Pouncy v. Palmer

Filing 453

ORDER (1) Granting Respondent's 427 Motion for a Stay Pending Appeal, (2) Denying Petitioner's 413 Motion to Stay the Remainder of His Sentence, and (3) Denying Petitioner's 414 Motion for Clarification and/or Modification of the Terms of the Conditional Writ. Signed by District Judge Matthew F. Leitman. (HRya)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
OMAR RASHAD POUNCY,
Petitioner,

Case No. 13-cv-14695
Hon. Matthew F. Leitman

v.
MATT MACAULEY,
Respondent.
__________________________________________________________________/
ORDER (1) GRANTING RESPONDENT’S MOTION FOR A STAY
PENDING APPEAL (ECF No. 427), (2) DENYING PETITIONER’S
MOTION TO STAY THE REMAINDER OF HIS SENTENCE (ECF No.
413), AND (3) DENYING PETITIONER’S MOTION FOR
CLARIFICATION AND/OR MODIFICATION OF THE TERMS OF THE
CONDITIONAL WRIT (ECF No. 414)
On June 28, 2021, this Court issued an Opinion and Order resolving the final
remaining claims in Petitioner Omar Rashad Pouncy’s Petition for a Writ of Habeas
Corpus (the “Opinion and Order”). (See Op. and Order, ECF No. 401.) In the
Opinion and Order, the Court (1) granted relief on Pouncy’s claim that he received
ineffective assistance of counsel during his state-court plea process and (2) denied
relief on the rest of the claims that were pending at that time. The Court assumes
that the reader of this Order has reviewed, and is familiar with, the Opinion and
Order.

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Now pending before the Court are three motions: (1) Respondent’s Motion
for a Stay Pending Appeal (ECF No. 427), (2) Pouncy’s Motion for Stay of
Remainder of Sentence (ECF No. 413), and (3) Pouncy’s Motion for Clarification
and/or Modification of the Terms of the Conditional Writ (ECF No. 414).
For the reasons explained below, the Court GRANTS Respondent’s motion
and STAYS the grant of habeas relief and DENIES Pouncy’s motions.
I
All three of the currently-pending motions address the portion of the Opinion
and Order granting relief on Pouncy’s claim of ineffective assistance in connection
with the plea process. (See Op. and Order, ECF No. 401, PageID.14401-14430.) The
Court begins with a very brief summary of that aspect of its ruling.
In the component of the Opinion and Order at issue, the Court concluded,
among other things, that Pouncy’s trial counsel provided constitutionally deficient
performance by failing to inform Pouncy that a sentencing guidelines calculation
that was placed on the record – and which turned out to be far too low – was an
estimate that was subject to change after trial. (See id.) The Court further concluded
that Pouncy had demonstrated prejudice from his counsel’s deficient performance.
More specifically, the Court found that if Pouncy’s counsel had provided effective
assistance during the plea process, then (1) the prosecution would have made what
is known as a Killebrew plea offer that called for a minimum sentence that fell within

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a guidelines range of 135-225 months in custody1, (2) Pouncy would have accepted
that offer, and (3) the state trial court would have sentenced Pouncy consistent with
the terms of that offer – i.e., it would have imposed a minimum sentence of between
135-255 months. (See id., PageID.14422-14423.)
As a remedy, the Court ordered the prosecution to make the Killebrew plea
offer that it would have made but for trial counsel’s ineffectiveness. (See id.,
PageID.14431-14433.) The Court required the prosecution to present this re-offer
within 60 days, gave Pouncy 30 days to decide whether to accept the offer, and then
gave the prosecution 60 days from Pouncy’s acceptance to “petition the state trial
court (1) to re-open the state court criminal case against Pouncy, (2) to vacate
Pouncy’s convictions, and (3) to accept the parties’ plea agreement and to impose
sentence consistent with that agreement.”2 (Id., PageID.14432.)

