Marshall v. Winn

Filing 11

OPINION and ORDER Denying 1 The Petition for Writ of Habeas Corpus, Declining to Issue a Certificate of Appealability, and Granting Leave to Appeal In Forma Pauperis. Signed by District Judge Denise Page Hood. (LSau) (Main Document 11 replaced on 11/1/2016) (LSau).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

CALVIN E. MARSHALL,
Petitioner,
v.

Case No. 2:16-CV-12016
HONORABLE DENISE PAGE HOOD
CHIEF UNITED STATES DISTRICT JUDGE

THOMAS WINN,
Respondent,
_________________________________/

OPINION AND ORDER DENYING THE PETITION FOR WRIT OF
HABEAS CORPUS, DECLINING TO ISSUE A CERTIFICATE OF
APPEALABILITY, AND GRANTING LEAVE TO APPEAL IN FORMA
PAUPERIS

Calvin E. Marshall, (“Petitioner”), confined at the Saginaw
Correctional Facility in Freeland, Michigan, filed a pro se petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2254, in which he challenges his
conviction and sentence for six counts of assault with intent to commit
murder, M.C.L.A. 750.83. For the reasons that follow, the petition for writ
of habeas corpus is DENIED.

1

I. Background
Petitioner was originally charged with six counts of assault with intent
to commit murder, along with twelve other criminal charges arising from
two other cases. Petitioner was also charged with being a fourth felony
habitual offender. 1
On July 25, 2011, petitioner appeared in court for trial. The trial judge
indicated that the prosecutor made a plea bargain offer to petitioner that
would no longer require his testimony against his co-defendants, as an
earlier proposed plea bargain had required. (Tr. 7/25/11, p. 4). The
following exchange took place between the judge and petitioner:
THE COURT: Let me tell you this right now. How old are you?
DEFENDANT MARSHALL: Nineteen.
THE COURT: What’s 19 plus 62?
DEFENDANT MARSHALL: Seventy-nine, 72.
THE COURT: It’s 81, okay? Do you want to be 81 years old when
you’re up for parole, all right, or would you prefer to be maybe 33?
Eighty-one years or 33 years old?
DEFENDANT MARSHALL: I would rather be young.
THE COURT: All right. This is the deal. They’re [the prosecutor]
1

Under M.C.L.A. 769.12(1)(a), a fourth felony habitual offender can be sentenced to up to life in
prison if his or her underlying felony carries a maximum sentence of five or more years in prison.

2

offering I think 14 years, right?
MR. EDWARDS: [the assistant prosecutor]: That’s the bottom of
the guidelines, yes, your Honor.
THE COURT: Okay. The top of your guidelines are 62-and-a-half
years, so take 62-and-a-half, add your 19, you would be 81. If
you take their 14 [years], you would be 33 and still a young man.
Now your Habitual 4, so I’m supposed to be giving you life
anyhow, all right, which means that you spend the rest of your
time in prison for the rest----it’s parolable life but you’re supposed
to be getting life. Your guidelines are 750 months, all right? So
you would be 81 years old by the time you were eligible to be
released, and that’s just guidelines. Do you understand that?
DEFENDANT MARSHALL: Yes, sir.
THE COURT: Because of civil liability and all this other stuff, they
may be willing to take a no contest plea where they----we would
read into the record, you know, what the basis of this is, all right,
but I don’t want to have you----I’ve got three cases. See the
prosecutor behind you? She’s got----she’s got the other two,
okay, that come right after these, and these are Habitual 4's to
begin with. Your guidelines in those are 25 years on just the car
cases. The AWIM [assault with intent to murder] case they’re at
81----62-and-a half years, 750 months, all right. So the----I don’t---I mean it’s bad to make a bad decision, but it’s really bad to
compound that mistake, go to jury trial, get convicted and then get
a----basically, you know, a sentence, you know, for the rest of
your life in prison. All right. So I would----I mean obviously you
can go and, you know, go to jury trial in any one of these three
cases here, all right? But they have three shots at you at sending
you to jail for the rest of your life, all right? Twenty-five years, 25
years----I mean 14 years is obviously a lot less than 25, even on
the car cases, all right let alone the one case, Assault With Intent
to Murder.
(Id., pp. 5-7).
3

