Pringle v. Winn
Opinion and Order (1) Denying the Habeas Petition, (2) Declining to Issue a Certificate of Appealability, and (3) Granting Leave to Appeal In Forma Pauperis. Signed by District Judge Victoria A. Roberts. (LVer)
Case 2:18-cv-13213-VAR-RSW ECF No. 10, PageID.297 Filed 11/20/20 Page 1 of 18
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
PHELIX PHENOX PRINGLE,
CASE NO. 2:18-cv-13213
HONORABLE VICTORIA A. ROBERTS
OPINION AND ORDER (1) DENYING THE HABEAS PETITION,
(2) DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY,
AND (3) GRANTING LEAVE TO APPEAL IN FORMA PAUPERIS
Petitioner Phelix Phenox Pringle filed a pro se application for the writ of
habeas corpus under 28 U.S.C. § 2254. He challenges his Wayne-County, Michigan
convictions for assault with intent to commit murder and two weapon offenses on
grounds that his guilty plea was not voluntary or knowing and that his trial attorney
misled him about the length of his minimum sentence. The State urges the Court to
deny the petition on the merits. Having reviewed the pleadings and record, the Court
agrees with the State that Petitioner’s claims do not entitle him to habeas corpus
relief. The Court, therefore, denies the petition and dismisses this case.
Case 2:18-cv-13213-VAR-RSW ECF No. 10, PageID.298 Filed 11/20/20 Page 2 of 18
A. The Charges, Plea, and Sentence
The prosecution charged Petitioner with four crimes: (1) assault with intent
to commit murder, Mich. Comp. Laws § 750.83; (2) assault with intent to do great
bodily harm less than murder, Mich. Comp. Laws § 750.84; (3) carrying a concealed
weapon (CCW), Mich. Comp. Laws § 750.227; and (4) possession of a firearm
during the commission of a felony (felony firearm), Mich. Comp. Laws § 750.227b.
The charges arose from allegations that Petitioner pulled a gun out of his pocket
during an argument with his neighbor one summer afternoon in 2016 and then
threatened to kill the neighbor and shot the neighbor in the abdomen.
On March 3, 2017, Petitioner pleaded guilty in Wayne County Circuit Court
to assault with intent to commit murder, CCW, and felony-firearm. In return for
Petitioner’s plea, the prosecutor agreed to dismiss the second count (assault with
intent to do great bodily harm less than murder). The trial court, moreover, agreed
to sentence Petitioner to seven-and-a-half to twenty years in prison for the assaultwith-intent-to-murder conviction and a consecutive term of two years in prison for
the felony-firearm conviction. (3/3/17 Plea Tr., ECF No. 9-8, PageID.142-143.)1
In Michigan, a trial judge may participate in sentencing discussions at the
request of a party by “stat[ing] on the record the length of sentence that, on the
basis of the information then available to the judge, appears to be appropriate for
the charged offense.” People v. Cobbs, 443 Mich. 276, 283; 505 N.W. 2d 208, 212
(1993) (emphasis omitted).
Case 2:18-cv-13213-VAR-RSW ECF No. 10, PageID.299 Filed 11/20/20 Page 3 of 18
At Petitioner’s sentencing on March 22, 2017, he informed the trial court that
he thought the plea agreement called for a sentence of five-and-a-half years, plus
two for the gun crime, and that he did not want to go along with that. He asked the
trial court to retract the plea bargain and allow him to go to trial. (3/22/17 Sentence
Tr., ECF No. 9-9, PageID.157.) Defense counsel expressed shock at Petitioner’s
remarks and stated that it was the first time Petitioner had said that to him. Defense
counsel informed the trial court that he previously read the presentence report and
Cobbs agreement with Petitioner so that Petitioner would recall what he agreed to
when he signed the plea form. (Id. at PageID.157-158.)
It appears from the record that defense counsel then showed the written plea
agreement to Petitioner and pointed out that the Cobbs evaluation called for a
sentence of seven-and-a-half to twenty years, consecutive to two years for the fourth
count. (Id. at PageID.158.) Petitioner responded that he did not take his medication
on the day of the plea and that he thought the agreement was five-and-a-half years
The judge’s preliminary evaluation of the case does not bind the judge’s
sentencing discretion, since additional facts may emerge during later
proceedings, in the presentence report, through the allocution afforded
to the prosecutor and the victim, or from other sources. However, a
defendant who pleads guilty or nolo contendere in reliance upon a
judge’s preliminary evaluation with regard to an appropriate sentence
has an absolute right to withdraw the plea if the judge later determines
that the sentence must exceed the preliminary evaluation.
