Rose v. Bauman
Filing
13
OPINION and ORDER Granting 11 MOTION to Dismiss w/Certificate of Service, Denying 1 Petition for Writ of Habeas Corpus, Denying Certificate of Appealability, Denying Permission to Appeal in forma pauperis. Signed by District Judge Paul D. Borman. (DTof)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
KAREY ROSE,
Petitioner,
Case No. 2:17-cv-10836
Hon. Paul D. Borman
v.
CATHERINE BAUMAN,
Respondent.
___________________________________/
OPINION AND ORDER (1) DENYING RESPONDENT’S MOTION TO
DISMISS [Dkt. 11], (2) DENYING PETITION FOR WRIT OF HABEAS
CORPUS [Dkt. 1], (3) DENYING CERTIFICATE OF APPEALABILITY,
AND (4) DENYING PERMISSION TO APPEAL IN FORMA PAUPERIS
This is a habeas case filed by a Michigan prisoner under 28 U.S.C. § 2254.
Petitioner Karey Rose pled guilty in the Oakland Circuit Court to three counts of
armed robbery, MICH. COMP. LAWS § 750.529, one count of first-degree home
invasion, MICH. COMP. LAWS § 750.110a, three counts of unlawful imprisonment,
MICH. COMP. LAWS § 750.349b, one count of felon in possession of a weapon,
MICH. COMP. LAWS § 750.224f, one count of unlawful driving away of an
automobile, MICH. COMP. LAWS § 750.413, and eight counts of possession of a
firearm during the commission of a felony (felony-firearm), MICH. COMP. LAWS §
750.227b. As a result of these convictions, Petitioner was sentenced as a fourthtime habitual felony offender to a controlling term of 45-to-75 years’ imprisonment
for the armed robbery convictions, lesser concurrent terms for the other
convictions, and consecutive two-year terms for the felony-firearm convictions.
The pro se petition raises four claims: (1) the trial court erred in denying
Petitioner’s motion to withdraw his guilty plea, (2) Petitioner was denied his right
to be present at a post-conviction hearing, (3) Petitioner’s plea was coerced by an
unfulfilled promise of a more lenient sentence, (4) the trial court committed
misconduct by participating in the plea negotiations.
Respondent filed a motion to dismiss the petition on the grounds that
Petitioner’s second, third, and fourth claims are unexhausted because they were not
presented to the Michigan Court of Appeals during his direct appeal. Despite
Petitioner’s failure to exhaust his state court remedies with respect to these claims,
the petition will be denied because all of Petitioner’s claims lack merit. The Court
will also deny Petitioner a certificate of appealability and deny permission to
proceed on appeal in forma pauperis.
I. Background
The charges against Petitioner arose after he and another individual broke
into the home of a family on the night of January 14, 2015. The two men were
armed with guns and wearing masks. They restrained the family members, which
included two young children, and stole items from the home. The two men drove
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away in a car belonging to the victims. Police officers located Petitioner’s
accomplice, Keith Singler, by tracking one of the cell phones stolen from the
residence. Singler made statements implicating Petitioner during police
questioning.
At a pretrial hearing held on May 21, 2015, Petitioner’s trial counsel
indicated that the parties had calculated the sentencing guideline range for the
offenses. Dkt. 12-3, at 3. The trial court then indicated that it had “an exhaustive
discussion with counsel at the bench in connection with this case.” Id., at 4. The
court indicated that it was making a Cobbs1 evaluation that the sentence would not
exceed the bottom two-thirds of the sentencing guideline range. Id. The court also
indicated that Petitioner faced mandatory consecutive two-year terms for the
felony-firearm offenses. Id., at 5.
The court indicated that at the time of sentencing it was possible that it
would go below the Cobbs evaluation, but it did not foresee doing so. Id., at 7. The
court stated, “This is obviously a very serious case. I’m going to want to hear from
- Mr. Weiner gave me a bunch of facts that certainly support a more lenient
sentence from Mr. Rose, the People have given me some facts to be on the more
strict side, and I wanted to be able to look at the victim’s impact statement, his
1
See People v. Cobbs, 443 Mich. 276 (1993) (allowing a Michigan trial court to
make a preliminary sentence evaluation to facilitate plea negotiations).
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prior history, how he’s done on parole, all those things.” Id., at 7.
Defense counsel asked Petitioner if he wished to proceed with the plea, and
Petitioner indicated his desire for more time to consider his options. Id., at 7-8. The
court scheduled a pre-trial hearing for the next week. Id., at 8.