The judge further explained to petitioner that the courtroom deputy
was getting the jury ready, but that petitioner’s attorney, Ms. Braxton, had
wanted the judge to make a record “because she doesn’t want you to go to
jury trial, get convicted and then have you say, ‘ Well, gee, you should have
given me a plea offer,’ all right? Because if you get 62-and-a-half years on
this case today that’s up for trial and you’re offered 14 years, you know,
that’s roughly, you know a difference of about 48 years. So----and that’s a
big difference, and that’s some people’s whole lifetime is the difference
she’s [defense counsel] gotten you.” (Id., p. 7). The judge further explained
to petitioner that defense counsel had managed to obtain this plea bargain
without petitioner being required to testify. The judge again informed
petitioner that he could plead and get 14 years, “and you wipe out all three
cases” as well as two probation violations or he could go to trial but if
convicted could receive 25 years on each of the car cases and 62-and-ahalf years on the assault with intent to murder charges. (Id., pp. 7-8).
Petitioner’s trial counsel at this point put on the record that she was
ready to go to trial and did not want petitioner to believe that she was
forcing him to do anything. Counsel, however, wanted petitioner to
understand the difference between the number of years in prison that he

4

would receive by pleading versus the number of years that he could
receive by going to trial. (Id., pp. 8-9).
The judge again explained the situation to petitioner.
THE COURT: Mr. Marshall, Ms. Braxton told us to go ahead and
get the jury because you wanted a jury trial. I don’t want you to
make an uninformed decision. If you committed these offenses,
any one of them, even if you, for example, are not sure if you did
an Assault With Intent to Murder, maybe it’s GBH, Great Bodily
Harm. I don’t know, all right. But on any one of these cases, you
could be sentenced to far more than 25 years----than the 14 years
that they’re offering. On the car cases alone it’s 11 more years.
So I mean unless you got 11 more years----so ask yourself, I
might beat this one, I might not beat this one, but even if I beat
this one and they get me on this one, I’ve got 11 more years on
a car case than if I would have gotten 14 total. So the issue is
whether you’re guilty or not guilty, whether you want to go to trial
or whether you want to resolve the case for the 14 years. While
the deputy is getting the jury I am going to let you talk to Ms.
Braxton and make an informed decision. I don’t want to send you
to prison for 81 years----until you’re 81 years old, 62-and-a-half
years, when you can resolve the case for 14, you know. So in
that instance, that’s, what, almost 48 years difference. So unless---unless you have 48 years of extra time on your hands, you
might want to consider the 14 years that they’re offering, all right.
You understand that?
DEFENDANT MARSHALL: Yes, sir.
(Id., pp. 9-10).
The judge asked petitioner to discuss the matter with his attorney,
reminding him that his attorney was prepared for trial. (Id., pp. 10-11). The
judge again explained to petitioner that “the only way you can control that
5

outcome is through the plea bargain process” and if the case was turned
over to the jury, petitioner was looking at 62-and-a-half years. (Id., pp. 1112).
After conferring with his attorney, the judge asked petitioner if his
attorney had reviewed his confessions and the pictures [of the victim or
crime scene] to petitioner. Petitioner replied that counsel had reviewed this
evidence. (Id., p. 12). The judge specifically asked petitioner why he would
want to go to a jury trial in light of the confessions. Petitioner indicated that
in spite of the confessions, he wished to go to trial. The judge informed
petitioner that his confession would be used against him if he went to trial.
Petitioner replied no when asked if he wanted to do 750 months in prison.
Counsel indicated on the record that she had visited petitioner four to five
times in jail, had explained the sentencing guidelines and had reviewed the
evidence with him, including the photographs and his confessions.
Counsel indicated she was prepared to try the case but did not think it was
in petitioner’s best interest to do so. The judge indicated that petitioner
faced a total of 19 counts. The judge again reiterated that the assault with
intent to murder charges all carried up to life in prison. The prosecutor
indicated that the fourteen year minimum sentence being offered was “a

