Pena v. Winn

Filing 13

OPINION and ORDER Denying 10 MOTION for Summary Judgment; Denying 1 Petition for Writ of Habeas Corpus; and Denying a Certificate of Appealability and Permission to Appeal in forma pauperis, Signed by District Judge John Corbett O'Meara. (WBar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
NICHOLAS PENA,
Petitioner,

Case No. 5:17-cv-12222
Hon. John Corbett O’Meara

THOMAS WINN,
Respondent.
_____________________________________/
OPINION AND ORDER (1) DENYING RESPONDENT’S MOTION FOR SUMMARY
JUDGMENT [Dkt. 10], (2) DENYING PETITION FOR WRIT OF HABEAS CORPUS,
AND (3) DENYING CERTIFICATE OF APPEALABILITY AND PERMISSION TO
APPEAL IN FORMA PAUPERIS
Nicholas Pena, (“Petitioner”), a Michigan Department of Corrections prisoner, filed this
petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petition challenges Petitioner’s
Lenawee Circuit Court guilty plea conviction for delivery of less than 50 grams of cocaine, MICH.
COMP. LAWS § 333.7401(2)(a)(iv), one count of resisting a police officer, MICH. COMP. LAWS §
750.81, and one count of maintaining a drug house. MICH. COMP. LAWS § 333.7405(1)(d). Petitioner
was sentenced to a controlling term of 134 to 480 months.
This matter is before the Court on Respondent’s motion to dismiss the petition on the
grounds that it was filed after expiration of the statute of limitations. [Dkt. 10]. Instead of filing a
response to the motion, Petitioner chose to file a “request for respondent to show cause why it
should not be held in contempt for failure to respond.” [Dkt. 12]. It was appropriate for Respondent
to file a motion to dismiss. See Advisory Committee Notes to Rule 5(a) of the Rules Governing
Section 2254 Cases in the United States District Courts. Nevertheless, because it can be more readily
discerned that Petitioner’s substantive claims lack merit, the Court will deny the petition on that
basis. The Court will also deny Petitioner a certificate of appealability and deny permission to

proceed on appeal in forma pauperis.
I. Background
Petitioner plead guilty to the above-described offenses on October 24, 2012, pursuant to a
plea agreement. Dkt. 11-5. The prosecutor put the terms of the plea agreement on the record. He
indicated that Petitioner was pleading guilty to the charged offenses, and in exchange the prosecutor
would not seek sentencing enhancements for Petitioner’s habitual felony offender status or on
account of the fact that the offenses occurred in a school zone. Id., at 2-3. The prosecutor also agreed
to dismiss two other criminal complaints. Id., at 3-4. Defense counsel indicated that the terms of the
agreement were accurately stated. Id., at 4. Petitioner was then questioned by the trial court, and he
indicated his agreement to the terms of the plea deal. Id., at 5. Petitioner denied that there were any
other agreements or promises that were not made part of the record. Id., at 9. The court informed
Petitioner of all the trial rights he would be waiving by entering his plea, and Petitioner agreed to
each one. Id. The court found that Petitioner’s guilty plea was entered understandingly, voluntarily,
and accurately. Id., at 14. Petitioner was sentenced on January 11, 2013, to the controlling term
indicated above.
In February of 2013, Petitioner was appointed an appellate attorney. See Dkt. 11-2. On April
29, 2013, counsel wrote a letter informing Petitioner that he had “had an opportunity to thoroughly
review both your plea and sentencing transcripts and found nothing upon which to base an appeal.”
Dkt. 10, App’x B. The letter also advised Petitioner that a successful withdrawal of the plea could
end up causing more harm than good because “it would allow the court to reinstate all of the
dismissed charges and supplements, and habitual offender enhancements.” Id. Counsel bluntly
informed Petitioner,“You can’t win,” and provided him with forms to sign so that counsel could

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withdraw before filing an appeal. Id. Petitioner returned the form unsigned. Id.
Nevertheless, on June 10, 2013, appellate counsel moved to withdraw, informing the trial
court that he found no basis to appeal, that he informed Petitioner of this, but that Petitioner had not
consented. Id., App’x D. On August 12, 2013, the trial court granted the motion to withdraw “since
there appears to be no reasonable basis for an appeal, and, given the inaction of the Defendant.” Id.,
App’x E.
On July 27, 2014, Petitioner filed a motion for relief from judgment in the trial court, raising
claims of ineffective assistance of appellate counsel, breach of the plea agreement, and improper
sentencing. Dkt. 11-7. The trial court denied this motion on May 22, 2015. Dkt. 11-9.
Petitioner then filed a delayed application for leave to appeal in the Michigan Court of
Appeals. On October 12, 2016, the Michigan Court of Appeals denied the delayed application
“because defendant has failed to establish that the trial court erred in denying his motion for relief
from judgment.” Dkt. 11-10. Petitioner then applied for leave to appeal to the Michigan Supreme
Court. On May 31, 2017, the Michigan Supreme Court denied Petitioner’s application for leave to
appeal by standard order. People v. Pena, 895 N.W.2d 522 (Mich. 2017) (Table).
Petitioner filed an undated and unsigned habeas petition that was filed with the Court on July
27, 2017.
II. Standard of Review
28 U.S.C. § 2254(d)(1) curtails a federal court’s review of constitutional claims raised by
a state prisoner in a habeas action if the claims were adjudicated on the merits by the state courts.
Relief is barred under this section unless the state court adjudication was “contrary to” or resulted
in an “unreasonable application of” clearly established Supreme Court law.

