Livingston v. Campbell

Filing 13

OPINION and ORDER Denying 1 Petition for Writ of Habeas Corpus; Declining to Issue a Certificate of Appealability; and Granting Leave to Appeal in forma pauperis. Signed by District Judge John Corbett O'Meara. (WBar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

HAROLD STEVEN ANTHONY LIVINGSTON,
Petitioner,
Case No. 5:15-cv-13103
Hon. John Corbett O’Meara

v.
SHERMAN CAMPBELL,
Respondent.
______________________________________/

OPINION AND ORDER
DENYING THE PETITION FOR WRIT OF HABEAS CORPUS,
DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY, AND
GRANTING LEAVE TO APPEAL IN FORMA PAUPERIS
Petitioner Harold Steven Anthony Livingston, a state prisoner confined at the
Central Michigan Correctional Facility in St. Louis, Michigan, seeks a writ of habeas
corpus under 28 U.S.C. § 2254. Petitioner challenges his plea-based convictions and
sentence of seven to twenty years for two counts of bank robbery. He argues that his
guilty plea was not voluntary or knowing, his trial attorney was ineffective, and his
sentence was based on inaccurate information. The State urges the Court to deny the
petition on grounds that Petitioner’s claims are unexhausted, not cognizable on habeas
review, or meritless. Having reviewed the pleadings and state-court record, the Court
concludes that Petitioner’s claims lack merit and do not warrant habeas relief.
Accordingly, the petition will be denied.

1

I. Background
A. The Plea, Sentence, Post-Conviction Proceedings, and Appeal
Petitioner was charged in five separate cases with armed robbery or bank
robbery. On March 3, 2014, he pleaded guilty in Wayne County Circuit Court to two
counts of bank robbery. In return, the prosecution promised to dismiss the other counts
charging Petitioner with armed robbery or bank robbery, and the parties agreed to a
sentence of seven to twenty years in prison. 3/3/14 Pretrial Hr’g Tr., p. 4 (Dkt. 8-4).
On March 27, 2014, the date set for sentencing, Petitioner’s trial attorney asked
the trial court to postpone the sentencing because Petitioner was thinking of
withdrawing his guilty plea and the attorney thought that an additional visit with
Petitioner might be helpful. The trial court denied the request, stating that it had heard
no basis for allowing Petitioner to withdraw his plea. 3/27/14 Pretrial Hr’g Tr., pp. 3-6
(Dkt. 8-5). Petitioner then informed the trial court that his attorneys had advised him
that his sentence would be two to five years in prison for the bank robbery and that he
could expect a sentence of twenty years for each count if he did not plead guilty. Id., p.
9. Petitioner stated that he was taking psychiatric medication and that he had not
understood what was happening at the time. Id. He also indicated that he was under
duress when he signed the plea agreement and that he had merely meant to ask for
leniency. He said that he did not have the discovery package and that he did not
understand what the charges were. Id.
Although Petitioner also denied being informed of a plea offer on January 3,
2014, the trial court stated that it had a record of the previous offers in the case and that
the offer on January 3, 2014, called for a guilty plea to two counts of armed robbery,

2

dismissal of all the other cases, and a sentence of eight to twenty years in prison. Id.,
pp. 9-11. Petitioner then admitted that he had rejected the offer because he had
wanted to plead guilty to bank robbery, not armed robbery. Id., p. 11. When the trial
court stated that it intended to proceed with the sentencing, Petitioner apologized to the
court, the banks, and the tellers for what he had done, and he explained that his drug
problem was the reason he had committed the robberies. Id., p. 12. The court then
sentenced Petitioner, pursuant to the plea and sentencing agreement, to two concurrent
terms of seven to twenty years in prison. The court also dismissed the other three
cases against Petitioner. Id., pp. at 13-14.
Petitioner later attempted to re-negotiate his sentence of seven to twenty years
on the basis that he was taking psychotropic medication when the plea was taken and
that he did not understand the plea agreement. The prosecution refused to re-negotiate
the parties’ agreement, and the trial court denied Petitioner’s request for relief. 7/17/14
Mot. Hr’g, Tr., pp.3-5 (Dkt. 8-6).
Petitioner subsequently filed a motion to correct the sentence or to re-score the
sentencing guidelines. The trial court denied Petitioner’s motion on grounds that the
motion was untimely, the sentence was correct, and the court had no jurisdiction to
correct a valid sentence. 10/31/14 Mot. Hr’g Tr., pp. 3-7 (Dkt. 8-7).
Petitioner appealed his convictions on the basis that the trial court had abused its
discretion when it denied his motion to correct the sentence and to withdraw his guilty
plea. The Michigan Court of Appeals denied leave to appeal “for lack of merit in the
grounds presented.” See People v. Livingston, No. 324743 (Mich. Ct. App. Jan. 5,
2015). Petitioner raised the same issue in the Michigan Supreme Court, which denied