Case 2:18-cv-13213-VAR-RSW ECF No. 10, PageID.300 Filed 11/20/20 Page 4 of 18
and two years for the gun offense. (Id.) He also stated that he felt somewhat coerced
into proceeding with the matter when he arrived at the courthouse because he was
feeling manic depressive. (Id. at PageID.158-159.)
The trial court noted that the sole basis for Petitioner’s motion was his own
misunderstanding of the Cobbs evaluation and that the evaluation was discussed at
the plea proceeding, in consultation with the complainant. The court also noted that
Petitioner had acknowledged the agreement at the plea proceeding and accepted it.
The court stated that there was nothing in the presentence report indicating that
Petitioner objected to the agreement or misunderstood it. The court also pointed out
that Petitioner did not express any confusion about the agreement until the
sentencing, that the medication issue was previously addressed, and that Petitioner
was provided with whatever medication he needed. The court denied Petitioner’s
oral motion after concluding that there was absolutely no basis for withdrawing the
plea and that Petitioner’s motion was a delay tactic. (Id. at PageID.159-161.)
Petitioner persisted with his argument by pointing out that he previously sent
handwritten motions to the court. The court, however, stated that the motions were
untimely because Petitioner provided them to the court after his plea. (Id. at
PageID.161-162.) The court then proceeded to sentence Petitioner to seven-and-ahalf to twenty years in prison for the assault conviction, one to five years for the
Case 2:18-cv-13213-VAR-RSW ECF No. 10, PageID.301 Filed 11/20/20 Page 5 of 18
CCW conviction, and a consecutive term of two years for the felony-firearm
conviction, with 270 days of jail credit. (Id. at PageID.162-165.)
B. The Post-Judgment Motion and Appeal
Petitioner, through counsel, subsequently filed a motion to withdraw his guilty
plea. He claimed that he thought he was getting a sentence of five or five-and-a-half
years and that he was confused or misunderstood the plea agreement because he did
not have his reading glasses with him at the plea proceeding and did not take his
medication that day. (11/6/17 Mot. Hr’g Tr., ECF No. 9-10, PageID.169-171.) A
successor judge held oral arguments on the motion and found it difficult to believe
that Petitioner misunderstood the terms of the plea agreement, because Petitioner
had time to think about the plea offer between the final pretrial conference and his
(Id. at PageID.178.)
The judge then denied Petitioner’s motion after
the defendant understandingly and voluntarily entered into a plea for a
specific minimum sentence range. In exchange, as referred to at
sentencing, the Court agreed to provide a better offer than the
prosecution. Defendant received a sentence that he bargained for and
which he agreed to.
Moreover, as indicated by the Court, the defendant had from
January 13th of 2017 to March 3rd of 2017 . . . to evaluate the terms of
[the trial judge’s] Cobbs evaluation. As such, the defendant’s alleged
one-day denial of Wellbutrin or lack of glasses did not prohibit the
defendant from . . . understandingly and voluntarily entering into this
Case 2:18-cv-13213-VAR-RSW ECF No. 10, PageID.302 Filed 11/20/20 Page 6 of 18
The claims of the defense are speculative at best as to why the
defendant claimed he didn’t understand or thought the plea would be
different. The plea agreement was stated on the record.
(Id. at PageID.179-180.)
Petitioner subsequently filed a delayed application for leave to appeal his
convictions and sentence in the Michigan Court of Appeals. He argued through
counsel that: (1) his plea was neither understanding, nor voluntary, because his
attorney advised him that his minimum sentence would not exceed five years; and
(2) he was entitled to withdraw his plea due to his attorney’s ineffectiveness in
advising him that his minimum sentence would not exceed five years even though
his minimum sentence turned out to be nine-and-a-half years in prison. (ECF No.
9-11, PageID.185-186.) The Michigan Court of Appeals denied leave to appeal “for
lack of merit in the grounds presented.” People v. Pringle, No. 341226 (Mich. Ct.
App. Jan. 5, 2018); (ECF No. 9-11, PageID.182).
