Rosin v. Palmer

Filing 7

OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS 1 AND DENYING CERTIFICATE OF APPEALABILITY. Signed by District Judge Gershwin A. Drain. (TBan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
KALEB SCOTT ROSIN,
Case No. 15-cv-14153
Petitioner,
v.
CARMEN PALMER,

UNITED STATES DISTRICT COURT JUDGE
GERSHWIN A. DRAIN
UNITED STATES MAGISTRATE JUDGE
DAVID R. GRAND

Respondent.
_____________________________/
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS [1] AND
DENYING CERTIFICATE OF APPEALABILITY
Petitioner Kaleb Scott Rosin filed a petition for a writ of habeas corpus under
28 U.S.C. § 2254. Rosin is a state prisoner in the custody of the Michigan
Department of Corrections pursuant to a second-degree murder conviction, MICH.
COMP. LAWS § 750.317. He argues that his conviction was obtained in violation of
his constitutional rights because (1) his trial counsel was ineffective for advising him
to plead guilty to second-degree murder; and (2) the trial court made unreasonable
findings of fact when it denied Rosin’s motion to withdraw the plea. Respondent
argues that the claims are meritless. For the reasons explained below, the Court will
deny the petition [1].

I.

Background
Rosin was charged in Bay County Circuit Court with two counts of open

murder. On August 13, 2013, he pleaded no contest to second-degree murder. In
exchange for the plea, the prosecution agreed to dismiss all remaining charges
against Petitioner. The plea was also subject to an agreement allowed by state law
that the Petitioner would be sentenced to fifteen to thirty years imprisonment. See
People v. Cobbs, 505 N.W.2d 208, 283–84 (Mich. 1993) (permitting a defendant to
enter a guilty plea in reliance on the trial court’s initial evaluation regarding the
appropriate sentence, subject to the defendant’s right to withdraw his plea if the
imposed sentence exceeded that outlined in the preliminary evaluation).

On

September 30, 2013, Petitioner was sentenced in accordance with the Cobbs
agreement. Petitioner filed a motion to withdraw his plea on the ground that
counsel’s ineffectiveness rendered the plea involuntary. Following a hearing on the
motion, the trial court denied the motion. The trial court determined that counsel
was not ineffective and that Petitioner knowingly and voluntarily entered the plea.
Petitioner filed an application for leave to appeal in the Michigan Court of
Appeals arguing that his plea was involuntary because his attorney was ineffective.
Specifically, he contended that his attorney was ineffective for advising him that a
jury would convict him if he were to proceed to trial. He also maintained that he
was entitled to resentencing because the sentencing guidelines were wrongly scored
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and counsel was ineffective for not challenging that scoring. The Michigan Court
of Appeals denied him leave to appeal. People v. Rosin, No. 322663 (Mich. Ct. App.
Mar. 31, 2015). The Michigan Supreme Court also denied him leave to appeal.
People v. Rosin, 861 N.W.2d 13 (Mich. Mar. 31, 2015) (mem).
Petitioner then filed this habeas corpus petition. In the petition, he raises these
claims:
I.

The plea advice to plead to second-degree murder constituted
ineffective assistance of counsel.

II.

Judge Gill made clearly unreasonable findings of fact at the
hearing when[,] after the trial[,] he denied the motion to
withdraw the plea.

See Dkt. No. 1-2.
II.

Legal Standard
Review of this case is governed by the Antiterrorism and Effective Death

