Dewey v. Haas

Filing 9

OPINION and ORDER denying 1 Petition for Writ of Habeas Corpus, Denying Certificate of Appealability, and Denying Permission to appeal in forma pauperis. Signed by District Judge George Caram Steeh. (MBea)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JOSHUA DEWEY,
Petitioner,

Case No. 2:16-cv-13573
Hon. George Caram Steeh

v.
RANDALL HAAS,
Respondent.
______________________________/
OPINION AND ORDER (1) DENYING PETITION FOR WRIT OF
HABEAS CORPUS, (2) DENYING CERTIFICATE OF APPEALABILITY,
AND (3) DENYING PERMISSION TO APPEAL IN FORMA PAUPERIS
This is a habeas case filed by a Michigan prisoner under 28 U.S.C. §
2254. Petitioner Joshua Dewey was convicted after he pled guilty in the
Livingston Circuit Court to assault on a prison employee, MICH. COMP.
LAWS § 750.197(c), and assault with intent to maim, MICH. COMP. LAWS §
750.86. Petitioner was sentenced to concurrent terms of 20 to 40 years’
imprisonment. The petition raises two claims: (1) the trial court erred in
failing to allow Petitioner to withdraw his guilty plea, and (2) the trial court
erred in scoring the sentencing guidelines.
The Court finds that petitioner’s claims are without merit. Therefore,
the petition will be denied. The Court will also deny a certificate of
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appealability, and deny permission to proceed on appeal in forma pauperis.
I. Background
The incident giving rise to this case occurred on January 21, 2013, at
the Woodlawn Correctional Facility where petitioner was a prisoner. On
that date, petitioner threw a chair at a corrections officer and then dug his
thumb into the officer’s eye socket. Petitioner admitted under oath at the
plea hearing that he intended to pop out the officer’s eye or blind him. Dkt.
8-2, at 27. The entire altercation was recorded by a security video camera.
Dkt. 8-3, at 12.
After he was charged, the prosecutor moved to admit petitioner’s
prior criminal history under Michigan Rule of Evidence 404(b), which
included eight prior felony convictions for assaulting a prison employee. A
hearing was held on the motion, and after entertaining argument, the trial
court stated that if petitioner’s defense was that he did not intend to maim
the officer, then evidence concerning the prior offenses would be allowed.
Dkt. 8-2, at 12-14. A bench conference was then held off the record, and
petitioner’s counsel indicated that he had a discussion with his client, “and
my client indicated to me that he wished to change his plea to a plea of
guilty to an offer that the prosecutor had previously made at this settlement

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conference.” Id., at 15. Petitioner confirmed that this was a correct
statement. Id.
Defense counsel then indicated that the offer was for petitioner to
plead guilty to the two charged offenses, and in return the prosecutor would
amend the habitual offender charge to reduce Petitioner’s minimum
sentence from 25 years to 20 years. Id., at 16. Petitioner indicated his
understanding. Id. Defense counsel further stated that under the
sentencing agreement petitioner’s maximum term would be at least 30
years or higher. Id. Again, petitioner indicated his understanding. Id.
Defense counsel also stated that petitioner’s sentence would run
consecutively to time he was already serving, and petitioner indicated his
understanding and his desire to enter into the plea bargain. Id., at 17.
Petitioner was then placed under oath. Id., at 19. He indicated that he
was 30 years old and had completed the eighth grade. Id., He indicated he
could read and write. Id. Petitioner denied that he was under the influence
of alcohol or any controlled substance. Id. When asked what he was
pleading guilty to, petitioner stated, “I’m pleading guilty to count one,
assault with intent to maim. . . . [and] count two, assault of prison
employee.” Id., at 19-20. He also acknowledged that he was charged with

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being a fourth-time habitual felony offender, and that the maximum
possible sentence was life. Id.
Petitioner indicated his understanding that his plea of guilty had the
same effect as a conviction after a trial. Id., at 20. He indicated his
understanding that his sentence would run consecutively to his present
sentence. Id., at 21. Petitioner indicated his understanding of the nature of
the charges against him, and he expressed satisfaction in his counsel’s
representation. Id., at 22.
Petitioner was then advised of, and agreed to waive, each of his trial
rights. Id., at 22-23. Petitioner also read and signed a written advice of
rights form. Id., at 24. Petitioner indicated that he was pleading guilty
because he really was guilty. Id. He agreed that it was his own choice to
enter his plea. Id.
Petitioner testified that on January 21, 2013, when he was a prisoner
at the Woodlawn Correctional Facility he intentionally threw a plastic chair
at a corrections officer, and then when the officer attempted to place him
into custody he “reached up and put [his] finger into his eye and [he]
gouged at his eye with an intent . . . to blind him or pop an eye . . . to gouge
an eye out.” Id. 24-27. Petitioner stated that he understood that gouging

