Yearby v. Klee

Filing 9

MEMORANDUM OPINION and ORDER Denying 1 Petition for Writ of Habeas Corpus, Denying a Certificate of Appealability, and Granting Leave to Appeal in Forma Pauperis - Signed by District Judge Judith E. Levy. (FMos)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Derwyn Burnell Yearby,
Petitioner,
v.

Case No. 16-cv-11252
Judith E. Levy
United States District Judge

Paul D. Klee,
Mag. Judge David R. Grand
Respondent.
________________________________/
OPINION AND ORDER DENYING PETITION FOR WRIT OF
HABEAS CORPUS, DENYING A CERTIFICATE OF
APPEALABILITY, AND GRANTING LEAVE TO APPEAL IN
FORMA PAUPERIS
Michigan prisoner Derwyn Yearby (“Petitioner”) filed this habeas
case under 28 U.S.C. § 2254. Petitioner was convicted after he pled guilty
in the Genesee County Circuit Court to second-degree murder, MICH.
COMP. LAWS § 750.317, and possession of a firearm during the
commission of a felony, MICH. COMP. LAWS § 750.227b. Petitioner was
sentenced to a term of twenty-five to forty years for the murder
conviction, and a consecutive term of two years for the firearm conviction.
The petition raises two claims: (1) that he was deprived of his right to a

speedy trial, and (2) that he was deprived of the effective assistance of
counsel when his trial attorney failed to preserve his speedy trial claim
for appeal. The Court finds that Petitioner’s claims are without merit.
The petition is denied, a certificate of appealability is denied, and leave
to appeal in forma pauperis is granted.
I.

Background
The Michigan courts denied a merits review of Petitioner’s

arguments, so this background is drawn from the Rule 5 materials
submitted by Respondent. (See Dkt. 7.)
In the early morning hours of September 12, 2010, Petitioner and
two other men broke into a Flint, Michigan home where Latevia Bond,
Petitioner’s girlfriend, was sleeping with another man, Ashante
Washington. Petitioner had sent angry text messages to Bond earlier in
the day because he knew she was seeing someone else. Petitioner went
into an upstairs bedroom and found Bond and Washington asleep in the
same bed. Petitioner shot Washington in the head with a handgun. The
men then stole Washington’s wallet and car keys. Petitioner fled on foot
while the other two men drove away in Washington’s car. Bond slept