6

favorable number.” (Id., pp. 12-17). The judge again explained the plea
offer to petitioner and all of the evidence against him, including his
confessions. The judge gave petitioner five more minutes to decide. (Id.,
pp. 17-18). With respect to the confession, the judge asked petitioner: “I
mean, if you admit to it, then there’s really not much Ms. Braxton can do.”
The judge explained that petitioner could go to trial and be acquitted, but
with a confession, that would not be likely to occur. (Id., pp. 18-19).
After a brief recess, the judge indicated that they had allowed
petitioner to even make a telephone call to discuss the case with someone
other than his attorney. The judge placed the plea offer on record. (Id., pp.
20-21).
At this point, petitioner indicated he would plead no-contest to the
charges. (Id., p. 21). Petitioner was advised of the plea agreement and the
constitutional rights he would relinquish by pleading no-contest. Petitioner
understood the rights and the agreement. The judge indicated that the
Cobbs 2 or plea agreement called for petitioner to receive a minimum
sentence of 14 and a quarter years in prison. The prosecutor would
2

People v. Cobbs, 443 Mich. 276, 505 N.W.2d 208 (1993), the Michigan Supreme Court
authorized a judge to preliminarily indicate the appropriate length of sentence, but if the defendant
subsequently pleads guilty and the judge determines that the sentence must exceed the preliminary
evaluation, the defendant has an absolute right to withdraw the plea. See M.C.R. 6.310(B)(2)(b); Wright v.
Lafler, 247 F. App’x. 701, 703 n.1 (6th Cir. 2007).

7

dismiss the habitual offender charge and two other cases. (Id., pp. 21-31).
Petitioner moved at sentencing to withdraw his plea, which the judge
denied. (Tr. 8/8/11, pp. 4-7). Petitioner was sentenced to 171 months [14
years, 3 months] to 285 months in prison. (Id., p. 14).
Petitioner, through appellate counsel, filed another motion to
withdraw his no-contest plea, in part, because his plea had been coerced.
(Tr. 2/10/12, pp. 3-4). The judge denied the motion. (Id., pp. 6-9).
Petitioner’s conviction was affirmed on appeal. People v. Marshall,
No. 311536 (Mich.Ct.App. Aug. 29, 2012); lv. den. 493 Mich. 967, 829
N.W. 2d 235 (2013).
Petitioner filed a postconviction motion for relief from judgment, which
was denied. People v. Marshall, No. 11-002149-01-FC (Third Cir. Ct., July
31, 2014). The Michigan appellate courts denied petitioner leave to
appeal. People v. Marshall, No. 325833 (Mich.Ct.App. Apr. 9, 2015); lv.
Den. 499 Mich. 881, 876 N.W.2d 537, 538 (2016).
Petitioner seeks a writ of habeas corpus on the following grounds:
I. Violation of Federal Criminal Procedure Rule 11(e)(1).
II. Right to withdraw plea.
III. Ineffective Assistance of Counsel and Appellate counsel.

8

IV. The [Michigan] Court of Appeals violated [the] procedural
rule when [it] denied Ineffective Assistance of Appellate counsel
[claim.].
II. Standard of Review
28 U.S.C. § 2254(d), as amended by The Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA), 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–
(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.
A decision of a state court is “contrary to” clearly established federal
law if the state court arrives at a conclusion opposite to that reached by
the Supreme Court on a question of law or if the state court decides a
case differently than the Supreme Court has on a set of materially
indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000).
An “unreasonable application” occurs when “a state court decision
9

unreasonably applies the law of [the Supreme Court] to the facts of a
prisoner’s case.” Id. at 409. A federal habeas court may not “issue the writ
simply because that court concludes in its independent judgment that the
relevant state-court decision applied clearly established federal law
erroneously or incorrectly.” Id. at 410-11.
The Supreme Court has explained that “[A] federal court’s collateral
review of a state-court decision must be consistent with the respect due
state courts in our federal system.” Miller-El v. Cockrell, 537 U.S. 322, 340
(2003). The “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 v. Murphy, 521 U.S. 320, 333, n. 7 (1997);
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)). In order
to obtain habeas relief in federal court, a state prisoner is required to show
that the state court’s rejection of his claim “was so lacking in justification

