Sullivan v. Steward
OPINION AND ORDER (1) DENYING PETITION FOR WRIT OF HABEAS CORPUS, (2) DENYING CERTIFICATE OF APPEALABILITY, AND (3) DENYING PERMISSION TO FILE APPEAL IN FORMA PAUPERIS. Signed by District Judge Gershwin A. Drain. (TBan)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case No. 17-cv-11207
UNITED STATES DISTRICT COURT
GERSHWIN A. DRAIN
OPINION AND ORDER (1) DENYING PETITION FOR WRIT OF
CORPUS, (2) DENYING CERTIFICATE OF APPEALABILITY, AND
(3) DENYING PERMISSION TO FILE APPEAL IN FORMA PAUPERIS
This is a habeas case filed by a Michigan prisoner under 28 U.S.C. § 2254.
Petitioner Tewana Sullivan was convicted after she pled guilty but mentally ill in the
Wayne Circuit Court to second-degree murder. Dkt. No. 8-9, pg. 8 (Pg. ID 232).
Under the terms of the plea agreement, the court sentenced Petitioner to 23 to 50
years in prison. Id. The petition raises a single claim: the trial court erred in failing
to allow Petitioner to withdraw her guilty plea prior to sentencing where she did not
understand the sentencing consequences of her plea. Dkt. No. 1, pg. 2 (Pg. ID 2).
The Court finds that Petitioner’s claim is without merit. Therefore, the Court will
deny her petition. The Court will also deny Petitioner a certificate of appealability
and deny her leave to appeal in forma pauperis.
Petitioner was charged with first-degree murder after she killed 66-year-old
Cheryl Livy by hitting her in the head numerous times with a crock pot. Dkt. 8-9 pg.
10 (Pg. ID 234).
On May 28, 2015, Petitioner pled guilty but mentally ill to the lesser charge
of second-degree murder, with a sentence agreement of 23 to 50 years in prison. Id.
at 7–8 (Pg. ID 231–32).
At the plea hearing the prosecutor stated the terms of the agreement, including
the sentence Petitioner would receive. Id. at 3 (Pg. ID 227). Defense counsel
indicated that he agreed with the statement, and he indicated: “I believe it’s the
understanding of my client’s offer, since I did present that to her not only this
morning, but I’ve been talking with her personally at the jail on several occasions
since the offer was made.” Id. at 4 (Pg. ID 228). Petitioner indicated her desire to
enter into the plea agreement. See id.
The trial court indicated that it had read the Forensic Center report on
Petitioner’s competency and criminal responsibility, stating:
Ms. Sullivan was given an opportunity for what is called an
independent psychological evaluation or psychiatric evaluation. Both
examiners, both the People’s examiner and the defense examiner found
that Ms. Sullivan could not be found not guilty by reason of insanity.
That is to say that she did not meet the statutory threshold for legal
insanity. However, the defense examiner found based on his review of
medical records and history that Ms. Sullivan had a number of
psychiatric issues problems or diagnoses over a period of time. Some
of which may have been related to neurological incidents, and that she
is mentally ill. And I, I find, that’s Dr. Miller, by a preponderance of
the evidence Dr. Miller’s findings to have been persuasive on the issue
of mental illness.
Okay. And, and I should also mention that, that by all accounts
Ms. Sullivan is competent. Competent to stand trial and competent to
Id. at 5,7 (Pg. ID 229, 231).
The Court then reiterated the terms of the plea agreement:
And that by accepting this offer that you plead guilty but
mentally ill to murder in the second degree, you are agreeing to the
sentence agreement of 23 year to 50 years with the Michigan
Department of Corrections. Your commitment will stipulate that you
are to receive all requisite psychiatric or other mental health care during
your term of incarceration. But it is a guilty plea and results in a murder
in the second degree conviction which is a life offense. You understand
Id. at 8 (Pg. ID 232).
Petitioner indicated her understanding. See id. The court asked Petitioner
whether anyone had promised her anything other than what was placed on the record,
or whether she was threatened to obtain her plea, and she answered, “No, sir.” Id. at
9 (Pg. ID 233).
The court then advised Petitioner of all the trial rights she would be waiving
by entering her plea, and Petitioner indicated that she understood and wished to enter
the plea. Id. at 8–11 (Pg. ID 232–35). The court accepted the plea. Id. at 11 (Pg. ID
At the sentencing hearing Petitioner indicated that she wished to withdraw her
I took this plea thinking that I was gonna be going to a place
where I could get help. I didn’t think I was gonna be going to jail.
Thought I was gonna go somewhere where I would get help, and I
found out today that I’m not.
There’s no woman in my family who made it past, past 70s. So
I’m gonna die in jail.