Petitioner raised the same claims about the voluntariness of his guilty plea and
his trial counsel’s alleged ineffectiveness in an application for leave to appeal in the
Michigan Supreme Court. He also alleged that the trial court’s denial of his motion
to withdraw his plea agreement prejudiced him and that he was forcefully
interrogated by law enforcement officials after his arrest. (ECF No. 9-12, PageID.
281-285.) On July 27, 2018, the state supreme court denied leave to appeal because
Case 2:18-cv-13213-VAR-RSW ECF No. 10, PageID.303 Filed 11/20/20 Page 7 of 18
it was not persuaded to review the Petitioner’s claims. People v. Pringle, 502 Mich.
939; 915 N.W.2d 353 (2018).
C. The Habeas Petition and Responsive Pleading
On October 15, 2018, Petitioner filed his habeas corpus petition. He raises
the two claims that presented to both the Michigan Court of Appeals and the
Michigan Supreme Court: (1) that his guilty plea was not understanding or voluntary
due to his attorney’s advice that his minimum sentence would not exceed five years;
and (2) that his trial attorney was ineffective because the attorney advised him that
his minimum sentence would not exceed five years even though his minimum
sentence turned out to be nine-and-a-half years. (Pet., ECF No.1, PageID.12-15.)
The State argues in its responsive pleading that: Petitioner knowingly and
voluntarily pleaded guilty in exchange for a minimum nine-and-a-half-year
sentence; Petitioner’s claim about his trial attorney is belied by the record; and
Petitioner’s plea forecloses any preexisting claims of ineffective assistance.
State also maintains that the Michigan appellate court’s denial of Petitioner’s claims
for lack of merit was an objectively reasonable decision. (Answer in Opp’n to Pet.
for Writ of Habeas Corpus, ECF No. 8, PageID.31-32.)
II. Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)
requires prisoners who challenge “a matter ‘adjudicated on the merits in State court’
Case 2:18-cv-13213-VAR-RSW ECF No. 10, PageID.304 Filed 11/20/20 Page 8 of 18
to show that the relevant state court ‘decision’ (1) ‘was contrary to, or involved an
unreasonable application of, clearly established Federal law,’ or (2) ‘was based on
an unreasonable determination of the facts in light of the evidence presented in the
State court proceeding.’ ” Wilson v. Sellers, 138 S. Ct. 1188, 1191 (2018) (quoting
28 U.S.C. § 2254(d)).
“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. Rather, that application
must also be unreasonable.” Williams v. Taylor, 529 U.S. 362, 411 (2000).
“AEDPA thus imposes a ‘highly deferential standard for evaluating statecourt rulings,’ Lindh v. Murphy, 521 U.S. 320, 333, n. 7, 117 S. Ct. 2059, 138
L.Ed.2d 481 (1997), and ‘demands that state-court decisions be given the benefit of
the doubt,’ Woodford v. Visciotti, 537 U.S. 19, 24, 123 S. Ct. 357, 154 L. Ed. 2d 279
(2002) (per curiam).” Renico v. Lett, 559 U.S. 766, 773 (2010). “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)). “Only an ‘objectively unreasonable’ mistake, . . . , one
‘so lacking in justification that there was an error well understood and comprehended
in existing law beyond any possibility for fairminded disagreement,’ slips through
Case 2:18-cv-13213-VAR-RSW ECF No. 10, PageID.305 Filed 11/20/20 Page 9 of 18
the needle’s eye of § 2254.” Saulsberry v. Lee, 937 F.3d 644, 648 (6th Cir.) (quoting
Richter, 562 U.S. at 103), cert. denied, 140 S. Ct. 445 (2019).
The Court must presume that a state-court’s factual determinations are correct
unless the petitioner rebuts the presumption with clear and convincing evidence. 28
U.S.C. § 2254(e)(1). The Court’s review, moreover, generally is “limited to the
record that was before the state court that adjudicated the claim on the merits.”
Cullen v. Pinholster, 563 U.S. 170, 181 (2011).
A. Whether the Plea was Voluntary and Knowing
Petitioner alleges that his guilty plea was neither understanding, nor
voluntary, because his attorney advised him that his minimum prison sentence would
not exceed five years. (ECF No. 1, PageID.12, 14.) In a supporting affidavit,
Petitioner goes even further and states that his attorney told him that he would “do a
grand total of 5 years.” (Id. at PageID.12.) Petitioner also states that he did not
know the difference between the word “consecutive” and the word “concurrent” at
the plea proceeding and that he thought “consecutive” meant at the same time. (Id.)