One week later, on May 28, 2015, Petitioner indicated his desire to enter a
guilty plea. Dkt. 12-4, at 3. Petitioner was placed under oath. Id., at 4. He indicated
that he was twenty-six years old, and that he could read and write. Id. Petitioner
indicated his satisfaction with his counsel’s advice. Id. Petitioner stated that he had
two years of college. Id., at 5.
The court read the twenty-one felony counts and the maximum penalties for
each charge. Id., at 5-8. Petitioner was informed that his two-year felony-firearm
sentences would be served consecutively with his other sentences and that the court
had discretion to impose consecutive sentences for the other charges a well. Id., at
8-9. Petitioner indicated his understanding. Id., at 9.
The court again explained its Cobbs evaluation that any term of
incarceration would not exceed the bottom two-thirds of the guideline range, and it
again explained that no promises were being made with respect to whether the
sentences would be concurrent or consecutive. Id., at 9-10. Petitioner indicated his
understanding. Id., at 10.
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The court then informed Petitioner of all of the trial and appellate rights he
would be waiving by entering a guilty plea. Id., at 10-12. Petitioner indicated his
understanding. Id. Petitioner then affirmed his understanding that by pleading
guilty he would be giving up any claim that the plea was the result of promises or
threats that were not disclosed to the court. Id., at 11. Petitioner denied that anyone
had threatened him or placed pressure on his to make him plea guilty. Id., at 12.
Petitioner indicated that he was not promised anything that was not disclosed on
the record. Id. Petitioner stated that it was his own choice to plead guilty. Id.
Petitioner then testified that the offense occurred in West Bloomfield in
Oakland County on January 14, 2015. Id., at 11-13. Petitioner testified that he
entered a home with another individual for the purpose of committing a larceny.
Id., at 13. Petitioner entered the home through an open door located in the garage,
and he was armed with a pistol. Id., at 14. Petitioner took computers, electronics,
jewelry, a cell phone, and a wallet from the home. Id., at 15. Petitioner and his
accomplice restrained the five family members while they were in the home. Id., at
16-17. Petitioner admitted that he had at least four prior felony convictions. Id., at
18-19.
The attorneys acknowledged that there was no plea agreement, but there
was a representation by the Court pursuant to Cobbs as to Petitioner’s possible
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sentence. Id., at 20. The attorneys stated that they were not aware of any promises,
threats or other inducements other than those placed on the record to induce
Petitioner’s plea. Id. The court found that Petitioner’s guilty plea was
understanding, voluntary, and accurate. Id., at 21.
At the sentencing hearing Petitioner voiced concern after he was informed
that he would be required to register as a sex offender. Dkt. 12-5, at 10. The trial
court explained that it was a required term for his conviction of restraining a minor
child. Id., at 11-12. The court sentenced Petitioner under the terms of the Cobbs
evaluation to 45-to-75 years’ imprisonment for the armed robbery convictions,
lesser concurrent terms for the other convictions, and consecutive two-year terms
for the felony-firearm convictions. Id., at 28.
On March 23, 2016, through appointed appellate counsel, Petitioner moved
to withdraw his guilty plea. Counsel argued that Petitioner was never informed by
his trial counsel or by the court that he would be required to register as a sex
offender as a result of his pleading guilty to two counts of restraining a child, and
therefore he should be allowed to withdraw his guilty plea with respect to all of the
charges. Dkt. 12-6, at 3. The prosecutor argued that the remedy should be to allow
Petitioner to withdraw his plea only with respect to the two offenses at issue. Id., at
10. The court accepted the prosecutor’s argument, and it set aside the two counts
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requiring sex offender registration and the two corresponding felony-firearm
counts. Id., at 11-12. The court found that Petitioner’s guilty plea with respect to
the other counts was otherwise valid. Id.
Petitioner’s appellate counsel then filed a delayed application for leave to
appeal in the Michigan Court of Appeals, raising the following claims:
I. Mr. Rose’s attorney failed to advise him that if he pleaded guilty to
unlawful imprisonment, he would be required to register as a sex
offender, therefore his plea was not a knowing and “understanding” plea.
Mr. Rose’s attorney failed to render effective assistance of counsel by
failing to advise him that if he pleaded guilty to unlawful imprisonment,
he would be required to register as a sex offender.
II. Mr. Rose is entitled to specific performance of a prosecutor sentence
recommendation of a cap of 17 years in prison where a promise to make
a sentence recommendation was made by the prosecutor but never
delivered.
