Russell v. Burton

Filing 16

OPINION and ORDER Denying 1 Petition for Writ of Habeas Corpus, Denying a Certificate of Appealability, and Denying Leave to Appeal In Forma Pauperis. Signed by District Judge Shalina D. Kumar. (THal)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
PATRICK RUSSELL,
Petitioner,
v.

Case No. 17-cv-11370
Honorable Shalina D. Kumar
United States District Judge

MELINDA BRAMAN,
Respondent.
OPINION AND ORDER DENYING PETITION FOR A WRIT OF
HABEAS CORPUS, DENYING A CERTIFICATE OF APPEALABILITY,
AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS
This is a pro se habeas case brought pursuant to 28 U.S.C. § 2254.
Petitioner Patrick Russell pleaded no contest to second-degree murder,
Mich. Comp. Laws § 750.317, and operating a vehicle while intoxicated
causing death, Mich. Comp. Laws § 257.625(4) in the Macomb County
Circuit Court and was sentenced, as a fourth habitual offender, Mich. Comp.
Laws § 769.12, to 20 to 40 years’ imprisonment. In his petition, he raises six
claims concerning the prosecutor’s amendment of the criminal information,
trial court’s violation of the Cobbs agreement, ineffective assistance of trial
and appellate counsel, and prosecutorial misconduct. During the pendency

of this case, Petitioner was discharged from his sentences. See Petitioner's
Offender Profile, Michigan Department of Corrections Offender Tracking
Information System (“OTIS”), https://perma.cc/G2MG-C9QN. For the
reasons set forth, the Court DENIES the habeas petition. The Court also
DENIES a certificate of appealability and DENIES leave to proceed in forma
pauperis on appeal.
I.

BACKGROUND
Petitioner was driving his vehicle while under the influence of narcotics

when he struck a vehicle stopped at a red light and killed a passenger in that
vehicle. Petitioner initially was charged in Macomb County, Michigan with (1)
reckless driving, causing death, and (2) operating a vehicle while intoxicated,
causing death. He waived a preliminary examination, and on March 14,
2013, he pleaded no contest to the charges. In return, the trial court agreed
to sentence Petitioner to a minimum term of 87 months (seven years, three
months) in prison. 1

In People v. Cobbs, 443 Mich. 276 (1993), the Michigan Supreme Court stated that trial
judges may participate in sentencing discussions in the following manner:
1

At the request of a party, and not on the judge’s own initiative, a judge may
state 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.

2

On the date set for sentencing, the trial court indicated that it could not
abide with the sentencing agreement and that it would sentence Petitioner
to a minimum of 14 years in prison. Petitioner withdrew his no-contest plea.
The prosecutor then moved to amend the reckless-driving charge to seconddegree murder. The trial court granted the prosecutor’s motion and
remanded the case to the state district court for a preliminary examination.
Following the examination, Petitioner was bound over to circuit court on
charges of second-degree murder and operating a vehicle while intoxicated,
causing death.
On November 5, 2013, Petitioner pleaded no contest to the amended
charges, and the trial court agreed to sentence Petitioner to a minimum
sentence of 20 years. On December 11, 2013, the trial court sentenced

To avoid the potential for coercion, a judge must not state or imply
alternative sentencing possibilities on the basis of future procedural
choices, such as an exercise of the defendant’s right to trial by jury or by
the court.
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.
Id. at 283.

3

Petitioner to prison for 20 to 40 years. See People v. Russell, No. 323158,
2015 WL 8983893, at *1 (Mich. Ct. App. Dec. 15, 2015).
Petitioner filed a delayed application for leave to appeal in the Michigan
Court of Appeals, raising the sole claim that the trial court erred when it
permitted the prosecution to amend the information from reckless driving
causing death to second-degree murder. The Michigan Court of Appeals
rejected the argument and affirmed his convictions and sentence. See
Russell, 2015 WL 8983893 *1-2. Petitioner filed an application for leave to
appeal in the Michigan Supreme Court. On June 28, 2016, the court denied
the application on the basis that it was “not persuaded that the questions
presented should be reviewed by this Court.” People v. Russell, 499 Mich.
970, 880 N.W.2d 552 (2016).
On May 2, 2017, Petitioner filed his habeas corpus petition, raising the
single claim that the trial court erred by allowing the prosecution to amend
the criminal information from reckless driving, causing death, to seconddegree murder. In his supporting brief, Petitioner further alleged that his trial
attorney acted unreasonably in advising him to withdraw his initial no-contest
plea, which included a sentencing evaluation of 14 years in prison. Petitioner
simultaneously asked the Court for a stay while he exhausted state remedies
for his claim about trial counsel and possibly other issues. On June 14, 2017,
4