1

Criminal sentences in Michigan include both a minimum term (at the completion
of which the defendant becomes eligible for parole) and a maximum term. (See
generally Opinion and Order, ECF No. 401, PageID.14403.) The sentencing
guidelines range under Michigan law applies only to the minimum term of a
defendant’s sentence; the minimum must generally fall within the guidelines range.
(See id.) The maximum is generally set by statute. (See id.)
2

On August 9, 2021, the Court administratively and temporarily stayed the grant of
relief so that the parties could attempt to reach a negotiated resolution of the case.
(See Order, ECF No. 417.) Those efforts have come to a close, and the Court must
now decide whether the stay the grant of relief during the appeal process.
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II
A
The Court first addresses Respondent’s Motion for a Stay Pending Appeal. In
Hilton v. Braunskill, 481 U.S. 770, 776 (1987), the Supreme Court directed district
courts to apply the following factors in determining whether to grant such a motion:
“(1) whether the stay applicant has made a strong showing that he is likely to succeed
on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3)
whether issuance of the stay will substantially injure the other parties interested in
the proceeding; and (4) where the public interest lies.” As described below, in this
case, the balance of these factors weighs in favor of staying this Court’s grant of
habeas relief.
B
As an initial matter, Respondent has not shown that he has a strong likelihood
of success on appeal, but he has “demonstrate[d] a substantial case on the merits.”
Id. at 778. That showing is enough to warrant a stay where, as here (and as described
below in Sections (II)(C)-(E)), the remaining Hilton factors also weigh in favor of a
stay. See id.
Respondent contends that this Court erred when it found that Pouncy’s
counsel rendered deficient performance during the plea process. Respondent’s
argument on the deficient performance issue is as follows:

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To begin, this Court erred in finding that Pouncy’s trial
attorney – Michael Breczinski – performed deficiently. In
so finding, this Court focused almost entirely on the state
sentencing guidelines and stated that, even if Breczinski’s
pre-trial calculation of the potential guidelines was
reasonable, “counsel acted unreasonably in failing to
advise Pouncy that (1) the calculation was an estimate that
rested on some key and questionable assumptions and (2)
Pouncy’s guidelines range could ultimately be determined
to be much higher than the estimate.” (Op. & Ord., ECF
No. 410, PageID.14413, n. 14). Generally, an inaccurate
guideline-range predication by trial counsel will not meet
the requirement of deficient performance under
Strickland. See Thomas v. United States, 27 F.3d 321,
325–26 (8th Cir. 1994), and cases cited therein. In an
attempt to distinguish Pouncy’s case from Thomas and
others, this Court found that it was not counsel’s failure to
properly estimate the guidelines that serve as the basis for
its finding that counsel performed deficiently, but rather
that Breczinski never told Pouncy that the scoring of the
guidelines discussed just before trial began was just an
estimate or a predication and could change prior to
sentencing. But this Court has it backwards. There is no
credible contemporaneous evidence that indicates that
anyone – most importantly Breczinski – actually said that
there was no chance that the guidelines range would
change before his sentencing. In other words, while the
record does not specifically reveal that Pouncy was
advised that the guidelines discussed prior to trial might
change before sentencing, it also does not reveal that
Pouncy was told by Breczinski that these in fact would be
the final guidelines used at sentencing.
(Respondent’s Mot., ECF No. 427, PageID.14721-14722.)
This is a serious argument, but it fails to account for the circumstances under
which the sentencing guidelines calculation was communicated to Pouncy. Pouncy
was first told of the guidelines calculation on the same morning that he rejected the
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prosecution’s plea offer. (See 1/24/06 Trial Tr., ECF No. 8-7, PageID.473.) That
morning, the prosecutor and Pouncy’s trial attorney announced on the record that (1)
they had “sat down together” to determine the guidelines range and (2) they jointly
concluded that Pouncy’s guidelines range (i.e., the range within which his minimum
sentence would fall), if convicted at trial, would be 135-337 months in custody. (Id.,
PageID.474-475; emphasis added.) The trial judge then explained the significance
of that calculation to Pouncy. In the judge’s words: “just so you know Mr. Pouncy
what [the guidelines calculation] means is is [sic] that if you were convicted of all
of the offenses and if you were a habitual offender third and you came in front of me
for sentencing, the guidelines say that I should give you a sentence somewhere
between” 135-337 months. (Id., PageID.476; emphasis added.) The judge next
asked the lawyers for the guidelines range under the plea offer, and they informed
the judge that that range was 135-225 months. (See id.)

