Rogers v. Bauman

Filing 8

OPINION and ORDER DENYING re 1 Petition for Writ of Habeas Corpus, DENYING CERTIFICATE OF APPEALABILITY & GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL. Signed by District Judge Patrick J. Duggan. (MOre)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

RAYMONE ROGERS,
Petitioner,
Case No. 14-CV-11217
v.

Honorable Patrick J. Duggan

CATHERINE BAUMAN,
Respondent.
_______________________/
OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF
HABEAS CORPUS, DENYING A CERTIFICATE OF APPEALABILITY,
AND GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS ON
APPEAL
I. INTRODUCTION
Petitioner Raymone Rogers filed a pro se petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254 asserting that he is being held in violation of his
constitutional rights. Petitioner pleaded no contest to assault with intent to murder,
Mich. Comp. Laws § 750.83, armed robbery, Mich. Comp. Laws § 750.529, and two
counts of possession of a firearm during the commission of a felony, Mich. Comp.
Laws § 750.227b, in the Oakland County Circuit Court in 2011. The trial court
sentenced him to fifteen to sixty years imprisonment on the assault conviction, a
concurrent term of twelve to forty years imprisonment on the armed robbery

conviction, and two years imprisonment on each of the felony firearm convictions to
be served concurrently to each other but consecutively to his other sentences. In his
petition, he raises claims concerning the validity of his plea and the effectiveness of
defense counsel. For the reasons stated below, the Court will deny the habeas petition.
The Court will also deny a certificate of appealability, but will grant leave to proceed
in forma pauperis on appeal.
II. BACKGROUND
Petitioner’s convictions arise from his and a co-defendant’s assault and armed
robbery of another man in December 2010. During the incident, a struggle ensued and
the victim was shot multiple times but survived. Petitioner and the co-defendant fled
with the victim’s wallet and money.
Petitioner tendered his no contest plea to the charges on May 12, 2011. At the
plea hearing, Petitioner stated that he was sixteen years old, that he could read, write,
and understand English, and that he was satisfied with his defense attorney. 5/12/11
Plea Hr’g at 4. He indicated that he understood the charges against him and possible
sentences and that there was no plea bargain or sentencing agreement. Id. at 4-6.
Petitioner acknowledged the rights that he was giving up by entering his plea,
including any claim that the plea was a result of promises or threats that were not
previously disclosed to the court. Id. at 6-8. Petitioner confirmed that he wanted to
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plead no contest and that it was his own choice to do so. Id. at 8. The parties agreed
to accept the preliminary examination transcript as the factual basis for the plea. Id.
at 8-9. Petitioner also signed a written plea form. People’s Ex. 1.
On June 2, 2011, the trial court conducted a sentencing hearing and sentenced
Petitioner to the terms of imprisonment previously set forth.
Following his plea and sentencing, Petitioner filed a motion for evidentiary
hearing and to withdraw his plea with the trial court, asserting that his plea was not
knowing, intelligent, and involuntary because he was advised by defense counsel that
his minimum sentence would be no more than twelve years rather than the fifteen
years he was given, that the trial court failed to inquire whether he was premised
anything as required by state court rules, and that defense counsel was ineffective for
misadvising him about his sentences. The trial court conducted a hearing on February
1, 2012 and denied the motion, finding that Petitioner explicitly acknowledged at the
plea hearing that the court made no promises about his sentences and that he would
be giving up any claim that the plea was the result of promises or threats that were not
disclosed to the court. 2/1/12 Mot. Hr’g at 5-6.
Petitioner filed a delayed application for leave to appeal with the Michigan
Court of Appeals, asserting that his plea was not knowing and voluntary and that trial
counsel was ineffective. The Michigan Court of Appeals denied leave to appeal for
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lack of merit in the grounds presented. People v. Rogers, No. 310558 (Mich. Ct. App.
July 11, 2012) (unpublished). Petitioner filed an application for leave to appeal with
the Michigan Supreme Court raising the same claims, which was denied in a standard
order. People v. Rogers, 493 Mich. 919, 823 N.W.2d 598 (2012).
Petitioner thereafter filed the present habeas petition, raising the following
claim:
He was denied his federal constitutional right to due process of law when
the state trial court denied his motion to withdraw his no contest plea
because the plea was not voluntarily, knowingly and intelligently made.
Alternatively, he was deprived of his Sixth Amendment right to the
effectiveness of counsel in making the plea.
Respondent has filed an answer to the petition, contending that it should be denied for
lack of merit.
III. ANALYSIS
Review of this case is governed by the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”). Under the AEDPA, Petitioner 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.
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28 U.S.C. § 2254(d). Simply stated, under § 2254(d), Petitioner must show that the
state court’s decision “was either contrary to, or an unreasonable application of, [the
Supreme] Court’s clearly established precedents, or was based upon an unreasonable
determination of the facts.” Price v. Vincent, 538 U.S. 634, 639, 123 S. Ct. 1848,
1852-53 (2003).
A state court’s decision 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, 412-13, 120 S. Ct. 1495, 1523 (2000).