the Honorable Paul D. Borman, presiding, granted Petitioner’s request and
stayed the case. ECF No. 5.
Petitioner returned to the trial court and filed a motion for relief from
judgment, which contained the following claims:
I.

Defendant was deprived of the effective assistance of
counsel on appeal when appellate counsel submitted a
deficient brief which did not include the clear and obvious
ineffective assistance of trial counsel where trial counsel
rendered constitutionally deficient advice when trial
counsel advised defendant to withdraw his nolo
contendere plea on the day of sentencing.

II.

Was defendant deprived the effective assistance of
counsel when trial counsel rendered constitutionally
deficient advice when trial counsel advised defendant to
withdraw his nolo contendere plea on the day of
sentencing?

III.

Was the Cobbs agreement a binding contract in the matter
and did the court violate that contract by not honoring the
Cobbs sentencing evaluation first agree upon by all
parties?

IV.

Defense counsel was ineffective
proceedings in this matter.

V.

Prosecutorial misconduct, i.e., harassment of defendant,
e.g. vindictiveness, occurred when the prosecution
amended the charges after the lengthy time period
between taking the original plea, i.e., 17 months, and the
final accepted plea.

ECF No. 13-11, PageID.1031.
5

at

the

pleading

The trial court consolidated Petitioner’s claims into three issues: (1)
whether trial and appellate counsel were ineffective, (2) whether the trial
court violated the Cobbs agreement, and (3) whether the prosecutor
committed misconduct by amending the information. The trial court rejected
the first issue on the merits; the second on the merits and because Petitioner
could not show actual prejudice under Michigan Court Rule 6.508(D)(3); and
the third under Rule 6.508(D)(3) for the same reason. ECF No. 13-11,
PageID.1021-1027.
Petitioner then filed an application for leave to appeal in the Michigan
Court of Appeals. The court denied the application because he “failed to
establish that the trial court erred in denying the motion for relief from
judgment.” Id. at PageID.972. Petitioner then filed an application for leave
in the Michigan Supreme Court, which was denied because Petitioner “failed
to meet the burden of establishing entitlement to relief under MCR
6.508(D).” People v. Russell, 506 Mich. 941, 949 N.W.2d 688 (2020).
On September 14, 2021, the Court reopened the case after Petitioner
filed an amended petition raising the same claims presented to the trial court
in his motion for relief from judgment. ECF No. 10. The Court treated the
document as a motion to amend and accepted the supplemental arguments

6

in support of Petitioner’s request for habeas relief. The Court understands
the initial and amended habeas petitions to be raising the following claims:
I.

Over objection, the trial court erred in allowing the
prosecution to amend the information from reckless driving
causing death to second degree murder, which
substantially increased defendant’s sentencing exposure.

II.

Defendant was deprived the effective assistance of
counsel on appeal when appellate counsel submitted a
deficient brief which did not include the clear and obvious
ineffective assistance of trial counsel claim where trial
counsel rendered constitutionally deficient advice when
trial counsel advised defendant to withdraw his “nolo
contendere” plea on the day of sentencing.

III.

Was defendant deprived the effective assistance of
counsel when trial counsel rendered constitutionally
deficient advice when trial counsel advised defendant to
withdraw his nolo contendere plea on the day of
sentencing?

IV.

Was the Cobbs agreement a binding contract in the matter
and did the court violate that contract by not honoring the
Cobbs sentencing evaluation first agreed upon by all
parties?

V.