On June 7, 2016, the Michigan Court of Appeals issued an order denying the
application for leave to appeal “for lack of merit in the grounds presented.” People
v. Rose, No. 332684 (Mich. Ct. App. June 7, 2016).
Petitioner subsequently filed a pro se application for leave to appeal in the
Michigan Supreme Court. The pro se pleading is difficult to decipher, but it
appears to have raised at least nine claims: (1) Petitioner’s guilty pleas to unlawful
imprisonment were not knowingly made where his attorney failed to advise him he
would be required to register as a sex offender, (2) Petitioner’s attorney rendered
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ineffective assistance of counsel by failing to advise him that would be required to
register as a sex offender, (3) Petitioner was denied his right to due process when
the trial court would not allow him to withdraw his guilty pleas at sentencing due
to extensive fraud upon the courts, plain error, misrepresentation, abuse of
discretion, and entrapment, (4) Petitioner’s plea agreement was illusory, (5)
Petitioner was denied due process where the trial judge participated in the plea
bargaining process, (6) Petitioner’s guilty plea was a product of police and
prosecutorial misconduct, entrapment, and intentional use of perjured testimony,
(7), Petitioner was denied his right to withdraw his invalid guilty pleas, (8)
Petitioner was denied his right to effective assistance of appellate counsel, and (9)
Petitioner’s trial counsel had a conflict of interest that induced a plea based on
coercion, misrepresentation, fraud, and duress and rendered counsel ineffective in
violation of the Sixth Amendment.
The Michigan Supreme Court denied the application because it was “not
persuaded that the questions presented should be reviewed by this Court.” People
v. Rose, 887 N.W.2d 801 (December 21, 2016) (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
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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 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)
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(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 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. Exhaustion
Respondent asserts that the petition should be dismissed without prejudice
because Petitioner has not exhausted his state court remedies with respect to his
second through fourth habeas claims. It is true that these three claims were only
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presented to the Michigan Supreme Court and not to the Michigan Court of
Appeals and are therefore unexhausted. See Thompson v. Bell, 580 F.3d 423, 438
(6th Cir. 2009). Nevertheless, lack of exhaustion is not a jurisdictional issue, and
the Court may deny relief on the merits with respect to unexhausted issues. See 28
U.S.C. § 2254(b)(2). Here, because it can be determined that Petitioner’s
unexhausted claims are without merit, the Court will deny Respondent’s motion to
dismiss and instead deny the petition on the merits.
B. Plea Withdrawal
Petitioner’s first claim asserts that he was entitled to withdraw his guilty plea
with respect to all of the charges because he was not informed of the requirement
that he register as a sex offender for his two convictions for restraining a minor
child. The form order by the Michigan Court of Appeals denying relief “for lack of
merit in the grounds presented” constitutes an adjudication on the merits subject to
the deferential standard of § 2254(d). See Werth v. Bell, 692 F. 3d 486, 492-94 (6th
Cir. 2012). The claim is without merit because nothing in clearly established
Supreme Court law prevented the trial court from remedying the alleged error by
vacating the counts at issue but allowing the guilty plea to stand with respect to the
other charges.
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To be valid, a guilty plea must be a voluntary, knowing, and intelligent act.
Brady v. United States, 397 U.S. 742, 748 (1970). A plea is valid if it is “done with
sufficient awareness of the relevant circumstances and likely consequences.”
Brady, 397 U.S. at 748. Courts must consider all the relevant circumstances when
determining whether a plea was voluntary. Id. at 749. Among the factors to be
considered are whether the defendant appreciated the consequences of his waiver
of constitutional rights, whether he waived his rights without being coerced to do
so, and whether he understood the rights that he was surrendering by pleading
guilty. Ruelas v. Wolfenbarger, 580 F.3d 403, 408 (6th Cir. 2009). 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, misrepresentation, or by improper promises.
Mabry v. Johnson, 467 U.S. 504, 508-09 (1984).
Clearly established law did not require the trial court to set aside the four
convictions associated with the requirement for Petitioner to register as a sex
offender, let alone all of the charges to which Petitioner pled guilty. A criminal
defendant “need only be [made] aware of the direct consequences of the plea” and
a trial court “is under no constitutional obligation to inform the defendant of all the
possible collateral consequences of the plea.” King v. Dutton, 17 F.3d 151, 153
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(6th Cir. 1994). The Sixth Circuit has ruled that “[m]atters that are beyond the
control or responsibility of the [trial] court are collateral consequences of a
conviction or plea.” United States v. Cottle, 355 F. App’x 18, 20 (6th Cir. 2009)
(quoting El-Nobani v. United States, 287 F.3d 417, 421 (6th Cir. 2002)).
