Bowman v. Haas
OPINION and ORDER Denying 1 Petition for Writ of Habeas Corpus, Denying Certificate of Appealability and Denying Leave to Proceed in forma pauperis on appeal. Signed by District Judge Paul D. Borman. (DTof)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
MICHAEL BOWMAN, #771568,
CASE NO. 2:16-CV-10709
HONORABLE PAUL D. BORMAN
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
This is a habeas case brought pursuant to 28 U.S.C. § 2254. Michigan prisoner
Michael Bowman (“Petitioner”) pleaded no contest to armed robbery, MICH. COMP.
LAWS § 750.529, in the Gladwin County Circuit Court in 2013 and was sentenced to 15
to 30 years imprisonment in 2014. In his petition, he raises claims concerning the
validity of his plea and the effectiveness of defense counsel. For the reasons set forth,
the Court denies and dismisses with prejudice the habeas petition. The Court also denies
a certificate of appealability and denies leave to proceed in forma pauperis on appeal.
Facts and Procedural History
Petitioner’s conviction arises from his armed robbery of a gun store with two
co-defendants in Gladwin County, Michigan on March 18, 2013. The record reveals
that Petitioner drove the co-defendants to the store where they intended to use pepper
spray to facilitate the robbery. When one of the co-defendants realized he forgot the
pepper spray, he used a hammer to hit the store owner in the head, causing severe injury.
That co-defendant took several handguns and left the store. Petitioner picked him up
and drove from the scene. The other co-defendant remained in the store and called 911
for the injured store owner before she left the scene. 11/13/13 Parties’ Offer of Proof.
On November 13, 2013, Petitioner pleaded no contest to armed robbery in
exchange for the dismissal of additional charges (assault with intent to murder,
conspiracy, and felony firearm), a promise not to seek an habitual offender sentencing
enhancement, and an agreement for a sentence within the guidelines. At the plea
hearing, Petitioner acknowledged that he understood the terms of his plea, the maximum
sentences that he could face, and the rights that he was giving up by pleading guilty.
Petitioner also confirmed that it was his choice to plead no contest, that he was doing so
freely and voluntarily, and that he had not been threatened or promised anything else in
exchange for his plea. 11/13/13 Plea Hrg, pp. 5-9.
Before sentencing, Petitioner filed a motion to withdraw his plea asserting that he
felt coerced by defense counsel into accepting the plea bargain. On January 13, 2014,
the trial court conducted a hearing and denied the motion. 1/13/14 Motion/Sent. Hrg.,
pp. 15-20. In doing so, the court found that there was “no undue pressure or anything
improper going on” with respect to the plea. Id. at p. 17. The court then sentenced
Petitioner to 15 to 30 years imprisonment with credit for time served. Id. at pp. 30-31.
Petitioner filed a delayed application for leave to appeal with the Michigan Court
of Appeals raising the following claim:
The trial court abused its discretion and violated Petitioner’s state and
federal constitutional due process guarantees when it denied his request to
withdraw his no contest plea before sentencing where Petitioner maintained
his innocence and where trial counsel had been ineffective because
Petitioner felt pressured and threatened by his attorney to accept a plea
The court denied the application “for lack of merit in the grounds presented.” People v.
Bowman, No. 322650 (Mich. Ct. App. Sept. 5, 2014). Petitioner also filed an
application for leave to appeal with the Michigan Supreme Court, which was denied in a
standard order. People v. Bowman, 497 Mich. 973, 859 N.W.2d 703 (2015).
Petitioner thereafter filed his federal habeas petition raising the same claim
presented to the state courts on direct appeal of his conviction. Respondent has filed an
answer to the petition contending that it should be denied for lack of merit.
Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), codified
at 28 U.S.C. § 2241 et seq., sets forth the standard of review that federal courts must use
when considering habeas petitions brought by prisoners challenging state convictions.
The AEDPA provides in relevant part:
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-(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) (1996).
“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 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.’” 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)).
The United States Supreme Court has held that “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)). 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,
to obtain federal habeas relief, a state prisoner must show that the state court’s rejection
of a 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 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 71-72.
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.
The requirements of “clearly established law” are to be determined solely by
Supreme Court precedent. Thus, “circuit precedent does not constitute ‘clearly
established Federal law, as determined by the Supreme Court,’” and “cannot form the
basis for habeas relief under AEDPA.” Parker v. Matthews, 567 U.S. 37, 48-49 (2012)
(per curiam); see also Lopez v. Smith, _ U.S. _ 135 S. Ct. 1, 2 (2014) (per curiam).