Defense counsel was ineffective
proceedings in this matter.

VI.

Prosecutorial misconduct, i.e. harassment of defendant,
e.g. vindictiveness, occurred when the prosecution
amended the charges after the lengthy time period
between taking the original plea, i.e. 17 months, and the
final accepted plea.

ECF Nos. 1 and 9.

7

at

the

pleading

Respondent filed an answer to the initial and amended petitions,
contending that Petitioner’s claims concerning the Cobbs violation (claim IV)
and prosecutorial misconduct (claim VI) are procedurally defaulted and all
claims lack merit. Petitioner filed a reply.
II.

LEGAL STANDARD
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 decision of a state court is “contrary to” clearly established federal
law if the state court arrives at a conclusion opposite to that reached by the
Supreme Court on a question of law or if the state court decides a case
differently than the Supreme Court has on a set of materially
8

indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). An
“unreasonable

application”

occurs

when

“a

state

court

decision

unreasonably applies the law of [the Supreme Court] to the facts of a
prisoner’s case.” Id. at 409. A federal habeas court may not “issue the writ
simply because that court concludes in its independent judgment that the
relevant state-court decision applied clearly established federal law
erroneously or incorrectly.” Id. at 410-11. “[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) (citing Yarborough v.
Alvarado, 541 U.S. 652, 664 (2004)). Therefore, in order to obtain habeas
relief in federal court, a state prisoner is required to show that the state
court’s rejection of his claim “was so lacking in justification that there was an
error well understood and comprehended in existing law beyond any
possibility for fairminded disagreement.” Harrington, 562 U.S. at 103.
III.

DISCUSSION

A. Procedural Default
Respondent

contends

that

Petitioner’s

Cobbs

violation

and

prosecutorial misconduct claims are barred by procedural default. The Court
declines to address that defense as it is not a jurisdictional bar to review of
9

the merits. See, e.g., Howard v. Bouchard, 405 F.3d 459, 476 (6th Cir. 2005).
Moreover, federal courts on habeas review “are not required to address a
procedural-default issue before deciding against the petitioner on the merits.”
Hudson v. Jones, 351 F.3d 212, 215 (6th Cir. 2003) (citing Lambrix v.
Singletary, 520 U.S. 518, 525 (1997)). The Supreme Court has explained the
rationale behind such a policy: “Judicial economy might counsel giving the
[other] question priority, for example, if it were easily resolvable against the
habeas petitioner, whereas the procedural-bar issue involved complicated
issues of state law.” Lambrix, 520 U.S. at 525. Such is the case here.
Accordingly, the Court will proceed to the merits of Petitioner’s claims.
B. Claim # 1. The Wrongful Amendment of Information Claim
Petitioner first argues that he is entitled to habeas relief because the
trial court erroneously permitted the prosecution to amend the criminal
information to reflect the charge of second-degree murder, without sufficient
notice and opportunity to allow him to prepare a defense.
The Due Process Clause of the Fourteenth Amendment mandates that
whatever charging method the state employs must give the criminal
defendant fair notice of the charges against him so as to provide him an
adequate opportunity to prepare his defense. See, e.g., In re Ruffalo, 390
U.S. 544 (1968); Blake v. Morford, 563 F.2d 248 (6th Cir. 1977); Watson v.
10

Jago, 558 F.2d 330, 338 (6th Cir. 1977). This requires that the offense be
described with some precision and certainty so as to apprise the accused of
the crime with which he stands charged. Combs v. State of Tennessee, 530
F.2d 695, 698 (6th Cir. 1976). Such definiteness and certainty are required
as will enable a presumptively innocent man to prepare for trial. Id. “Beyond
notice, a claimed deficiency in a state criminal indictment is not cognizable
on federal collateral review.” Roe v. Baker, 316 F.3d 557, 570 (6th Cir. 2002)
(quoting Mira v. Marshall, 806 F.2d 636, 639 (6th Cir. 1986)). “An indictment
which fairly but imperfectly informs the accused of the offense for which he
is to be tried does not give rise to a constitutional issue cognizable in habeas
proceedings.” Mira, 806 F.2d at 639. In other words, as long as “sufficient
notice of the charges is given in some . . . manner” so that the accused may
adequately prepare a defense, the Fourteenth Amendment’s Due Process
Clause is satisfied. Koontz v. Glossa, 731 F.2d 365, 369 (6th Cir. 1984);
Watson, 558 F.2d at 338.
“When reviewing amendments to state charging documents in habeas
corpus proceedings, the federal courts focus on the questions whether the
defendant was surprised by the amendment or otherwise prejudiced in his
ability to defend himself at trial.” Rhea v. Jones, 622 F. Supp. 2d 562, 583