The judge then

acknowledged that he “really” could “see why [Pouncy] might want to go to trial.
There’s not much difference in terms of the guidelines between the offer and the
original charges it sounds like to me.” (Id., PageID.477.)
This colloquy between the attorneys and the trial judge reasonably led Pouncy
to conclude that the guidelines calculation that was placed on the record was the final
calculation that would apply to his case in the event that he was convicted at trial of
all of the charges. (See 1/8/2021 Evid. Hr’g Tr., ECF No. 371, PageID.13673.)

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Indeed, Pouncy heard that his trial counsel and the prosecutor agreed upon the
calculation, and he heard the judge say that the calculation represented the range that
would apply if he was convicted. Under these circumstances, Pouncy had no reason
to believe that anyone would revisit (or seek to challenge) the guidelines calculations
if he was convicted, and he had every reason to conclude that the judge would do
just what he said he would do if Pouncy was convicted: namely, apply the range that
had just been announced on the record. Because the statements of the lawyers and
the judge on the record unambiguously signaled to Pouncy that the post-trial
guidelines range would be 135-337 months, Pouncy’s attorney should have clarified
for Pouncy that that range was, in fact, just an estimate. His failure to do so
amounted to deficient performance. Respondent has not shown that he is likely to
convince the Sixth Circuit otherwise on appeal.
Respondent next argues that this Court made its “most significant errors”
when it concluded that counsel’s deficient performance caused Pouncy prejudice.
(Respondent’s Mot., ECF No. 427, PageID.14724.) As noted above, this Court
found that Pouncy suffered prejudice because he would have accepted the
prosecution’s plea offer if his trial counsel had accurately advised him concerning
his maximum exposure under the sentencing guidelines if convicted on all charges
at trial. The Court rested that finding, in large part, on Pouncy’s testimony at an

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evidentiary hearing. The Court found that testimony to be credible. (See Op. and
Order, ECF No. 401, PageID.14425-14426.)
Respondent says that this Court seriously erred when it found Pouncy’s
testimony to be credible. He says that this Court failed to accord appropriate weight
to the substantial evidence in the record that undermines the credibility of Pouncy’s
testimony that he would have accepted the plea offer.
Once again, Respondent’s argument is a serious one.

As Respondent

reasonably and accurately notes, there is a lot of evidence in the record that undercuts
Pouncy’s current claim that he would have pleaded guilty if given accurate advice
about his possible guidelines range. And there is other evidence in the record that
casts doubt more generally on Pouncy’s overall credibility. Respondent identifies
much of this evidence in his motion. (See Respondent’s Mot., ECF No. 427, PageID.
14724-14732.)
But the Court carefully considered all of that evidence when it found Pouncy’s
evidentiary hearing testimony to be credible. Indeed, the Court acknowledged that
there was “real merit” to Respondent’s argument that the evidence cited by
Respondent compelled the conclusion that the Court should reject Pouncy’s
testimony. (Op. and Order, ECF No. 401, PageID.14424.) The Court then explained
in detail why it nonetheless found Pouncy to be credible. (See id., PageID.1442426.) On appeal, the Sixth Circuit will accord “special deference” to this Court’s

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finding that Pouncy was credible, Anderson v. Bessemer City, 470 U.S. 564, 574
(1985), and Respondent has not persuaded the Court that there is a likelihood that
the Sixth Circuit will reverse that finding.
In sum, while Respondent has raised a number of serious arguments in his
Motion for Stay, he has not demonstrated that he has a likelihood of success on
appeal. Instead, he has shown a “substantial case on the merits.” Hilton, 481 U.S. at
778.
C
With respect to the second Hilton factor, the Court concludes that Respondent
has made a sufficient showing that he would suffer irreparable injury absent a stay.
As Respondent accurately notes, without a stay of this Court’s grant of habeas relief,
Respondent’s appeal will likely “be rendered moot.” (Respondent’s Mot., ECF No.
427, PageID.14735, n. 10.) That is because the actions ordered by the Court in the
Opinion and Order – i.e., the extending of the plea offer to Pouncy, the filing of a
petition to re-open the state-court criminal case, and a possible resentencing in that
case – are likely to conclude before the Sixth Circuit issues a decision on
Respondent’s appeal. Several district courts have concluded that such a likely
mooting of a habeas respondent’s appeal constitutes irreparable injury. See, e.g.,
Bauberger v. Haynes, 702 F.Supp.2d. 588, 595-96 (M.D.N.C. 2010); Wolfe v.

