Bush v. Bauman

Filing 14

ORDER Denying 1 Petition for Writ of Habeas Corpus and Declining to issue certificate of appealability. Signed by District Judge George Caram Steeh. (MBea)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

HENRY BUSH,
Petitioner,

Case Number: 2:16-CV-12542
HON. GEORGE CARAM STEEH

v.
CATHERINE S. BAUMAN,
Respondent.
/
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND
DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY
Petitioner Henry Bush has filed a pro se petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254, challenging his conviction for
possession with intent to deliver between 50 and 450 grams of cocaine.
Petitioner, who is presently incarcerated at the Muskegon Correctional
Facility in Muskegon, Michigan, seeks habeas relief on the ground that he
received ineffective assistance of counsel. For the reasons set forth, the
Court denies the petition.
I. Background
Petitioner was charged in Wayne County Circuit Court with
possession with intent to deliver 50 to 450 grams of cocaine and being a
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fourth habitual offender. On May 2, 2014, Petitioner pleaded guilty to the
drug charge in exchange for dismissal of the habitual offender notice and
with a sentence agreement of 7 to 20 years. The sentence agreement also
provided that the prosecutor would consider a request that Petitioner
should be sentenced to 5 to 20 years based upon Petitioner’s cooperation
between the plea and sentencing.
At sentencing, Petitioner moved to withdraw his plea because the
prosecutor declined to recommend a sentence of 5 to 20 years, having
determined Petitioner’s cooperation insufficient to warrant a downward
adjustment. The trial court held that Petitioner knew at the time he entered
the plea that he was not guaranteed a sentence of 5 to 20 years and that
the assessment of Petitioner’s degree of cooperation was entirely within
the prosecutor’s discretion. Petitioner was sentenced in accordance with
the plea agreement to 7 to 20 years imprisonment.
Petitioner filed an application for leave to appeal in the Michigan
Court of Appeals raising two claims for relief: (i) the trial court erred in
denying motion to withdraw plea; and (ii) trial counsel was ineffective in
failing to investigate Petitioner’s degree of cooperation with police. The
Michigan Court of Appeals denied leave to appeal for “lack of merit in the

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grounds presented.” People v. Bush, No. 324935 (Mich. Ct. app. Feb. 4,
2015). The Michigan Supreme Court also denied leave to appeal. People
v. Bush, 498 Mich. 873 (Mich. 2015).
Petitioner then filed the pending habeas corpus petition. He raises
this claim:
Bush was denied the effective assistance of counsel when his
counsel did not have all the facts necessary to argue for a
reduced sentence at his sentencing.
II. Standard of Review
Review of this case is governed by the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”). Under the 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 proceeding.
28 U.S.C. § 2254(d).
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

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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 (2000). An
“unreasonable application” occurs when “a state court decision
unreasonably applies the law of [the Supreme Court] to the facts of a
prisoner's case.” Id. at 408. “[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 411.
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.
Visciotti, 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

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court’s decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011). The
Supreme Court has emphasized “that even a strong case for relief does not
mean the state court's contrary conclusion was unreasonable.” Id. at 102.
Furthermore, pursuant to § 2254(d), “a habeas court must determine what
arguments or theories supported or ... could have supported, the state
court's decision; and then it must ask whether it is possible fairminded
jurists could disagree that those arguments or theories are inconsistent
with the holding in a prior decision of th[e Supreme] Court.” Id.
Although 28 U.S.C. § 2254(d), as amended by the AEDPA, does not
completely bar federal courts from relitigating claims that have previously
been rejected in the state courts, it preserves the authority for a federal
court to grant habeas relief only “in cases where there is no possibility
fairminded jurists could disagree that the state court’s decision conflicts
with” Supreme Court precedent. Id. Indeed, “Section 2254(d) reflects the
view that habeas corpus is a ‘guard against extreme malfunctions in the
state criminal justice systems,’ not a substitute for ordinary error correction
through appeal.” Id. (quoting Jackson v. Virginia, 443 U.S. 307, 332 n. 5
(1979)) (Stevens, J., concurring)). Therefore, in order to obtain habeas
relief in federal court, a state prisoner is required to show that the state