11

(W.D. Mich. 2008) (citing Tague v. Richards, 3 F.3d 1133, 1141–42 (7th Cir.
1993); Wright v. Lockhart, 854 F.2d 309, 312–13 (8th Cir. 1988)).
The Michigan Court of Appeals denied relief on this claim, concluding
that the amendment was proper under state law and was neither an unfair
surprise nor unfairly prejudicial. The court explained:
It is well-established that both MCL 767.76 and MCR 6.112(H)
permit the amendment of an information and that MCR 6.112(H)
specifically permits amendment before, during, or after trial
unless to do so “would unfairly surprise or prejudice the
defendant.” See also McGee, 258 Mich.App at 689. As a rule of
procedure, MCR 6.112(H) supersedes MCL 767.76. Id., citing
People v. Goecke, 457 Mich. 442, 460; 579 NW2d 868 (1998).
Consequently, the only issue on appeal is whether permitting the
amendment in this case unfairly surprised or prejudiced
defendant. See id; People v. Hunt, 442 Mich. 359, 364; 501
NW2d 151 (1993).
Defendant argues that “[s]urprise and/or prejudice regarding the
amendment are apparent” because the added second-degree
murder charge “involves the element of ‘malice,’ which is
certainly a stretch considering Defendant did not know the
victim.” We disagree.
The elements of reckless driving causing death, the original
charge, are: (1) the operation of a vehicle, (2) in willful or wanton
disregard for the safety of persons or property, and (3) by the
operation of that vehicle, caused the death of another person.
MCL 257.626(4); People v. Jones, 497 Mich. 155, 167; 860
NW2d 112 (2014). The elements of second-degree murder are:
“(1) a death, (2) caused by an act of the defendant, (3) with
malice, and (4) without justification or excuse.” People v. Reese,
491 Mich. 127, 143; 815 NW2d 85 (2012), quoting Goecke, 457
Mich. at 464. “Malice is defined as the intent to kill, the intent to
cause great bodily harm, or the intent to do an act in wanton and
wilful disregard of the likelihood that the natural tendency of such
12

behavior is to cause death or great bodily harm.” Id. Thus,
“malice may be established even absent an actual intent to cause
a particular result if there is wanton and wilful disregard of the
likelihood that the natural tendency of a defendant's behavior is
to cause death or great bodily harm.” Id. at 466.
In this case, defendant has not established that the addition of
the second-degree murder charge unfairly surprised or
prejudiced him. The malice element of second-degree murder
can be proven in the same manner as the “willfull [sic] and
wanton disregard for safety” element of reckless driving causing
death. Thus, the amendment did not add any substantially
different elements that defendant needed to defend. And the
second-degree murder charge did not involve any new or
different acts or evidence.
The amendment also did not deprive defendant of an adequate
opportunity to prepare a defense. When defendant was originally
charged with reckless driving causing death, he was put on
notice that the charges against him were predicated on his (1)
operation of a vehicle, (2) in willful or wanton disregard for the
safety of persons, and (3) by the operation of that vehicle, caused
the death of a passenger in the car he struck. During the year
between those charges and the amended information, defendant
attempted to plead nolo contendere to that conduct before
eventually withdrawing the plea over dissatisfaction with the
Cobbs evaluation minimum. Additionally, there was almost four
months between the amendment and the second-degree murder
preliminary examination. During that time defendant had
adequate opportunity to consider his defense and prepare his
case. See, e.g., People v. Russell, 266 Mich.App 307, 317; 703
NW2d 107 (2005). And, between the preliminary examination
and the plea hearing, there was almost two additional months in
which defendant could prepare a defense to the new charge.
Because defendant had approximately six months between the
amended information and the plea hearing, the amendment did
not deprive defendant of a sufficient opportunity to defend.
See Russell, 2015 WL 8983893 *1-2.
13

