Byars v. Gidley
AMENDED OPINION and ORDER re 12 denying Petition for Writ of Habeas Corpus; denying certificate of appealability and denying permission to appeal in forma pauperis. Signed by District Judge Nancy G. Edmunds. (CBet)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case No. 2:15-cv-12268
Hon. Nancy G. Edmunds
AMENDED OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS
CORPUS, DENYING A CERTIFICATE OF APPEALABILITY, AND DENYING
PERMISSION TO APPEAL IN FORMA PAUPERIS
This is a habeas case brought by a Michigan prisoner under 28 U.S.C. § 2254.
James Byars, (“Petitioner”), was convicted after he pled no contest pursuant to a plea
bargain in the Washtenaw Circuit Court to third-degree criminal sexual conduct. MICH.
COMP. LAWS § 750.520d(1)(a). Petitioner was sentenced to 5 to 15 years’ imprisonment
under the terms of the agreement.1 The Court interprets the petition to be raising seven
claims: (1) Petitioner’s plea was coerced by his trial attorneys, (2) the trial court violated the
Michigan Court Rules in the manner it denied Petitioner’s motion for relief from judgment,
(3) the trial court failed to properly serve Petitioner with the orders denying his motion for
relief from judgment, (4) Petitioner was denied the effective assistance of trial counsel, (5)
Petitioner was denied the effective assistance of appellate counsel, (6) the plea process
was insufficient to protect Petitioner’s rights, and (7) the sentencing transcript contains
Petitioner is also serving a 20 to 40 year sentence imposed on July 22, 2013, for his
Alpena County jury trial conviction of one count of first-degree criminal sexual conduct.
That conviction is not at issue in the present case.
errors. The Court finds that Petitioner’s claims are without merit. Therefore, the petition will
be denied. The Court will also deny Petitioner a certificate of appealability and deny
permission to proceed on appeal in forma pauperis.
Petitioner was originally charged with one count of third-degree criminal sexual
conduct involving a minor, and two counts of child sexually abusive activity. The allegations
against Petitioner were contained in a police report later used to establish the factual basis
for the no contest plea:
PICTURES - The interviewer asked Brianna about the photographs. Brianna
stated that James would text her or call her to send him nude photographs
of herself via cell phone camera. Brianna stated that James asked her for the
pics to be of her “boobs and vagina.” Brianna stated that James would send
pictures of his face, his penis, and his chest area to her phone.
NORTHFIELD VENUE - During the forensic interview Brianna stated that on
or about 8-22-2010, James kept calling her wanting to meet up. Brianna
stated that she finally told him ok that he could come over and he came over
to the area of the trailer park (Northfield Estates) and picked her up on his
motorcycle. From there Brianna stated that James drove to the Whitmore
Lake Athletic Filed, “Near Barker Road.” Brianna explained that he pulled
onto a secluded path. From there James pulled down her pants and
underwear and was kissing her on the lips. Brianna explained to the
interviewer that her position was that she was leaned over the bike from the
side. Brianna stated that James inserted his penis into her butt. Brianna
stated that he had a pocket knife he had, however never threatened her with
it. Brianna stated that James stopped when they heard noises or possible
people in the area. They left the scene at this time.
Dkt. 11, at 29.
At an August 4, 2011, pretrial hearing the parties agreed to a plea bargain whereby
Petitioner would plead no contest to the criminal sexual conduct charge and receive a
sentence of 5 to 15 years, and in exchange the prosecutor would dismiss the second two
counts. Dkt. 10-5, at 3. The parties acknowledged that Petitioner was facing possible
charges in another county that were unaffected by the plea bargain. Id.
Petitioner was placed under oath and indicated his desire to plead no contest to the
charge of third-degree criminal sexual conduct. Id., at 4. He was informed and
acknowledged that the offense carried a sentence of up to 15 years. Id. Petitioner indicated
his understanding that a plea of no contest would be treated in the same way as a plea of
guilty. Id., at 4-5. The trial court advised Petitioner of all the trial rights he would be waiving
by entering his plea, and Petitioner indicated his understanding and assent. Id., at 5.
