Short v. Brewer

Filing 19

OPINION and ORDER (1) Denying 7 Petition for Writ of Habeas Corpus, (2) Denying Certificate of Appealability, and (3) Denying Permission to Appeal In Forma Pauperis. Signed by District Judge Gerald E. Rosen. (JOwe)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
REGINAL SHORT,

Petitioner,

Case No. 2:15-cv-13533
Hon. Gerald E. Rosen

v.
SHAWN BREWER,
Respondent.
___________________________________/
OPINION AND ORDER (1) DENYING PETITION FOR WRIT OF HABEAS CORPUS,
(2) DENYING CERTIFICATE OF APPEALABILITY, AND (3) DENYING
PERMISSION TO APPEAL IN FORMA PAUPERIS
This case was consolidated from two habeas petitions filed by Michigan prisoner Reginal
Short under 28 U.S.C. § 2254. The petitions challenge two sets of Saginaw Circuit Court convictions
that were resolved in a single plea proceeding. In Saginaw Circuit No. 11-036783, Petitioner pled
guilty to carrying a concealed weapon, MICH. COMP. LAWS § 750.227, felon in possession of a
firearm, MICH. COMP. LAWS § 750.224f, and commission of a felony with a firearm. MICH. COMP.
LAWS § 750.227b. In Saginaw Circuit No. 12-037238, Petitioner pled no contest to unlawful
imprisonment, MICH. COMP. LAWS § 750.349, felonious assault, MICH. COMP. LAWS § 750.82,
larceny, MICH. COMP. LAWS § 750.357, felon in possession of a firearm, MICH. COMP. LAWS §
750.224f, and three counts of commission of a felony with a firearm. MICH. COMP. LAWS §
750.227b. Petitioner was sentenced under the terms of the plea agreement to a controlling sentence
of 50 months to 22 years for the unlawful imprisonment conviction, to be served consecutively with
2 year terms for the felony-firearm convictions. The state court imposed shorter concurrent terms
for his other convictions.