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“A state court’s decision is ‘contrary to’ . . . clearly established law if it ‘applies a rule that
contradicts the governing law set forth in [Supreme Court cases]’ or if it ‘confronts a set of facts that
are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at
a result different from [this] precedent.’” Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003) (per
curiam), quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000).
“[T]he ‘unreasonable application’ prong of the statute permits a federal habeas court to ‘grant
the writ if the state court identifies the correct governing legal principle from [the Supreme] Court
but unreasonably applies that principle to the facts’ of petitioner’s case.” Wiggins v. Smith, 539 U.S.
510, 520 (2003), quoting Williams, 529 U.S. at 413.
“A state court’s determination that a claim lacks merit precludes federal habeas relief so long
as ‘fairminded jurists could disagree’ on the correctness of the state court’s decision.” Harrington
v. Richter, 562 U.S. 86, 101 (2011), quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004).
“Section 2254(d) reflects the view that habeas corpus is a guard against extreme malfunctions in the
state criminal justice systems, not a substitute for ordinary error correction through appeal. . . . As
a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state
court’s ruling on the claim being presented in federal court was so lacking in justification that there
was an error well understood and comprehended in existing law beyond any possibility for
fairminded disagreement.” Richter, 562 U.S. at 103 (internal quotation omitted).

III. Discussion
A. Statute of Limitations

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Respondent asserts that the petition was untimely filed. The issue is complicated by the fact
that Petitioner previous filed a habeas petition that was stayed, and Petitioner never sought to reopen
that case. See Case. No. 2:14-cv-12855. Failure to comply with procedural rules, however, does not
create a jurisdictional bar to review of a habeas petition on the merits. See Trest v. Cain, 522 U.S.
87, 89 (1997). Additionally, federal courts are not required to address such procedural defenses
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)). It may be more economical for the
habeas court to simply review the merits of the petitioner’s claims, “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. In the present case, the Court deems it more efficient
to proceed directly to Petitioner’s substantive claims because they are completely devoid of merit.
B. Ineffective Assistance of Appellate Counsel
Petitioner first argues that his appellate counsel was ineffective for failing to pursue a direct
appeal from his conviction.
In Halbert v. Michigan, 545 U.S. 605, 609-10 (2005), the United States Supreme Court held
that the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United
States Constitution require the appointment of counsel for defendants who have pleaded guilty or
nolo contendere and who seek access to first-tier review of their convictions in the Michigan Court
of Appeals. Petitioner’s rights under Halbert were not violated because he was appointed appellate
counsel who met with him and reviewed the record before determining that there were no
meritorious claims to raise on appeal.

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In Anders v. California, 386 U.S. 738, 744 (1967), the Supreme Court held that
court-appointed appellate counsel could move to withdraw if, following “a conscientious
examination” of the case, appellate counsel determined that the case was “wholly frivolous.” The
Supreme Court indicated that any request to withdraw should “be accompanied by a brief referring
to anything in the record that might arguably support the appeal.” Id. A copy of this brief should be
furnished to the defendant and time should be given to allow him to raise any points that he chooses.
Id. The Supreme Court indicated that the court, and not counsel, should decide, after a full
examination of all the proceedings, whether the case is wholly frivolous. If the court makes such a
finding, it may grant counsel’s request to withdraw and dismiss the appeal insofar as federal
requirements are concerned. Id.
The specific procedure for counsel to withdraw an appeal set forth in Anders does not apply
to Petitioner’s case. In Smith v. Robbins, 528 U.S. 259, 272-73(2000), the Supreme Court held that
the section of the Anders opinion which recited an acceptable procedure for treating frivolous
appeals is not obligatory upon the States. In so holding, the Supreme Court noted that the procedure
delineated in Anders is not an “independent constitutional command,” but is just “a prophylactic
framework” that the Supreme Court established as one method to vindicate the constitutional right
to appellate counsel. Id. at 273 (citing Pennsylvania v. Finley, 481 U.S. 551, 555 (1987)).
Here, Petitioner’s counsel did not render ineffective assistance of counsel in the manner he
withdrew from Petitioner’s appeal. Counsel wrote Petitioner a detailed letter why he thought there
were no meritorious issues for appeal, and why a successful appeal might ultimately result in
adverse consequences for Petitioner. See Dkt. 10, App’x B. After Petitioner failed to agree to the
withdrawal, counsel filed a motion in the trial court indicating that counsel met with Petitioner and

