West v. Berghuis
MEMORANDUM OPINION and ORDER Denying 1 Petition for Writ of Habeas Corpus, Granting a Certificate of Appealability, and Granting Permission to Appeal In Forma Pauperis. Signed by District Judge Arthur J. Tarnow. (CPic)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case No. 15-11218
Hon. Arthur J. Tarnow
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS
CORPUS, GRANTING A CERTIFICATE OF APPEALABILITY, AND
GRANTING PERMISSION TO APPEAL IN FORMA PAUPERIS
Petitioner Anthony West filed this application for a writ of habeas corpus pursuant to
28 U.S.C. § 2254. Petitioner was convicted after he pled guilty in the Wayne Circuit Court
to second-degree, MICH. COMP. LAWS § 750.317, and possession of a firearm during the
commission of a felony, MICH. COMP. LAWS § 750.227b. In accordance with his plea
agreement Petitioner was sentenced to 20 to 40 years for the murder conviction and a
consecutive 2 years for the firearm offense.
The petition enumerates six claims: 1) Petitioner was denied the effective assistance
of appellate counsel who failed to file a direct appeal, 2) appellate counsel failed to provide
Petitioner with discovery materials, 3) Petitioner was denied the effective assistance of trial
counsel who failed to investigate and pursue a self-defense or accident defense, 4) the state
court erroneously rejected Petitioner’s ineffective assistance of trial counsel claim on the
basis that his guilty plea waived review, 5) Petitioner’s plea was involuntary due to his
counsel’s ineffectiveness, and 6) Petitioner’s trial counsel was ineffective for revealing
confidential calls he made from jail.
The Court will deny the petition because the claims are without merit. The Court will,
however, grant Petitioner a certificate of appealability and grant Petitioner permission to
proceed on appeal in forma pauperis.
This case involves the April 15, 2009, fatal shooting of Brian Garner. Petitioner was
originally charged with first-degree murder, possession of a firearm by a felon, commission
of a felony with a firearm, and with being a third-time habitual felony offender.
A preliminary examination was held two weeks after the shooting. The parties
stipulated that the victim died from a single gunshot wound to the back. Jasmine Godboldo
testified she was the victim’s fiancé. Misha Starks was Godboldo’s mother, and Petitioner
was Starks’ boyfriend. The four resided together at a house on Evergreen in Detroit.
Godboldo testified at the preliminary hearing that on the evening of April 15, 2009,
Petitioner and Garner engaged in a verbal altercation after Petitioner accused Starks of
cheating on him. Garner escorted Petitioner from the house, and the two continued to argue
outside. Garner was not armed.
According to Godboldo, when Petitioner and Garner reached the sidewalk Petitioner
said, “I’m not a punk ass nigga” and pulled out a handgun. Dkt. 9-2, at 13. Garner jumped
back and held his hands in the air. Id., at 16. Petitioner then pointed the gun at Garner and
fired it five times. Petitioner ran away from the scene. 9-1-1 was called, but Garner died of
On cross-examination, retained counsel, Robert Slameka, elicited testimony that
Petitioner and Starks frequently fought, and Petitioner was previously thrown-out of the
house. Godboldo admitted that she saw Garner push Petitioner just before Petitioner pulled
out the gun. Counsel noted that in her statement to police Godboldo said she only heard three
shots, not five. Godboldo explained that she initially told police that Petitioner first fired
three shots, ran, then turned around and fired two more shots. She testified at the hearing that
there was no pause in the shots and her statement to police was mistaken.
At a pretrial hearing held on August 14, 2009, defense counsel indicated that the
prosecutor offered a plea bargain to second-degree murder and felony-firearm, with a
sentence agreement of “23 years plus 2,” but Petitioner declined the offer. Defense counsel
complained that Petitioner had made numerous phone calls to a primary witness “with an
attempt to massage testimony.” Dkt. 9-6, at 4. The prosecutor provided the taped phone
conversations to defense counsel, and defense counsel indicated his frustration with
Petitioner’s conduct: “The real problem with this case now, is this, my client is claiming it’s
either self-defense or accident. There are no witnesses that support that. Meaning, he would
be the only one who could testify to that. Obviously, his testimony is going to be impeached
dramatically by what he said that’s recorded.” Id., at 4. “And I’ve tried, Judge, honestly, to
help him. It’s impossible.” Id., at 5.