3

leave to appeal on June 30, 2015, because it was not persuaded to review the issue
presented to it. See People v. Livingston, 864 N.W.2d 577 (Mich. 2015).
B. The Habeas Petition and Responsive Pleading
On August 31, 2015, Petitioner filed his habeas corpus petition. He argues that:
(1) his plea was not a voluntary and knowing act because he was under the influence of
psychotropic medication at the time; (2) trial counsel was ineffective for exposing him to
a harsher sentence by suggesting an increase in the score for two offense variables of
the sentencing guidelines; (3) trial counsel was ineffective for allowing him to enter a
guilty plea while he was under the influence of psychotropic medication; and (4) the trial
court sentenced him on the basis of inaccurate information.
The State argues in its answer to the petition that Petitioner did not exhaust state
remedies for his first claim regarding the voluntariness of his guilty plea or his third claim
regarding trial counsel’s decision to allow Petitioner to plead guilty. The doctrine of
exhaustion of state remedies requires habeas petitioners to fairly present the factual
and legal basis for each of their claims to the state court of appeals and to the state
supreme court before raising the claims in a federal habeas petition. See 28 U.S.C. §
2254(b)(1); Wagner v. Smith, 581 F.3d 410, 414-15 (6th Cir. 2009). The exhaustion
rule, however, is not a jurisdictional requirement, Castille v. Peoples, 489 U.S. 346, 349
(1989), and Petitioner’s claims are plainly meritless. Accordingly, the Court will proceed
to address Petitioner’s claims rather than to dismiss the petition for Petitioner’s alleged
failure to exhaust state remedies for all his claims. See Hickey v. Hoffner, __ F. App’x
__, __, No. 16-1186, 2017 WL 2829523, at *4 (6th Cir. June 30, 2017) (stating that, if

4

the petitioner’s unexhausted claims were plainly meritless, the Court of Appeals would
affirm the district court’s decision denying them as such).
II. Standard of Review
“The statutory authority of federal courts to issue habeas corpus relief for
persons in state custody is provided by 28 U.S.C. § 2254, as amended by the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).” Harrington v. Richter,
562 U.S. 86, 97 (2011). Pursuant to § 2254, the Court may not grant a state prisoner’s
application for the writ of habeas corpus unless the state court’s adjudication of the
prisoner’s claims on the merits
(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.

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 state-court rulings,’ Lindh v.
Murphy, 521 U.S. 320, 333, n. 7 (1997), and ‘demands that state-court decisions be
given the benefit of the doubt,’ Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per
curiam).” Renico v. Lett, 559 U.S. 766, 773 (2010).

5

“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.” Richter, 562 U.S. at 101 (quoting Yarborough v. Alvarado, 541 U.S.
652, 664 (2004)). To obtain a writ of habeas corpus from a federal court, a state
prisoner must show that the state court’s ruling on his or her claim “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 103.
Furthermore, a state court’s determination of a factual issue is presumed to be
correct unless the petitioner rebuts the presumption of correctness with clear and
convincing evidence. 28 U.S.C. § 2254(e)(1); Holland v. Rivard, 800 F.3d 224, 242 (6th
Cir. 2015), cert. denied, 136 S. Ct. 1384 (2016). In addition, “review under § 2254(d)(1)
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).
III. Analysis
A. The Plea
Petitioner alleges first that his guilty plea was not a voluntary and knowing act
because he was under the influence of psychotropic medication at the time. Petitioner
asserts that, due to the medication, he was not in the right frame of mind and he was
unable to comprehend the mechanics of the plea.
1. Clearly Established Federal Law
A guilty plea involves a waiver of several constitutional rights. Boykin v.
Alabama, 395 U.S. 238, 243 (1969). Consequently, to be valid, a guilty plea must be a