The Sixth Circuit has concluded on several occasions that the requirement to
register as a sex offender is a collateral one that need not be disclosed to the
defendant in order for a plea to be valid. See, e.g., Blumenthal v. Curley, No.
12-1221, 2013 U.S. App. LEXIS 26018, 2013 WL 7141279, at *2 (6th Cir. Apr. 1,
2013) (citing United States v. Cottle, 355 F. App’x 18, 21 (6th Cir. 2009)). In
Cottle, the Sixth Circuit reasoned that sex-offender registration is a collateral
consequence because it is governed by state and federal law and is “beyond the
control or responsibility of the court.” Cottle, 355 F. App’x at 20. Consequently,
nothing in clearly established Supreme Court law required the trial court to inform
Petitioner of the sex offender registry requirement in order for the guilty plea to be
valid, and the trial court was therefore not required to allow Petitioner to withdraw
his plea with respect to any of the charges. In other words, the partial remedy
ordered by the trial court went beyond what was required by clearly established
federal law.
Moreover, even if the requirement to register as a sex offender is considered
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to be a direct consequence of the plea that the trial court was constitutionally
required to inform Petitioner about during the plea hearing, Petitioner has not cited
any Supreme Court authority–and the Court is aware of none–that prevented the
trial court from remedying the alleged error in the manner that it did. The remedy
fashioned by the trial court eliminated the requirement for Petitioner to register as a
sex offender, leaving Petitioner to face only the consequences of the guilty plea
disclosed at the plea hearing.
Petitioner has failed to demonstrate entitlement to habeas relief with respect
to his first claim because it cannot be supported by clearly established Supreme
Court law.
C. Presence of Petitioner at Post-Conviction Hearing
As the Court understands it, Petitioner’s second claim asserts that he was
denied his right to be present at critical stages of the proceedings when his
appellate counsel waived his presence at his post-conviction motion hearing to
withdraw his guilty plea. Petitioner argues that the error prevented him from
presenting the additional claims discussed below to the trial court during the
motion hearing. The claim is without merit.
The United States Supreme Court has recognized that a criminal defendant
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has a fundamental right to be present at all critical stages of trial. See Rushen v.
Spain, 464 U.S. 114, 117 (1983); see also United States v. Riddle, 249 F.3d 529,
534 (6th Cir. 2001) (a criminal defendant has a constitutional right to be present at
“all stages of the trial where his absence might frustrate the fairness of the
proceedings”).
When the defendant is not confronting witnesses or evidence again him,
however, this right is not absolute, but exists “whenever his presence has a relation,
reasonably substantial, to the fullness of his opportunity to defend against the
charge.” Kentucky v. Stincer, 482 U.S. 730, 745 (1987) (citations and quotations
omitted). The right to be present is not guaranteed “when presence would be
useless, or the benefit but a shadow.” Id.; see also United States v. Brika, 416 F.3d
514, 526 (6th Cir. 2005). A defendant’s presence at a hearing is “largely a matter
of form” when a defendant’s lawyer is present at proceedings which raise largely
legal issues. Cathron v. Jones, 190 F. Supp. 2d 990, 1001-02 (E.D. Mich. 2002).
The United States Supreme Court has not specifically determined whether a
defendant has a right to be present at a post-sentencing hearing on a motion to
withdraw a guilty plea. At least some federal and state courts have rejected the
notion. See Spight v. Stovall, No. 2:07-CV-14230, 2008 U.S. Dist. LEXIS 47310,
2008 WL 2447151, *3 (E.D. Mich. June 18, 2008) (citing Hunt v. United States,
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237 F.2d 267, 268 (4th Cir. 1956); United States v. Shillitani, 16 F.R.D. 336, 340
(S.D.N.Y. 1954); People v. Alcorta, 147 Mich. App. 326, 330 (1985)).