At that point Petitioner personally addressed the court, stating that he did not think he
said anything wrong on the phone to the witness. Petitioner also complained that he had not
had an opportunity to go over the discovery packet. Id., at 6. Counsel responded: “I sat in the
jail with him and read to him, verbatim, every period, every sentence, every word of every
witness report. I did that. . . . He has one witness, a Ms. Skinner, who is going to be the
greatest witness in the world. Unfortunately, it doesn’t help him, and I’ve read that to him
and said, here it is. So when he says he hasn’t had a chance to know what the witnesses say,
that’s utterly false.” Id., at 6-7. Petitioner maintained that he did not know what was in the
discovery packet. Id., at 7.
Three days later, on August 17, 2009, another pretrial hearing was held. Defense
counsel indicated that the prosecutor would not reduce his plea offer, and Petitioner indicated
his desire to go to trial instead. Dkt. 9-7, at 1. Petitioner believed that a better offer was
forthcoming, but defense counsel indicated that the prosecutor stated that he would not make
a better offer. Id., at 2. The matter was then set for trial to begin on October 5, 2009.
On the date set for trial, a plea bargain was finally struck. Dkt. 9-8. Petitioner was
placed under oath. The Court informed Petitioner that he was charged with first-degree
murder which carried a sentence of life imprisonment. Id., at 6. The Court indicated that the
plea agreement called for him to plead guilty to second-degree murder with a sentence of 20
to 40 years plus 2 years for the firearm offense. Id., at 6. Petitioner indicated his
understanding. The Court informed Petitioner of the rights he would be waiving by entering
his plea, and he indicated his understanding. Id., at 7-8. Petitioner agreed that his plea was
not the result of promises or threats not disclosed to the court. Id., 7.
Petitioner then testified that on April 15, 2009, he shot Brian Garner with a gun. Id.,
at 8. Petitioner testified that he did so with the intent to kill him or cause great bodily harm.
Id., at 9. The court found that Petitioner’s plea was knowingly, voluntarily, and
understandingly made. Id., at 10.
At the sentencing hearing, Petitioner indicated his remorse for killing the victim. Dkt.
9-9, at 11-12. He also indicated that the victim attacked him and that the shooting was an
accident. Id., at 12.
Petitioner was appointed appellate counsel who missed the deadline for filing a
motion to withdraw the plea. Instead, on October 20, 2010, appellate counsel filed a motion
for relief from judgment, asserting that Petitioner was deprived of the effective assistance of
counsel when counsel failed to investigate and present a self-defense or accident defense
instead of threatening him that he would be convicted of first-degree murder if he did not
The trial court denied the motion by order dated May 16, 2011, Dkt. 9-11. The court
found that Petitioner’s claims were without merit because Petitioner’s plea was voluntarily,
knowingly, and understandingly made. Id., at 4. The court further found that Petitioner had
failed to demonstrate that his counsel was ineffective. Id., at 4.
On April 19, 2012, Petitioner filed a delayed application for leave to appeal in the
Michigan Court of Appeals. On September 19, 2012, the Michigan Court of Appeals denied
the delayed application. Petitioner then filed an application for leave to appeal with the
Michigan Supreme Court. On October 28, 2013, the Michigan Supreme Court remanded the
matter back to the Michigan Court of Appeals for reconsideration under the standard
applicable to direct appeals. The Michigan Supreme Court noted that Petitioner’s appellate
counsel had failed to timely file a motion to withdraw the plea, and failed to file a timely
appeal in the Michigan Court of Appeals, depriving Petitioner of his direct appeal as a result
of constitutionally ineffective assistance of appellate counsel. People v. West, 838 N.W.2d
559 (Mich. Sup. Ct. Oct. 28, 2013).