A state court’s decision is an

“unreasonable application of” clearly established federal law “if the state court
identifies the correct governing legal principle from [the Supreme] Court’s decisions
but unreasonably applies that principle to the facts of the prisoner’s case.” Id.
“[A] federal habeas court making the ‘unreasonable application’ inquiry should
ask whether the state court’s application of clearly established federal law was
objectively unreasonable.” Id. at 409, 120 S. Ct. at 1521. “[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, 120 S. Ct. at 1522. “Rather, it is the habeas
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applicant’s burden to show that the state court applied [Supreme Court precedent] to
the facts of his case in an objectively unreasonable manner.” Woodford v. Visciotti,
537 U.S. 19, 25, 123 S. Ct. 357, 360 (2002).
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, 130 S. Ct. 1855, 1862 (2010) (quoting
cases). “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, 131 S. Ct. 770, 786
(2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S. Ct. 2140, 2149
(2004)). The Supreme Court has emphasized that it “bears repeating 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, 123 S. Ct. 1166,
1174-75 (2003)).
Lastly, a state court’s factual determinations are presumed correct on federal
habeas review.

28 U.S.C. § 2254(e)(1).

A habeas petitioner may rebut this

presumption only with clear and convincing evidence. 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, 563 U.S. 170, __, 131 S. Ct. 1388,
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1398 (2011).
In this case, the state trial court denied Petitioner’s motion to withdraw his plea,
finding that he explicitly acknowledged at the plea hearing that the court made no
promises about his sentences and that he would be giving up any claim that the plea
was a result of undisclosed promises or threats. 2/1/12 Mot. Hr’g at 5-6. The state
appellate courts both denied leave to appeal. Having reviewed the matter, and for the
reasons that follow, the Court concludes that the state courts’ denial of relief is neither
contrary to Supreme Court precedent nor an unreasonable application of federal law
or the facts.1
Petitioner first asserts that he is entitled to habeas relief because the trial court
erred in denying his motion to withdraw his no contest plea. Petitioner contends that
his plea was not voluntary, knowing, and intelligent because he was advised that his
minimum sentence would be twelve years imprisonment rather than the fifteen years
he was given.
As an initial matter, the Court notes that Petitioner is not entitled to relief on
any claim that the state trial court abused its discretion in refusing to allow him to
withdraw his plea. Such a claim is not cognizable on habeas review because it is a
state law claim. A criminal defendant has no federal constitutional right, or

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The Court would reach the same result under a de novo standard of review.
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absolute right under state law, to withdraw a knowing, intelligent, and voluntary plea.
Chene v. Abramajtys, 76 F.3d 378, 1996 WL 34902, *2 (6th Cir. 1996) (table).
Consequently, “the decision to permit a defendant to withdraw a plea invokes the trial
court’s discretion. A trial court’s abuse of discretion generally is not a basis for
habeas corpus relief.” Adams v. Burt, 471 F. Supp. 2d 835, 843 (E.D. Mich. 2007)
(internal citations omitted); see also Hoffman v. Jones, 159 F. Supp. 2d 648, 655 (E.D.
Mich. 2001). Federal habeas courts have no authority to correct perceived errors of
state law. Estelle v. McGuire, 502 U.S. 62, 67-58, 112 S. Ct. 475, 480 (1991); Serra
v. Mich. Dep’t of Corr., 4 F.3d 1348, 1354 (6th Cir. 1993). Habeas relief is thus not
warranted on such a basis.
The bulk of Petitioner’s argument is that his no contest plea was not voluntary,
knowing, and intelligent because he was misadvised about the sentencing
consequences of his plea. A plea is voluntary if it is not induced by threats or
misrepresentations and the defendant is made aware of the direct consequences of the
plea. Brady v. United States, 397 U.S. 742, 755, 90 S. Ct. 1463, 1472 (1970). The
voluntariness of a plea “can be determined only by considering all of the relevant
circumstances surrounding it.” Id. at 749, 90 S. Ct. at 1469. The plea is intelligent
and knowing where there is nothing to indicate that the defendant is incompetent or
otherwise not in control of his or her mental faculties, is aware of the nature of the
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charges, and is advised by competent counsel. Id. at 756, 90 S. Ct. at 1473. The plea
must be made “with sufficient awareness of the relevant circumstances and likely
consequences.” Id. at 748, 90 S. Ct. at 1469.
The state court record reveals that Petitioner’s plea was voluntary, knowing,
and intelligent. Petitioner was sixteen years old at the time of his plea and could read
and write. There is no evidence that he suffered from any physical or mental problems
that would have impaired his ability to understand the criminal proceedings or the
nature of his plea. The record reveals that he responded appropriately to the court’s
questions at the plea hearing, and no one at the hearing, including Petitioner himself,
indicated that he was unable to understand the proceedings. The record further
indicates that Petitioner was represented by legal counsel and conferred with counsel
during the plea process. The state court advised Petitioner of his trial rights and the
fact that he would be giving up those rights – including his right to claim that his pleas
was the product of any promises or threats not disclosed to the court – by pleading no
contest. The court discussed the charges and maximum sentences, as well as the fact
that there was no plea bargain or sentencing agreement. Petitioner indicated that he
understood the plea and that he was pleading no contest of his own free will. He also
signed a written plea form. Petitioner has not shown that his no contest plea was
involuntary, unknowing, or unintelligent.
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The fact that he was subsequently