6

voluntary, knowing, and intelligent act. Brady v. United States, 397 U.S. 742, 748
(1970).
A plea may be involuntary either because the accused does not
understand the nature of the constitutional protections that he is waiving,
see, e. g., Johnson v. Zerbst, 304 U.S. 458, 464-465, 58 S.Ct. 1019, 1023,
82 L.Ed. 1461, or because he has such an incomplete understanding of
the charge that his plea cannot stand as an intelligent admission of guilt.
Without adequate notice of the nature of the charge against him, or proof
that he in fact understood the charge, the plea cannot be voluntary in this
latter sense. Smith v. O’Grady, 312 U.S. 329, 61 S.Ct. 572, 85 L.Ed. 859.
Henderson v. Morgan, 426 U.S. 637, 645 n.13 (1976).
A plea is knowing and intelligent if it is “done with sufficient awareness of the
relevant circumstances and likely consequences.” Brady, 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). Additional factors to be considered are whether the defendant understood the
essential elements of the offenses to which he was pleading guilty and whether he was
aware of the maximum sentence for his crimes. Id. at 408-09.
If a defendant’s guilty plea is not voluntary and knowing, it has been obtained in
violation of due process and is void. McCarthy v. United States, 394 U.S. 459, 466
(1969). But on habeas review, a federal district court must defer to the state court’s
decision regarding the validity of a petitioner’s guilty plea. Fitzpatrick v. Robinson, 723
F.3d 624, 639 (6th Cir. 2013).

7

2. Application
At the plea proceeding in Petitioner’s case, the trial court stated the terms of the
plea agreement and informed Petitioner that the maximum sentence for his crimes was
life imprisonment. Petitioner stated that he understood the plea agreement and that he
wanted to take advantage of it. 3/3/14 Plea Tr., p. 4 (Dkt. 8-4). He also stated that he
had read the rights which he was waiving by pleading guilty, that he understood them,
and that he did not have any questions about them. Id. He acknowledged signing a
written waiver of rights, and he said that no one had forced him to plead guilty or made
him any promises other than what was in the plea agreement. Id., pp. 4-5. He also said
that it was his choice to plead guilty. Id., p. 5. He then provided a factual basis for his
plea and admitted that he had robbed two banks. Id., pp. 5-7.
The trial court found a sufficient factual basis to accept the plea, id., p. 7, and
Petitioner’s “[s]olemn declarations in open court carry a strong presumption of verity.”
Blackledge v. Allison, 431 U.S. 63, 74 (1977). He is presumed to have been informed
by counsel of the charge to which he pleaded guilty, Berry v. Mintzes, 726 F.2d 1142,
1147 (6th Cir. 1984), and the fact that his guilty plea may have been motivated in part
by fear of a more severe sentence if he went to trial and was convicted as charged does
not render his plea compelled and invalid, Brady, 397 U.S. at 751.
Although Petitioner contends that his guilty plea was invalid because he was
taking psychotropic medication at the time, nothing in the state-court record suggests
that the medication negatively affected Petitioner’s judgment or impeded his ability to
understand the proceedings and enter a voluntary plea. Defense counsel, in fact,
stated at Petitioner’s sentencing that, at no point during the taking of the plea did it

8

appear that Petitioner failed to understand the proceeding. 3/27/14 Pretrial Hr’g Tr., p. 6
(Dkt. 8-5).
The Court concludes from all the relevant circumstances that Petitioner’s plea
was voluntary, knowing, and intelligent. Consequently, he has no right to relief on the
basis of his challenge to the guilty plea.
B. Trial Counsel
Petitioner alleges next that he was denied effective assistance of trial counsel at
his plea and sentencing. A defendant is entitled to effective assistance of counsel
during plea negotiations and sentencing. Lafler v. Cooper, 566 U.S. 156, 162, 165
(2012). Pursuant to Strickland v. Washington, 466 U.S. 668 (1984), a defendant must
show “that counsel’s performance was deficient” and “that the deficient performance
prejudiced the defense.” Id. at 687. “Unless a defendant makes both showings, it
cannot be said that the conviction . . . resulted from a breakdown in the adversary
process that renders the result unreliable.” Id.
In the context of a guilty plea, a deficient performance is one that falls below an
objective standard of reasonableness or is outside the range of competence demanded
of attorneys in criminal cases. Hill v. Lockhart, 474 U.S. 52, 56-57 (1985). The
“prejudice” prong “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.