On December 5, 2013, the Michigan Court of Appeals issued an unpublished opinion
denying Petitioner’s application for leave to appeal, finding in part that Petitioner’s valid
guilty plea waived his claim of ineffective assistance of counsel. People v. West, 2013 WL
6633985 (Mich. Ct. App. Dec. 5, 2015). Petitioner then filed an application for leave to
appeal in the Michigan Supreme Court, but it was denied by standard order. People v. West,
847 N.W.2d 628 (Mich. Sup. Ct. June 24, 2014).
Petitioner then commenced the present action. The Court appointed Petitioner counsel
and ordered discovery. Counsel for Petitioner filed a supplemental brief, supported by police
reports and other materials available to defense counsel prior to trial proceedings. Dkt. 17.
Among the items submitted is a statement made by Andrea Skinner to police on May
3, 2009. Id., Exhibit A, at 1. Skinner told police that she was sitting in her car which was
parked next door to the scene of the shooting. She saw the two men arguing for about three
minutes. Skinner told police:
Then the guy that got shot started walking back towards the house but the
shooter said something to him that made him turn around again and confront
the shooter. . . . They had a couple more words then the victim grabbed the
shooter by the collar with both hands and was pushing him towards Evergreen.
The victim was saying “can’t no body fuck with me.” They got to the body
(sic?) of their driveway and on to my grass. Then the victim let him go. He
takes a step back. Then the shooter pulls out a gun. The victim had his hands
up out to his sides. The shooter fires the gun three times. After the third shot
I got out of my truck and ran to the backyard of my house and called 911.
Then I came back to the front and saw the shooter just standing still over the
victim. After around twenty seconds the shooter ran towards Seven Mile.
Id., at 1.
Skinner also told police that she never saw the victim with a weapon. Id., at 2. She
said the only time the victim assaulted the shooter was when he had him by the collar and
“was shaking him.” “It was like the victim was playing with a doll.” Id., She saw Petitioner
aim the gun at the victim’s mid-section. Id.
Petitioner also made a statement to police. Id., Exhibit B. Petitioner told police the
victim pushed him to the ground, picked him up, and shook him. Petitioner started to walk
away but the victim came at him again. Petitioner explained: “I had a gun in my pocket and
I wanted to get him off of me so I started shooting. I thought he was going to hurt me.” Id.,
at 1. Petitioner stated that he was not trying to hit the victim, and he was just trying to scare
him. Id., at 2.
Petitioner also filed a statement by Gregory Morris, an investigator for the Federal
Defender’s Office. Id., Exhibit C. Morris’s statement indicates that he spoke with Mark
Phillips on January 4, 2016. Phillips is a life-long friend of Petitioner, and he retained Robert
Slameka to represent Petitioner. Id., at 1-2. Phillips told Morris that he paid Slameka
$10,000, and was told that he would need an additional $7,500 to ensure that Petitioner
would be sentenced to 10 to 15 years. Slameka later informed Phillips that because the
autopsy showed that the victim was shot in the back, Petitioner would have to take a plea
deal with a 20 year minimum sentence. Id., at 2.
Phillips states that he also spoke with Ms. Skinner, and she told him that Slameka
never spoke with her. Skinner told Phillips that the victim was “all over” Petitioner “shoving
him down the driveway, almost to Evergreen, before he was shot.” Id., at 2. When the victim
grabbed Petitioner, Petitioner said, “I ain’t trying to fight nobody.” Id., at 3.
Finally, counsel for Petitioner filed Michigan Attorney Discipline Board records
indicating that Slameka has been formally admonished on ten occasions, reprimanded on four
occasions, and suspended from the practice of law twice. Id., Exhibit D.
Petitioner’s initial pleading also contains additional documents from the police
investigation. Brianna Williams made a statement to police on May 3, 2009. Dkt. 1, at 99.
She stated that she was seated in the car with Skinner when the incident occurred. She saw
both men emerge from the house arguing. She saw the victim shake Petitioner after Petitioner
said something to him. Williams stated: “The tall guy let go of the shorter guy and it looked
like the taller guy was going to hit the shorter guy. Then the shorter guy pulled out a gun and
started shooting.” Id. Williams said “it looked like” Petitioner was pointing the gun towards
the ground. Id. She heard Petitioner tell the victim that he did not want to fight because the
victim was just a kid. Id., at 100.