The Court interprets the petitions to be asserting the following claims: (1) because Petitioner
was pulled-over for a civil infraction with respect to the 2011 case, he was improperly charged with
commission of a felony with a firearm, (2) the state court lacked jurisdiction to try Petitioner with
respect to the 2011 case because there was no evidence to support the charges, (3) the state court
lacked jurisdiction to try Petitioner with respect to the 2012 case because there was no evidence that
Petitioner used a firearm, and (4) Petitioner’s double jeopardy rights were violated with respect to
both cases because he was charged with multiple firearm offenses for individual criminal
transactions. The Court finds that review of Petitioner’s claims is waived by his voluntary guilty
pleas and that the claims are otherwise without merit. Therefore, the petition will be denied. The
Court will also deny Petitioner a certificate of appealability, and it will deny him permission to
proceed on appeal in forma pauperis.
I. Background
While Petitioner was on bond awaiting sentencing for felony convictions entered in 2009,
he was charged with the two sets of offenses challenged by the present habeas action. The first set
concerned an incident occurring on August 30, 2011, when Petitioner was pulled-over during a
traffic stop and found to be in possession of a firearm. The second set of charges concerned an
incident occurring on April 24, 2012, when Petitioner restrained his girlfriend with the use of a knife
and a handgun.
The two cases were resolved at a single plea hearing held on September 11, 2012. The
prosecutor stated at the hearing that in exchange for Petitioner’s pleas, he would recommend that
the sentences in the two cases run concurrently with each other and with the sentences that would
be imposed in Petitioner’s 2009 case. Dkt. 13-10, at 3-4. The prosecutor also promised to
recommend that the minimum sentence on the most serious charge–unlawful imprisonment–would
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not exceed 50 months. Id., at 4.
Petitioner was then placed under oath. He acknowledged reading and understanding the
advice of rights form, and he confirmed that he signed the form. Id., at 5-6. Petitioner indicated his
understanding that the prosecutor would recommend that the sentences from the two cases and the
2009 case would run concurrently, but that by operation of law the felony-firearm sentences would
be consecutive. Id., at 6-7.
Petitioner indicated he understood that the prosecutor would recommend that the minimum
sentence would not exceed 50 months. Id., at 7-8. Petitioner denied the existence of any agreements
other than what was placed on the record, and he denied that anyone had threatened him to enter his
plea. Id., at 8. He stated that he was entering the plea of his own freewill. Id. The trial court informed
Petitioner of the maximum sentences for the charges, and Petitioner indicated his understanding. Id.,
at 9-11. A factual basis was then made for both sets of charges. Id., at 12-14. The court found that
Petitioner’s pleas were “understanding, voluntary, and accurate, as well as factually supported and
free from duress or coercion.” Id., at 14.
Petitioner was subsequently sentenced under the terms of the agreement. Dkt. 13-11, at 7-10.
Petitioner then filed a pro se application for leave to appeal in the Michigan Court of
Appeals, raising the following claims:
I. Double jeopardy exist [sic] in this case being that Defendant-Appellant was
charged with felony firearm and carrying conceal weapon, this is a duplicitous
charge being that one deal [sic] with carrying a concealed weapon without being in
the commission of a felony, and the felony firearm is being in the commission of a
felony while having a firearm, and the case shows conclusively Defendant-Appellant
was not in the commission of a felony at the time of his arrest for the charges
sustained.
II. Whether like claim one, double jeopardy and jurisdictional defects exist for
multiple charges arising from a single transaction as shown in case docket
11-036783-FH, being that the State charged the Defendant-Appellant with both
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carrying a conceal weapon and felony firearm when the elements and evidence did
not support a charge for felony firearm, this is a [sic] inapplicable charge as well as
one of jurisdictional defect that voids the State of legal statutory authority to act.
III. Whether like claim [sic] one and two, double jeopardy and jurisdictional defects
exist for multiple charges arising from a single transaction as shown in case docket
12-037238-FH, being that the State charged the Defendant-Appellant with felony
firearm and felon in possession of a firearm, without the police ever arresting the
Defendant with a firearm when the alleged crime happen, for anytime thereafter.
The Michigan Court of Appeals denied the application for leave to appeal “for lack of merit
in the grounds presented.” People v. Short, No. 323441 (Mich. Ct. App. Dec. 22, 2014). Petitioner
filed an application for leave to appeal in the Michigan Supreme Court, raising the same claims. The
Michigan Supreme Court denied the application because it was not persuaded that the questions
presented should be reviewed by the Court. People v. Short, 863 N.W.2d 319 (Mich. 2015) (table).
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 barred under this section unless the state court adjudication was “contrary to” or resulted
in an “unreasonable application of” clearly established Supreme Court law. Where, as here, the
Michigan Court of Appeals rejected a petitioner’s appeal “for lack of merit in the grounds
presented,” and the Michigan Supreme Court subsequently denied leave to appeal in a standard form
order, the state courts’ decision are entitled to deference under § 2254(d)(1). See Werth v. Bell, 692
F. 3d 486, 492-94 (6th Cir. 2012).
“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
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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.