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Clarke, 819 F.Supp. 574, 583-84 (E.D. Va. 2011); Moore v. Keller, 2012 WL
2458605, at **2-3 (E.D.N.C. June 27, 2012).
D
With respect to the third Hilton factor, the Court concludes that staying the
Court’s grant of habeas relief will not substantially injure Pouncy for two reasons.
First and most importantly, Pouncy has not persuaded the Court that its grant of
habeas relief is likely to lead to his immediate release, and thus the Court concludes
that any delay occasioned by a stay would not meaningfully harm Pouncy. As
explained in detail in the Opinion and Order, the relief ordered by this Court (1)
requires the prosecution to offer Pouncy a plea deal with a guidelines range that calls
for a minimum sentence of 135-225 months and (2) gives Pouncy an opportunity to
accept that offer. If Pouncy accepts that offer, the case would then return to the state
court for further proceedings. During those proceedings, the state court would have
the option of, among other things, accepting the plea deal and imposing upon Pouncy
the highest possible within-guidelines minimum sentence of 225 months. That is
more time than Pouncy has currently served in custody, and therefore if the state
court imposed that sentence, Pouncy would remain in custody.
The Court cannot confidently conclude that if the state court proceeded to
resentence Pouncy, it would impose a sentence any less than the highest permissible
minimum sentence of 225 months. Pouncy’s carjacking and armed robbery offenses

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were serious offenses warranting serious punishment.3 Moreover, his conduct since
the time of his convictions – both while he has been in custody and during the time
that he was free on bond based upon this Court’s first grant of habeas relief – has
been troubling. He has been convicted of crimes, has committed prison disciplinary
infractions, and has been connected to an effort to suborn perjury before this Court.4
Moreover, he failed to comply with the conditions of release that this Court imposed
when it previously released him on bond. It seems likely that the state-court
probation department will learn of all of this misconduct and will report it to the state
court in an updated presentence report prepared before any resentencing.5 And
Pouncy has not convinced the Court that the state court, after considering the
seriousness of the offense and his post-conviction conduct, would impose a sentence
any less than the highest possible minimum sentence of 225 months. Simply put,

3

To be clear: the Court is not expressing any opinion concerning the length of
sentence that the state trial court should impose upon Pouncy in connection with any
resentencing. Instead, the Court is making its best effort to predict what the state
court, exercising its own independent judgment, is most likely to do.
4
Pouncy’s misconduct is well-documented in decisions issued by this Court and by
the United States Court of Appeals for the Sixth Circuit. (See, e.g., Op. and Order,
ECF No. 401, PageID.14361-14363; Pouncy v. Palmer, 993 F.3d 461, 463-64 (6th
Cir. 2021).) Moreover, while the Court granted bond to Pouncy during an earlier
appeal by Respondent, that grant of bond occurred before much of Pouncy’s
misconduct. Simply put, things have changed since this Court granted bond.
5

For the same reasons, Pouncy has not persuaded the Court that he would be granted
parole if the state court, on resentencing, imposed a sentence that made him
immediately eligible for parole. Indeed, given Pouncy’s conduct, the parole board
may well deny Pouncy parole for a long period of time.
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Pouncy has not shown that it is likely that he will be immediately released from
custody if the state court imposes sentence consistent with the terms of this Court’s
grant of habeas relief. For this reason, any delay occasioned by a stay of the relief
granted by this Court would not unduly injure Pouncy.
Second, at least to some extent, a stay will inure to Pouncy’s benefit because
it will permit him to proceed with his appeal of the portions of this Court’s Opinion
and Order that were adverse to him. Without a stay, Pouncy’s appeal may well
become moot because (1) the appeal is aimed at Pouncy’s current state-court
convictions and (2) those convictions will be vacated and replaced with a new, pleabased conviction if the state court proceedings required under this Court’s grant of
habeas relief move forward. That a stay preserves Pouncy’s ability to appeal further
persuades the Court that a stay would not substantially injure Pouncy.
E
Finally, under the last Hilton factor, the public interest favors a stay. The
public has an interest in having the Sixth Circuit hear Respondent’s appeal before
that appeal becomes moot. See Wolfe, 819 F.Supp. at 584. Indeed, a habeas
respondent’s ability to take an effective appeal from a grant of relief is “a mainstay
of [the judicial] system” in which the public has an interest. Id.6

6

The public interest calculus here is different from a case in which a grant of habeas
relief – even a conditional one – may lead to the release of a habeas petitioner. In
such a case, the public has an interest in ending the petitioner’s wrongful
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F
Pouncy argues that the Court should not stay its ruling because Respondent’s
motion for a stay is not ripe. However, the Court sees no reason to delay deciding
Respondent’s stay motion.