Although Petitioner signed a written plea agreement which indicates that the
sentence would be “7½ years to 20 years, consecutive to 2 years, count 4” (ECF No.
8-1, PageID.69), Petitioner states in his affidavit that he did not have his reading
glasses with him at the time and that he cannot read without his glasses. (ECF No.
Case 2:18-cv-13213-VAR-RSW ECF No. 10, PageID.306 Filed 11/20/20 Page 10 of 18
1, PageID.12.) Petitioner also states that he did not take his medication for manic
depression on the day of his plea, and that he is innocent, because the shooting
resulted from an accidental discharge of the gun during a struggle with the
complainant over the gun. (Id. at PageID.12-13.)
1. Clearly Established Federal Law
Because a guilty plea is an admission of past conduct and a waiver of
constitutional rights, it must be a voluntary, knowing, and intelligent act, one “done
with sufficient awareness of the relevant circumstances and likely consequences.”
Brady v. United States, 397 U.S. 742, 748 (1970). The voluntariness of a plea “can
be determined only be considering all of the relevant circumstances surrounding it.”
Id. at 749. For a plea to be knowingly and voluntarily made, the defendant must
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). 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.
Petitioner must overcome a heavy burden if the federal court is to
overturn these findings by the state court. Id.
Thirkield v. Pitcher, 199 F. Supp. 2d 637, 651–52 (E.D. Mich. 2002).
Although the written plea agreement that the parties signed before Petitioner’s
plea called for a minimum sentence of seven-and-a-half years for the assault
Case 2:18-cv-13213-VAR-RSW ECF No. 10, PageID.307 Filed 11/20/20 Page 11 of 18
conviction, Petitioner implies that he did not read the agreement because he did not
have his reading glasses with him at the time and because he cannot read without the
glasses. Defense counsel, however, recited the agreement on the record during the
plea proceeding. And even though Petitioner says that he did not understand the
meaning of the word “consecutive,” his attorney explained the Cobbs agreement in
simple terms by stating that the agreement called for a sentence of “seven-and-a-half
years to 20 years, plus two for the felony firearm” conviction. (3/3/17 Plea Tr., ECF
No. 9-8, PageID.142) (emphasis added).
The trial court then repeated the agreement by asking whether the complainant
had consented to the plea agreement of “seven-and-a-half to 20 years, plus two for
the felony firearm.” (Id.) (emphasis added). The trial court also acknowledged the
plea form, which indicated that the court was willing to sentence Petitioner to sevenand-a-half years to twenty years, consecutive to the mandatory two years for the
felony-firearm count. (Id. at PageID.143.)
The length of the minimum sentence for the assault conviction and the
consecutive nature of the felony-firearm sentence were also explained during a prior
court hearing in the case. At a pretrial hearing on Friday, January 13, 2017, the
prosecutor made a plea offer of eight to twenty years for assault with intent to
commit murder, plus two years for the felony-firearm count, and dismissal of the
other charges. (1/13/17 Pretrial Tr., ECF No. 9-6, PageID.121.) The trial court then
Case 2:18-cv-13213-VAR-RSW ECF No. 10, PageID.308 Filed 11/20/20 Page 12 of 18
repeated, “So the offer here is 8 to 20, plus the two years.” (Id. at PageID.123.) The
trial court subsequently offered to sentence Petitioner to seven-and-a-half to twenty
years and a consecutive sentence of two years for the felony firearm conviction. (Id.
Petitioner stated that the offer sounded reasonable because the prosecutor’s
offer was below the sentencing guidelines and because the trial court was willing to
sentence him to even less than the prosecutor’s offer. But he requested a couple of
days to think about the offer and have his attorney write down the agreement for
him. The trial court agreed to give Petitioner until the following Tuesday to decide
what he wanted to do. (Id. at PageID.129-131.) At the final pretrial conference on
the following Tuesday, Petitioner rejected the plea offer and elected to have a jury
trial. (1/17/17 Final Conference Tr., ECF No. 9-7, PageID.135-136.)
Petitioner obviously changed his mind, for he pleaded guilty about a monthand-a-half later, on March 3, 2017. (3/3/17 Plea Tr., ECF No. 9-8.) His contention
that he did not understand the minimum sentence he would receive is not plausible,
given the prior pretrial conference where the length and consecutive nature of the
two sentences were explained on the record.
