Martinez v. McKee
Filing
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OPINION and ORDER Denying 1 Petition for Writ of Habeas Corpus, Denying Certificate of Appealability and Granting Permission to Appeal in Forma Pauperis. Signed by District Judge Paul D. Borman. (DTof)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ROBERT MARTINEZ,
Petitioner,
Case No. 2:14-cv-13106
Hon. Paul D. Borman
v.
KENNETH McKEE,
Respondent.
___________________________________/
OPINION AND ORDER (1) DENYING PETITION FOR WRIT OF HABEAS
CORPUS, (2) DENYING CERTIFICATE OF APPEALABILITY, AND (3)
GRANTING PERMISSION TO APPEAL IN FORMA PAUPERIS
This is a habeas case filed by a Michigan prisoner under 28 U.S.C. § 2254.
Petitioner Robert Martinez was convicted after he pled guilty in the Wayne Circuit Court
to one count of first-degree criminal sexual conduct, MICH. COMP. LAWS
§750.520b(2)(b), and one count of second-degree criminal sexual conduct. MICH. COMP.
LAWS §750.520c(2)(b). Petitioner was sentenced under the terms of the plea agreement to
concurrent terms of 25-to-40 and 1-to-15 years imprisonment. The petition raises a single
claim: the promise to be sentenced to concurrent terms rendered Petitioner’s plea bargain
illusory because he never faced the possibility of being sentenced to consecutive terms.
The Court finds that Petitioner’s claim is without merit. Therefore, the petition will be
denied. The Court will also deny Petitioner a certificate of appealability, but it will grant
him permission to proceed on appeal in forma pauperis.
I. Background
Petitioner was accused of sexually assaulting a nine-year-old child and an eightyear-old child. The children were unrelated, and the incidents were alleged to have
occurred at different times and locations. With respect to the nine-year-old child, the
prosecutor charged Petitioner with one count of first-degree criminal sexual conduct and
three counts of second-degree criminal sexual conduct. With respect to the eight-year-old
child, the prosecutor initiated a separate case, and he charged Petitioner with three counts
of second-degree criminal sexual conduct.
At an arraignment hearing held on August 2, 2012, the prosecutor made a plea
offer to resolve both cases. The prosecutor agreed to drop the three counts of seconddegree criminal sexual conduct in the first case if Petitioner pled guilty to the one count of
first-degree criminal sexual conduct, and he agreed to drop two of the second-degree
criminal sexual conduct charges in the second case if Petitioner pled guilty to one count
of second-degree criminal sexual conduct. The offer included a sentence agreement of 25to-40 years in the first case to run concurrently with a sentence of 45 months-to-15 years
in the second case. The prosecutor also stated that there were pending investigations
regarding Petitioner sexually assaulting additional children, and Petitioner would face no
additional time for any charges arising out of those investigations if he accepted the plea
agreement. Petitioner rejected the plea offer.
During trial in the first case, the victim testified that Petitioner sexually penetrated
her vagina with his penis when she was nine years old. The victim also testified that
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Petitioner put his hand on her “privates” and inserted his finger into her vagina on more
than three other occasions.
At the start of the fourth day of trial, Petitioner indicated that he wanted to change
his plea and accept the plea bargain. The prosecutor then placed a modified offer on the
record. Under the new offer, Petitioner would plead guilty to one count of first-degree
criminal sexual conduct in the first case and one count of second-degree criminal sexual
conduct in the second case. In exchange, the prosecutor would dismiss the remaining
counts in both cases and would not pursue additional charges regarding a third
complainant. The plea bargain included an agreement for Petitioner to serve concurrent
sentences of 25-to-40 and 1-to-15 years for the two convictions. Both the prosecutor and
the trial court made representations that if Petitioner was convicted as charged after trial,
he faced the possibility of receiving consecutive sentences.
The Petitioner was placed under oath, and he indicated his desire to enter into the
plea agreement. The trial court advised Petitioner of the trial rights he would be waiving
by entering his plea, and he indicated his understanding and willingness to do so.
Petitioner was informed of the maximum penalty for each offense. Petitioner stated that
he understood the terms of the agreement and that no other promises or threats were made
to him to induce his plea other than those placed on the record. Petitioner then testified to
sexually penetrating the victim in the first case and to committing a sexual touching in the
second case. The trial court accepted the plea.
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On November 2, 2012, the trial court sentenced Petitioner in accordance with the
terms of the sentencing agreement.
Following his conviction and sentence, Petitioner filed a delayed application for
leave to appeal in the Michigan Court of Appeals, raising the following claim:
I. Appellant is entitled to plea withdrawal where the promise for concurrent
sentencing created an illusory plea agreement violating his constitutional
due process rights.