Petitioner denied that there was any agreement other than what was placed on the
record. Id., at 6. He denied that anyone had made him any other promises, or that anyone
had made any threats or forced him to plead no contest. Id. Petitioner indicated it was his
own choice to enter his plea. Id.
On the date scheduled for sentencing, Petitioner moved to withdraw his plea on the
grounds that it was coerced by the conduct of his trial attorney. Dkt. 10-6, at 5. The trial
court denied the motion, finding that Petitioner denied at the plea hearing that anyone had
threatened or forced him to enter his plea. Id.
Petitioner addressed the court and indicated that he believed his trial attorney did
not have his “best interests at heart.” Id., at 10. He complained that counsel convinced him
to waive the preliminary examination. Id. He explained that he gave a photograph of the
minor victim to her father “[t]o get Brianna to stop touching me, which needed to be brought
up in court as one of my defenses.” Id.2
Petitioner asserts this is an error in the transcript, and that he said he gave the
photograph to the victim’s father to stop the victim from texting him, rather than the
incriminating sounding touching him.
Petitioner alleged that his attorney told him that he could “probably get . . .
something like three and a half to seven years. I told him I wanted a jury.” Id. Petitioner
maintained his innocence, but his attorney nevertheless told him he “was in big trouble.”
Id., at 10-11. Petitioner indicated he was “an emotional wreck” because his mother passed
away. Id., at 11. He stated he attempted to fire his attorney, but the court would not allow
him to do so. Id. Petitioner stated a different public defender was appointed to represent
him, and he was similarly dissatisfied with him when the new attorney incorrectly informed
him that he had made incriminating statements during recorded phone calls from the jail.
Id., at 12.
Petitioner alleged that his new attorney told him he had a one-time offer for 5 to 15
years, but Petitioner told him he wanted to take the case to trial. Id., at 13. Petitioner
offered an explanation why it seemed he told his mother during a phone call that he had
sex with the victim. Id. His attorney told him the recorded call “didn’t look good, it was highly
probable I would lose.” Id., at 14. Petitioner explained that he took the deal because “I was
still grieving my mother’s death. . . I was confused, I had no time to think it over, all in
seconds.” Id., at 14. Petitioner indicated that the day after the plea he started to see what
he could do to withdraw it. Id., at 14-15.
The trial court noted that Petitioner’s allegations were contradicted by his testimony
at the plea hearing:
Well, it’s really interesting, the majority of what you told me would, basically
suggest that you came kicking and screaming to the, to the courtroom and
with your arm twisted behind your back to, to plead no contest. When I took
your plea, you did not do that. You did not appear to be undecided about
what you wanted to do. I asked you, did anybody promise you anything, did
anybody threaten you or force you to plead guilty or no contest, was it your
own choice to do so. You answered all those questions in the affirmative and
it sounds like you just decided you want to change your mind at this point, so
I heard what you said but it doesn’t change anything as far as I’m concerned.
Id., at 16. The Court went on to sentence Petitioner to the agreed-upon sentence of 5 to
15 years’ imprisonment. Id.
Following his conviction and sentence, Petitioner filed a delayed application for leave
to appeal in the Michigan Court of Appeals, which raised the following claim:
I. Whether the trial court abused its discretion when it denied the motion to
withdraw the plea when the Defendant proved that he was coerced into
taking the plea agreement and maintained his innocence?
The Michigan Court of Appeals denied the application for leave “for lack of merit in
the grounds presented.” People v. Byars, No. 308865 (Mich. Ct. App. April 6, 2012).
Petitioner subsequently filed an application for leave to appeal in the Michigan Supreme
Court, which was denied by standard order. People v. Byars, 820 N.W.2d 897 (Mich. 2012)
(table). The United States Supreme Court subsequently denied Petitioner’s petition for a
writ of certiorari. Byars v. Michigan, 133 S. Ct. 1500 (2013).
Petitioner returned to the trial court and filed a motion for relief from judgment,
raising the following claims:
I. The actions, inactions, errors, omissions and lack of strategy by the
Defendant’s trial attorneys amounts to absence of counsel or ineffective
assistance of counsel.