Furthermore, Petitioner stated at the plea proceeding that he was fifty-three
years old and a veteran of the Air Force. (Id. at PageID.144.) He also stated that he
understood he was giving up several constitutional rights by pleading guilty. (Id. at
Case 2:18-cv-13213-VAR-RSW ECF No. 10, PageID.309 Filed 11/20/20 Page 13 of 18
PageID.144-146.) Finally, he assured the trial court that he understood he was
giving up any claims that his plea was the result of promises or threats not previously
disclosed or that it was not his own free choice to enter into the plea agreement. (Id.
at PageID.146.) His “[s]olemn declarations in open court carry a strong presumption
of verity.” Blackledge v. Allison, 431 U.S. 63, 74 (1977).
Petitioner also provided a factual basis for his plea. He admitted that he
possessed a handgun on the day of the incident, that he did not have a concealed
pistol license at the time, that he fired multiple shots in the complainant’s direction,
and that he intended to hit the complainant. (3/3/17 Plea Tr., ECF No. 9-8,
PageID.146-147.) The attorneys and the trial court were satisfied with this statement
of the facts, and the trial court accepted the plea. (Id. at PageID.147.)
Nothing was said about Petitioner’s mental health, but the attorneys stipulated
at a prior district court hearing that Petitioner was competent to stand trial and was
criminally responsible. (11/18/16 Competency Hr’g, ECF No. 9-3, PageID.85.)
When the district court judge inquired as to whether Petitioner needed any
medication to maintain competency, defense counsel stated that Petitioner currently
was taking medication; in addition, the prosecutor noted that, according to the
competency report, Petitioner did not suffer from a substantial disorder of thinking
or mood. (Id. at PageID.86-87.) The defense attorney asked to have Petitioner’s
medication continued, and the district court judge noted that, according to the
Case 2:18-cv-13213-VAR-RSW ECF No. 10, PageID.310 Filed 11/20/20 Page 14 of 18
competency report, appropriate medication would be administered pending and
during trial. (Id. at PageID.87.)
3. Conclusion on Petitioner’s First Claim
The record before the Court, as summarized above, indicates that Petitioner’s
guilty plea was voluntary and knowing. Granted, the trial court did not ask Petitioner
whether he understood the plea agreement or whether he wished to plead guilty, and
Petitioner did not say that he was pleading guilty freely and voluntarily. But defense
counsel stated that he had discussed the agreement with Petitioner and that Petitioner
was willing to accept it. (3/3/17 Plea Tr., ECF No. 9-8, PageID.142.) In addition,
Petitioner claimed to understand the rights that he was waiving by pleading guilty,
including the right to assert at some later time that his plea was the result of
undisclosed promises or that he did not freely choose to plead guilty. (Id. at
Furthermore, the printed plea agreement listed the charges to which Petitioner
was pleading guilty, the maximum penalty for the charges, and the Cobbs agreement.
Although Petitioner implies that he could not read the written agreement because he
did not have his eyeglasses with him at the time, he signed and dated the agreement
in a legible fashion. (ECF No. 8-1, PageID.69.)
Finally, as noted above, the length of the minimum sentence for the assault
conviction and the consecutive nature of the felony-firearm sentence were stated
Case 2:18-cv-13213-VAR-RSW ECF No. 10, PageID.311 Filed 11/20/20 Page 15 of 18
more than once at one of the prior pretrial conferences, and Petitioner agreed then
that the offer was reasonable. (1/13/17 Pretrial Tr., ECF No. 9-6, PageID.121, 123,
126-127, 130-131.) Neither Petitioner’s lack of eyeglasses on the day of his plea,
nor his alleged failure to take his medication for one day, appear to have affected the
voluntariness of his plea.
The state appellate court’s rejection of Petitioner’s plea for lack of merit was
objectively reasonable. The Court declines to grant relief on Petitioner’s first claim.
B. Whether Trial Counsel was Ineffective
In his only other claim, Petitioner alleges that his trial attorney was ineffective
because the attorney failed to explain the real consequences of his plea and led him
to believe that his minimum sentence would not exceed five years. According to
Petitioner, there is a reasonable probability that he would not have pleaded guilty if
his attorney had provided accurate advice because he had a valid defense of selfdefense or accident. (Pet., ECF No.1, PageID.15.)
1. Clearly Established Supreme Court Precedent
Petitioner was entitled to effective assistance of counsel during the pleabargaining process. Lafler v. Cooper, 566 U.S. 156, 162 (2012). But to prevail on
his ineffectiveness claim, Petitioner must show “that counsel’s performance was
deficient” and “that the deficient performance prejudiced the defense.” Strickland
v. Washington, 466 U.S. 668, 687 (1984).