10

that there was an error well understood and comprehended in existing law
beyond any possibility for fairminded disagreement.” Harrington, 562 U.S.
at 103.
Petitioner raised his involuntary plea and plea withdrawal claims
(contained in his first two claims) on his direct appeal. The Michigan Court
of Appeals denied petitioner’s application for leave to appeal on
petitioner’s direct appeal in a form order “for lack of merit in the grounds
presented.” The Michigan Supreme Court subsequently denied the
petitioner leave to appeal in a standard form order without any extended
discussion. Determining whether a state court’s decision resulted from an
unreasonable legal or factual conclusion, as would warrant federal habeas
relief, does not require that there be an opinion from the state court that
explains the state court’s reasoning. Harrington, 562 U.S. at 98. “Where a
state court’s decision is unaccompanied by an explanation, the habeas
petitioner’s burden still must be met by showing there was no reasonable
basis for the state court to deny relief.” Id. In fact, when a habeas
petitioner has presented a federal claim to a state court and that state
court has denied relief, “it may be presumed that the state court
adjudicated the claim on the merits in the absence of any indication or

11

state-law procedural principles to the contrary.” Id. at 99. That
presumption may be overcome only when there is a reason to think that
some other explanation for the state court’s decision is more likely. Id. at
99-100.
In the present case, the AEDPA deferential standard of review
applies to petitioner’s first and second claims where the Michigan Court of
Appeals rejected 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, because these orders amounted to a
decision on the merits. See Werth v. Bell, 692 F. 3d 486, 492-94 (6th Cir.
2012).
III. Discussion
A. Claims # 1 and # 2. The involuntary plea/plea withdrawal
claims.
Petitioner claims that he should have been permitted to withdraw his
no-contest plea because the judge coerced the plea by threatening
petitioner with life in prison if he went to trial and was convicted. Petitioner
further claims that the judge violated Fed. R. Crim. P. 11(e)(1), which
prohibits judicial participation in plea negotiations.
Initially, the Court observes that petitioner has no federal
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constitutional right to withdraw his no-contest plea. See Hynes v. Birkett,
526 F. App’x. 515, 521 (6th Cir. 2013). Unless a petitioner’s guilty or nocontest plea otherwise violated a clearly-established constitutional right,
whether to allow the withdrawal of a habeas petitioner’s plea is
discretionary with the state trial court. See Shanks v. Wolfenbarger, 387 F.
Supp. 2d 740, 748(E.D. Mich. 2005).
A guilty or no-contest plea that is entered in state court must be
voluntarily and intelligently made. See Shanks, 387 F. Supp. 2d at 749;
Doyle v. Scutt, 347 F. Supp. 2d 474, 482 (E.D. Mich. 2004)(both citing
Boykin v. Alabama, 395 U.S. 238, 242 (1969)). In order for a plea of guilty
or no-contest to be voluntarily and intelligently made, the defendant must
be aware of the “relevant circumstances and likely consequences” of his
plea. Hart v. Marion Correctional Institution, 927 F. 2d 256, 257 (6th Cir.
1991).
In federal criminal matters, Fed. R. Crim. P. 11(c)(1) prohibits judicial
participation in plea discussions before a defendant decides to plead guilty
or to stand trial. Fed. R. Crim. P. 11(c)(1); United States v. Davila, 133 S.
Ct. 2139, 2148 (2013). Fed. R. Crim. P. 11(c)(1) was adopted as a
prophylactic or preventive measure and is not compelled by the Due