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examined the record, and concluded that he had “not found any error in either the taking of the plea
or in the sentencing.” Dkt. 10, App’x E, at 2. While counsel did not file a no-merits brief as in
Anders, that procedure is not one that the Sixth Amendment requires the States to follow. The record
reflects that appellate counsel conducted a conscientious examination of the case and determined
that any appeal would be frivolous, and therefore he did not render ineffective assistance of counsel.
Moreover, for the reasons stated below, Petitioner’s underlying claims lack merit, so
Petitioner was not prejudiced by his counsel’s decision to withdraw. Accordingly, Petitioner was
denied the effective assistance of appellate counsel.
C. Unfulfilled Terms of Plea Agreement
Petitioner asserts that the trial court violated the terms of the plea agreement because it
assessed him fees, costs, and restitution as part of his sentence. To prevail on this claim, Petitioner
must show that his plea “rest[ed] in . . . significant degree on a promise or agreement of the
prosecutor, so that it can be said to be part of the inducement or consideration” such that it “must
be fulfilled.” Santobello v. New York, 404 U.S. 257, 262 (1971).
There was no sentencing agreement that was made part of the plea agreement. The
prosecutor agreed to drop several charges, and he dismissed two other cases against Petitioner, but
no representations were made by either the court or the prosecutor that Petitioner would not be
required to pay fees, costs, or restitution. In fact, under Michigan law costs, fees, and restitution are
mandatory and therefore are not open to negotiation during the plea-bargaining or
sentence-bargaining process. See People v. Ronowski, 564 N.W.2d 466, 467 (Mich. Ct. App. 1997).
Therefore, the trial court did not breach the plea agreement when ordering Petitioner to pay fees,
costs, and restitution.

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D. Sentencing Guidelines
Petitioner’s third claim asserts that his sentence was based on incorrectly scored sentencing
guidelines. Specifically, he challenges that scoring of an offense variable and a prior record variable
of the Michigan Sentencing Guidelines.
Petitioner’s claim that the state trial court incorrectly scored or calculated his sentencing
guidelines range under the Michigan Sentencing Guidelines is not a cognizable claim for federal
habeas review. See Tironi v. Birkett, 252 F. App’x 724, 725 (6th Cir. 2007); Howard v. White, 76
F. App’x 52, 53 (6th Cir. 2003). Claimed errors in the application of state sentencing guidelines
cannot independently support Petitioner's request for habeas relief because they assert that the state
courts misapplied their own laws. See Kissner v. Palmer, 826 F. 3d 898, 904 (6th Cir. 2016).
To the extent that Petitioner asserts that the trial court relied on facts not admitted by him
or determined beyond a reasonable doubt by a jury in determining his sentence, the Sixth Circuit
authoritatively has held that the Michigan indeterminate sentencing system does not run afoul of the
Sixth Amendment jury-trial right. See Chontos v. Berghuis, 585 F.3d 1000, 1002 (6th Cir. 2009).
IV. Conclusion
Before Petitioner may appeal, a certificate of appealability must issue. See 28 U.S.C. §
2253(c)(1)(a); Fed. R. App. P. 22(b). A certificate of appealability may issue “only if the applicant
has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
When a court denies relief on the merits, the substantial showing threshold is met if the petitioner
demonstrates that reasonable jurists would find the court’s assessment of the claim debatable or
wrong. See Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). Having undertaken the requisite
review, the court concludes that jurists of reason could not debate the Court’s determination that

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Petitioner’s claims are devoid or merit and not reasonably debatable. A certificate of appealability
will therefore be denied. Leave to appeal in forma pauperis is denied because an appeal of this order
could not be taken in good faith. 18 U.S.C. § 1915(a)(3).
V. Order
For the foregoing reasons, IT IS ORDERED that Respondent’s motion for summary
judgment is DENIED.
IT IS FURTHER ORDERED that the petition for writ of habeas corpus is DENIED.
IT IS FURTHER ORDERED that a certificate of appealability and permission for leave
to appeal in forma pauperis are DENIED.

s/John Corbett O’Meara
United States District Judge
Date: April 19, 2018

I hereby certify that a copy of the foregoing document was served upon the parties of record
on this date, April 19, 2018, using the ECF system and/or ordinary mail.

s/William Barkholz
Case Manager

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