II. The failure of the state of Michigan to adequately fund indigent defense in
the state deprived the Defendant of the Sixth Amendment guarantee of the
effective assistance of counsel.
III. The omissions and lack of strategy by appellate counsel on behalf of the
Defendant amount to ineffective assistance of counsel.
IV. The entire plea process was insufficient to protect the guaranteed
constitutional rights of petitioner.
V. The integrity of the sentencing transcript was compromised where
inaccuracies led to conclusions of guilt on appellate review.
VI. The failings of trial and appellate counsel, along with the Defendant’s
actual innocence and indigence, demonstrate “good cause” and prejudice,
satisfying the analysis of MCR 6.500 et seq.
VII. The effect of the cumulative errors denied the Defendant his rights to due
process and equal treatment under the 14th Amendment of the U.S.
The trial court denied the motion for relief from judgment by order dated August 1,
2013. Dkt. 10-12. Petitioner filed an application for leave to appeal in the Michigan Court
of Appeals, but it was denied “for failure to establish entitlement to relief under Michigan
Court Rule 6.508(D)(3)(a) & (b).” People v. Byars, No. 320598 (Mich. Ct. App. June 30,
2014). Petitioner applied for leave to appeal this decision in the Michigan Supreme Court,
but it was also denied under Rule 6.508(D). People v. Byars, 861 N.W.2d 3 (Mich. 2015)
II. Standard of Review
28 U.S.C. § 2254(d)(1) curtails a federal court’s review of constitutional claims
raised by a state prisoner in a habeas action if the claims were adjudicated on the merits
by the state courts. Relief is bared under this section unless the state court adjudication
was “contrary to” or resulted in an “unreasonable application of” clearly established
Supreme Court law.
“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
“[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, 101 (2011), quoting Yarborough v. Alvarado, 541 U.S.
652, 664 (2004); see also Woods v. Etherton, No. 15-723, 2016 WL 1278478, at *3 (U.S.
Apr. 4, 2016) (habeas relief precluded if state court decision is “not beyond the realm of
possibility [from what] a fairminded jurist could conclude.”)
“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.” Richter,
562 U.S. at 103.
A. Procedural Default
Respondent contends that several of Petitioner’s claims are procedurally defaulted
because the errors were not preserved on direct appeal. Under the procedural default
doctrine, a federal habeas court will not review a question of federal law if a state court's
decision rests on a substantive or procedural state law ground that is independent of the
federal question and is adequate to support the judgment. See Coleman v. Thompson, 501
U.S. 722, 729 (1991). However, procedural default is not a jurisdictional bar to review of
a habeas petition on the merits. See Trest v. Cain, 522 U.S. 87, 89 (1997). Additionally,
“federal courts are not required to address a procedural-default issue before deciding
against the petitioner on the merits.” Hudson v. Jones, 351 F. 3d 212, 215 (6th Cir. 2003)
(citing Lambrix v. Singletary, 520 U.S. 518, 525 (1997)). It may be more economical for the
habeas court to simply review the merits of the petitioner’s claims, “for example, if it were
easily resolvable against the habeas petitioner, whereas the procedural-bar issue involved
complicated issues of state law.” Lambrix, 520 U.S. at 525. In the present case, the Court
deems it more efficient to proceed directly to the merits, especially because Petitioner
alleges that his attorneys were ineffective for failing to preserve the defaulted claims.
B. Validity of Guilty Plea
Petitioner has filed over one-hundred pages of arguments and exhibits.
Nevertheless, because this case arises from a no contest plea, the issue is relatively
straight-forward. Factual allegations contradicted by a proper plea colloquy simply do not
merit relief. And at root, that is what the case is about. The state trial court conducted a
proper plea colloquy, and now Petitioner seeks to undermine it by making allegations of
coercion contradicted by his sworn testimony at the plea hearing that he was entering the
plea of his own free will.
The Court interprets Petitioner’s first, fourth, and sixth claims to assert that he was
coerced by his trial attorneys into accepting the plea bargain, and that they were ineffective
for failing to contest the charges against him. The plea colloquy belies these claims.
When a criminal defendant is convicted pursuant to a plea, habeas review is limited
to whether the plea was 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.