13

Process Clause or any other federal constitutional requirement. Davila,
133 S. Ct. at 2149. A violation of Rule 11(c)(1) does not trigger automatic
reversal. Id. Only a limited calss of errors trigger automatic reversal, such
as denial of counsel, denial of self-representation, denial of a public trial
and failure to convey to a jury that guilt must be proved beyond a
reasonable doubt. Id.
Although Fed. R. Crim. P. 11(c)(1) prohibits judicial participation in
plea negotiations, it is not a federal constitutional rule; therefore, its
prohibition on judicial participation in plea bargaining in the federal courts
does not necessarily invalidate every instance of judicial participation in
the negotiation of a guilty plea in state courts. Alvarez v. Straub, 21 F.
App’x. 281, 283 (6th Cir. 2001)(quoting Frank v. Blackburn, 646 F. 2d 873,
880 (5th Cir. 1980)). “‘[A] federal court reviewing a state court plea
bargain may only set aside a guilty plea or plea agreement which fails to
satisfy due process. If a defendant understands the charges against him,
understands the consequences of a guilty plea, and voluntarily chooses to
plead guilty, without being coerced to do so, the guilty plea ... will be
upheld on federal review.’” Id. (quoting Frank, 646 F.2d at 882). A plea
may not be induced because of actual or threatened physical harm or by

14

mental coercion overbearing the will of the defendant. Brady v. U.S., 397
U.S. 742, 750 (1970). A plea of guilty will not be set aside where the plea
was intelligently made, on advice of competent counsel, even if the
defendant was motivated in part to plead guilty for a lesser sentence. Id.
at 755-58 (A plea of guilty is not invalid merely because it was entered to
avoid the possibility of a death penalty.)
In the present case, the evidence in the record indicates that the trial
court judge’s remarks, on their face and in light of the surrounding
environment in which they occurred, were not inherently coercive or
prejudicial to petitioner’s rights. The judge’s comments appeared to
repeatedly inform petitioner of the possible consequences of proceeding
with a full trial. See Caudill v. Jago, 747 F. 2d 1046, 1050-51 (6th Cir.
1984). There is no evidence which demonstrates that the trial court
judge’s remarks, other than being repeated, “were stern, overbearing or
determined to intimidate” petitioner into pleading no-contest. Id. Petitioner
failed to show that the state court’s decision that his plea was voluntarily
and knowingly made was not a reasonable application of the law.
Finally, to the extent that petitioner argues that Mich. Ct. R. 6.310 or
any other provision of the Michigan Court Rules permitted him to withdraw

15

his plea, he would not be entitled to habeas relief because this is a state
law claim non-cognizable on habeas review. See Phipps v. Romanowski,
566 F. Supp. 2d 638, 647 (E.D. Mich. 2008). Petitioner is not entitled to
relief on his first and second claims.
B. Claim # 3. The ineffective assistance of counsel claims.
Petitioner claims he was denied the effective assistance of counsel
at the trial and appellate level.
To show that he was denied the effective assistance of counsel
under federal constitutional standards, a defendant must satisfy a two
prong test. First, the defendant must demonstrate that, considering all of
the circumstances, counsel’s performance was so deficient that the
attorney was not functioning as the “counsel” guaranteed by the Sixth
Amendment. Strickland v. Washington, 466 U.S. 668, 687 (1984). In so
doing, the defendant must overcome a strong presumption that counsel’s
behavior lies within the wide range of reasonable professional assistance.
Id. In other words, petitioner must overcome the presumption that, under
the circumstances, the challenged action might be sound trial strategy.
Strickland, 466 U.S. at 689. Second, the defendant must show that such
performance prejudiced his defense. Id. To demonstrate prejudice, the

16

defendant must show that “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have
been different.” Strickland, 466 U.S. at 694. The Supreme Court’s holding
in Strickland places the burden on the defendant who raises a claim of
ineffective assistance of counsel, and not the state, to show a reasonable
probability that the result of the proceeding would have been different, but
for counsel’s allegedly deficient performance. See Wong v. Belmontes,
558 U.S. 15, 27 (2009). The Strickland standard applies as well to claims
of ineffective assistance of appellate counsel. See Whiting v. Burt, 395 F.
3d 602, 617 (6th Cir. 2005).
Petitioner first contends that trial counsel was ineffective for coercing
him into pleading no-contest, instead of taking the case to trial.
The Supreme Court has noted that:
Acknowledging guilt and accepting responsibility by an early plea
respond to certain basic premises in the law and its function.
Those principles are eroded if a guilty plea is too easily set aside
based on facts and circumstances not apparent to a competent
attorney when actions and advice leading to the plea took place.
Plea bargains are the result of complex negotiations suffused
with uncertainty, and defense attorneys must make careful
strategic choices in balancing opportunities and risks. The
opportunities, of course, include pleading to a lesser charge and
obtaining a lesser sentence, as compared with what might be the
outcome not only at trial but also from a later plea offer if the
case grows stronger and prosecutors find stiffened resolve. A
17