Mesha Starks gave a sworn statement pursuant to an investigative subpoena on April
17, 2009. Dkt. 1, at 110. Starks testified regarding the initial argument and how the victim
escorted Petitioner from her house. Id., at 111-127. When Petitioner attempted to walk back
towards the house, the victim pushed him. Id., at 130-31. Starks explained: “[Petitioner]
pulled the gun out of his right pocket because [the victim] had pushed him. [Petitioner]
stumbled back. He reached in his right pocket. He said I’m no, no, no, I’m not no punk-ass
nigger. [The victim] was standing right there in front of him. When [the victim] realized he
was reaching in his pocket, [the victim] stepped back, threw his hands up. . . . [Petitioner]
pulled the gun out. He said I’m no punk-ass nigger. He was like boom, boom, boom, boom,
boom, boom, and he shot towards the ground. I never knew [the victim] was hit.” Id., at 134.
The victim walked away then lied down in the street. Id., at 136.
Starks confirmed, however, that in her first statement to police she said that Petitioner
pointed the gun at the victim when he fired it. Id., at 140. She said the victim was standing
three or four feet away from Petitioner when he was shot. Id., at 142. The victim stepped
back when Petitioner pulled out his gun. Id., at 148-49.
Jasmine Godboldo also gave a sworn statement pursuant to an investigative subpoena
on April 17, 2009, Dkt. 1, at 208. She likewise testified regarding the argument leading up
to the shooting. Id., at 209-226. She described how the victim escorted Petitioner out of the
house. Id., at 226. She heard the victim tell Petitioner that he could not treat the women
disrespectfully. Id. Petitioner then pulled his gun out from somewhere under his shirt as he
was stumbling off the curb. Id., at 227. Godboldo said: “He pointed the gun. They were at
close range. They were standing very close to each other. . . . Maybe two feet.” Id., at 227.
“[The victim] puts his hands up as if he surrenders after the shots had been off, after this to
look like he’s in shock or he give up. And [the victim] walks in the middle of street and lays
there. He doesn’t fall. He just lays.” Id., at 228. “I saw the gun pointing dead at [the victim]
hitting him in the chest.” Id., at 229. Godboldo testified that when the victim saw the gun he
put his hands up and was beginning to back away. Id., at 230. She heard five shots and
believed that the victim was struck twice. Id.
Godboldo confirmed that in her first statement to police she said: “When they got to
the end of the driveway, [Petitioner] turned around and said something to [the victim]. I
couldn’t hear what [Petitioner said], but then, then he pushed [the victim], and [the victim]
pushed him back. And then [Petitioner] pulled out his pistol and shot [the victim]. He fired
three shots.” Id., at 235. She then heard two additional shots after she ran inside. Id.
Godboldo again claimed that the pause between shots was a mistake on her part, and
that the shots all occurred together. Id., at 236. She saw Petitioner point the gun at the victim
when he fired. Id., at 237-38. The victim did not push or attack Petitioner first; Petitioner
pushed the victim, the victim pushed him back, and then Petitioner shot the victim. Id., at
239. Godboldo did not see the victim shake Petitioner, nor did he push Petitioner to the
ground. Id., at 240.
II. Standard of Review
This habeas petition is reviewed under the standards set forth in the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA), Pub.L. No. 104-132, 110 Stat. 1214 (Apr.
24, 1996). Under AEDPA, a federal court cannot grant habeas relief with respect to any
claim adjudicated on the merits in a state-court proceeding unless the state adjudication of
the claim either:
(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. 28
U.S.C. § 2254(d)(1), (2).
“A state court’s decision is ‘contrary to’ . . . clearly established law if it ‘applies a rule
that contradicts the governing law set forth in [Supreme Court cases]’ or if it ‘confronts a set
of facts that are materially indistinguishable from a decision of [the Supreme] Court and
nevertheless arrives at a result different from [this] precedent.’” Mitchell v. Esparza, 540
U.S. 12, 15-16 (2003) (per curiam) (quoting Williams v. Taylor, 529 U.S. 362, 405-06
(2000)). “[T]he ‘unreasonable application’ prong of the statute permits a federal habeas court
to ‘grant the writ if the state court identifies the correct governing legal principle from [the
Supreme] Court but unreasonably applies that principle to the facts’ of petitioner’s case.”