The state court’s decision is neither contrary to Supreme Court
precedent nor an unreasonable application thereof. First, Petitioner was
given fair notice of the murder charge. After learning that Petitioner rejected
the trial court’s amended Cobbs evaluation, the prosecution moved to amend
the information. The prosecutor argued that the facts and circumstances of
the case warranted a new charge of second-degree murder. ECF No. 13-5,
PageID.368-369. Over defense counsel’s objection, the trial court permitted
the amendment. Id. at PageID.371, 373.
As noted by the state court, the elements of reckless driving causing
death and second-degree murder are sufficiently similar such that Petitioner
would not have been unfairly surprised. The elements of second-degree
murder under Michigan law are “(1) a death, (2) the death was caused by an
act of the defendant, (3) the defendant acted with malice, and (4) the
defendant did not have lawful justification or excuse for causing the death.”
Bergman v. Brewer, 542 F. Supp. 3d 649, 655–56 (E.D. Mich. 2021) (internal
citation and quotations marks omitted). “Malice is defined as the intent to kill,
the intent to cause great bodily harm, or the intent to do an act in wanton and
wilful disregard of the likelihood that the natural tendency of such behavior
is to cause death or great bodily harm.” Id.

14

In turn, reckless driving causing death requires that (1) the defendant
operates a motor vehicle “in willful or wanton disregard for the safety of
persons or property,” and (2) the defendant’s operation “causes the death of
another person.” Dorrough v. Olson, No. 16-CV-10308, 2017 WL 5479465,
at *8 (E.D. Mich. Nov. 15, 2017). Logically, the malice element of seconddegree murder can be proven in much the same manner as the “willful and
wanton disregard for safety” element of reckless driving causing death. The
other elements are nearly identical.
Petitioner’s argument appears mainly to focus on the timing of the
amendment, specifically that it occurred over a year after the initiation of the
criminal proceedings causing him unfair surprise. But the Court’s habeas
inquiry is whether Petitioner received sufficient notice of the charge in some
manner. Indeed, he did. Not only are the elements of the charges similar, but
the prosecution presented facts warranting the amendment, including that
Petitioner had prior alcohol-related convictions and his erratic manner of
driving under the influence, i.e. driving over the grass median into a left turn
lane and crashing into a vehicle, demonstrated a level of wanton and willful
disregard of likelihood his actions would cause death. ECF No. 13-5,
PageID.372-372. Thus, Petitioner was not surprised by the amendment.

15

Second, the amendment did not prejudice Petitioner’s ability to prepare
an adequate defense. The state-court record shows Petitioner had nearly six
months to prepare against the new charge. After the trial court granted the
prosecution’s request to amend on May 15, 2013, the district court held a
preliminary examination hearing approximately four months later, giving
Petitioner ample time to prepare his defense. ECF No. 13-6. Petitioner then
had nearly two additional months between the preliminary examination and
his plea hearing. Accordingly, Petitioner has not established a due process
violation. Habeas relief is not warranted on this claim.
C. Claims # 2, 3 and 5. Ineffective Assistance of Trial and Appellate
Counsel Claims.
Petitioner next argues that trial counsel was ineffective for failing to
advise him of the direct consequences of withdrawing his no-contest plea,
particularly that withdrawing his plea could subject him to more serious
charges and harsher sentencing, and for not raising a diminished capacity
defense. He further argues that appellate counsel was ineffective for failing
to raise the ineffective assistance of trial counsel claims on direct appeal.
The state trial court rejected this claim on collateral review. ECF No. 13-11,
PageID.1026.
1. Ineffective Assistance of Trial Counsel
16