dissatisfied with his plea or sentence and may have hoped for more lenient treatment
does not render his plea unknowing or involuntary. See Brady, 397 U.S. at 757, 90
S. Ct. at 1473-74.
Petitioner also seems to assert that he is entitled to habeas relief because the
trial court failed to engage in a proper plea colloquy under Michigan law because the
court did not specifically ask him whether any promises or threats had been made to
him to induce his plea. Any such claim, however, is not cognizable on federal habeas
review because it is a state law claim. See, e.g., Riggins v. McMackin, 935 F.2d 790,
795 (6th Cir. 1991) (ruling that district court erred in granting habeas relief on claim
that plea colloquy failed to conform to state rules). State courts are the final arbiters
of state law and federal courts will not intervene in such matters. Lewis v. Jeffers, 497
U.S. 764, 780, 110 S. Ct. 3092, 3102 (1990). Habeas relief is not warranted on such
a basis.
Lastly, Petitioner asserts that defense counsel was ineffective for misadvising
him about the sentencing consequences of his plea. Specifically, Petitioner alleges
that he was led to believe his minimum sentence would be no more than twelve years
imprisonment rather than the fifteen years he received. The Supreme Court has set
forth a two-part test for evaluating the claim of a habeas petitioner who is challenging
a plea on the ground that he or she was denied the Sixth Amendment right to the
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effective assistance of counsel. First, the petitioner must establish that “counsel’s
representation fell below an objective standard of reasonableness.” Hill v. Lockhart,
474 U.S. 52, 57-58, 106 S. Ct. 366, 369 (1985) (quoting Strickland v. Washington,
466 U.S. 668, 688, 104 S. Ct. 2052, 2065 (1984)). To demonstrate that counsel’s
performance fell below this standard, a petitioner must overcome the “strong
presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance.” Strickland, 466 U.S. at 689, 104 S. Ct. at 2065.
Second, the petitioner must also show that counsel’s performance resulted in
prejudice, i.e., “that there is a reasonable probability that, but for counsel’s errors,
[he/she] would not have pleaded guilty and would have insisted on going to trial.”
Hill, 474 U.S. at 59, 106 S. Ct. at 370. The Supreme Court has explained that “[i]n
many guilty plea cases, the ‘prejudice’ inquiry will closely resemble the inquiry
engaged in by courts reviewing ineffective-assistance challenges to convictions
obtained through a trial.” Id. The Supreme Court has emphasized that “these
predictions of the outcome at a possible trial, where necessary, should be made
objectively, without regard for the ‘idiosyncracies of the particular decisionmaker.’”
Id. at 59-60, 106 S. Ct. at 371 (quoting Strickland, 466 U.S. at 695, 104 S. Ct. at
2068).
The Supreme Court has confirmed that a federal court’s consideration of
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ineffective assistance of counsel claims arising from state criminal proceedings is
quite limited on habeas review due to the deference accorded trial attorneys and state
appellate courts reviewing their performance. “The standards created by Strickland
and § 2254(d) are both ‘highly deferential,’ and when the two apply in tandem, review
is ‘doubly’ so.” Harrington, 131 S. Ct. at 788 (internal and end citations omitted).
“When § 2254(d) applies, the question is not whether counsel’s actions were
reasonable. The question is whether there is any reasonable argument that counsel
satisfied Strickland’s deferential standard.” Id. The Supreme Court has also
emphasized the extraordinary deference to be afforded trial counsel in plea bargaining.
See Premo v. Moore, 562 U.S. 115, 125, 131 S. Ct. 733, 741 (2011) (stating that
“strict adherence to the Strickland standard [is] all the more essential when reviewing
the choices an attorney made at the plea bargain stage”); see also Bray v. Andrews,
640 F.3d 731, 738 (6th Cir. 2011) (citing Premo).
The record does not support Petitioner’s claim that defense counsel misadvised
him about his sentences. At the plea hearing, the trial court informed Petitioner that
he faced maximum sentences of life imprisonment on the assault and armed robbery
charges and a consecutive term of two years imprisonment on the felony firearm
charges. The court also confirmed that there was no plea bargain or sentencing