Wiggins v. Smith, 539 U.S. 510, 520 (2003) (quoting Williams, 529 U.S. at 413). “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 (2011), (quoting Yarborough v. Alvarado, 541 U.S. 652,
664 (2004). “Section 2254(d) reflects the view that habeas corpus is a guard against extreme
malfunctions in the state criminal justice systems, not a substitute for ordinary error
correction through appeal. . . . 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.” Id. at
786-87 (internal quotation omitted).
To obtain relief under § 2254(d)(2), a petitioner must show an unreasonable
determination of fact and that the resulting state court decision was “based on” that
unreasonable determination. Rice v. White, 660 F.3d 242, 250 (6th Cir. 2012).
A. Ineffective Assistance of Appellate Counsel
Petitioner’s first and second claims assert that his appellate counsel provided
ineffective assistance of counsel by failing to file a timely motion to withdraw the plea or a
timely direct appeal in the Michigan Court of Appeals. He also claims that appellate counsel
failed to provide him with discovery materials.
The right to the effective assistance of counsel includes the right to the effective
assistance of appellate counsel on direct appeal. See Evitts v. Lucey, 469 U.S. 387, 396
(1985); Carpenter v. Mohr, 163 F.3d 938, 946 (6th Cir.1998). In Strickland v. Washington,
466 U.S. 668 (1984), the United States Supreme Court set forth a two-pronged test for
determining whether a habeas petitioner has received the ineffective assistance of counsel.
First, a petitioner must prove that counsel’s performance was deficient. This requires a
showing that counsel made errors so serious that he or she was not functioning as counsel as
guaranteed by the Sixth Amendment. 466 U.S. at 687. Second, the petitioner must establish
that the deficient performance prejudiced the defense. Counsel’s errors must have been so
serious that they deprived the petitioner of a fair appeal. Id.
Here, although Petitioner’s appellate counsel performed deficiently by failing to
timely pursue a direct appeal on behalf of Petitioner, the Michigan Supreme Court caught the
error and ordered the Michigan Court of Appeals to consider Petitioner’s underlying
substantive claims as if leave to appeal had been granted. The Court of Appeals then issued
a decision rejecting Petitioner’s claims.
Petitioner has failed to demonstrate that he was prejudiced by his appellate counsel’s
deficient performance because the state courts ultimately provided Petitioner with direct
appellate review of his claims. Compare Hollin v. Sowders, 710 F. 2d 264, 265-67 (6th Cir.
1983)( appellate counsel’s failure to perfect appeal did not prejudice habeas petitioner where
state court’s ruling on petitioner’s motion for post-conviction relief, which was filed by new
counsel, granted him an adequate substitute for direct appellate review); Bair v. Phillips, 106
F. Supp. 2d 934, 938, 943 (E.D. Mich. 2000) (same). Therefore, neither of Petitioner’s first
two claims merit relief.
B. Ineffective Assistance of Trial Counsel
The Court interprets Petitioner’s third, fourth, fifth, and sixth habeas claims to assert
that his trial counsel was ineffective for failing to investigate and pursue a self-defense or
accident defense instead of coercing Petitioner into entering into a plea bargain, and by
revealing private communications made by phone from jail. He also asserts that the Michigan
Courts erred by finding that his guilty plea waived his claims.
Claims about the deprivation of constitutional rights that occur before the entry of a
guilty plea are, in fact, foreclosed by a valid guilty plea. See United States v. Broce, 488 U.S.
563, 569 (1989); Tollett v. Henderson, 411 U.S. 258, 267 (1973).