In this case, the state court record reveals that Petitioner’s plea was knowing,
intelligent, and voluntary. Petitioner is no stranger to the criminal justice system.
Respondent indicates without opposition that Petitioner has five prior felony convictions,
all of which resulted from guilty pleas. There is no evidence that he suffered from any
physical or mental problems which would have impaired his ability to understand the
criminal proceedings or the nature of his plea.
Petitioner alleges that he did not disclose the coercion he felt at the plea hearing
because his mother had recently died: “The reason Mr. Byars did not disclose to the trial
court that he felt pressured by his attorneys to plea was, in fact, Mr. Byars was grievous
over his mother’s death and could not think properly about what was going on around him
when his counsel made a prearranged unscheduled court hearing, just to get Mr. Byars to
plead to something he had nothing to do with.” Dkt. 11, at 5.
This allegation is insufficient to show that his plea was involuntary because it is
contradicted by his on-the-record sworn testimony at the plea hearing. As aptly stated by
the United States Court of Appeals for the Sixth Circuit when faced with a challenge to a
plea bargain based upon an alleged off-the-record agreement:
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. . . . “[W]here the court has scrupulously followed the required
procedure, the defendant is bound by his statements in response to that
Ramos v. Rogers, 170 F.3d 560, 566 (6th Cir. 1999) (quoting Baker v. United States, 781
F.2d 85, 90 (6th Cir. 1986)). The plea colloquy shows that Petitioner indicated that he was
pleading guilty of his own free will. He is bound by that testimony.
Petitioner also fails to show that trial counsel was ineffective in advising him to
accept the plea bargain rather than stand trial. 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 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 (1985) (quoting Strickland
v. Washington, 466 U.S. 668, 688 (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.
Second, if the petitioner satisfies the first prong of this test, the petitioner must then
demonstrate that counsel’s performance resulted in prejudice, i.e., “that there is a
reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and
would have insisted on going to trial.” Hill, 474 U.S. at 59.
The Supreme Court has confirmed that a federal court's consideration of 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,
562 U.S. at 105 (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.
Additionally, the Supreme Court has emphasized the extraordinary deference to be
afforded trial counsel in the area of plea bargaining. See Premo v. Moore, 562 U.S. 115,
125 (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).
Petitioner asserts that his trial attorneys were too focused on obtaining a plea
bargain and never attempted to contest the charges despite Petitioner’s statements that
he wanted to stand trial. He notes that in his Genesee County case his attorney demanded
a preliminary examination, and ultimately charges there were dismissed.
It is true that defense counsel has a duty to conduct a reasonable investigation into
the facts of a defendant’s case, or to make a reasonable determination that such
investigation is unnecessary. See Strickland, 466 U.S. at 690-91; Lundgren v. Mitchell, 440
F.3d 754, 771 (6th Cir. 2006). Petitioner, however, has not established that counsel failed
to investigate his case or was deficient for advising him to accept a plea. The public
defender’s office assigned a second attorney to represent Petitioner after Petitioner
complained about the first one. It is clear based on Petitioner’s allegations that his attorneys
were concerned about statements Petitioner made from jail that were recorded and felt that
he would likely be convicted if he stood trial.
Counsel’s strategy of pursuing a plea deal and foregoing other avenues of defense
was reasonable given the charges against Petitioner, the possibility of Petitioner having
made incriminating statements, the benefit obtained by the plea bargain, and the fact that
Petitioner has not proffered the Court with any theory of defense other than that the victim
was not telling the truth. It is well-settled that conclusory allegations are insufficient to
warrant habeas relief. See, e.g., Cross v. Stovall, 238 F. App'x 32, 39-40 (6th Cir. 2007);
Workman v. Bell, 178 F.3d 759, 771 (6th Cir. 1998) (conclusory allegations of ineffective
assistance of counsel do not justify habeas relief); see also Washington v. Renico, 455
F.3d 722, 733 (6th Cir. 2006) (bald assertions and conclusory allegations do not provide
a basis for evidentiary hearing on habeas review).