III. Analysis
Petitioner’s poorly drafted pro se petitions do not clearly state grounds for relief. The
pleadings make reference to a lack of evidence to support the charges, jurisdictional defects,
violations of due process, and violations of double jeopardy. Nevertheless, all of the potential claims
of error concern matters that occurred prior to the plea proceeding. Because the record of the plea
proceeding indicates that Petitioner’s pleas were voluntary, these antecedent claims of error are
waived. Moreover, the claims are devoid of merit.
A guilty plea “is more than a confession which admits that the accused did various acts,” but
rather it constitutes an “admission that he committed the crime charged against him.” United States
v. Broce, 488 U.S. 563, 570 (1989) (citations omitted). By entering a guilty plea, “the accused is not
simply stating that he did the discrete acts described in the indictment; he is admitting guilt of a
substantive crime.” Id. Thus, “[j]ust as a defendant who pleads guilty to a single count admits guilt
to the specified offense, so too does a defendant who pleads guilty to two counts with facial
allegations of distinct offenses concede that he has committed two separate crimes.” Id.
Because “[a] plea of guilty and the ensuing conviction comprehend all of the factual and
legal elements necessary to sustain a binding, final judgment of guilt and a lawful sentence,” where
a judgment of conviction upon a guilty plea has become final and the individual initiates a collateral
attack, “the inquiry is ordinarily confined to whether the underlying plea was both counseled and
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voluntary.” Id. at 569. If the guilty plea was counseled and voluntary, the general rule is that such
a plea “foreclose[s] the collateral attack.” This rule applies to a collateral attack asserting violation
of the Double Jeopardy Clause. Id.
To be valid, a guilty plea must be voluntarily and intelligently made. Brady v. United States,
397 U.S. 742, 748-49 (1970). The plea must be made “with sufficient awareness of the relevant
circumstances and likely consequences.” Id. at 748. The voluntariness of a plea “can be determined
only by considering all of the relevant circumstances surrounding it.” Id. at 749. A “plea of guilty
entered by one fully aware of the direct consequences” of the plea is voluntary in a constitutional
sense. Id. at 755.
Before accepting Petitioner’s pleas, the trial court engaged in an extensive colloquy with
Petitioner. The trial court advised Petitioner of the rights he was giving up by pleading guilty,
advised him of the terms of the plea agreement, determined that no promises, other than those
encompassed in the plea agreement, had been made to Petitioner, and that no one had threatened him
to force him to enter the plea. Petitioner stated that he understood the terms of the plea agreement.
After conducting the thorough colloquy, the trial court found that Petitioner’s pleas were voluntarily
entered, and Petitioner points to nothing in the record to undermine that conclusion. Accordingly,
by voluntarily entering pleas of guilty and no contest to the charges challenged by his habeas
petitions, Petitioner waived all antecedent claims of error.
In any event, the claims do not provide a basis for granting federal habeas relief. Petitioner’s
challenge to the jurisdiction of the state courts to try him and to the sufficiency of the evidence to
support the charges do not raise cognizable claims. The determination of whether a state court is
vested with jurisdiction under state law over a criminal case is a function of the state courts, not the
federal courts. Wills v. Egeler, 532 F. 2d 1058, 1059 (6th Cir. 1976); See also Daniel v. McQuiggin,
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678 F. Supp. 2d 547, 553 (E.D. Mich. 2009). Moreover, sufficient evidence was proffered at the plea
hearing to support the charges. With respect to the 2011 charges, Petitioner admitted under oath
during the plea hearing that he was present in his car with a gun, and that he was a convicted felon
at the time. Dkt. 13-10, at 12. With respect to the 2012 charges, the court referred to the preliminary
examination transcript which indicated that Petitioner unlawfully restrained Sherri Smith with a
knife and a gun. Id., at 13-14.
Finally, Petitioner’s rights against double jeopardy were not violated when he was charged
with multiple firearm offenses arising out of individual criminal transactions. The Michigan
legislature intended for there to be cumulative punishments for the offenses of felon in possession
of a firearm and felony firearm. See People v. Mitchell, 456 Mich. 693, 575 N.W.2d 283 (1998).
Because the state legislature intended for multiple punishment in these circumstances, Petitioner’s
convictions and sentences do not violate the Double Jeopardy Clause. See White v. Howes, 586 F.3d
1025, 109 (6th Cir. 2009) (“Once a state court has determined that the state legislature intended
cumulative punishments, a federal habeas court must defer to that determination.”)(citing Banner
v. Davis, 886 F.2d 777, 780 (6th Cir. 1989)).
As Petitioner’s claims are waived by his pleas and are otherwise without merit, 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 issued. 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. § 2253(c)(3); Fed. R. App. P.
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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 because his claim is devoid of merit. Therefore, the Court denies 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).
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) DENIES permission to appeal in forma
pauperis.
SO ORDERED.

s/Gerald E. Rosen
United States District Judge
Dated: October 17, 2016
I hereby certify that a copy of the foregoing document was served upon the parties and/or counsel
of record on October 17, 2016, by electronic and/or ordinary mail.
s/Julie Owens
Case Manager, [phone]

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