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through the incident, and discovered that Washington was dead when
she was unable to wake him in the morning. (See Dkt. 7-2, at 4-18.)
An arrest warrant was not issued for Petitioner until September 13,
2013, after one of Petitioner’s accomplices cooperated with the
government. (Dkt. 7-4 at 8.) Petitioner was then arraigned in the state
district court on October 13, 2013, and a preliminary examination was
held on October 24, 2013, at which Bond and a cooperating witness
testified. (See Dkt. 7-2.)
At a pretrial hearing held on December 9, 2013, Petitioner’s trial
attorney stated his intention to file a motion to dismiss the charges on
the grounds that the prosecution violated Michigan’s 180-day rule. (Dkt.
7-3.) Under Michigan law, a defendant who is already in the custody of
the Michigan Department of Corrections generally must be brought to
trial within 180 days of the prosecutor being notified by the Department
of Corrections that the prisoner is already in custody on another offense.
See MICH. COMP LAWS § 780.131(1); MICH. CT. R. 6.004(D).
The motion to dismiss was heard on January 13, 2014, and the trial
court denied the motion, finding that the prosecutor complied with the
state’s 180-day rule, given that 180 days had not yet run since the
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relevant triggering date. (Dkt. 7-4 at 6-11.) At a January 16, 2014
hearing, Petitioner’s counsel renewed his motion to dismiss, asserting
that he had additional evidence to support his allegation that the 180day rule was violated, and the trial court again denied the motion. (Dkt.
7-5 at 4-6.)
On March 4, 2014, the parties entered a plea agreement. (Dkt. 76.) Prior to entering the plea, defense counsel once again unsuccessfully
moved to dismiss the case based on a violation of the 180-day rule. (Id.
at 3-8.)
The plea agreement was then placed on the record. Petitioner
pleaded guilty to second-degree murder and commission of a felony with
a firearm. (Id. at 9.) In exchange, the prosecutor agreed to dismiss the
charges of first degree murder, armed robbery, home invasion, and
carjacking, and to recommend a twenty-five year minimum sentence on
the second-degree murder charge. (Id.) Petitioner also agreed to provide
truthful testimony against one of his co-defendants, Javon Meeks. (Id.
at 9-10.) Petitioner indicated his understanding that by entering the
plea, he would be giving up his right to have a trial, and was then
specifically advised of, and agreed to waive, each of his trial rights. (Id.
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at 13-14.) Petitioner then testified to a factual basis for the plea. (Id. at
15-22.)
The trial court found that Petitioner’s testimony supported the
charges, and it accepted the guilty plea as being made in an
understanding, voluntary, accurate, and knowing manner. (Id. at 28.)
On April 7, 2014, the date scheduled for sentencing, Petitioner filed
an in pro per motion to withdraw his plea based on the alleged violation
of the 180-day rule. (Dkt. 7-7 at 4.) Petitioner, addressing the court
personally, asserted that he should be entitled to withdraw his plea on
the grounds that his trial counsel was ineffective for failing to preserve
the 180-day rule issue for appeal, and also renewed the argument on the
merits of the alleged 180-day rule violation. (Id. at 5-6.) The trial court
denied Petitioner’s motion to withdraw his plea, finding that there was
“no evidence whatsoever ineffective [sic] assistance of counsel based on
the hundred and eighty day rule or anything else,” and also denied the
renewed motion on the merits. (Id. at 7.) The trial court then sentenced
Petitioner pursuant to the terms of the plea agreement. (Id. at 24-25.)
Petitioner filed an application for leave to appeal in the Michigan
Court of Appeals, raising the following claims: Petitioner’s trial counsel
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was ineffective for failure to inform him that if he pleaded guilty
unconditionally without reserving the right to appeal the court’s decision
on the 180-day rule and speedy trial issue, it would constitute a plea
waiver of these issues, and thus it was error to deny his motion to
withdraw his plea prior to sentencing; and the trial court erred by
denying Petitioner’s motion to dismiss based on the 180-day rule.
The Michigan Court of Appeals denied Petitioner’s application “for
lack of merit in the grounds presented.” People v. Yearby, No. 324070
(Mich. Ct. App. Dec. 9, 2014). Petitioner also filed an additional in pro
per brief that reached the Michigan Court of Appeals the same day they
denied review. (See Dkt. 7-10 at 206-72.) Petitioner subsequently filed
an application for leave to appeal in the Michigan Supreme Court, raising
the same claims he raised before the Michigan Court of Appeals. The
Michigan Supreme Court denied the application because it was “not
persuaded that the questions presented should be reviewed by th[e]
Court.” People v. Yearby, 498 Mich. 853 (2015) (table).
II.

Standard
Under the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), a federal court can order habeas relief only if the state’s
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adjudication of a claim 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). When applying these
standards, this Court is to examine the holdings of the Supreme Court as
they existed at “the time of the relevant state-court decision.” Williams
v. Taylor, 529 U.S. 362, 412 (2000). The Court can, however, look to
decisions of other courts to determine whether a legal principle has been
clearly established by the Supreme Court. Hall v. Vasbinder, 563 F.3d
222, 232 (6th Cir. 2009); Smith v. Stegall, 385 F.3d 993, 998 (6th Cir.
2004). “A state court’s determination that a claim lacks merit precludes
federal habeas relief so long as ‘fair minded jurists could disagree’ on the
correctness of that decision.” Harrington v. Richter, 562 U.S. 86, 88
(2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).
III.

Analysis
Petitioner argues that his right to a speedy trial was violated

because he was brought to trial in violation of the 180-day rule set forth
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in MICH. COMP. LAWS § 780.131(1) and MICH. CT. R. 6.004(D). Because
Petitioner fails to show that the alleged violation violates the Sixth
Amendment, this claim is denied.
This claim cannot form the basis for federal habeas relief because
it is not a federal claim. “A violation by state officials of a state speedy
trial law, taken alone, does not present a federal claim.” Burns v. Lafler,
328 F. Supp. 2d 711, 722 (E.D. Mich. 2004) (citing Poe v. Caspari, 39 F.3d
204, 207 (8th Cir. 1994); Wells v. Petsock, 941 F.2d 253, 256 (3d Cir.
1991)). Petitioner’s allegation that the State of Michigan violated its own
180-day rule therefore does not entitle him to habeas relief. Id.
To the extent Petitioner is claiming that he was denied his Sixth
Amendment right to a speedy trial, the claim still fails.

The Sixth

Amendment guarantees a criminal defendant the right to a speedy trial.
U.S. CONST. amend. VI. To determine whether a speedy trial violation
has occurred, the court must consider the following four factors: (1) the
length of the delay, (2) the reason for the delay, (3) the defendant’s
assertion of his speedy trial right, and (4) the prejudice to the defendant.
Barker v. Wingo, 407 U.S. 514, 530 (1972).