Deciding the motion at this point is especially

appropriate because Pouncy has filed his own motion to stay the remainder of his
sentence (ECF No. 413), and that motion (which is really one for release pending
appeal) is governed by essentially the same test from Hilton that governs
Respondent’s motion for a stay.7 It makes sense for this Court to apply that test a
single time.
G
For all of the reasons explained above, the applicable Hilton factors weigh in
favor of staying this Court’s grant of habeas relief.

Accordingly, this Court

GRANTS Respondent’s motion for a stay (ECF No. 427), and it STAYS its grant
of relief pending the final resolution of the parties’ appeals in this case.

confinement. Since (as explained above) Pouncy has not persuaded the Court that
its grant of relief is likely to lead to his immediate release, that public interest is
absent.
7

See Hilton, 481 U.S. at 775-78 (applying the same factors governing a motion for
release on bond by a successful habeas petitioner to a motion for a stay of a grant of
habeas relief); Bauberger, 702 F.Supp.2d at 592 (“The same factors that govern this
court’s inquiry as to [whether to release the successful habeas petitioner] also guide
it as to the separate issue whether to grant a stay.”); Moore, 2012 WL 2458605, at
**1-2 (explaining that a motion for stay of grant of habeas relief and a motion for
release by successful petitioner “require the court to weigh essentially the same
equitable factors.”).
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III
The Court now turns to Pouncy’s motion to stay the remainder of his sentence.
(See Pouncy Mot., ECF No. 413.) This motion is, in effect, a motion for bond
pending appeal. As noted above, such a motion is governed by the same Hilton
factors that apply to a motion to stay a grant of habeas relief. See Hilton, 481 U.S. at
775-78. For all of the reasons (explained above) that the Court has decided to grant
a stay of the relief it has ordered, the Court declines to stay the remainder of Pouncy’s
sentence and/or to grant him bond on appeal. Most importantly, Pouncy’s motion
to stay the remainder of his sentence rests upon his contention that the Court’s grant
of relief will lead to his immediate release from custody. For all of the reasons
explained above, the Court rejects that premise. Accordingly, Pouncy’s motion to
stay the remainder of his sentence (ECF No. 413) is DENIED.
IV
Finally, the Court turns to Pouncy’s Motion for Clarification and/or
Modification of the Terms of the Conditional Writ. (See Pouncy Mot., ECF No. 414.)
In that motion, Pouncy first asks the Court to clarify “the amount of time the State
has to satisfy the terms of the conditional writ.” (Id., PageID.14650.) The Court
declines to grant that relief because the Court regards the time frames set forth in the
Opinion and Order as clear and not in need of further clarification.

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In the alternative, Pouncy asks the Court to shorten the time frames within
which the State must take steps to effectuate the remedy ordered by the Court. (See
id.) This request for relief, like Pouncy’s motion to stay the remainder of his
sentence, rests upon Pouncy’s contention that the Court’s grant of habeas relief will
lead to his immediate release from custody. For all of the reasons explained above,
the Court rejects that premise. The Court therefore DENIES Pouncy’s Motion for
Clarification (ECF No. 414).
V
For all of the reasons explained above, IT IS HEREBY ORDERED as
follows:
 Respondent’s Motion for a Stay Pending Appeal (ECF No. 427) is
GRANTED;
 Pouncy’s Motion for Stay of Remainder of Sentence (ECF No. 413) is
DENIED;
 Pouncy’s Motion for Clarification and/or Modification of the Terms of
the Conditional Writ (ECF No. 414) is DENIED; and
 The relief granted in the Court’s Opinion and Order (ECF No. 401) is
STAYED pending the resolution of the parties’ appeals.
s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE
Dated: February 16, 2022

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I hereby certify that a copy of the foregoing document was served upon the
parties and/or counsel of record on February 16, 2022, by electronic means and/or
ordinary mail.
s/Holly A. Ryan
Case Manager
[phone]

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