Lower federal court decisions may be useful in assessing the reasonableness of a 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. 2d 354,
359 (E.D. Mich. 2002).
Lastly, a state court’s factual determinations are presumed correct on federal
habeas review. 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).
Habeas review is also “limited to the record that was before the state court.” Cullen v.
Pinholster, 563 U.S. 170, 181 (2011).
Petitioner asserts that he is entitled to habeas relief because the trial court abused
its discretion and violated his state and federal due process rights by denying his plea
withdrawal motion. Specifically, Petitioner asserts that the trial court erred because he
maintained his innocence and defense counsel was ineffective for coercing him into
accepting a plea bargain. Respondent contends that this claim lacks merit.
As an initial matter, the Court notes that Petitioner is not entitled to relief on any
claim that the trial court abused its discretion, or otherwise violated state law, in refusing
to allow him to withdraw his plea. 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 federal courts will not
intervene in such matters. Lewis v. Jeffers, 497 U.S. 764, 780 (1990); see also
Bradshaw v. Richey, 546 U.S. 74, 76 (2005); Sanford v. Yukins, 288 F.3d 855, 860 (6th
Cir. 2002). Habeas relief does not lie for perceived errors of state law. See Estelle v.
McGuire, 502 U.S. 62, 67-68 (1991) (“it is not the province of a federal habeas court to
reexamine state-court determinations on state-law questions”). Habeas relief is thus not
warranted on such a basis.
Petitioner also asserts that his plea was not knowing, intelligent, and voluntary
because he felt coerced by defense counsel into accepting a plea bargain. 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. Brady v. United States, 397 U.S. 742,
756 (1970). 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. Id. at 755. 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 Michigan Court of Appeals denied leave to appeal for lack of
merit in the grounds presented. The state court’s decision is neither contrary to
Supreme Court precedent nor an unreasonable application of federal law or the facts.1
The state court record reveals that Petitioner’s plea was knowing, intelligent, and
voluntary. Petitioner was 22 years old at the time of his plea and 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 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 that he understood the plea agreement and wanted to plead no
contest, that he had not been threatened or coerced or promised anything other than what
was included in the agreement, and that it was his own decision to plead no contest. He
is bound by those statements. See Ramos v. Rogers, 170 F.3d 560, 566 (6th Cir. 1999).
There is no evidence of coercion. The fact that Petitioner 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 seems to assert that his plea is invalid because he is innocent. A guilty
or no contest plea, however, involves a waiver of many constitutional rights, including
the right to a trial where the prosecution has the burden of proving guilt beyond a
reasonable doubt, the right to confront adverse witnesses, and the right to present
evidence in one’s defense. See Fautenberry v. Mitchell, 515 F.3d 614, 636 (6th Cir.
2008) (citing Boykin, 395 U.S. at 243). A defendant who pleads guilty or no contest
waives all pre-plea issues, Tollett v. Henderson, 411 U.S. 258, 267 (1973), including any
claim that he had a defense to the charges. Wilson v. United States, 962 F.2d 996, 997
(11th Cir. 1992); Siegel v. New York, 691 F.2d 620, 626 n. 6 (2d Cir. 1981) (citing
Tollett and McMann v. Richardson, 397 U.S. 759 (1970)). A defendant “is not entitled
to withdraw his plea merely because he discovers long after the plea has been accepted
that his calculus misapprehended the quality of the State’s case or the likely penalties
attached to alternative courses of action.” Brady, 397 U.S. at 757. Petitioner waived
The Court would reach the same result under a de novo standard of review.
his right to present a defense to the charges by pleading no contest. See Broce, 488
U.S. at 569; Tollett, 411 U.S. at 267.
Petitioner also fails to show that defense counsel was ineffective in advising him
about his case and the plea bargain. 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/she] would not have pleaded
guilty and would have insisted on going to trial.” Hill, 474 U.S. at 59. The Supreme
Court has explained that “[i]n many guilty plea cases, the ‘prejudice’ inquiry will closely
resemble the inquiry engaged in by courts reviewing ineffective-assistance challenges to
convictions obtained through a trial.” Id. The Supreme Court has also emphasized
that “these predictions of the outcome at a possible trial, where necessary, should be
made objectively, without regard for the ‘idiosyncracies of the particular
decisionmaker.’” Id. at 59-60 (quoting Strickland, 466 U.S. at 695).