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The length of delay is a “triggering factor”; “until there is some
delay which is presumptively prejudicial, there is no necessity for inquiry
into the other factors that go into the balance.” Barker, 407 U.S. at 530.
To trigger a speedy trial analysis, the accused must allege that the
interval between the accusation and the trial has crossed the threshold
dividing ordinary from presumptively prejudicial delay.

Doggett v.

United States, 505 U.S. 647, 651-52 (1992). Courts have generally found
post-accusation delays that approach one year to be “presumptively
prejudicial.” Id. at 652, n. 1.
Petitioner was arraigned in the state district court on October 13,
2013. Petitioner pleaded guilty on March 14, 2014, only five months after
his arraignment. This period was not presumptively prejudicial. See
United States v. Gardner, 488 F.3d 700, 719 (6th Cir. 2007) (delays
“several months short of one year” are not presumptively prejudicial).
Because Petitioner has failed to establish that the five month period
between arraignment and plea was presumptively prejudicial, it is
unnecessary for this Court to inquire into the other Barker factors. Id.
Petitioner is not entitled to habeas relief under the Sixth Amendment

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right to a speedy trial. See Wilson v. Mitchell, 61 F. App’x 944, 946 (6th
Cir. 2003).
Petitioner also argues that he was deprived of the effective
assistance of counsel because his trial attorney failed to preserve his 180day rule and speedy trial claims for appeal by failing to make his guilty
plea conditional on his ability to appeal these claims in the state courts.
To establish a claim of ineffective assistance of counsel, Petitioner must
show that (a) “counsel’s performance was deficient,” and (b) the “deficient
performance prejudiced the defense.” See Strickland v. Washington, 466
U.S. 668, 687 (1984). To establish prejudice in a case such as this,
Petitioner “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.’” Premo v. Moore, 562 U.S. 115, 131-32 (2011) (quoting Hill v.
Lockhart, 474 U.S. 52, 59 (1985)).
Petitioner does not even say, let alone establish a reasonable
probability, that he would have refused to plead guilty and instead
insisted on going to trial had trial counsel informed him that he was
giving up his right to appeal the 180-day rule issue by not entering a
conditional plea.

Thus, Petitioner fails to establish that he was
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prejudiced by trial counsel’s allegedly deficient performance. Because
Petitioner fails on this prong, the Court need not reach the deficient
performance prong. Strickland, 466 U.S. at 697 (“[T]here is no reason for
a court deciding an ineffective assistance claim to . . . address both
components of the inquiry if the defendant makes an insufficient showing
on one.”). The claim is dismissed.
In order to obtain a certificate of appealability, Petitioner must
make “a substantial showing of the denial of a constitutional right.” See
28 U.S.C. § 2253(c)(2).

Under this standard, a petitioner must

demonstrate 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.’” Slack v. McDaniel, 529 U.S. 473,
483 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)). This
determination “requires an overview of the claims in the habeas petition
and a general assessment of their merit,” but “does not require a showing
that the appeal will succeed.” Miller-El v. Cockrell, 537 U.S. 322, 337
(2003). Petitioner fails to make a substantial showing of the denial of a
federal constitutional right.

Reasonable jurists would not find the
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Court’s assessment of Petitioner’s constitutional claims debatable or
wrong, because Petitioner failed to show that the alleged violation of the
state’s 180-day rule violated the Sixth Amendment, or even make the
argument that he was prejudiced by trial counsel’s allegedly deficient
performance. Thus the certificate of appealability is denied.
However, a court may grant in forma pauperis status if the court
finds that an appeal would be taken in good faith.

See 28 U.S.C.

§ 1915(a)(3); Foster v. Ludwick, 208 F. Supp. 2d 750, 764 (E.D. Mich.
2002) (“The standard for issuing a certificate of appealability has a higher
threshold than the standard for granting in forma pauperis status, which
requires showing that the appeal is not frivolous.”) (citing United States
v. Youngblood, 116 F.3d 1113, 1115 (5th Cir. 1997)). Here, Petitioner’s
appeal would be taken in good faith, and leave to appeal in forma
pauperis is granted.
IV.

Conclusion
For the reasons set forth above, the petition for a writ of habeas

corpus (Dkt. 1) is DENIED, a certificate of appealability is DENIED, and
leave to appeal in forma pauperis is GRANTED.
IT IS SO ORDERED.
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Dated: May 2, 2017
Ann Arbor, Michigan

s/Judith E. Levy
JUDITH E. LEVY
United States District Judge

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served
upon counsel of record and any unrepresented parties via the Court’s
ECF System to their respective email or First Class U.S. mail addresses
disclosed on the Notice of Electronic Filing on May 2, 2017.

s/Felicia M. Moses
FELICIA M. MOSES
Case Manager

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