To establish ineffective assistance of counsel, Petitioner must satisfy
a two-prong test. First, Petitioner must demonstrate that, considering all of
the circumstances, counsel’s performance was so deficient that the attorney
was not functioning as the “counsel” guaranteed by the Sixth Amendment.
Strickland v. Washington, 466 U.S. 668, 687 (1984). Petitioner must
overcome a strong presumption that counsel’s behavior lies within the wide
range of reasonable professional assistance. Id. In other words, Petitioner
must overcome the presumption that, under the circumstances, the
challenged action might be sound trial strategy. Strickland, 466 U.S. at 689.
Second, Petitioner must show that such performance prejudiced his defense.
Id. To demonstrate prejudice, Petitioner must show that “there is a
reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different.” Strickland, 466 U.S. at 694.
In the context of a guilty or no-contest plea, Petitioner must show that
there is a reasonable probability that, but for counsel’s errors, he or she
would not have pleaded guilty or no-contest, but would have insisted on
going to trial. Premo v. Moore, 562 U.S. 115, 129 (2011) (citing Hill v.
Lockhart, 474 U.S. 52, 58-59 (1985)). An assessment of whether a defendant
would have gone to trial but for counsel's errors “will depend largely on
whether the affirmative defense likely would have succeeded at trial.” Hill,
17

474 U.S. at 59. The test of whether a Petitioner would have not pleaded guilty
if he or she had received different advice from counsel “is objective, not
subjective; and thus, ‘to obtain relief on this type of claim, a petitioner must
convince the court that a decision to reject the plea bargain would have been
rational under the circumstances.’” Pilla v. United States, 668 F. 3d 368, 373
(6th Cir. 2012) (quoting Padilla v. Kentucky, 559 U.S. 356, 372 (2010)).
Finally, “[W]hen a state prisoner asks a federal court to set aside a
sentence due to ineffective assistance of counsel during plea bargaining,” a
federal court is required to “use a “‘doubly deferential’” standard of review
that gives both the state court and the defense attorney the benefit of the
doubt.” Burt v. Titlow, 134 S. Ct. 10, 13 (2013).
The state court’s denial of relief is neither contrary to Supreme Court
precedent nor an unreasonable application of clearly established federal law.
First, Petitioner fails to show that counsel was ineffective for advising him to
withdraw his plea. The record does not support that Petitioner was
improperly advised. During the March 15 proceedings, Petitioner expressed
that it was his decision to withdraw his no-contest plea after the trial court
amended the Cobbs evaluation to a 14-year minimum sentence. ECF No.
13-5, PageID.370-371. Moreover, in the same proceeding, counsel objected
to the prosecution’s request to amend the criminal information because it
18

would increase Petitioner’s sentencing exposure. Id. at PageID.371. Despite
knowing that he would be subjected to a more severe charge carrying a
harsher penalty, Petitioner continued with his decision to withdraw his plea.
Petitioner had the opportunity to raise any questions about the risks of
withdrawing his plea at that time and did not do so.
Petitioner also claims that he withdrew his plea based on counsel’s
advice that he would strike a better deal with the prosecution. However, the
record belies this argument as the prosecution opposed the Cobbs
agreements and advocated for harsher sentencing at each stage of the case,
which defense counsel acknowledged. The record does not support that
counsel would have advised Petitioner to withdraw his plea on this basis.
Moreover, Petitioner cannot show prejudice solely because he was
subjected to higher sentence. Petitioner must show that but for counsel’s
errors, he would not have entered a plea but would have insisted on going
to trial and likely have succeeded. Petitioner has not made such showing.
Therefore, Petitioner fails to establish that counsel’s advice was deficient or
resulted in prejudice.
Second, Petitioner has not shown that that counsel acted unreasonably
by failing to raise an insanity or diminished capacity defense. Petitioner has
not shown that such a defense was available to him, that it would have
19