The United States Supreme Court has explained:
[A] guilty plea represents a break in the chain of events which has preceded it
in the criminal process. When a criminal defendant has solemnly admitted in
open court that he is in fact guilty of the offense with which he is charged, he
may not thereafter raise independent claims relating to the deprivation of
constitutional rights that occurred prior to the entry of the guilty plea. He may
only attack the voluntary and intelligent character of the guilty plea by
showing that the advice he received from counsel was not within
Tollett, 411 U.S. at 267. A defendant who pleads guilty generally waives claims that arose
before his plea. In such a case, the court’s inquiry is limited to whether the plea was
knowing, intelligent, and voluntary. See Broce, 488 U.S. at 569. The question here,
therefore, is whether counsel’s alleged antecedent ineffectiveness in failing to investigate and
pursue a self defense or accident defense rendered Petitioner’s plea involuntary. See Hill v.
Lockhart, 474 U.S. 52, 56-57 (1985).
As stated, a violation of the Sixth Amendment right to effective assistance of counsel
is established where an attorney’s performance was deficient and the deficient performance
prejudiced the defense. Strickland, 466 U.S. at 687. In guilty-plea cases, the performanceprong requires showing that defense counsel’s representation fell below an objective standard
of reasonableness or was outside the range of competence demanded of attorneys in criminal
cases. Hill, 474 U.S. at 56-59. The prejudice-prong “focuses on whether counsel’s
constitutionally ineffective performance affected the outcome of the plea process.” Id. at 59.
The petitioner must show “a reasonable probability that, but for counsel’s errors, he would
not have pleaded guilty and would have insisted on going to trial.” Id.; see also Smith v.
United States, 348 F.3d 545, 551-552 (6th Cir. 2003).
The Sixth Circuit has interpreted Hill to require a federal habeas court to analyze the
substance of the habeas petitioner’s underlying claim or defense to determine whether, but
for counsel’s error, the petitioner would likely have gone to trial instead of pleading guilty.
See Maples v. Stegall, 340 F. 3d 433, 440 (6th Cir. 2003). A petitioner therefore has the
burden to show a reasonable probability that but for counsel’s errors, he would not have pled
guilty, because there would have been a reasonable chance that he would have been acquitted
had he insisted on going to trial. Heximer v. Woods, 2013 U.S. App. LEXIS 26390 (6th Cir.
May 23, 2013) (Petitioner could not show prejudice under Hill where his affirmative defense
of entrapment would not have succeeded at trial); Garrison v. Elo, 156 F. Supp. 2d 815, 829
(E.D. Mich. 2001).
Petitioner initially argues that he is not required to show actual prejudice because trial
counsel rendered presumptively ineffective assistance under United States v. Cronic, 466
U.S. 648 (1984). In Cronic, the Supreme Court recognized three situations in which Sixth
Amendment violations are “so likely to prejudice the accused that the cost of litigating their
effect in a particular case is unjustified.” Cronic, 466 U.S. at 658. The first situation occurs
when the accused “is denied counsel at a critical stage of his trial.” Id. at 659. The second
situation occurs when “counsel entirely fails to subject the prosecution’s case to meaningful
adversarial testing.” Id. However, in order for a presumption of prejudice to arise based on
an attorney’s failure to test the prosecutor’s case, the attorney's failure “must be complete.”
Bell v. Cone, 535 U.S. 685, 697 (2002). The third situation occurs under circumstances
“when although counsel is available to assist the accused during trial, the likelihood that any
lawyer, even a fully competent one, could provide effective assistance is so small that a
presumption of prejudice is appropriate without inquiry into the actual conduct of the trial.”
Cronic, 466 U.S. at 659-60.
It is a rare case in which a Cronic violation will be found for want of adequate pretrial
preparation. See Johnson v. Bradshaw, 205 F. App'x 426, 432-33 (6th Cir. 2007). Such a
“constructive denial of counsel is limited to situations involving constitutional error of the
first magnitude, which cannot be cured even if no prejudice is shown.” Moss v. Hofbauer,
286 F.3d 851, 860 (6th Cir. 2002). Here, even assuming as true Petitioner’s allegations that
Slameka only briefly met with him and failed to interview witnesses, the record shows that
he was familiar with witness statements, examined witnesses during the preliminary
examination, and participated in pretrial hearings. This of course does not mean that
Slameka’s performance passes constitutional muster, but it does mean that his performance
was not per se prejudicial under Cronic. Petitioner must therefore demonstrate how
Slameka’s performance prejudiced him under Hill in order to be entitled to relief. See Ivory
v. Jackson, 509 F.3d 284, 295 (6th Cir. Mich. 2007).