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”); Bray v. Andrews, 640 F.3d 731, 738 (6th Cir. 2011)
To the extent that Petitioner asserts that defense counsel was ineffective for failing
to take certain actions during the pre-plea period, he is not entitled to relief. As
discussed supra, claims about the deprivation of constitutional rights that occur before
the entry of a guilty or no contest plea are foreclosed by the plea. Broce, 488 U.S. at
569; Tollett, 411 U.S. at 267. The 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 [constitutional standards].
Tollett, 411 U.S. at 267. Simply stated, a defendant who pleads guilty or no contest
waives any non-jurisdictional claims that arose before the plea. In such a case, a
reviewing court’s inquiry is limited to whether the plea was knowing, intelligent, and
voluntary. Broce, 488 U.S. at 569. Accordingly, any claim that defense counsel was
ineffective for failing to take certain actions during the pre-trial period is foreclosed by
Petitioner’s plea and does not warrant relief.
Petitioner states that he felt threatened and pressured by defense counsel into
accepting a plea bargain and that counsel erred in advising him to plead no contest.
Petitioner, however, fails to show that counsel threatened him or pressured him into
accepting the plea. While it is true that counsel requested that Petitioner pay the
balance of his agreed-upon retainer fee, counsel also advised Petitioner that it was his
own choice to accept or reject the plea offer. See 9/27/13 Counsel Ltr. Petitioner’s
statements at the plea hearing – that it was his choice to plead no contest and that neither
he nor his family had been threatened – also belie his claim that he was threatened or
pressured into pleading no contest. Petitioner fails to show that his plea was coerced.
Petitioner also asserts that defense counsel was deficient in investigating his case
and advising him to accept the plea bargain. It is well-settled 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); O'Hara v.
Wiggington, 24 F.3d 823, 828 (6th Cir. 1994). In this case, the record as whole
indicates that counsel investigated Petitioner’s case and was prepared for trial.
Petitioner fails to provide facts which show what more counsel could have done to
investigate or prepare for trial which would have benefitted the defense. Conclusory
allegations are insufficient to demonstrate that defense counsel was ineffective. Cross
v. Stovall, 238 F. App’x 32, 39-40 (6th Cir. 2007); Workman v. Bell, 178 F.3d 759, 771
(6th Cir. 1998); 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
Moreover, counsel’s strategy in pursuing a plea and foregoing other avenues of
defense was reasonable given the charges against Petitioner, the pre-trial evidence which
showed that Petitioner was guilty as an aider and abettor to the crime, the fact that
Petitioner’s co-defendants were scheduled to testify against him, the lack of a solid
defense, and the fact that Petitioner was subject to a life sentence if convicted after trial.
Counsel was able to secure the dismissal of additional felony charges, a guarantee that
the prosecutor would not seek an habitual offender sentencing enhancement, and an
agreement that Petitioner would be sentenced within the guidelines in exchange for his
plea. Counsel’s conduct was reasonable under the circumstances.
Lastly, Petitioner fails to show that but for defense counsel’s advice, he would not
have pleaded no contest and would have insisted on going to trial. As discussed, the
prosecution had a strong case against Petitioner, which included testimony by his
co-defendants implicating him as an aider and abettor in the crime, and Petitioner faced
a life sentence if convicted without the benefit of the plea bargain. Petitioner fails to
establish that defense counsel was ineffective under the Strickland/Hill standard. The
Court is satisfied that Petitioner’s plea was knowing, intelligent, and voluntary. Habeas
relief is not warranted.
For the reasons stated, the Court concludes that Petitioner is not entitled to federal
habeas relief. Accordingly, the Court DENIES WITH PREJUDICE the petition for a
writ of habeas corpus.
Before Petitioner may appeal the Court’s 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). 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). Petitioner makes
no such showing. Accordingly, the Court DENIES a certificate of appealability. The
Court also DENIES Petitioner leave to proceed in forma pauperis on appeal as an
appeal cannot be taken in good faith. See FED. R. APP. P. 24(a).
IT IS SO ORDERED.
s/Paul D. Borman
Paul D. Borman
United States District Judge
Dated: September 7, 2017
CERTIFICATE OF SERVICE
The undersigned certifies that a copy of the foregoing order was served upon each
attorney or party of record herein by electronic means or first class U.S. mail on
September 7, 2017.
Deborah Tofil, Case Manager
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