Case 2:18-cv-13213-VAR-RSW ECF No. 10, PageID.312 Filed 11/20/20 Page 16 of 18
When a defendant pleads guilty on the advice of counsel, “the voluntariness
of the plea depends on whether counsel’s advice ‘was within the range of
competence demanded of attorneys in criminal cases.’ ” Hill v. Lockhart, 474 U.S.
52, 56 (1985) (quoting McMann v. Richardson, 397 U.S. 759, 771 (1970)). The
“prejudice” requirement “focuses on whether counsel’s constitutionally ineffective
performance affected the outcome of the plea process.” Id. at 59. The defendant
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.
Petitioner alleges that he would not have pleaded guilty if his attorney had not
misled him, but, as pointed out above, the record indicates that Petitioner was never
led to believe he would receive a minimum sentence of five years. Furthermore,
defense counsel’s advice to Petitioner to plead guilty was within the range of
competence demanded of defense attorneys in criminal cases. The evidence against
Petitioner was strong,2 the prosecutor’s plea offer was below the sentencing
Identity of the suspect was not an issue, because Petitioner and the
complainant were neighbors for about three years before the shooting. (11/22/16
Prelim. Examination Tr., ECF No. 9-4, PageID.93, 100.) It further appears that
there would have been available witnesses to support the complainant’s testimony
at trial because he indicated at the preliminary examination that his wife and some
neighbors were nearby during the shooting. (Id. at PageID.94, 103.)
Case 2:18-cv-13213-VAR-RSW ECF No. 10, PageID.313 Filed 11/20/20 Page 17 of 18
guidelines, and the trial court was willing to sentence Petitioner to six months less
than the prosecutor’s offer.
The trial court stated at one of the pretrial conferences that, if Petitioner went
to trial and were convicted, it was highly unlikely that the court would depart
downward from the guidelines. (1/13/17 Pretrial Tr., ECF No. 9-6, PageID.129.)
The prosecutor calculated the guidelines at 126 to 210 months (ten-and-a-half to
seventeen-and-a-half years) if Petitioner were convicted as charged, or 81 to 135
months (six years, nine months, to eleven years, three months) if Petitioner were
convicted of a single charge of assault with intent to commit murder. (Id. at
Given the strong possibility that Petitioner would have been convicted if he
had gone to trial and that he would have received a longer sentence following a trial,
there was a substantial benefit to pleading guilty. Petitioner fails to show that his
attorney’s advice was deficient and prejudicial. Therefore, the state appellate court’s
conclusion that Petitioner’s claim lacked merit was not contrary to, or an
The complainant also testified at the preliminary examination that Petitioner
continued to shoot at him after he ran away from Petitioner. (Id. at PageID.94,
103-104.) This testimony suggests that Petitioner did not shoot in self-defense.
In addition, three casings and a live bullet were collected at the scene.
(1/13/17 Pretrial Tr., ECF No. 9-6, PageID.125-126.) This was an indication that
the gun was fired at least three times, id., and it tends to demonstrate that the
shooting was intentional, as opposed to an accidental discharge of the gun, as
Case 2:18-cv-13213-VAR-RSW ECF No. 10, PageID.314 Filed 11/20/20 Page 18 of 18
unreasonable application of, Strickland or Hill, and Petitioner is not entitled to relief
on his ineffective-assistance-of-counsel claim.
Petitioner’s claims lack merit, and the state appellate court’s rejection of the
claims for lack of merit was not so lacking in justification that there was an error
beyond any possibility for fairminded disagreement. The Court, therefore, denies
the habeas petition with prejudice and closes this case.
The Court declines to issue a certificate of appealability because reasonable
jurists could not disagree with the Court’s resolution of Petitioner’s claims; nor could
reasonable jurists conclude that the issues deserve encouragement to proceed further.
Miller-El v. Cockrell, 537 U.S. 322, 327 (2003) (citing Slack v. McDaniel, 529 U.S.
473, 484 (2000)). Nevertheless, if Petitioner appeals this decision, he may proceed
in forma pauperis because an appeal could be taken in good faith. 28 U.S.C. §
s/ Victoria A. Roberts
VICTORIA A. ROBERTS
UNITED STATES DISTRICT JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?