Penalty Act of 1996 (“AEDPA”). Under AEDPA, a state prisoner is entitled to a
writ of habeas corpus only if he can show that the state court’s adjudication of his
claims—
(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 proceedings.
28 U.S.C. § 2254(d).
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“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) (internal citations omitted)).
“[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’s decisions 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). However, “[i]n order for a federal court
to 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.’ ” Id. at 520–21
(quoting Lockyer v. Andrade, 538 U.S. 63, 75 (2003)); see also Williams, 529 U.S.
at 409. “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)).
Section 2254(d) reflects the view that habeas corpus is a ‘guard against
extreme malfunctions in the state criminal justice systems,’ not a
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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 103 (Jackson v. Virginia, 443 U.S. 307, 332 n.5 (1979) (Stevens, J., concurring
in judgment)).
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.
See Williams, 529 U.S. at 412. Section 2254(d) “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). “[W]hile the principles
of ‘clearly established law’ are to be determined solely by resort to Supreme Court
rulings, the decisions of lower federal courts may be instructive in assessing the
reasonableness of a state court’s resolution of an issue.” 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. 2d 354, 359 (E.D. Mich. 2002)).
Lastly, a federal habeas court must presume the correctness of state court
factual determinations. See 28 U.S.C. § 2254(e)(1). “[A] petitioner may rebut the

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presumption of correctness only with clear and convincing evidence.” Warren v.
Smith, 161 F.3d 358, 360–61 (6th Cir. 1998) (citing AEDPA).
III.

Discussion
As Petitioner’s arguments are unavailing, the Court will deny his habeas

petition.
A.

Ineffective Assistance of Counsel Claim

Rosin’s first claim concerns counsel’s recommendation that he plead no
contest to the second-degree murder charge. Rosin argues that counsel persuaded
him to enter the plea based on a mistaken belief that a jury would almost certainly
convict him of first-degree murder if he were to proceed to trial. The Michigan
Court of Appeals denied this claim “for lack of merit in the grounds presented.”
9/16/2014 Order, ECF No. 6-6, at p. 1, Pg. ID 143. The Michigan Court of Appeals’
denial of Rosin’s claim, despite its brevity, is entitled to deference under § 2254(d).
Where a state court denies a claim on the merits, but without explanation, “a habeas
court must determine what arguments or theories . . . 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 [Supreme Court
precedent].” Harrington, 562 U.S. at 102. Accordingly, the question here is whether
any reasonable argument consistent with established Supreme Court law could
support the state court decision summarily rejecting Rosin’s claim.
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The Court answers that question in the affirmative. To show a violation of
the Sixth Amendment right to effective assistance of counsel, a petitioner must
establish that his attorney’s performance was deficient and “that the deficient
performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687
(1984). First, an attorney’s performance is deficient if “counsel’s representation fell
below an objective standard of reasonableness.” Id. at 688. The defendant must
show “that counsel made errors so serious that counsel was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. at 687. “Judicial
scrutiny of counsel’s performance must be highly deferential.” Id. at 689. The
Supreme Court has “declined to articulate specific guidelines for appropriate
attorney conduct and instead ha[s] emphasized that the proper measure of attorney
performance remains simply reasonableness under prevailing professional norms.”
Wiggins, 539 U.S. at 521 (internal quotation marks and citations omitted).
Second, in guilty plea cases, the “performance” prong requires a 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 v. Lockhart, 474 U.S. 52, 56–59 (1985). This inquiry “focuses on whether
counsel’s constitutionally ineffective performance affected the outcome of the plea
process.” Id. at 59. A petitioner must show “a reasonable probability that, but for
counsel’s errors, he would not have pleaded guilty and would have insisted on going
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to trial.” Id.; see also Smith v. United States, 348 F.3d 545, 551–52 (6th Cir. 2003).
A petitioner cannot show that he would have proceeded to trial “merely by telling
[the court] now that she would have gone to trial then if she had gotten different
advice.” Shimel v. Warren, 838 F.3d 685, 698 (6th Cir. 2016) (alteration in original)
(internal quotation marks omitted) (quoting Pilla v. United States, 668 F.3d 368, 373
(6th Cir. 2012)). “The test is objective, not subjective; and thus, to obtain relief on
this type of claim, a petitioner must convince the court that a decision to reject the
plea bargain would have been rational under the circumstances.” Id. (internal
quotation marks omitted) (quoting Pilla, 668 F.3d at 373). In making such a
determination, “[a] rational person would consider, not just the advantages of
proceeding to trial (the prospect of a possible, though unlikely, lighter sentence), but
also the disadvantages.” Moore v. United States, 676 F. App’x 383, 386 (6th Cir.
2017).
In this case, the disadvantages of proceeding to trial were significant. Rosin
faced a mandatory life sentence. The trial court, when denying Rosin’s motion to
withdraw his plea, held that if Rosin had proceeded to trial “there was a significant
possibility, if not probability, that the verdict would’ve been murder one or felony
murder.” 6/20/2014 Tr., ECF No. 6-5, at p. 10, Pg. ID 130. The trial court concluded
that counsel’s conduct would have been ineffective had he not advised Rosin of the
likelihood that he would be convicted of first-degree murder. Id. at 16, Pg. ID 136.
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Rosin has not demonstrated that counsel’s assessment of the likelihood of a firstdegree murder conviction was unreasonable nor has he shown that the state court
unreasonably applied Strickland or Hill or made a decision contrary to Supreme
Court precedent when it held that counsel was not ineffective. The Court, therefore,
denies this claim.
B.