risk, in addition to the obvious one of losing the chance for a
defense verdict, is that an early plea bargain might come before
the prosecution finds its case is getting weaker, not stronger.
The State’s case can begin to fall apart as stories change,
witnesses become unavailable, and new suspects are identified.
Premo v. Moore, 562 U.S. 115, 124-25 (2011).
The Supreme Court further admonished:
These considerations make strict adherence to the Strickland
standard all the more essential when reviewing the choices an
attorney made at the plea bargain stage. Failure to respect the
latitude Strickland requires can create at least two problems in
the plea context. First, the potential for the distortions and
imbalance that can inhere in a hindsight perspective may
become all too real. The art of negotiation is at least as nuanced
as the art of trial advocacy and it presents questions farther
removed from immediate judicial supervision. There are,
moreover, special difficulties in evaluating the basis for counsel’s
judgment: An attorney often has insights borne of past dealings
with the same prosecutor or court, and the record at the pretrial
stage is never as full as it is after a trial. In determining how
searching and exacting their review must be, habeas courts must
respect their limited role in determining whether there was
manifest deficiency in light of information then available to
counsel. AEDPA compounds the imperative of judicial caution.
Second, ineffective-assistance claims that lack necessary
foundation may bring instability to the very process the inquiry
seeks to protect. Strickland allows a defendant “to escape rules
of waiver and forfeiture,”. Prosecutors must have assurance that
a plea will not be undone years later because of infidelity to the
requirements of AEDPA and the teachings of Strickland. The
prospect that a plea deal will afterwards be unraveled when a
court second-guesses counsel’s decisions while failing to accord
the latitude Strickland mandates or disregarding the structure
dictated by AEDPA could lead prosecutors to forgo plea bargains
18

that would benefit defendants, a result favorable to no one.
Premo, 562 U.S. at 125 (internal citations and quotations omitted).
In order to satisfy the prejudice requirement for an ineffective
assistance of counsel claim in the context of a guilty or no-contest plea,
the defendant must show that there is a reasonable probability that, but for
counsel’s errors, he or she would not have pleaded guilty, but would have
insisted on going to trial. Premo, 562 U.S. at 129 (citing Hill v. Lockhart,
474 U.S. 52, 58-59 (1985)). An assessment of whether a defendant would
have gone to trial but for counsel’s errors “will depend largely on whether
the affirmative defense likely would have succeeded at trial.” Hill, 474 U.S.
at 59. The Sixth Circuit has interpreted Hill to require a federal habeas
court to always analyze the substance of the habeas petitioner’s
underlying claim or defense to determine whether but for counsel’s error,
petitioner would likely have gone to trial instead of pleading guilty or nocontest. See Maples v. Stegall, 340 F.3d 433, 440 (6th Cir. 2003). The
petitioner must therefore show a reasonable probability that but for
counsel’s errors, he would not have pleaded guilty or no-contest, because
there would have been a reasonable chance that he would have been
acquitted had he or she insisted on going to trial. See Garrison v. Elo, 156

