Bassett v. Woods
OPINION and ORDER Denying 1 Petition for Writ of Habeas Corpus, Denying a Certificate of Appealability and Denying Leave to Proceed In Forma Pauperis on Appeal. Signed by District Judge Sean F. Cox. (JMcC)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
MICHAEL DAVID BASSETT,
CASE NO. 2:15-CV-13506
HONORABLE SEAN F. COX
OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF
HABEAS CORPUS, DENYING A CERTIFICATE OF APPEALABILITY,
AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
Michigan prisoner Michael David Bassett (“Petitioner”), through counsel, has filed a petition
for a writ of habeas corpus asserting that he is being held in violation of his constitutional rights.
Petitioner pleaded guilty to assault with intent to murder, MICH. COMP. LAWS § 750.83, and firstdegree home invasion, MICH. COMP. LAWS § 750.110a(2), in the St. Clair County Circuit Court and
was sentenced, as a second habitual offender, MICH. COMP. LAWS § 769.10, to consecutive terms
of 281 months to 70 years imprisonment and 118 months to 30 years imprisonment in 2011. In his
pleadings, he asserts that his plea was involuntary and illusory, that the trial court violated due
process by refusing to allow him to withdraw his plea, and that appellate counsel was ineffective for
failing to raise such federal issues on appeal. For the reasons stated, the Court denies 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.
Facts and Procedural History
Petitioner’s convictions arise from an incident on September 21, 2010 in which he entered
the St. Clair County home of his children’s mother without permission, armed himself with a hatchet
from her garage, and brutally assaulted her in an effort to kill her. On March 8, 2011, Petitioner
pleaded guilty as charged to assault with intent to murder and first-degree home invasion, as well
as his second habitual offender status. In exchange, the prosecution agreed not to seek consecutive
sentencing and not to seek to exceed the guidelines. During the plea colloquy, the trial court told
Petitioner that he could not be sentenced that day because his sentence would be determined after
a review of the sentencing guidelines and the pre-sentence reports. The court advised Petitioner that
no one could promise him what his sentence would be, that the court would not accept a guilty plea
conditioned upon a specific sentence, and that he would not be able to withdraw his plea simply
because his sentence was different from what someone suggested. Petitioner indicated that he
understood such matters. Plea Hrg. Tr., pp. 5-6. The court also advised Petitioner of the maximum
sentences that he faced and that the court was not making any promises as to sentencing other than
to be fair and follow the law. Petitioner again acknowledged his understanding. Id. at pp. 8, 11.
On April 11, 2011, the trial court sentenced Petitioner, as a second habitual offender, within
the guidelines to consecutive terms of 281 months to 70 years imprisonment on the assault with
intent to murder conviction and to 118 months to 30 years imprisonment on the first-degree home
invasion conviction. The court indicated that it was imposing consecutive sentences due to the
brutality and nature of the crime and its impact on the victim, her children, and the families of both
parties. Sent. Hrg. Tr., pp. 11-15.
Petitioner, through appellate counsel, subsequently moved to withdraw his plea asserting
that he should be allowed to do so because the parties had a Killebrew agreement that he would not
be given consecutive sentences but the court did not sentence him in accordance with that
agreement. Following a hearing on September 6, 2011, the trial court denied Petitioner’s motion.
Motion Hrg. Tr., pp. 6-8. Petitioner filed a delayed application for leave to appeal with the
Michigan Court of Appeals raising the same claim, which was denied for lack of merit in the
grounds presented. People v. Bassett, No. 306305 (Mich. Ct. App. Nov. 23, 2011) (unpublished).
Petitioner also filed an application for leave to appeal with the Michigan Supreme Court, which was
denied in a standard order. People v. Bassett, 810 N.W.2d 570 (Mich. 2012).
Petitioner subsequently filed a motion for relief from judgment with the state trial court
asserting that his plea was involuntary and illusory and that appellate counsel was ineffective. The
trial court denied the motion pursuant to Michigan Court Rule 6.508(D)(2) and on the merits finding
that the prosecutor complied with the terms of the plea agreement, that the plea was knowing and
voluntary and that appellate counsel was not ineffective. People v. Bassett, No. W:10-002520-FC
(St. Clair Co. Cir. Ct. March 19, 2014). Petitioner then filed an application for leave to appeal with
the Michigan Court of Appeals which was denied pursuant to Michigan Court Rule 6.508(D)(2).
People v. Bassett, No. 323437 (Mich. Ct. App. Oct. 14, 2014). Petitioner also filed an application
for leave to appeal with the Michigan Supreme Court, which was denied pursuant to Michigan Court
Rule 6.508(D). People v. Bassett, 866 N.W.2d 428 (Mich. 2015).