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someone’ s eye out would be a maiming or disfiguring injury. Id., at 27.
The Court again asked petitioner if he was offering his plea
voluntarily, and petitioner indicated that he was. Id., at 28-29. Petitioner
stated he understood that by pleading guilty he was giving up any claim
that the plea was the result of promises or threats that were not disclosed
to the Court during the plea hearing. Id., at 29. Petitioner stated that
everything he stated during the plea hearing was true and accurate. Id., at
30. The Court then found that petitioner’s guilty plea was entered freely,
voluntarily, understandingly, knowingly, and accurately. Id., at 30-31.
Petitioner acknowledged that he was “not going to be able to withdraw from
this plea as long as the Judge goes along with the sentencing agreement.”
Id., at 34.
At the sentencing hearing, petitioner indicated his desire to withdraw
his guilty plea. Dkt. 8-3, at 7. He indicated that he had a history of PTSD
from childhood, and that when the offense occurred he had a flashback of
being traumatized by his father. Id. He indicated that the only reason he
entered his plea was “because I was feeling threatened by the way the
prosecutor was conducting herself, and the only reason I didn’t act out is
because I was scared by how many officers were in the courtroom. Also

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another reason I want to withdraw my plea is because at the time of the
alleged offense my psychotropic medicines were being adjusted and my
treating psychiatrist . . . was trying to stabilize me on my medicine.” Id., at
7-8. Petitioner also asserted that he was unstable in his thoughts and
emotions. Id., at 8.
Petitioner asserted that before leaving the facility for the plea hearing,
“the MDOC transportation told me, ‘If you don’t plead guilty, I’ll activate the
taser cuff.’ . . . I was scared that I might die if she did this because I never
had dealt with one of these in the past.” Id. The trial court denied the
motion, finding that it presided over the plea hearing, and in the court’s
judgment the plea was entered knowingly, voluntarily, and understandingly.
Id., at 8-9. In scoring the sentencing guidelines, petitioner was scored 50
points over defense counsel’s objection for Offense Variable 7 for sadism.
Id., at 11-13. Petitioner was then sentenced under the terms of the plea
agreement to two concurrent terms of 20 to 40 years. Id., at 18.
Following his conviction and sentence petitioner filed an application
for leave to appeal in the Michigan Court of Appeals, raising what now form
his two habeas claims. The Michigan Court of Appeals denied the
application for “lack of merit in the grounds presented.” People v. Dewey,

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No. 326116 (Mich. Ct. App. Apr. 13, 2015). Petitioner subsequently filed an
application for leave to appeal in the Michigan Supreme Court, raising the
same claims. The Michigan Supreme Court denied the application because
it was not persuaded that the questions presented should be reviewed by
the Court. People v. Dewey, 870 N.W.2d 696 (Mich. 2015)(Table).
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 state court adjudication is “contrary to” Supreme Court precedent
under § 2254(d)(1) “if the state court applies a rule that contradicts the

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governing law set forth in [Supreme Court] cases” or “if the state court
confronts a set of facts that are materially indistinguishable from a decision
[of the Supreme Court] and nevertheless arrives at a [different result].”
Lockyer v. Andrade, 538 U.S. 63, 73 (2003) (internal quotation marks
omitted).
Under the “unreasonable application” clause of § 2254(d)(1),
even clear error will not suffice. Rather, 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.
White v. Woodall, ___ U.S. ___, 134 S. Ct. 1697, 1702, 188 L. Ed. 2d 698
(2014) (citations, quotation marks, and alterations omitted).
“When reviewing state criminal convictions on collateral review,
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, 191 L. Ed. 2d 464 (2015). “Federal habeas review thus exists as ‘a
guard against extreme malfunctions in the state criminal justice systems,
not a substitute for ordinary error correction through appeal.’” Id. (quoting
Harrington v. Richter, 562 U.S. 86, 102-03 (2011)). “[W]hether the trial

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judge was right or wrong is not the pertinent question under AEDPA.”
Renico v. Lett, 559 U.S. 766, 778 n.3 (2010). The question is whether the
state court’s application of federal law was “objectively unreasonable.”
White, 134 S. Ct. at 1702. In short, the standard for obtaining federal
habeas relief is “difficult to meet . . . because it was meant to be.” Burt v.
Titlow, ___ U.S. ___, 134 S. Ct. 10, 16, 187 L. Ed. 2d 348 (2013)(internal
quotation marks omitted).
III. Analysis
A. Plea Withdrawal
Petitioner first asserts that the trial court erred in failing to allow him
to withdraw his plea prior to sentencing. He argues that he had undergone
a change in psychotropic medication, that he was threatened by the
transportation officer, that the number of correctional officers in attendance
was intimidating, and that the manner the prosecutor conducted herself at
the pretrial hearing felt threatening as well.
The AEDPA deferential standard of review applies to this claim
because the Michigan Court of Appeals rejected petitioner’s application for
leave to appeal “for lack of merit in the grounds presented.” This decision
amounted to a decision on the merits. See Werth v. Bell, 692 F. 3d 486,