impacted his decision to accept a plea, or that such a defense would have
succeeded at trial. Therefore, Petitioner fails to show counsel was ineffective
on this basis.
Finally, despite his claims of error, Petitioner is bound by the statements
he made at the last plea hearing. See Ramos v. Rogers, 170 F.3d 560, 566
(6th Cir. 1999) (citing Baker v. United States, 781 F.2d 85, 90 (6th Cir.
1986)). On November 5, 2013, Petitioner pleaded no contest to the amended
charges, and the trial court agreed to sentence Petitioner to a minimum
sentence not to exceed 20 years. Petitioner stated on the record that he had
discussed his charges, maximum penalties, and constitutional rights with his
attorney, that he had answered his questions, and that he was satisfied with
his advice. ECF No. 13-7, PageID.452-453. Thus, Petitioner indicated that
he understood the terms of the plea agreement and consequences of his
plea. He confirmed that he wanted to plead no contest pursuant to that
agreement and that he was pleading no contest voluntarily. Petitioner cannot
now claim that counsel was ineffective when he did not raise any issues with
counsel at that time. He is not entitled to habeas relief on this claim.
2. Ineffective Assistance of Appellate Counsel
Next, Petitioner argues that appellate counsel was ineffective for failing
to raise the ineffective assistance of trial counsel claims on direct review.
20

Strategic and tactical choices regarding which issues to pursue on
appeal are “properly left to the sound professional judgment of counsel.”
United States v. Perry, 908 F.2d 56, 59 (6th Cir. 1990). Court-appointed
counsel does not have a constitutional duty to raise every non-frivolous issue
requested by a defendant. See Jones v. Barnes, 463 U.S. 745, 751 (1983).
As discussed, Petitioner’s claims are meritless. “[A]ppellate counsel cannot
be found to be ineffective for ‘failure to raise an issue that lacks merit.’”
Shaneberger v. Jones, 615 F.3d 448, 452 (6th Cir. 2010) (quoting Greer v.
Mitchell, 264 F.3d 663, 676 (6th Cir. 2001)). Therefore, Petitioner is not
entitled to relief.
D. Claim # 4. The Cobbs Violation Claim.
Petitioner next contends that the trial court allegedly breached the
Cobbs agreement that he would be sentenced pursuant to a minimum
guidelines range of 87 months.
The principal problem with Petitioner's argument is that he does not
raise a cognizable federal claim. Petitioner's contention that the trial court's
sentence deviated from the purported Cobbs agreement lacks merit because
it is premised solely on the application of Cobbs, which is a Michigan
Supreme Court decision and “federal habeas corpus relief does not lie for
errors of state law.” Lewis v. Jeffers, 497 U.S. 764, 780 (1990).
21