And as far as I’m concerned, I have changed my mind with that.
Um, I rather go to trial on this and let the people, you know, choose my
ending for me.
Dkt. No. 8-10, pg. 8–9 (Pg. ID 247–48).
The trial court rejected the claim that Petitioner did not know she would be
going to prison:
Well, it’s a little late for that now. You did plead. And, and at the time
you gave your plea a couple of weeks ago all of the consequences were
laid out. You were fully advised what was going to happen and you
agreed to the plea. And you acknowledged what rights you were giving
up when you rendered the plea.
Id. at 9 (Pg. ID 248).
The Court proceeded to sentence Petitioner under the terms of the plea
Following her conviction and sentence, Petitioner requested and was
appointed appellate counsel. Petitioner filed a delayed application for leave to appeal
in the Michigan Court of Appeals, raising the following claim:
The circuit court abused its discretion when it denied Ms. Sullivan’s
pre-sentence motion for plea withdrawal where Ms. Sullivan asserted
she had misunderstood the sentence agreement and where the court did
not require the prosecutor to establish that substantial prejudice would
result from plea withdrawal. Her plea was not knowing, voluntary and
intelligent. This court should remand for plea withdrawal or, at least,
remand to require the prosecutor to establish that substantial prejudice
would result from plea withdrawal.
Dkt. No. 1, pg. 14 (Pg. ID 14).
The Michigan Court of Appeals denied the application for leave to appeal “for
lack of merit in the grounds presented.” People v. Sullivan, No. 332388 (Mich. Ct.
App. May 19, 2016); Dkt. No. 8-12, pg. 33 (Pg. ID 329). Petitioner subsequently
filed an application for leave to appeal in the Michigan Supreme Court, raising the
same claim. The Michigan Supreme Court denied the application because it was not
persuaded that the question presented should be reviewed by the Court. People v.
Sullivan, 887 N.W.2d 423, 423 (Mich. 2016) (Table).
III. STANDARD OF REVIEW
28 U.S.C. § 2254(d)(1) curtails a federal court’s review of constitutional
claims raised by a state prisoner in a habeas action if the claims were adjudicated on
the merits by the state courts. Relief is barred under this section unless the state court
adjudication “was contrary to” or resulted in an “unreasonable application of”
clearly established Supreme Court law. 28 U.S.C. § 2254(d)(1).
“A state court’s decision is ‘contrary to’ . . . clearly established law if it
‘applies a rule that contradicts the governing law set forth in [Supreme Court cases]’
or if it ‘confronts a set of facts that are materially indistinguishable from a decision
of [the Supreme] Court and nevertheless arrives at a result different from [this]
precedent.’” Mitchell v. Esparza, 540 U.S. 12, 15–16 (2003) (quoting Williams v.
Taylor, 529 U.S. 362, 405–06 (2000)).
“[T]he ‘unreasonable application’ prong of the statute permits a federal
habeas court to ‘grant the writ if the state court identifies the correct governing legal
principle from [the Supreme] Court’s decisions but unreasonably applies that
principle to the facts’ of petitioner’s case.” Wiggins v. Smith, 539 U.S. 510, 520
(2003) (quoting Williams v. Taylor, 529 U.S. 362, 413 (2000)).
“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) (quoting
Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). “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. . . . 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.” Id. at 102–03.
Petitioner asserts that the trial court erred in failing to allow her to withdraw
her guilty plea prior to sentencing where she did not understand the sentencing
consequences of her plea. Specifically, Petitioner claims that she thought by
pleading guilty but mentally ill she would not be serving her sentence in prison, but
instead that she would receive treatment for her mental illness at a psychiatric
facility. Respondent claims that the state courts reasonably rejected the claim on the
The Antiterrorism and Effective Death Penalty Act (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.” People v. Sullivan, No. 332388 (Mich. Ct. App. May 19, 2016); Dkt. No.
8-12, pg. 33 (Pg. ID 329). This decision amounted to a decision on the merits. See
Werth v. Bell, 692 F.3d 486, 492–94 (6th Cir. 2012).
First, with respect to Petitioner’s claim that the trial court abused its discretion
under Michigan Court Rule 6.310(B) by failing to allow Petitioner to withdraw her
plea absent the prosecution indicating substantial prejudice, the claim is not
cognizable. A habeas court may not grant habeas relief on the basis of state law
governing the taking or withdrawal of guilty pleas. See Riggins v. McMackin, 935
F.2d 790, 794–95 (6th Cir. 1991). Moreover, a state defendant has no
constitutionally guaranteed right to withdraw an otherwise valid guilty plea. See
Carwile v. Smith, 874 F.2d 382, 385 (6th Cir. 1989).