Here, in light of all the evidence proffered by Petitioner to the Court, he has not shown
a reasonable likelihood that he would have elected to stand trial and received a more
favorable result instead of accepting the plea offer. There were four people other than
Petitioner who witnessed the incident: Godboldo, Starks, Skinner, and Williams. None of
these witnesses would have provided Petitioner with a substantial defense such that there is
a reasonable likelihood that he would have insisted on going to trial and received a more
favorable result. Garrison, 156 F. Supp. at 829.
Godboldo testified both at the preliminary examination and pursuant to the
investigative subpoena that when Petitioner pulled out his gun, the victim backed away with
his hands up. Petitioner then pointed the gun at him and fired five times. She testified that
the victim had pushed Petitioner, but he backed off as soon as Petitioner produced the gun.
Likewise, Starks testified pursuant to the investigative subpoena that the victim pushed
Petitioner, but that he stepped back with his hands out when Petitioner produced the gun. She
did testify during the investigative subpoena proceeding that Petitioner shot towards the
ground, but in her police statement she stated that Petitioner pointed the gun at the victim.
Skinner, who Petitioner claims would have supported his defense, would not have
provided favorable testimony. She did tell police that the victim pushed and shook Petitioner,
but she also described how the victim stepped back when Petitioner drew his gun. She also
told police that Petitioner aimed the gun at the victim’s mid-section and fired it three times.
Williams, on the other hand, only told police that “it looked like” Petitioner was pointing the
gun at the ground, but she also described how the victim let Petitioner go before Petitioner
fired multiple shots.
Accordingly, all the witnesses agreed on the same general scenario: the victim and
Petitioner were arguing, the victim pushed and/or shook Petitioner after Petitioner said
something, Petitioner pulled out a gun, the victim backed away, and Petitioner fired multiple
shots from close range. Two witnesses saw Petitioner point the gun at the victim when he
fired, and the physical evidence of course confirmed that the victim was directly shot. One
witness gave conflicting statements about whether Petitioner aimed the gun at the victim, and
the remaining witness thought “it looked like” Petitioner aimed at the ground.
While it is true that Petitioner told police he fired shots into the ground to scare the
victim, the fact remains that all of the witnesses saw him fire multiple shots from close range
after the victim backed away. And two of the four eyewitnesses–including the one Petitioner
claims should have bee used in his defense–were firm about the fact that Petitioner aimed at
the victim. Based on a review of all the record evidence, the Court finds that there is not a
reasonable likelihood that had Petitioner stood trial he would have received a more favorable
outcome. His defense of accident or self-defense was not as strongly supported by the
eyewitness accounts as he claims. Accordingly, even assuming that trial counsel performed
deficiently in failing to investigate and pursue a defense, Petitioner has not demonstrated that
he was prejudiced.
The Court notes that there can be no question that the relationship between Slameka
and Petitioner was a poor one. Any fair reading of the August 14, 2009, pretrial hearing
indicates that the two had differing ideas on how to proceed. The comments made by defense
counsel at this hearing were unnecessary and gratuitous and held no discernable benefit for
Petitioner. Defense counsel merely vented to the trial court that his client was being
unreasonable in failing to accept the plea offer.
Counsel indicated at the hearing that Petitioner had made incriminating statements
during recorded phone calls from jail that undermined the defense. While Petitioner claims
that his counsel should have kept this information private, it is clear from the record that
defense counsel learned of the phone calls from the prosecutor, who provided him with
copies of the recordings. Thus, while the Court deems counsel’s conduct at this hearing to
be worthy of criticism and unprofessional, it did not prejudice Petitioner.