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492-94 (6th Cir. 2012).
At the outset, petitioner has no federal constitutional right or absolute
right under state law to withdraw his guilty plea. See Adams v. Burt, 471 F.
Supp. 2d 835, 843 (E.D. Mich. 2007). Therefore, unless the plea violated a
clearly established constitutional right, whether to allow the withdrawal of a
criminal defendant’s guilty plea is within the state trial court’s discretion.
See id.; see also Hoffman v. Jones, 159 F. Supp. 2d 648, 655 (E.D. Mich.
2001). The only question on collateral review of a guilty plea is whether the
plea was voluntary, knowing, and intelligent. United States v. Broce, 488
U.S. 563, 569 (1989); Bousley v. United States, 523 U.S. 614, 618 (1998).
A guilty plea is voluntary if the accused understands the nature of the
charges against him and the constitutional protections that he is waiving.
Henderson v. Morgan, 426 U.S. 637, 645 n.13 (1976). A plea is knowing
and intelligent if it is done “with sufficient awareness of the relevant
circumstances and likely consequences.” Brady v. United States, 397 U.S.
742, 748 (1970). The defendant must also be aware of the maximum
sentence that can be imposed for the crime for which he or she is pleading
guilty. King v. Dutton, 17 F.3d 151, 154 (6th Cir. 1994), cert. denied, 512
U.S. 1222 (1994).

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When a petitioner brings a federal habeas petition challenging his
plea of guilty, the state generally satisfies its burden by producing a
transcript of the state-court proceedings showing that the plea was made
voluntarily. Garcia v. Johnson, 991 F.2d 324, 326 (6th Cir. 1993). The
factual findings of a state court that the guilty plea was properly made are
generally accorded a presumption of correctness. Id. The petitioner must
overcome a heavy burden if the federal court is to overturn these findings
by the state court. Id. at 328. It is only when the consensual character of a
guilty plea is called into question that the validity of a guilty plea may be
impaired. Mabry v. Johnson, 467 U.S. 504, 508-509 (1984). “A plea of
guilty entered by one fully aware of the direct consequences, including the
actual value of any commitments made to him by the court, prosecutor, or
his or her own counsel, must stand unless induced by threats (or promises
to discontinue improper harassment), misrepresentation (including
unfulfilled or unfulillable promises), or perhaps by promises that are by their
nature improper as having no proper relationship to the prosecutor's
business (i.e. bribes).” Myers, 159 F. Supp. 2d at 626-627 (citing Mabry,
467 U.S. at 509).
In the present case, the record establishes that petitioner knowingly

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and voluntarily entered his guilty plea. Petitioner was advised of the
maximum penalties of the crimes that he was pleading to, as well as the
rights that he would be giving up by pleading guilty. The terms of the plea
agreement were placed on the record, including the sentencing agreement.
Petitioner acknowledged several times that he was pleading guilty freely
and voluntarily and that no threats had been made to get him to plead
guilty. He also read and signed a written notice of rights form. Petitioner
readily admitted to assaulting the corrections officer, and he never
indicated that he felt threatened or intimidated by outside forces prior to
entering his guilty plea.
Petitioner's claim that the change in medications clouded his
judgment is contradicted by his sworn testimony that he was not under the
influence of a controlled substance at the time of his plea, and it is also
contradicted by the record of his appropriate, lucid, and responsive
statements during the plea colloquy. Petitioner’s claims that he was
intimidated by the transportation officer, the number of officers in the
courtroom, and the prosecutor’s conduct is likewise contradicted by his
sworn testimony that he was entering his plea of his own free will and that
he was not threatened into entering his plea. Petitioner’s claims that he

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was coerced into pleading guilty by these outside factors is insufficient to
overcome the presumption of verity which attaches to petitioner’s sworn
testimony to the contrary during the plea colloquy. See Shanks v.
Wolfenbarger, 387 F. Supp. 2d 740, 750-751 (E.D. Mich. 2005). Petitioner
has therefore failed to show that the state court adjudication of his first
claim was contrary to, or involved an unreasonable application of, clearly
established Supreme Court law.
B. Sentencing Guidelines
Petitioner next claims that the trial court incorrectly scored the
sentencing guidelines. Specifically, he assets that it was error for the trial
court to score him fifty points for treating the victim with sadism, torture, or
excessive brutality when the factual basis for the plea indicated that
petitioner merely reached for the officer’s eye, and it was not a prolonged
or repeated attack.
“[A] federal court may issue the writ to a state prisoner ‘only on the
ground that he is in custody in violation of the Constitution or laws or
treaties of the United States.’” Wilson v. Corcoran, 562 U.S. 1 (2010)
(quoting 28 U.S.C. § 2254(a)). Federal courts have no power to intervene
on the basis of a perceived error of state law. Bradshaw v. Richey, 546