Petitioner fails to establish that trial counsel was ineffective. The Court is satisfied
that Petitioner's plea was knowing, intelligent, and voluntary, and that the state courts did
not unreasonably apply Supreme Court law in rejecting these claims. Habeas relief is not
C. Remaining Claims
Petitioner’s second and third claims assert that the trial court did not make concise
findings of fact when it denied his motion for relief from judgment, as required by state law.
He also asserts that the court allowed the prosecutor to respond to his post-judgment
motion and prepare an order without being asked to do so.
With respect to these arguments, because there is no federal constitutional
requirement that states provide a means of post-conviction review of state convictions, an
infirmity in a state post-conviction proceeding does not raise a constitutional issue
cognizable in a federal habeas petition. Williams-Bey v. Trickey, 894 F. 2d 314, 317 (8th
Cir. 1990); Kirby v. Dutton, 794 F. 2d 245, 247-248 (6th Cir. 1986). Even if the state court’s
failed to follow its own court rules during state post-conviction review, Petitioner's federal
constitutional rights were not implicated because he had no constitutional right to state
Petitioner’s seventh claim asserts that there are errors in the portion of the
sentencing transcript in which he asked the trial court to withdraw his plea. Specifically, he
claims that he did not admit his guilt during sentencing, and it only appeared so because
of mistakes made by the court reporter. Petitioner asserts that he read verbatim a six-page
letter during the proceeding, and a copy of the letter shows were the errors occurred. The
letter does not appear in any of Petitioner’s exhibits, however.
Federal habeas relief based on a missing transcript will only be granted where the
petitioner can show prejudice. Bransford v. Brown, 806 F.2d 83, 86 (6th Cir.1986). Other
than his own assertion that he was reading from a written letter, Petitioner provides no
support for the alleged transcription errors. Petitioner's unsupported assertions are
insufficient to overcome the presumption that court transcripts are correct. See Haynes v.
McCaughtry, 1992 U.S. App. LEXIS 5502, 1992 WL 66493, at *2 (7th Cir. 1992).
Moreover, the trial court did not rely upon any alleged admissions of guilt when it
denied his motion to withdraw his plea. Rather, the trial court found that Petitioner’s
allegations of coercion were belied by his sworn testimony at the plea hearing that he was
pleading no contest of his own free will. Accordingly, this claim is without merit.
D. Ineffective Assistance of Appellate Counsel
Petitioner’s fifth claim asserts that his appellate counsel was ineffective for failing to
raise many of his claims on direct appeal. He argues that this constitutes “cause” to excuse
any procedural default of those claims. Because the Court bypassed Respondent’s
procedural default defense, this claim is moot. And as the Court found, the allegedly
defaulted claims do not merit relief. Counsel was not ineffective for failing to raise meritless
claims. See Bradley v. Birkett, 192 Fed. Appx. 468, 475 (6th Cir. 2006).
IV. Certificate of Appealability
In order to appeal the Court’s decision, Petitioner must obtain a certificate of
appealability. To obtain a certificate of appealability, a prisoner must make a substantial
showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). To demonstrate this
denial, the applicant is required to show that reasonable jurists could debate whether the
petition should have been resolved in a different manner, or that the issues presented were
adequate to deserve encouragement to proceed further. Slack v. McDaniel, 529 U.S. 473,
483-84 (2000). A federal district court may grant or deny a certificate of appealability when
the court issues a ruling on the habeas petition. Castro v. United States, 310 F.3d 900, 901
(6th Cir. 2002). Here, jurists of reason would not debate the Court’s conclusion that
Petitioner has not met the standard for a certificate of appealability because his claims are
completely without merit and belied by the plea colloquy. The Court will therefore deny a
certificate of appealability.
The Court will also deny permission to appeal in forma pauperis because any appeal
of this decision could not be taken in good faith. 28 U.S.C. § 1915(a)(3).
Accordingly, the Court 1) DENIES WITH PREJUDICE the petition for a writ of
habeas corpus, 2) DENIES a certificate of appealability, and 3) DENIES permission to
appeal in forma pauperis.
s/ Nancy G. Edmunds
Hon.Nancy G. Edmunds
United States District Judge
Dated:September 15, 2016
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