Moreover, it is worth noting that at the August 17, 2009, pretrial proceeding the
dispute between counsel and Petitioner was not about whether to stand trial or accept the plea
offer. Rather, the record indicates that Petitioner was awaiting a better plea offer, and defense
counsel did not believe a better offer would be made. In fact, Petitioner was correct, and he
received and accepted a more favorable plea bargain on the eve of trial. In light of this
record, Petitioner has not shown a reasonable probability that he would have stood trial but
for his counsel’s deficient performance. The record shows instead that Petitioner was
desirous of obtaining a plea bargain and was waiting to accept one that he deemed more
Finally, the record shows that trial counsel was familiar with Godboldo and Starks’
statements to police. Counsel also referred to Skinner’s statement at a pretrial hearing. As
explained above, all these witnesses at a minimum saw Petitioner fire multiple shots from
close range after being pushed and/or shaken by Petitioner. Given all the eyewitness accounts
and given “that, according to Petitioner’s own [statement] that he responded to being hit . .
. by firing numerous gunshots, counsel could have reasonably concluded that a self-defense
theory would not have been persuasive at trial.” Durr v. Haas, 2015 U.S. Dist. LEXIS
144594, 9-10 (E.D. Mich. Oct. 26, 2015).
Finally, the Court concludes that Petitioner’s plea was otherwise validly entered and
not the product of coercion by his counsel as he claims. To satisfy due process a criminal
defendant’s guilty plea must be made knowingly, intelligently, and voluntarily. United States
v. Broce, 488 U.S. 563 (1989); Boykin v. Alabama, 395 U.S. 238 (1969). A 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 charges,
and is advised by competent counsel. Id. at 756. The plea must be made “with sufficient
awareness of the relevant circumstances and likely consequences.” Id. at 748. 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
(1970). The voluntariness of a plea “can be determined only by considering all of the relevant
circumstances surrounding it.” Id. at 749.
The record of Petitioner’s plea proceeding shows that it was validly entered. As stated,
the record indicated that Petitioner was aware of Skinner’s statement, and he obviously heard
Godboldo’s testimony. Petitioner was aware of the nature of the charges against him. The
parties and the trial court discussed the terms of the plea agreement and its consequences at
the plea hearing. Petitioner was informed of all the trial rights he would be waiving by
entering his plea. The record indicates that Petitioner understood what he was doing, and that
it was his desire to plead guilty. He is bound by those statements. Where, as here, the trial
court scrupulously followed the required procedure, Petitioner is bound by his statements in
response to that court’s inquiry. Ramos v. Rogers, 170 F.3d 560, 566 (6th Cir. 1999) (quoting
Baker v. United States, 781 F.2d 85, 90 (6th Cir. 1986)).
Accordingly, Petitioner has failed to demonstrate entitlement to relief with respect to
any of his claims, and the petition will be denied.
Before Petitioner may appeal this Court’s dispositive 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 court rejects a habeas claim on the
merits, the substantial showing threshold is met if 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 that 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 Petitioner’s
claims. Id. at 336-37. “The district court must issue or deny a certificate of appealability
when it enters a final order adverse to the applicant.” Rules Governing ‘ 2254 Cases, Rule
11(a), 28 U.S.C. foll.’ 2254.
Petitioner has demonstrated a substantial showing of the denial of a constitutional
right with respect to his claim that his plea was rendering involuntary by the ineffective
assistance of his trial counsel. A reasonable jurists might debate whether the Court correctly
denied relief with respect to this claim. Accordingly, a certificate of appealability will issue
as to this claim. The Court will also grant Petitioner permission to proceed on appeal in
forma pauperis. See Foster v. Ludwick, 208 F. Supp. 2d 750, 764 (E.D. Mich. 2002); 28
U.S.C. § 1915(a)(3); Fed. R.App.24 (a).
Accordingly, it is ORDERED that the petition for writ of habeas corpus is DENIED.
It is further ORDERED that a certificate of appealability is GRANTED with respect
to Petitioner’s ineffective assistance of trial counsel claim.
It is further ORDERED that Petitioner may proceed in forma pauperis on appeal.
S/Arthur J. Tarnow
Arthur J. Tarnow
Senior United States District Judge
Dated: September 20, 2016
I hereby certify that a copy of the foregoing document was served upon parties/counsel of record
on September 20, 2016, by electronic and/or ordinary mail.
S/Catherine A. Pickles
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