agreement. Even assuming that defense counsel believed that Petitioner’s minimum
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sentence would be twelve years imprisonment, there is no indication that counsel
guaranteed that Petitioner would receive such a sentence, or any specific sentence.
Moreover, even if Petitioner was misinformed by counsel, he is not entitled to
habeas relief. A trial court’s proper plea colloquy cures any misunderstandings that
a defendant may have about the consequences of a plea. Ramos, 170 F.3d at 565;
Boyd v. Yukins, 99 F. App’x 699, 703 (6th Cir. 2004). The trial court conducted a
sufficient colloquy as to the sentencing consequences of the plea. The court reviewed
the charges and the maximum sentences. The court verified that there was no plea
bargain and no sentencing agreement. In advising Petitioner of the rights that he
would be giving up by entering his plea, the court specifically advised Petitioner
would be giving up any claim that his plea was the product of any undisclosed
promises or threats. Petitioner raised no objection or concern at the time of his plea
or sentencing. He fails to establish that his no contest plea is invalid. Any claim that
he pleaded no contest based upon a promise that his minimum sentence would be
twelve years imprisonment is unsupported by the record.
As aptly stated by the Sixth Circuit when faced with a challenge to a plea
bargain based upon alleged off-the-record statements:
If we were to rely on [the petitioner’s] alleged subjective impression
rather than the record, we would be rendering the plea colloquy process
meaningless, for any convict who alleges that he believed the plea
bargain was different from that outlined in the record could withdraw his
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plea, despite his own statements during the plea colloquy . . . indicating
the opposite. This we will not do, for the plea colloquy process exists in
part to prevent petitioners . . . from making the precise claim that is today
before us. ‘[W]here the court has scrupulously followed the required
procedure, the defendant is bound by his statements in response to that
court’s inquiry.’
Ramos, 170 F.3d at 566 (quoting Baker v. United States, 781 F.2d 85, 90 (6th Cir.
1986)). Petitioner has not shown that defense counsel misadvised him about the
sentencing consequences of his plea. He thus fails to establish that counsel was
ineffective under the Strickland/Hill standard. Habeas relief is not warranted.
IV. CONCLUSION
For the reasons stated, the Court concludes that Petitioner is not entitled to
federal habeas relief on his claims and the petition must be denied.
Before Petitioner may appeal the Court’s decision, a certificate of appealability
must issue. See 28 U.S.C. § 2253(c)(1)(a); Fed. R. App. P. 22(b). A certificate of
appealability may issue “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 district court denies
habeas relief on the merits, the substantial showing threshold is met if the petitioner
demonstrates that reasonable jurists would find the court’s assessment of the
constitutional claim debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484-85,
120 S. Ct. 1595, 1604 (2000). “A petitioner satisfies this standard by demonstrating
that . . . jurists could conclude the issues presented are adequate to deserve
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encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327, 123 S.
Ct. 1029, 1034 (2003). In applying this standard, a court may not conduct a full
merits review, but must limit its examination to a threshold inquiry into the underlying
merit of the claims. Id. at 336-37. The Court concludes that Petitioner fails to make
a substantial showing of the denial of a constitutional right as to his habeas claims.
A certificate of appealability is not warranted in this case nor should Petitioner be
granted leave to proceed in forma pauperis on appeal, as an appeal cannot be taken
in good faith. See FED. R. APP. P. 24(a).
Accordingly, the Court DENIES and DISMISSES WITH PREJUDICE the
petition for a writ of habeas corpus. The Court also DENIES a certificate of
appealability and DENIES leave to proceed in forma pauperis on appeal.
SO ORDERED.

s/PATRICK J. DUGGAN
UNITED STATES DISTRICT JUDGE
Dated: September 2, 2015
Copies to:
Raymone Rogers
Laura Moody, Esq.
Raina I. Korbakis, Esq.

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