
recently confirmed that the crime of armed robbery encompasses attempts to
commit larceny and that no completed larceny is required. People v. Williams,
491 Mich. 164, 172 (2012). The crimes of armed robbery and bank robbery thus
both encompass attempts to commit the crime of larceny. MICH. COMP. LAWS §
750.531; People v. Williams, 288 Mich. App. 67, 80 (2010), aff'd by 491 Mich.
164 (2012). However, overlap, even substantial overlap, of elements necessary to
prove each crime does not suffice to place a defendant in double jeopardy; the test
is whether each crime requires proof of an element the other does not. People v.
Smith, 478 Mich. 292, 303 (2007) (citation omitted).
Armed robbery requires proof that the defendant possessed or feigned
possession of a dangerous weapon. MICH. COMP. LAWS § 750.529. Contrary to
defendant's assertion, MICH. COMP. LAWS § 750.531 does not require such proof;
rather, that statute requires proof that the defendant confined, maimed, injured,
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wounded, or attempted or threatened those actions in the course of committing the
offense. These are elements that are not required to prove armed robbery.n1
Similarly, MICH. COMP. LAWS § 750.531 requires proof that the defendant acted
with intent to steal property from "any building, bank, safe, vault or other
depository of money, bonds, or other valuables." MICH. COMP. LAWS § 750.531.
Armed robbery does not require such proof. MICH. COMP. LAWS § 750.529;
Chambers, 277 Mich. App. at 7.
n1 Although defendant argues that the Legislature contemplated that the
assaultive form of bank-robbery would be accomplished by the use of a weapon,
judicial construction of an unambiguous penal statute to require proof of an
additional element is neither permitted nor appropriate. See People v. Morey, 461
Mich. 325, 330 (1999).
This Court reached the same conclusion in People v. Ford, 262 Mich.
App. 443, 458 (2004). There we analyzed whether the defendant was subjected to
double jeopardy by his convictions under the bank robbery statute and the
pre-2004 amendment version of the armed robbery statute. Id. at 121; see also
Chambers, 277 Mich. App. at 6-7. We also applied the double jeopardy analysis
established in People v. Robideau, 419 Mich. 458, 484 (1984), overruled by
Smith, 478 at 319 (2007). While the Robideau analysis is no longer used by
Michigan Courts, see Smith, 478 at 319, the court in Ford also analyzed the two
offenses under Blockburger, and concluded, as we do today, that the offenses
each contained elements the other did not. Ford, 262 Mich. App. at 458. The 2004
amendment to the armed robbery statute does not alter this result, because armed
robbery still "lacks an element necessary to violate the bank, safe, or vault
robbery statute: the intent to steal property from 'any building, bank, safe, vault,
or other depository of money, bonds, or other valuables'" and also "contains
elements never required to prove bank . . . robbery: the use of a 'dangerous
weapon, or any article used or fashioned in a manner to lead the person so assault
to reasonably believe it was a dangerous weapon.'" Id. at 458 (citations omitted).
Because armed robbery, MICH. COMP. LAWS § 750.529, and bank
robbery, MICH. COMP. LAWS § 750.531, each require proof of a separate and
distinct element, convictions under both statutes for the same criminal transaction
do not violate the double jeopardy clause of the state or federal constitution.
Blockburger, 284 U.S. at 299, 304; Smith, 478 Mich. at 315-316, 319, 324.
People v. McMahon, 2012 Mich. App. LEXIS 1407, *4-7 (Mich. Ct. App. July 24, 2012).
The state court is the final expositer of its own laws. Mullaney v. Wilbur, 421 U.S. 684,
691 (1975). Therefore, this Court cannot second-guess the Michigan Court of Appeals’s

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conclusion that the Michigan legislature intended for multiple punishments to be imposed on
someone who commits both felony-murder and the underlying predicate offense. Because that
legislative intent has been decided by the Michigan Court of Appeals, Petitioner's double
jeopardy claim must fail.
Accordingly, habeas relief is denied.
III. Certificate of Appealability
The Court will also deny a certificate of appealability to Petitioner. 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 reasonable jurists would find the district court's assessment of the constitutional
claims to be debatable or wrong. Id. at 484. A federal district court may grant or deny a
certificate of appealability when the court issues a ruling on the habeas petition. Castro v. United
States, 310 F.3d 900, 901 (6th Cir. 2002).
For the reasons stated in this opinion, the Court will deny Petitioner a certificate of
appealability because he has failed to make a substantial showing of the denial of a federal
constitutional right. Dell v. Straub, 194 F. Supp. 2d 629, 659 (E.D. Mich. 2002). The Court will
also deny Petitioner leave to appeal in forma pauperis, because the appeal would be frivolous.
IV. Order

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Based upon the foregoing, IT IS ORDERED that the Petition for a Writ of Habeas Corpus
is SUMMARILY DISMISSED.
IT IS FURTHER ORDERED That a Certificate of Appealability is DENIED.
IT IS FURTHER ORDERED that Petitioner will be DENIED leave to appeal in forma
pauperis.
s/Paul D. Borman
HONORABLE PAUL D. BORMAN
UNITED STATES DISTRICT COURT
Dated: June 25, 2013

CERTIFICATE OF SERVICE
Copies of this Order were served on the plaintiff and attorneys of record by electronic means or
U.S. Mail on June 25, 2013.

s/Deborah R. Tofil
Case Manager

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