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court’s rejection of his claim “was so lacking in justification that there was
an error well understood and comprehended in existing law beyond any
possibility for fairminded disagreement.” Id. at 103.
Additionally, a state court’s factual determinations are entitled to a
presumption of correctness on federal habeas review. See 28 U.S.C. §
2254(e)(1). A petitioner may rebut this presumption with clear and
convincing evidence. See Warren v. Smith, 161 F.3d 358, 360-61 (6th Cir.
1998). Moreover, habeas review is “limited to the record that was before
the state court.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011).
III. Discussion
Petitioner seeks habeas corpus relief on the ground that his attorney
provided ineffective assistance in relation to a possible sentence reduction.
Petitioner argues that he presented information to police related to drug
dealers and deals in exchange for which Petitioner was supposed to
received a two-year sentence reduction. He argues that because counsel
was not present during a meeting when Petitioner provided useful
information to police and because counsel failed to ascertain Petitioner’s
level of cooperation, counsel could not effectively argue that Petitioner was
entitled to the sentence reduction.

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The AEDPA “erects a formidable barrier to federal habeas relief for
prisoners whose claims have been adjudicated in state court.” Burt v.
Titlow, __ U.S. __, 134 S. Ct. 10, 16 (2013). The standard for obtaining
relief is “‘difficult to meet.’” White v. Woodall, __ U.S. __, 134 S. Ct. 1697,
1702 (2014), quoting Metrish v. Lancaster, 569 U.S. __, __, 133 S. Ct.
1781, 1786 (2013). In the context of an ineffective assistance of counsel
claim under Strickland v. Washington, 466 U.S. 668 (1984), the standard is
“all the more difficult” because “[t]he 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 citations and
quotation marks omitted). “[T]he question is not whether counsel’s actions
were reasonable”; but whether “there is any reasonable argument that
counsel satisfied Strickland’s deferential standard.” Id.
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, 466 U.S. at 687. 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

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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.
An attorney’s deficient performance is prejudicial if “counsel’s errors
were so serious as to deprive the defendant of a fair trial, a trial whose
result is reliable.” Strickland, 466 U.S. at 687. The petitioner must show “a
reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the
outcome.” Id. at 694.
In guilty plea cases, the “performance” prong requires 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).
The “prejudice” prong “focuses on whether counsel’s constitutionally
ineffective performance affected the outcome of the plea process.” Id. at
59. The petitioner must show “a reasonable probability that, but for
counsel’s errors, he would not have pleaded guilty and would have insisted
on going to trial.” Id.

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Petitioner raised this claim on direct review. The Michigan Court of
Appeals denied this claim “for lack of merit in the grounds presented.”
2/4/15 Order, ECF No. 8-4. The Michigan Court of Appeals’ summary
denial of Petitioner’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 Petitioner’s claim.
The trial court denied Petitioner’s motion to withdraw his plea
because the trial court found no promise of a sentence reduction. The trial
court held that, instead, Petitioner was aware there was only the possibility
of a sentence reduction. The parties clearly differed in their perceptions of
Petitioner’s cooperation. But Petitioner’s allegations of his own attorney’s
ineffectiveness in this regard are conclusory. First, Petitioner knew the
degree of his own cooperation. He could have informed his attorney about

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the specifics of his cooperation without need for counsel to conduct an
investigation. Second, Petitioner fails to make any offer of proof as to what
information counsel could have discovered had he conducted an
investigation. Conclusory allegations, without evidentiary support, do not
provide a basis for habeas relief. See Cross v. Stovall, 238 F. App’x 32,
39-40 (6th Cir. 2007); Prince v. Straub, 78 F. App’x 440, 442 (6th Cir.
2003). Petitioner’s conclusory arguments that counsel was ineffective are
insufficient to hurdle AEDPA’s doubly deferential standard of review.
Petitioner is not entitled to relief.
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 requires that the Court “must 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). The substantial
showing threshold is satisfied when a petitioner demonstrates “that
reasonable jurists would find the district court’s assessment of the

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constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S.
473, 484 (2000).
In this case, the Court concludes that reasonable jurists would not
debate the Court’s conclusion that none of the claims in the habeas petition
warrant relief. Therefore, the Court denies a certificate of appealability.
V. Conclusion
The petition for a writ of habeas corpus and a certificate of
appealability are DENIED and the matter is DISMISSED WITH
PREJUDICE.
SO ORDERED.
Dated: November 16, 2017
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
November 16, 2017, by electronic and/or ordinary mail and
also on Henry S. Bush #333830, Muskegon Correctional
Facility, 2400 S. Sheridan, Muskegon, MI 49442.
s/Barbara Radke
Deputy Clerk

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