Petitioner thereafter filed his federal habeas petition raising the same claims that he presented
to the state courts on collateral review. Respondent has filed an answer to the petition contending
that it should be denied for lack of merit.
Standard of Review
Federal law 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 –
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
resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceedings.
28 U.S.C. § 2254(d).
“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 [that] precedent.’” Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003) (per
curiam) (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000)); see also Bell v. Cone, 535 U.S.
685, 694 (2002)).
“[T]he ‘unreasonable application’ prong of § 2254(d)(1) 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); see also Bell, 535 U.S. at 694.
However, “[i]n order for a federal court find a state court’s application of [Supreme Court] precedent
‘unreasonable,’ the state court’s decision must have been more than incorrect or erroneous. The
state court’s application must have been ‘objectively unreasonable.’” Wiggins, 539 U.S. at 520-21
(citations omitted); see also Williams, 529 U.S. at 409. “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 (2010) (quoting Lindh, 521 U.S. at 333,
n. 7; Woodford v. Viscotti, 537 U.S. 19, 24 (2002) (per curiam)).
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) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The
Supreme Court has emphasized “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 (2003)).
Pursuant to § 2254(d), “a habeas court must determine what arguments or theories supported or ...
could have supported, the state court's decision; and then it must ask whether it is possible
fairminded jurists could disagree that those arguments or theories are inconsistent with the holding
in a prior decision" of the Supreme Court. Id. Thus, in order to obtain habeas relief in federal court,
a state prisoner must show that the state court's rejection of his claim "was so lacking in justification
that there was an error well understood and comprehended in existing law beyond any possibility
for fairminded disagreement.” Id; see also White v. Woodall, _ U.S. _, 134 S. Ct. 1697, 1702 (2014).
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 (2015). A habeas petitioner cannot prevail as long as it is within the “realm of
possibility” that fairminded jurists could find the state court decision to be reasonable. Woods v.
Etherton, _ U.S. _, 136 S. Ct. 1149, 1152 (2016).
Section 2254(d)(1) limits a federal habeas court’s review to a determination of whether the
state court’s decision comports with clearly established federal law as determined by the Supreme
Court at the time the state court renders its decision. Williams, 529 U.S. at 412; see also Knowles
v. Mirzayance, 556 U.S. 111, 122 (2009) (noting that the Supreme Court “has held on numerous
occasions that it is not ‘an unreasonable application of clearly established Federal law’ for a state
court to decline to apply a specific legal rule that has not been squarely established by this Court”)
(quoting Wright v. Van Patten, 552 U.S. 120, 125-26 (2008) (per curiam)); Lockyer, 538 U.S. at 7172. Section 2254(d) “does not require a state court to give reasons before its decision can be deemed
to have been ‘adjudicated on the merits.’” Harrington, 562 U.S. at 100. Furthermore, it “does not
require citation of [Supreme Court] cases–indeed, it does not even require awareness of [Supreme
Court] cases, so long as neither the reasoning nor the result of the state-court decision contradicts
them.” Early v. Packer, 537 U.S. 3, 8 (2002); see also Mitchell, 540 U.S. at 16. While the
requirements of “clearly established law” are to be determined by Supreme Court precedent, the
decisions of lower federal courts may be useful in assessing the reasonableness of the state court’s
decision. Stewart v. Erwin, 503 F.3d 488, 493 (6th Cir. 2007) (citing Williams v. Bowersox, 340
F.3d 667, 671 (8th Cir. 2003)); Dickens v. Jones, 203 F. Supp. 354, 359 (E.D. Mich. 2002).
A state court’s factual determinations are presumed correct on federal habeas review. See
28 U.S.C. § 2254(e)(1). A petitioner may rebut this presumption with clear and convincing
evidence. Warren v. Smith, 161 F.3d 358, 360-61 (6th Cir. 1998). Lastly, habeas review is “limited
to the record that was before the state court.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011).
In this case, the state trial court denied Petitioner’s motion for relief from judgment pursuant
to Michigan Court Rule 6.508(D)(2) and on the merits finding that the prosecutor complied with the
terms of the plea agreement, that the plea was knowing and voluntary and not illusory, and that
appellate counsel was not ineffective. The Michigan Court of Appeals and the Michigan Supreme
Court both denied leave to appeal. For the reasons that follow, the Court concludes that the state
courts’ decisions are neither contrary to Supreme Court precedent nor an unreasonable application
of federal law or the facts.1
Involuntary and Illusory Plea Claims
Petitioner first asserts that he is entitled to habeas relief because his guilty plea was not
knowing and voluntary. As part of this claim, he also asserts that the plea was illusory and that the
trial court violated due process by refusing to allow him to withdraw his plea. Respondent contends
that these claims lack merit.