The only constitutional challenge that a habeas court may entertain with
regard to a guilty plea is that the plea was not entered in a knowing and voluntary
fashion under the standards set forth in Brady v. United States, 397 U.S. 742 (1970),
and Boykin v. Alabama, 395 U.S. 238 (1969). For a guilty plea to be voluntary, the
defendant must be
fully aware of the direct consequences, including the actual value of
any commitments made to him by the court, prosecutor, or his own
counsel, [and not] induced by threats (or promises to discontinue
improper harassment), misrepresentation (including unfulfilled or
unfulfillable promises), or perhaps by promises that are by their nature
improper as having no proper relationship to the prosecutor's business
Brady, 397 U.S. at 755 (1970) (internal quotations and citation omitted) (emphasis
added). The voluntariness of a guilty plea is determined in light of all relevant
circumstances surrounding the plea. Id. at 749. A plea-proceeding transcript which
suggests that a guilty plea was made voluntarily and knowingly creates a “heavy
burden” for a petitioner seeking to overturn his plea. See Garcia v. Johnson, 991
F.2d 324, 326–28 (6th Cir. 1993). Where the transcript shows that the guilty plea
was voluntary and intelligent, a presumption of correctness attaches to the state-court
findings of fact and to the judgment itself. Id. at 326.
Here, the record taken at the plea hearing reasonably supports the Michigan
Court of Appeals’ determination that Petitioner’s claim lacks merit. The trial court
placed the terms of the plea agreement on the record, stating in clear terms that
Petitioner was agreeing to a sentence of 23 to 50 years with the Michigan
Department of Corrections. Petitioner’s counsel indicated that he had discussed the
plea agreement with Petitioner on several occasions, and she does not claim that he
told her that she would serve her sentence at a psychiatric facility.
If Petitioner believed that by pleading guilty but mentally ill her sentence
would be served in a psychiatric facility, she was given an opportunity to indicate so
when the trial court inquired whether any additional representations where made to
her other than what was placed on the record. She is bound by her statement denying
that she had been promised anything other than what was placed on the record at the
plea hearing. As aptly stated by the Sixth Circuit when faced with a challenge to a
plea bargain based upon an alleged off-the-record terms of a plea agreement:
If we were to rely on [the petitioner's] alleged subjective impression
rather than the record, we would be rendering the plea colloquy process
meaningless, for any convict who alleges that he believed the plea
bargain was different from that outlined in the record could withdraw
his plea, despite his own statements during the plea colloquy . . .
indicating the opposite. This we will not do, for the plea colloquy
process exists in part to prevent petitioners . . . from making the precise
claim that is today before us. “[W]here the court has scrupulously
followed the required procedure, the defendant is bound by his
statements in response to that court's inquiry.”
Ramos v. Rogers, 170 F.3d 560, 566 (6th Cir. 1999) (quoting Baker v. U.S., 781 F.2d
85, 90 (6th Cir. 1986)).
Furthermore, for a plea to be valid under established Supreme Court law, a
criminal defendant must only be advised of the “direct consequences” of a plea,
Brady, 397 U.S. at 755. A criminal defendant need not be advised of the indirect or
collateral consequences of a plea. King v. Dutton, 17 F.3d 151, 153 (6th Cir. 1994)
(direct consequences of the plea include the maximum and minimum number of
years that could be imposed). The Supreme Court has specifically held that a
defendant need not be informed of parole eligibility in order for a plea to be
voluntary, let alone other collateral matters such as eligibility for prison programs or
placement in a specific type of facility. Hill v. Lockhart, 474 U.S. 52, 56 (1985).
Petitioner cites no clearly established Supreme Court requirement that for a guilty
plea to be knowingly entered a defendant must be informed where the sentence will
The Michigan Court of Appeals rejection of Petitioner’s claim was not
contrary to, or an unreasonable application of, clearly established Supreme Court
law. Therefore, Petitioner has failed to demonstrate entitlement to habeas relief. The
Court will deny the petition.
V. 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.” 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 resolution of Sullivan’s claim because it is devoid of
merit. Therefore, the Court denies a certificate of appealability.
The Court will also deny Sullivan leave to appeal in forma pauperis, because
the appeal would be frivolous. See Allen v. Stovall, 156 F. Supp. 2d 791, 798 (E.D.
IT IS ORDERED that the petition for a writ of habeas corpus is DENIED
IT IS FURTHER ORDERED That a certificate of appealability is DENIED.
IT IS FURTHER ORDERED that leave to appeal in forma pauperis is
IT IS SO ORDERED.
/s/Gershwin A Drain
GERSHWIN A. DRAIN
UNITED STATES DISTRICTJUDGE
Dated: November 7, 2017
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