19

F. Supp. 2d 815, 829 (E.D. Mich. 2001). A habeas petitioner’s conclusory
allegation that, but for an alleged attorney act or omission he or she would
not have pleaded guilty no-contest, is therefore insufficient to prove such a
claim. Id. The test of whether a defendant would have not pleaded guilty
or no-contest if he or she had received different advice from counsel “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.’” Pilla v. U.S., 668
F.3d 368, 373 (6th Cir. 2012)(quoting Padilla v. Kentucky, 559 U.S. 356,
372 (2010)).
Finally, “[W]hen a state prisoner asks a federal court to set aside a
sentence due to ineffective assistance of counsel during plea bargaining,”
a federal court is required to “use a “‘doubly deferential’” standard of
review that gives both the state court and the defense attorney the benefit
of the doubt.” Burt v. Titlow, 134 S. Ct. 10, 13 (2013).
Petitioner has failed to show a reasonable probability that he could
have prevailed had he insisted on going to trial, or that he would have
received a lesser sentence than he did by pleading no-contest. See
Shanks v. Wolfenbarger, 387 F. Supp. 2d at 750. Petitioner failed to put
20

forth any viable defenses that he had for the assault with intent to commit
murder charges or for the lesser charges in the two other cases that were
dismissed as part of the plea bargain. Petitioner faced up to life in prison if
convicted of the assault with intent to commit murder charges. Petitioner
was also charged with being a fourth felony habitual offender, which would
have raised the maximum penalty for at least some of the other 12
charges to life in prison. Had petitioner been convicted of being a fourth
felony habitual offender, his sentencing guidelines on the minimum
sentence for the assault with intent to commit murder charges could have
been as high as 750 months or 62 ½ years. 3 Petitioner had also
confessed to the crimes. Petitioner’s counsel negotiated a plea
agreement in which petitioner received no more than fourteen years, three
months on the minimum sentence. Petitioner’s counsel also obtained
dismissal of two other cases and the habitual offender charges. Under the
circumstances, trial counsel’s advice to plead no-contest to the assault
with intent to commit murder charges was a reasonable strategy. See
Bonior v. Conerly, 416 F. App’x. 475, 479 (6th Cir. 2010).
3

Under Michigan law, only the minimum sentence must presumptively be set within the
appropriate sentencing guidelines range. See People v. Babcock, 469 Mich. 247, 255, n. 7; 666 N.W. 2d
231 (2003)(citing M.C.L.A 769.34(2)). The maximum sentence is not determined by the trial judge but is
set by law. See People v. Claypool, 470 Mich. 715, 730, n. 14; 684 N.W. 2d 278 (2004)(citing M.C.L.A.
769.8).

21

In addition, the favorable plea bargain that petitioner received
weighs against a finding that counsel was ineffective for advising a nocontest plea. See Plumaj v. Booker, 629 F. App’x.662, 667 (6th Cir.
2015)(citing Pilla, 668 F.3d at 373; Haddad v. United States, 486 F. App’x.
517, 522 (6th Cir. 2012)). Indeed, “the Supreme Court has never held that
the benefits of a plea agreement alone cannot suffice to answer the
prejudice inquiry, namely whether ‘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.’” Id. (quoting Hill v. Lockhart, 474 U.S. at 59).
Other courts have reached the same result. See Pidgeon v. Smith, 785
F.3d 1165, 1173 (7th Cir. 2015)(“The terms of a plea deal are admittedly
relevant in assessing the credibility of a petitioner’s claim that he would
have gone to trial had he received correct information at the plea
bargaining stage”). In light of the favorable plea bargain received in this
case, petitioner is unable to show that he was prejudiced by counsel’s
advise to plead no-contest. Finally, petitioner is not entitled to habeas
relief on his ineffective assistance of counsel claim, because any
suggestion that he has a defense to these charges is “unpersuasive and
lack merit.” Holtgrieve v. Curtis, 174 F. Supp. 2d 572, 587 (E.D. Mich.