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
The Court would reach the same result under a de novo standard of review.
voluntary. Petitioner was 36 years old at the time of his plea and had a high school education with
some community college classes. He also worked as a power plant operator for 12 years prior to his
arrest. As a repeat offender, he was familiar with the criminal justice system. 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 was represented by legal
counsel and conferred with counsel during the plea process. The trial court advised Petitioner of his
trial rights and the fact that he would be giving up those rights by pleading guilty. The parties
discussed the charges, the terms of the plea agreement, and the consequences of the plea. Petitioner
indicated he understood the plea agreement, that he wanted to plead guilty, that he had not been
threatened or promised anything other than what was included in the plea agreement, and that he was
pleading guilty of his own free will. Petitioner has not shown that his plea was involuntary. The
fact that he was subsequently dissatisfied with his plea or may have hoped for more lenient treatment
does not render his plea unknowing or involuntary. See Brady, 397 U.S. at 757.
Petitioner asserts that his plea was unknowing and involuntary because he believed that he
would receive concurrent rather than consecutive sentences. The record, however, reveals that the
parties and the trial court discussed the terms of the plea bargain and its consequences at the plea
hearing. The plea bargain included the prosecutor’s agreement not to seek consecutive sentences
and not to seek to exceed the guidelines. The trial court reviewed the charges and the maximum
possible penalties. The court also specifically informed Petitioner that no one could make any
promises to him as to what his sentence would be, that it would not accept a guilty plea that was
conditioned upon him receiving a particular sentence, and that he would not be allowed to withdraw
his plea if his sentence was different from what someone suggested it would be. Petitioner
confirmed that he understood such matters and that it was his desire to plead guilty. He is bound
by those statements. 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, for any
convict who alleges that he believed the plea bargain was different from that outlined
in the record could withdraw his 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
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 understood the terms of his plea
agreement and that he pleaded guilty of his own free will. The Court is satisfied that Petitioner’s
plea was knowing, intelligent, and voluntary.
Petitioner also asserts that his plea was illusory and implies that the prosecutor failed to
honor the plea agreement. The term “illusory” has been defined as “Deceptive; based on a false
impression.” Black’s Law Dictionary (10th Ed. 2014). An illusory plea bargain is one that offers
no real benefit to the defendant. Johnson v. Michigan Parole Bd., No. 2:11-CV-11674, 2012 WL
6853535, *12 (E.D. Mich. Dec. 6, 2012) (citing United States v. Randolph, 230 F.3d 243, 250-51
(6th Cir. 2000)). If a prosecutor’s promise is illusory, then the plea is involuntary and unknowing.
Randolph, 230 F.3d at 250-51.
In Santobello v. New York, 404 U.S. 257, 262 (1971), the Supreme Court held that “when
a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be
said to be part of the inducement or consideration, such promise must be fulfilled.” Santobello only
applies to promises that induce a defendant to enter the plea. Mabry v. Johnson, 467 U.S. 504, 50708, 510 (1984). Furthermore, the prosecution is held only to the literal terms of the plea agreement.
United States v. Packwood, 848 F.2d 1009, 1012 (9th Cir. 1988). A federal habeas court should not
“‘lightly find misrepresentation in a plea agreement.’” Myers v. Straub, 159 F. Supp. 2d 621, 627
(E.D. Mich. 2001) (quoting Montoya v. Johnson, 226 F.3d 399, 406 (5th Cir. 2000)).
Petitioner fails to show that the plea was illusory or that the prosecutor breached any promise
or agreement. Petitioner received a benefit for his bargain – the prosecutor agreed not to seek
consecutive sentences and not to seek to exceed the guidelines at the time of sentencing. The
prosecutor complied with those promises at sentencing. Neither the prosecutor nor the trial court
told Petitioner that he would actually be given concurrent sentences. At the plea hearing, the trial
court reviewed the maximum sentence for each offense, reviewed the terms of the plea agreement,
and explained that there was no agreement as to any specific sentence. While Petitioner may have
anticipated or hoped for concurrent sentencing, no such promise was made to him. Petitioner is not
entitled to habeas relief based upon his purported subjective understanding of the plea agreement
when his version conflicts with the plea hearing record. See Mabry, 467 U.S. at 510-11. The fact
that the trial court subsequently determined that consecutive sentences, rather than concurrent
sentences, were appropriate does not mean that the plea was illusory or that the prosecutor failed to
honor the terms of the plea agreement.