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U.S. 74, 76 (2005); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Claims
concerning the improper application of sentencing guidelines are state-law
claims and typically are not cognizable in habeas corpus proceedings. See
Hutto v. Davis, 454 U.S. 370, 373-74 (1982) (federal courts normally do not
review a sentence for a term of years that falls within the limits prescribed
by the state legislature); Austin v. Jackson, 213 F.3d 298, 301-02 (6th Cir.
2000) (alleged violation of state law with respect to sentencing is not
subject to federal habeas relief).
An exception exists if a sentence is based upon material
“misinformation of constitutional magnitude.” Roberts v. United States, 445
U.S. 552, 556 (1980); Townsend v. Burke, 334 U.S. 736, 741 (1948). But to
prevail on such a claim, the petitioner must show (1) that the information
before the sentencing court was materially false, and (2) that the court
relied on the false information in imposing the sentence. See United States
v. Polselli, 747 F.2d 356, 358 (6th Cir. 1984); United States v. Stevens, 851
F.2d 140, 143 (6th Cir. 1988)). A sentencing court demonstrates actual
reliance on misinformation when the court gives “explicit attention” to it,
“found[s]” its sentence “at least in part” on it, or gives “specific
consideration” to the information before imposing sentence. United States

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v. Tucker, 404 U.S. 443, 447(1972).
Petitioner states that the court relied upon false information by finding
that the crime involved sadism, torture, or excessive brutality. In fact,
however, Petitioner’s dispute is not with the facts relied upon by the trial
court, which were not in dispute, but with whether those facts amounted to
sadism, torture, or excessive brutality as defined by the state sentencing
guidelines. Petitioner fails to identify any false information that formed the
basis for the trial court’s determination that points be scored for the offense
variable in light of the nature of the crime. Thus, petitioner’s challenge is
more accurately characterized as an objection to application of the
Michigan sentencing guidelines, and such a challenge is not cognizable on
habeas review. See Tironi v. Birkett, 252 F. App’x 724, 725 (6th Cir. 2007);
Howard v. White, 76 F. App’x 52, 53 (6th Cir. 2003) (“A state court’s
alleged misinterpretation of state sentencing guidelines and crediting
statutes is a matter of state concern only.”); see also Kissner v. Palmer,
826 F. 3d 898, 904 (6th Cir. 2016) (stating that errors in the application of
state sentencing guidelines “cannot independently support habeas relief”).
As none of Petitioner’s claims merit relief, the petition will be denied.

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IV. Certificate of Appealability
Federal Rule of Appellate Procedure 22 provides that an appeal may
not proceed unless a certificate of appealability is issued under 28 U.S.C. §
2253. Rule 11 of the Rules Governing Section 2254 Proceedings, which
was amended as of December 1, 2009, requires that a district court must
“issue or deny a certificate of appealability when it enters a final order
adverse to the applicant. . . . If the court issues a certificate, the court must
state the specific issue or issues that satisfy the showing required by 28
U.S.C. § 2253(c)(2).” Rule 11, Rules Governing Section 2254 Proceedings.
A certificate of appealability may issue “only if the applicant has made a
substantial showing of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2). Courts must either issue a certificate of appealability indicating
which issues satisfy the required showing or provide reasons why such a
certificate should not issue. 28 U.S.C. § 2253(c)(3); Fed. R. App. P. 22(b);
In re Certificates of Appealability, 106 F.3d 1306, 1307 (6th Cir. 1997).
To receive a certificate of appealability, “a petitioner must show that
reasonable jurists could debate whether (or, for that matter, agree that) the
petition should have been resolved in a different manner or that the issues
presented were adequate to deserve encouragement to proceed further.”

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Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (internal quotes and
citations omitted). Here, jurists of reason would not debate the Court’s
conclusion that Petitioner has not met the standard for a certificate of
appealability because his claims are completely devoid of merit. Therefore,
the Court denies a certificate of appealability.
The Court will also deny permission to appeal in forma pauperis
because any appeal of this decision could not be taken in good faith. 28
U.S.C. § 1915(a)(3).
V. Conclusion
Accordingly, the Court 1) DENIES WITH PREJUDICE the petition for
a writ of habeas corpus, 2) DENIES a certificate of appealability, and 3)
DENIES permission to appeal in forma pauperis.
SO ORDERED.
Dated: June 13, 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
June 13, 2017, by electronic and/or ordinary mail and also on
Joshua Dewey #379204, Macomb Correctional Facility,
34625 26 Mile Road, New Haven, MI 48048.
s/Barbara Radke
Deputy Clerk

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