The Court finds that Petitioner’s presence was not constitutionally required
at the post-conviction motion hearing. The hearing involved the legal issue of
whether the failure to inform Petitioner of the requirement to register as a sex
offender allowed him to withdraw his entire plea or only withdraw his plea with
respect to the four relevant charges. Petitioner’s appellate counsel ably argued
Petitioner’s legal position, and Petitioner’s testimony was not necessary to resolve
the motion. While Petitioner’s counsel did not discuss the arguments discussed
below, Petitioner was not prejudiced by the omissions because the additional
claims are completely devoid of merit. Given these circumstances, the Court
concludes that Petitioner’s presence at the hearing would not have contributed to
the fairness of the proceeding. The claim is therefore without merit.
D. Promise of Leniency
Petitioner’s third claim asserts that his trial counsel, the prosecutor, and the
trial court represented to him that he would receive a more lenient sentence than he
actually received if he pled guilty. Petitioner supports this claim with an affidavit
indicating that he only confessed to police when his attorney advised him to do so
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after misrepresenting how his sentencing guidelines would be scored. Dkt. 1-2, at
Page ID 305-06. He indicates that at the May 21, 2015, pretrial hearing, the trial
court informed him that if he pled guilty he would only receive a sentence of twothirds of his guideline range of 27 years. Id., at Page ID 307. He claims that
subsequently the police requested his cooperation in his co-defendant’s case, and
he was promised a sentence of two-thirds of 17 years if he pled guilty. Id., at Page
ID 309-10.
These allegations fail to establish entitlement to relief because Petitioner
denied under oath during the plea hearing that there were any promises made to
him in order to induce his guilty plea that were not placed on the record. Absent
extraordinary circumstances, or some other explanation as to why a defendant did
not reveal other terms when specifically asked to do so by the trial court, a plea
agreement consists of the terms revealed in open court. Baker v. United States, 781
F.2d 85, 90 (6th Cir. 1986). Petitioner expressly denied the existence of any
off-the-record promises at the time of his plea when queried by the trial judge, and
the Court must accept Petitioner’s on-the-record denials over his new off-therecord allegations. See Phipps v. Romanowski, 566 F. Supp. 2d 638, 647 (E.D.
Mich. 2008). Furthermore, in light of the trial court’s statements at the plea hearing
regarding the Cobbs evaluation being the only promise made to induce the plea,
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Petitioner cannot demonstrate that he reasonably believed that he would receive the
particular sentence he now claims his counsel promised him. McAdoo v. Elo, 365
F.3d 487, 497 (6th Cir. 2004); Wright v. Lafler, 247 F. App’x 701, 705-707 (6th
Cir. 2007). Finally, even if it were true that Petitioner’s trial counsel misled him
regarding the sentence he would receive, the state court’s proper plea colloquy
cured any misunderstandings that Petitioner had about the consequences of the
plea. Ramos v. Rogers, 170 F.3d 560, 565 (6th Cir. 1999). Petitioner has therefore
failed to demonstrate entitlement to habeas relief with respect to this claim.
E. Trial Court’s Participation in Plea Bargaining
Petitioner’s final claim asserts that the trial court was biased against him,
and that it erroneously participated in plea negotiations.
With respect to the allegations of bias, the Supreme Court has explained that
“opinions held by judges as a result of what they learned in earlier proceedings”
cannot alone establish “bias” or “prejudice” against an individual or his case.
Liteky v. United States, 510 U.S. 540, 551 (1994). Petitioner does not point to
anything in the record demonstrating that the trial court was biased against him.
The trial court’s participation in the guilty plea proceeding was conducted in
accordance with the Cobbs procedure allowing the parties to obtain a sentencing
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evaluation from the court prior to pleading guilty. The record does not indicate that
the trial court participated in the plea bargaining process beyond that permitted by
Cobbs. In any event, the Supreme Court has expressly held that while the Federal
Rules of Criminal Procedure prohibit judicial involvement in plea negotiations, the
rule is “prophylactic” and not “compelled by the Due Process Clause or any other
constitutional requirement.” United States v. Davila, 569 U.S. 597, 610-11 (2013).
As a consequence, Petitioner fails to demonstrate that any judicial participation
created constitutional error. The claim is therefore without merit.
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
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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.” 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).
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V. Conclusion
Accordingly, the Court 1) DENIES Respondent’s motion to dismiss, 2)
DENIES WITH PREJUDICE the petition for a writ of habeas corpus, 3)
DENIES a certificate of appealability, and 4) DENIES permission to appeal in
forma pauperis.
SO ORDERED.
s/Paul D. Borman
Paul D. Borman
United States District Judge
Dated: January 24, 2018
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 January 24,
2018.
s/Deborah Tofil
Case Manager
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