Trial Court’s Findings of Fact

In his second claim, Petitioner argues that the trial judge made clearly
unreasonable findings of fact during the plea-withdrawal hearing. Respondent
argues that this claim is unexhausted, not cognizable on federal habeas review, and
meritless.
A prisoner is required to exhaust his state-court remedies for a claim before
presenting that claim in a federal habeas corpus petition.

See 28 U.S.C. §

2254(b)(1)(A). Respondent argues that Petitioner failed to raise this claim in state
court. The Court will nevertheless address the merits of this claim because the Court
can decide an unexhausted claim where that claim is plainly meritless.

See

Granberry v. Greer, 481 U.S. 129, 131 (1987).
Petitioner has not shown that his plea was involuntary or unknowing. “There
is no independent federal constitutional right to withdraw a guilty plea that was
knowingly and voluntarily entered.”

Moon v. Scott, No. 17–3244, 2017 WL

4083626, at *2 (6th Cir. Aug. 17, 2017) (citing Carwile v. Smith, 874 F.2d 382, 385–
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86 (6th Cir. 1989)). He cannot show a constitutional violation from the denial of his
motion to withdraw a voluntary plea. Likewise, because “there is no constitutional
requirement that a trial judge inquire into the factual basis of a plea,” Petitioner is
not entitled to habeas relief based upon the trial court’s findings of fact. Bonior v.
Conerly, 416 F. App’x 475, 478 (6th Cir. 2010) (internal quotation marks omitted)
(quoting Roddy v. Black, 516 F.2d 1380, 1385 (6th Cir. 1975)); see also Post v.
Bradshaw, 621 F.3d 406, 427 (6th Cir. 2010).
IV.

Certificate of Appealability
Federal Rule of Appellate Procedure 22 provides that an appeal may not

proceed unless a certificate of appealability (“COA”) is issued under 28 U.S.C. §
2253. Rule 11 of the Rules Governing Section 2254 Proceedings now mandates that
the Court “issue or deny a certificate of appealability when it enters a final order
adverse to the applicant.”
A COA may be issued “only if the applicant has made a substantial showing
of the denial of a constitutional right.” 28 U.S.C. §2253(c)(2). 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.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks and citations
omitted). Here, the Court concludes that reasonable jurists would not debate the
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conclusion that the petition fails to state a claim upon which habeas corpus relief
should be granted. Therefore, the Court will deny a certificate of appealability.
V.

Conclusion
Accordingly, IT IS ORDERED that the petition for a writ of habeas corpus

and a certificate of appealability are DENIED and the matter is DISMISSED
WITH PREJUDICE. The Court finds Petitioner may proceed on appeal in forma
pauperis because an appeal could be taken in good faith. 28 U.S.C. § 1915(a)(3).
IT IS SO ORDERED.
Dated: August 16, 2018

/s/Gershwin A. Drain
GERSHWIN A. DRAIN
United States District Judge

CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
August 16, 2018, by electronic and/or ordinary mail.
/s/ Tanya Bankston
Deputy Clerk

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