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2001).
Petitioner next contends that his sentencing counsel and his
appellate counsel were ineffective for failing to argue that he was entitled
to withdraw his plea pursuant to M.C.R. 6.310(A) because the judge never
accepted it. Instead, counsel moved to withdraw the plea on other
grounds, primarily that petitioner had been coerced into pleading nocontest.
A review of the record establishes that the trial judge accepted
petitioner’s no-contest plea. (Tr. 7/25/11, pp. 22-31). The judge, in fact,
advised petitioner at the time of the plea that he would not be permitted
later on to withdraw it. (Id., p. 31). The judge on post-conviction review
later rejected petitioner’s ineffective assistance of counsel claim,
concluding that he was not entitled to withdraw his plea under M.C.R.
6.310(A) because it had been accepted. People v. Marshall, No. 11002149-01-FC, * 3 (Third Cir. Ct., July 31, 2014).
Federal habeas courts “‘must defer to a state court’s interpretation of
its own rules of evidence and procedure’ when assessing a habeas
petition.” Miskel v. Karnes, 397 F.3d 446, 453 (6th Cir. 2005)(quoting Allen
v. Morris, 845 F.2d 610, 614 (6th Cir. 1988)). Because the state trial court
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sitting on post-conviction review determined that petitioner was not entitled
under M.C.R. 6.310(A) to withdraw his plea, this Court must defer to that
determination in resolving petitioner’s ineffective assistance of counsel
claim. See Brooks v. Anderson, 292 F. App’x. 431, 437-38 (6th Cir. 2008);
Adams v. Smith, 280 F.Supp.2d 704, 721 (E.D. Mich. 2003). Petitioner
has failed to show any reasonable likelihood that any motion to withdraw
his no-contest plea under M.C.R. 6.310(A) would have been granted.
Petitioner was not prejudiced by his sentencing or appellate counsel’s
failure to move to withdraw his plea on this basis. See e.g. Franks v.
Lindamood, 401 F. App’x. 1, 7 (6th Cir. 2010). Petitioner is not entitled to
relief on his third claim.
C. Claim # 4. The post-conviction relief claim.
Petitioner claims that the trial court and the Michigan Court of
Appeals erred in applying M.C.R. 6.508(D)(3) to reject his ineffective
assistance of appellate counsel claim.
Petitioner is correct that he could not have procedurally defaulted his
ineffective assistance of appellate counsel claim because state
post-conviction review was the first opportunity that he had to raise this
claim. See Guilmette v. Howes, 624 F. 3d 286, 291 (6th Cir. 2010).
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However, “[t]he Sixth Circuit consistently held that errors in post-conviction
proceedings are outside the scope of federal habeas corpus review.”
Cress v. Palmer, 484 F. 3d 844, 853 (6th Cir. 2007). A federal habeas
corpus petition cannot be used to mount a challenge to a state’s scheme
of post-conviction relief. See Greer v. Mitchell, 264 F. 3d 663, 681 (6th Cir.
2001). The reason for this is that the states have no constitutional
obligation to provide post-conviction remedies. Id. (citing to Pennsylvania
v. Finley, 481 U.S. 551, 557 (1987)). Petitioner is not entitled to relief on
his fourth claim.
IV. Conclusion
For the reasons discussed, the petition for writ of habeas corpus is
denied.
In order 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, or 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, 483-84 (2000). When a district court
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rejects a habeas petitioner’s constitutional claims on the merits, the
petitioner must demonstrate that reasonable jurists would find the district
court’s assessment of the constitutional claims to be debatable or wrong.
Id. at 484. “The district court must issue or deny a certificate of
appealability when it enters a final order adverse to the applicant.” Rules
Governing § 2254 Cases, Rule 11(a), 28 U.S.C. foll. § 2254.
This Court denies a certificate of appealability because reasonable
jurists would not find this Court’s assessment of the claims to be debatable
or wrong. See Slack v. McDaniel, 529 U.S. at 484. Petitioner may,
however, proceed in forma pauperis on appeal because an appeal could
be taken in good faith. 28 U.S.C. § 1915(a)(3).
V. ORDER
Based upon the foregoing, IT IS ORDERED that the petition for a
writ of habeas corpus is DENIED WITH PREJUDICE.
IT IS FURTHER ORDERED That a certificate of appealability is
DENIED.
IT IS FURTHER ORDERED that the petitioner will be GRANTED
leave to appeal in forma pauperis.

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s/Denise Page Hood
Denise Page Hood
Chief Judge, United States District Court
Dated: October 31, 2016
I hereby certify that a copy of the foregoing document was served upon
counsel of record on October 31, 2016, by electronic and/or ordinary mail.
s/LaShawn R. Saulsberry
Case Manager

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