Lastly, to the extent that Petitioner asserts that the trial court erred in denying his plea
withdrawal motion, he is not entitled to relief. 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 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). State courts are the final arbiters of state law and the federal courts will not intervene
in such matters. Lewis v. Jeffers, 497 U.S. 764, 780 (1990); Oviedo v. Jago, 809 F.2d 326, 328 (6th
Cir. 1987); see also Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (“a state court’s interpretation of
state law, including one announced on direct appeal of the challenged conviction, binds a federal
court sitting on habeas review”); Sanford v. Yukins, 288 F.3d 855, 860 (6th Cir. 2002). Habeas relief
does not lie for perceived errors of state law. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).
Habeas relief is therefore not warranted on these claims.
Ineffective Assistance of Appellate Counsel Claim
Petitioner also asserts that he is entitled to habeas relief because appellate counsel was
ineffective for failing to raise his collateral review claims on direct appeal. Respondent contends
that his claim lacks merit.
The Sixth Amendment to the United States Constitution guarantees a criminal defendant the
right to the effective assistance of counsel. In Strickland v. Washington, 466 U.S. 668 (1984), the
Supreme Court set forth a two-prong test for determining whether a habeas petitioner has received
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. Strickland, 466 U.S. at 687. Second,
the petitioner must establish that counsel’s deficient performance prejudiced the defense. Counsel’s
errors must have been so serious that they deprived the petitioner of a fair trial or appeal. Id. To
satisfy the performance prong, a petitioner must identify acts that were “outside the wide range of
professionally competent assistance.” Id. at 690. The reviewing court’s scrutiny of counsel’s
performance is highly deferential. Id. at 689. As to the prejudice prong, a petitioner must show that
“there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. at 694.
With regard to appellate counsel, it is well-established that a criminal defendant does not
have a constitutional right to have appellate counsel raise every non-frivolous issue on appeal. Jones
v. Barnes, 463 U.S. 745, 751 (1983). The Supreme Court has explained:
For judges to second-guess reasonable professional judgments and impose on
appointed counsel a duty to raise every “colorable” claim suggested by a client
would disserve the … goal of vigorous and effective advocacy …. Nothing in the
Constitution or our interpretation of that document requires such a standard.
Id. at 754. Strategic and tactical choices regarding which issues to pursue on appeal are “properly
left to the sound professional judgment of counsel.” United States v. Perry, 908 F.2d 56, 59 (6th
Cir. 1990). In fact, “the hallmark of effective appellate advocacy” is the “process of ‘winnowing
out weaker arguments on appeal and focusing on’ those more likely to prevail.” Smith v. Murray,
477 U.S. 527, 536 (1986) (quoting Barnes, 463 U.S. at 751-52). “Generally, only when ignored
issues are clearly stronger than those presented will the presumption of effective assistance of
appellate counsel be overcome.” Monzo v. Edwards, 281 F.3d 568, 579 (6th Cir. 2002). Appellate
counsel may deliver deficient performance and prejudice a defendant by omitting a “dead-bang
winner,” defined as an issue which was obvious from the trial record and would have resulted in
reversal on appeal. Meade v. Lavigne, 265 F. Supp. 2d 849, 870 (E.D. Mich. 2003).
In this case, Petitioner fails to show that by omitting the claims presented in his motion for
relief from judgment, appellate counsel’s performance fell outside the wide range of professionally
competent assistance. Appellate counsel raised a substantial challenge to the plea on direct appeal.
None of the other claims subsequently raised by Petitioner are “dead-bang winners.” Moreover,
even if appellate counsel erred, Petitioner cannot show that he was prejudiced by counsel’s conduct
given the state trial court’s determination and this Court’s determination that the underlying claims
lack merit. Appellate counsel cannot be ineffective for failing to raise issues that lack merit.
Shaneberger v. Jones, 615 F.3d 448, 452 (6th Cir. 2010); Greer v. Mitchell, 264 F.3d 663, 676 (6th
Cir. 2001). Petitioner fails to establish that appellate counsel was ineffective. Habeas relief is not
warranted on this claim.
For the reasons stated, the Court concludes that Petitioner is not entitled to federal habeas
relief on the claims contained in his petition.
Accordingly, the Court DENIES WITH
PREJUDICE the petition for a writ of habeas corpus.
Before Petitioner may appeal this 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 denies 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 claims debatable or wrong. 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). Having conducted the requisite review, the Court concludes that Petitioner fails to make
a substantial showing of the denial of a constitutional right as to his claims. The Court, therefore,
DENIES a certificate of appealability.
Lastly, the Court concludes that Petitioner should not 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 leave to proceed in forma pauperis on appeal.
IT IS SO ORDERED.
s/Sean F. Cox
Sean F. Cox
United States District Judge
Dated: June 29, 2017
I hereby certify that a copy of the foregoing document was served upon counsel of record on June
29, 2017, by electronic and/or ordinary mail.
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