The Michigan Court of Appeals affirmed, stating that the delayed application for
leave to appeal was denied “for lack of merit in the grounds presented.” People v.
Martinez, No. 318414 (Mich. Ct. App. Dec. 11, 2013). Petitioner filed an application for
leave to appeal in the Michigan Supreme Court, raising the same claim as well as an
additional five claims not included in the present action. The Michigan Supreme Court
denied the application because it was not persuaded that the questions presented should
be reviewed by the Court. People v. Martinez, 846 N.W.2d 556 (Mich. 2014) (Table).
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–
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(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 state court adjudication is “contrary to” Supreme Court precedent under §
2254(d)(1) “if the state court applies a rule that contradicts the governing law set forth in
[Supreme Court] cases” or “if the state court confronts a set of facts that are materially
indistinguishable from a decision [of the Supreme Court] and nevertheless arrives at a
[different result].” Lockyer v. Andrade, 538 U.S. 63, 73 (2003) (internal quotation marks
omitted).
Under the “unreasonable application” clause of § 2254(d)(1),
even clear error will not suffice. Rather, as a condition for obtaining habeas
corpus from a federal court, a state prisoner must show that the state court’s
ruling on the claim being presented in federal court was so lacking in
justification that there was an error well understood and comprehended in
existing law beyond any possibility for fairminded disagreement.
White v. Woodall, ___ U.S. ___, 134 S. Ct. 1697, 1702, 188 L. Ed. 2d 698 (2014)
(citations, quotation marks, and alterations omitted).
“When reviewing state criminal convictions on collateral review, federal judges
are required to afford state courts due respect by overturning their decisions only when
there could be no reasonable dispute that they were wrong.” Woods v. Donald, ___ U.S.
___, 135 S. Ct. 1372, 1376, 191 L. Ed. 2d 464 (2015). “Federal habeas review thus exists
as ‘a guard against extreme malfunctions in the state criminal justice systems, not a
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substitute for ordinary error correction through appeal.’” Id. (quoting Harrington v.
Richter, 562 U.S. 86, 102-03 (2011)). “[W]hether the trial judge was right or wrong is not
the pertinent question under AEDPA.” Renico v. Lett, 559 U.S. 766, 778 n.3 (2010). The
question is whether the state court’s application of federal law was “objectively
unreasonable.” White, 134 S. Ct. at 1702. In short, the standard for obtaining federal
habeas relief is “difficult to meet . . . because it was meant to be.” Burt v. Titlow, ___ U.S.
___, 134 S. Ct. 10, 16, 187 L. Ed. 2d 348 (2013)(internal quotation marks omitted).
III. Analysis
Petitioner’s sole habeas claim asserts that his plea was involuntary because he
never faced the possibility of receiving consecutive sentences, rendering the promise to
be sentenced to concurrent terms an illusory benefit. Petitioner notes that when the
prosecutor made its initial plea offer at the arraignment, he stated that Petitioner faced the
prospect of consecutive sentences if he was convicted of multiple counts of criminal
sexual conduct. The possibility of receiving consecutive sentences was mentioned again
at the plea hearing by both the prosecutor and trial court.
Under clearly established Supreme Court law, the test for determining a guilty
plea’s validity is “‘whether the plea represents a voluntary and intelligent choice among
the alternative courses of action open to the defendant.’” Hill v. Lockhart, 474 U.S. 52, 56
(1985) (quoting North Carolina v. Alford, 400 U.S. 25, 31 (1970)); Boykin v. Alabama,
395 U.S. 238, 242-43 (1969). Courts assessing whether a defendant’s plea is valid look to
“all of the relevant circumstances surrounding it.” Brady v. United States, 397 U.S. 742,
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749 (1970).
The plea must be entered “voluntarily,” and it must not be the product of “actual or
threatened physical harm, or . . . mental coercion overbearing the will of the defendant”
or of state-induced emotions so intense that the defendant was rendered unable to weigh
rationally his options with the help of counsel. Brady, 397 U.S. at 750; Machibroda v.
United States, 368 U.S. 487, 493 (1962) (“A guilty plea, if induced by promises or threats
which deprive it of the character of a voluntary act, is void.”). The defendant must
understand the consequences of his plea, including the magnitude of the sentence he is
facing and the nature of the constitutional protections he is waiving. Brady, 397 U.S. at
755; Machibroda, 368 U.S. at 493 (“Out of just consideration for persons accused of
crime, courts are careful that a plea of guilty shall not be accepted unless made
voluntarily after proper advice and with full understanding of the consequences.”)