But even if the claim were cognizable, Petitioner’s claim lacks a factual
predicate because the trial court did not breach any Cobbs agreement. This
Court has explained:
A Cobbs agreement, a distinct aspect of Michigan law, is a
judge's on-the-record statement, at the time of a guilty plea,
regarding the length of sentence that appears to be appropriate,
based on information known at that time. People v. Cobbs, 443
Mich. 276, 505 N.W.2d 208 (1993). Cobbs established that if a
trial court later decides to exceed the anticipated sentence, the
defendant is entitled to the opportunity to withdraw his plea and
proceed to trial, where he pleaded guilty in reliance on the court’s
agreement to sentence him within a lower range. Id.
Howard v. Bell, No. 2:10-CV-10434, 2011 WL 2560278, at *1 (E.D. Mich.
June 28, 2011).
The state trial court denied this claim on the merits on collateral review.
The court held that the trial judge did not violate any Cobbs agreement. ECF
No. 13-11, PageID.1026. The Court agrees that the trial judge acted
appropriately under Michigan law. During pre-trial discussions, the trial judge
indicated that he would impose a minimum sentence not to exceed 87
months. ECF No. 13-3, PageID.344; ECF No. 13-4, PageID.353, 359. The
trial court later determined the facts and circumstances warranted amending
the earlier evaluation to a minimum sentence of 14 years. ECF No. 3-5,
PageID.368. Under Cobbs, a trial court may later decide to exceed the
anticipated sentence, as it did here. And, as further permitted under Cobbs,
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Petitioner exercised his opportunity to withdraw his plea. Id. For these
reasons, Petitioner cannot establish that he was prejudiced by the trial
court’s decision to deviate from the sentencing agreement and his habeas
claim therefore lacks merit.
E. Claim # 6. The Prosecutorial Misconduct Claim
Lastly, Petitioner argues that the prosecution acted improperly by
amending the information. Because the state courts did not address this
claim on the merits, the Court will address it de novo.
For a petitioner to be entitled to habeas relief on the basis of
prosecutorial misconduct, the petitioner must demonstrate that the
prosecutor's improper conduct “so infected the trial with unfairness as to
make the resulting conviction a denial of due process.” Darden v.
Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo,
416 U.S. 637, 643 (1974)). “[T]he touchstone of due process analysis . . . is
the fairness of the trial, not the culpability of the prosecutor.” Smith v. Phillips,
455 U.S. 209, 219 (1982). In evaluating the impact of the prosecutor’s
misconduct, a court should consider the extent to which the claimed
misconduct tended to mislead the jury or prejudice the petitioner. See United
States v. Young, 470 U.S. 1, 11– 12 (1985). The Supreme Court has
described the Darden standard as “a very general one, leaving courts ‘more
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leeway . . . in reaching outcomes in case-by-case determinations . . . .”
Parker v. Matthews, 567 U.S. 37, 48 (2012). The Parker Court rejected an
attempt to graft any additional requirements on the “very general” Darden
standard.
Petitioner claims that the prosecution’s conduct amounted to
harassment and vindictive prosecution because the amendment occurred
shortly after Petitioner withdrew his initial no-contest plea and it lacked a
factual basis. A prosecutor has significant discretion in determining what
charge to file against an accused provided that probable cause exists, but
may not undertake a prosecution based upon a vindictive motive, race,
religion, or other arbitrary classification. Bordenkircher v. Hayes, 434 U.S.
357, 364 (1978); United States v. Davis, 15 F.3d 526, 529 (6th Cir. 1994);
Oyler v. Boles, 368 US. 448, 456 (1962) (no bad faith motive permitted).
Petitioner fails to show that the prosecutor amended the charge with a
vindictive motive. As addressed by the Michigan Court of Appeals, the
prosecutor was permitted to amend the information any time before, during,
or after trial under Mich. Comp. Laws § 767.76 and Michigan Court Rule
6.112(H), so long as Petitioner was not unfairly surprised or prejudiced by
the amendment. See Russell, 2015 WL 8983893 *1. The Court already
determined that Petitioner’s due process rights were not violated by the
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amendment, and that Petitioner’s criminal history and the egregious nature
of the crime sufficiently warranted amending the information to a charge of
second-degree murder.
To the extent Petitioner claims improper motive can be inferred by the
timing of the amendment, the prosecution maintained the same position
throughout the criminal proceedings by opposing each of the Cobbs
agreements and advocating for harsher sentencing. Therefore, there the
timing does not suggest impropriety. In sum, the state-court record is devoid
of any facts suggesting that the prosecution acted improperly. Petitioner is
not entitled to habeas relief on this claim.
IV.

CERTIFICATE OF APPEALABILITY
The Court declines to grant a certificate of appealability because

Petitioner has not made a substantial showing of the denial of a constitutional
right. 28 U.S.C. § 2253(c)(2). In addition, reasonable jurists could not
disagree with the Court’s resolution of Petitioner’s constitutional claims, nor
conclude that the claims deserve encouragement to proceed further. MillerEl v. Cockrell, 537 U.S. 322, 327 (2003) (citing Slack v. McDaniel, 529 U.S.
473, 484 (2000)). Therefore, the Court will deny a certificate of appealability.
V.

CONCLUSION

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Based upon the foregoing, IT IS ORDERED that the petition for a writ
of habeas corpus is DENIED WITH PREJUDICE.
IT IS FURTHER ORDERED that a certificate of appealability is
DENIED.
IT IS FURTHER ORDERED that permission to proceed in forma
pauperis on appeal is DENIED.
IT IS SO ORDERED.
s/Shalina D. Kumar
SHALINA D. KUMAR
United States District Judge

Dated: August 28, 2024

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