9

1. Suggesting an Increase in the Scoring of the Offense Variables
Petitioner contends that his trial attorney exposed him to a harsher sentence
when the attorney recommended to the trial court that the court score ten points for
offense variable four and for offense variable nine, instead of zero, as suggested by the
probation department. The trial court accepted trial counsel’s recommendation. As a
result, the sentencing guidelines increased by several months. Pretrial Hr’g Tr, pp. 7-8
(Dkt 8-5).
Petitioner argues that no reasonably competent attorney would have exposed
him to a greater prison sentence. However, it appears from the record that the
prosecution would have raised the issue even if defense counsel had not, see id., pp. 5,
7, and Petitioner has not alleged that, but for counsel’s alleged error, he would have
insisted on going to trial.
More importantly, Petitioner was not sentenced on the basis of the sentencing
guidelines. Instead, the trial court sentenced Petitioner pursuant to the parties’ plea
agreement, which called for a sentence of seven to twenty years in prison. Therefore,
even if defense counsel’s performance was deficient, the deficient performance did not
prejudice Petitioner, and “there can be no finding of ineffective assistance of counsel
without prejudice.” Shimel v. Warren, 838 F.3d 685, 697 (6th Cir. 2016), cert. denied,
137 S. Ct. 1821 (2017).
2. Allowing Petitioner to Plead Guilty
Petitioner asserts that trial counsel also provided ineffective assistance by
allowing him plead guilty while he was under the influence of psychotropic medication.
As pointed out above, however, nothing in the record suggests that Petitioner’s

10

medication negatively affected his thinking or impeded his ability to decide whether to
plead guilty. Neither Petitioner’s attorney, nor the trial court, saw any basis for
withdrawing the plea. 3/27/14 Pretrial Hr’g, pp. 3, 6, 11 (Dkt. 8-5). Trial counsel, in fact,
suggested that Petitioner would be shooting himself in the foot if he withdrew his plea.
Id., p. 6. The trial court opined that Petitioner’s attorneys had negotiated “an excellent
deal,” given the fact that Petitioner was charged with five bank robberies, all of which
carried a statutory maximum penalty of life in prison. Id., p. 12.
Trial counsel’s recommendation that Petitioner plead guilty did not fall below an
objective standard of reasonableness. Therefore, counsel’s performance was not
deficient, and habeas relief is not warranted.
C. The Sentence
In his fourth and final claim, Petitioner alleges that the trial court relied on
inaccurate information when it scored ten points for each of three offense variables of
the sentencing guidelines. Petitioner contends that he should not have received any
points for offense variable four, Mich. Comp. Laws § 777.34 (psychological injury to
victim), offense variable nine, Mich. Comp. Laws § 777.39 (number of victims), and
offense variable twelve, Mich. Comp. Laws § 777.42 (contemporaneous felonious
criminal acts). According to Petitioner, there was no evidence a victim suffered serious
psychological injury, there was only one victim for each bank robbery, and the
dismissed armed robbery charge was not “another act,” as contemplated in the statute
governing offense variable twelve.
Petitioner’s claim lacks merit because, by consenting to a specific sentence as
part of the plea bargain, he waived review of his challenge to the sentence. United

11

States v. Livingston, 1 F.3d 723, 725 (8th Cir. 1993); People v. Wiley, 693 N.W.2d 800,
800 (Mich. 2005). He cannot “complain that his rights were violated when he received
the exact sentence for which he bargained.” Lozada-Rivera v. United States, 195 F.
Supp.2d 365, 368 (D. Puerto Rico 2002).
IV. Conclusion and Order
The state courts’ rejection of Petitioner’s exhausted claims for lack of merit was
not contrary to Supreme Court precedent, an unreasonable application of Supreme
Court precedent, or an unreasonable determination of the facts. To the extent that any
of Petitioner’s claims were not raised in state court, the claims lack merit because
Petitioner has failed to show that he is in custody in violation of federal law. 28 U.S.C.
§§ 2241(c)(3) and 2254(a). Accordingly, the petition for writ of habeas corpus is denied.
The Court declines to issue a certificate of appealability because reasonable
jurists would not disagree with the Court’s resolution of Petitioner’s claims, nor conclude
that the issues presented are adequate to deserve encouragement to proceed further.
Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). Nevertheless, because Petitioner was
granted in forma pauperis status in this Court, see Dkt. 3, he may proceed in forma
pauperis on appeal without further authorization from this Court. Fed. R. App. P.
24(a)(3).

Date: December 6, 2017

s/JOHN CORBETT O’MEARA
United States District Judge

I hereby certify that on December 6, 2017 a copy of this opinion and order was
served upon the parties of record using the ECF system and/or first-class U.S. mail.
s/William Barkholz
Case Manager

12