(internal quotations and citation omitted). If a prosecutor’s promise is illusory, then a plea
is involuntary and unknowing. United States v. Randolph, 230 F.3d 243, 250-51 (6th Cir.
2000).
When a state defendant brings a federal habeas petition challenging the
voluntariness of his plea, the state generally satisfies its burden of showing a voluntary
and intelligent plea by producing a transcript of the state-court proceeding. Garcia v.
Johnson, 991 F.2d 324, 326 (6th Cir. 1993); see also McAdoo v. Elo, 365 F.3d 487, 494
(6th Cir. 2004) (citing Garcia, 991 F.2d at 326). Where the transcript is adequate to show
that the plea was voluntary and intelligent, a presumption of correctness attaches to the
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state court findings of fact and to the judgment itself. Id. A satisfactory state-court
transcript, containing findings after a proper plea colloquy, places upon petitioner a
“heavy burden” to overturn the state findings. Id. at 328.
Petitioner’s claim fails because it is based on the false premise that he never faced
the possibility of receiving consecutive sentences. Under Michigan law, “concurrent
sentencing is the norm,” and a “consecutive sentence may be imposed only if specifically
authorized by statute.” People v. Brown, 220 Mich. App. 680, 682 (1996). Michigan law
provides that a sentence for a first-degree criminal sexual conduct conviction may be
imposed to be “served consecutively to any term of imprisonment imposed for any other
criminal offense arising from the same transaction.” MICH. COMP. LAWS § 750.520b(3).
Michigan Courts have interpreted this section as allowing consecutive sentences when
multiple acts of criminal sexual misconduct “sprang one from the other and had a
connective relationship that was more than incidental.” People v. Ryan, 295 Mich. App.
388, 403 (2012).
Here, the victim’s trial testimony provided a basis for consecutive sentencing
under this statutory section. During trial, the victim testified that Petitioner touched her
vagina under her underwear every time he came over. Trial Tr. 10/16/12, pp. 40-42, 46,
69. During one of these visits Petitioner went on to put his penis inside of her vagina. Id.
at 48-54, 65-66, 69. This testimony provided a sufficient factual basis to warrant
consecutive sentencing because there was a connective relationship between Petitioner’s
acts of first and second-degree criminal sexual conduct with the victim occurring during
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the same criminal transaction that was more than incidental. Petitioner both touched the
victim’s genitalia with his hand and then penetrated her vagina with his penis during the
same criminal transaction. The representation that Petitioner faced the possibility of
consecutive sentences if convicted as charged was therefore not false, and it did not
render the promised benefit of receiving concurrent sentences illusory.
Accordingly, the Court finds that the state court adjudication of Petitioner’s claim
was not contrary to, and did not involve in unreasonable application of, clearly
established Supreme Court law. Petitioner has therefore failed to demonstrate entitlement
to habeas relief under § 2254(d), and the petition will be 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, which was amended as of December 1,
2009, requires that a district court must “issue or deny a certificate of appealability when
it enters a final order adverse to the applicant. . . . If the court issues a certificate, the court
must state the specific issue or issues that satisfy the showing required by 28 U.S.C. §
2253(c)(2).” Rule 11, Rules Governing Section 2254 Proceedings.
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).
Courts must either issue a certificate of appealability indicating which issues satisfy the
required showing or provide reasons why such a certificate should not issue. 28 U.S.C. §
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2253(c)(3); Fed. R. App. P. 22(b); In re Certificates of Appealability, 106 F.3d 1306,
1307 (6th Cir. 1997). To receive a certificate of appealability, “a petitioner must show
that reasonable jurists could debate whether (or, for that matter, 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.” Miller-El v. Cockrell, 537 U.S.
322, 336 (2003) (internal quotes and citations omitted).Here, jurists of reason would not
debate the Court’s conclusion that Petitioner has not met the standard for a certificate of
appealability given that his claim is based on the false premise that he never faced the
possibility of receiving consecutive sentences. Therefore, the Court denies a certificate
of appealability.
The Court will, however, grant permission to appeal in forma pauperis because any
appeal of this decision could be taken in good faith. 28 U.S.C. § 1915(a)(3).
V. Conclusion
Accordingly, the Court 1) DENIES WITH PREJUDICE the petition for a writ of
habeas corpus, 2) DENIES a certificate of appealability, and 3) GRANTS permission to
appeal in forma pauperis.
SO ORDERED.
s/Paul D. Borman
PAUL D. BORMAN
UNITED STATES DISTRICT JUDGE
Dated: November 13, 2015
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CERTIFICATE OF SERVICE
The undersigned certifies that a copy of the foregoing order was served upon each
attorney or party of record herein by electronic means or first class U.S. mail on
November 13, 2015.
s/Deborah Tofil
Case Manager
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