Pirkel #677844 v. Palmer
Filing
29
ORDER STAYING PROCEEDINGS: case is administratively closed until petitioner files a motion to amend petition in accordance with the procedures set forth in this order; signed by Magistrate Judge Hugh W. Brenneman, Jr (Magistrate Judge Hugh W. Brenneman, Jr., fhw)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DANIEL MARTIN PIRKEL,
Petitioner,
Case No. 1:11-cv-205
Hon. Robert J. Jonker
v.
CARMEN PALMER,
Respondent.
/
ORDER TO STAY PROCEEDINGS
Daniel Martin Pirkel, currently incarcerated at a Michigan correctional facility, has
filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
I.
Background
A.
Petitioner’s pleas entered on January 24, 2008
Petitioner was charged in three cases pending in St. Joseph County Circuit Court,
identified as case nos. 14667, 14668 and 14669. Plea Trans. (docket no. 18). Petitioner was
represented by Attorney Kleidon in case nos. 14667 and 14668, and by Attorney Bush in case no.
14669. See State court docket sheets (docket nos. 15, 16 and 17).
Case no. 14667 contained four counts of criminal misconduct that occurred on June
5, 2007: carrying a concealed weapon, M.C.L. § 750.227, a felony punishable by up to five years
in prison and/or a fine of up to $2,500.00; possession of a loaded firearm in a vehicle, M.C.L. §
750.227c, a high court misdemeanor punishable by up to two years in prison and/or a fine of up to
$2,500.00; third degree retail fraud, M.C.L. § 750.356d(4), a “93-day” misdemeanor with the
possibility of a fine of $500.00 or three times to value of the property stolen, obtained or attempted
to be obtained; and assault or assault and battery, M.C.L. § 750.81, also a 93-day misdemeanor
with the possibility of a fine up to $500.00. Plea Trans. at p. 10; State court docket sheet (docket
no. 15).
Case no. 14668 contained two counts of criminal misconduct that occurred on May
5, 2007: second degree criminal sexual conduct (CSC 2), M.C.L. § 750.520c(1)(a), a felony
punishable by up to 15 years in prison; and accosting a child for immoral purposes, M.C.L. §
750.145a, a felony punishable by up to four years in prison and/or a fine of $4,000.00. Plea Trans.
at pp. 10-11; State court docket sheet (docket no. 16).
Case no. 14669 contained eleven counts of criminal misconduct that occurred on
June 16, 2007: assault with intent to murder a police officer (in this case a Michigan State Trooper),
M.C.L. § 750.83, a felony punishable by life in prison or any number of years; assault with intent
to murder Tom Hicks, M.C.L. § 750.83, a felony punishable by up to life or any number of years;
assaulting, resisting, obstructing or causing serious impairment of a police officer, Todd Bohm,
M.C.L. § 750.81d(3), a felony punishable by up to 15 years and/or a fine of $10,000.00; receiving
and concealing stolen property over $1,000.00 but less than $20,000.00, M.C.L. § 750.535(3)(a),
a felony punishable by up to five years and/or a fine of $10,000.00, or three times the value of the
property, whichever is greater; assault with a dangerous weapon, felonious assault against Officer
Todd Bohm, M.C.L. § 750.82, punishable by up to four years and/or $2,000.00; assault with a
dangerous weapon, felonious assault against Officer Noel Jimenez, M.C.L. § 750.82, punishable by
up to four years and/or $2,000.00; assault with a dangerous weapon and felonious assault on Officer
Ken Cerny with the Michigan Department of Natural Resources (DNR), M.C.L. § 750.82, a felony
punishable by up to four years; assault with a dangerous weapon on Deputy Chief Ives, M.C.L. §
2
750.82, a felony punishable by up to four years in prison and/or a find of up to $2,000.00; assaulting,
resisting, obstructing, causing injury to Dave Ives, M.C.L. § 750.81d, a felony punishable by up to
four years and/or a fine of $5,000.00; fleeing and eluding a police officer in the fourth degree,
M.C.L. § 257.602a(2), a felony punishable by up to two years and/or a fine of $500.00; and felony
firearm, M.C.L. § 750.227b, punishable by a mandatory two-year sentence consecutive to and
preceding any other term of imprisonment imposed. Plea Trans. at pp. 9-12; State court docket sheet
for case no. 14669 (docket no. 17).
At the commencement of the plea hearing, when the trial judge asked petitioner if he
wished to enter a plea, petitioner responded:
I understand it but I don’t know, I’m just reading stuff right now for the first
time I’ve ever read it – or known about it, but I – I feel like I’m getting my arm
twisted.
Plea Trans. at p. 3. At that point, the trial judge stopped the proceedings and allowed petitioner to
review the material with his attorney, which was identified as the police report of the incidents
charged in case no. 14669. Id. at pp. 3-4.
The trial judge resumed the proceedings after allowing petitioner to spend about 1
1/2 hours speaking with his attorneys. Id. at p. 4. At that time, the trial judge explained a plea
agreement which resolved all three cases. In case no. 14668, the two sexual offense charges were
dismissed in exchange for a guilty plea on all counts in case no. 14667 and a no contest plea to all
counts in case no. 14669. Id. at pp. 5-6. After further discussion on the record, petitioner stated that
understood the terms of the plea agreement. Id. at p. 10.
Ultimately, petitioner pled no contest to all of the counts in case nos. 14667 and
14669, in exchange for the prosecutor’s dismissal of the sex crimes charged case no. 14668. Id. at
3
pp. 14-16. The trial judge examined petitioner to establish the the plea was voluntary and knowing.
Upon examination by the judge, the petitioner stated: that he understood that the judge would treat
his no contest plea as if he had pled guilty or been found guilty by a jury or the judge; that he read
the rights forms in case nos. 14667 and 14669; and that he understood that by pleading no contest
he was giving up the rights he had at trial as set forth on those forms. Id. at p. 17. Upon further
questioning from the Court petitioner stated: that he was not presently on probation or parole; that
no one promised him anything to plead no contest other than what was said in court that day; that
no one had threatened him to plead no contest; that he was pleading no contest of his own free will;
and that he understood that once his no contest plea was accepted, he could not return at a later date
“and claim that there were no other promises or threats” that he failed to tell the judge at the plea
hearing or return and claim that it was not his “own free choice to plead no contest to these charges.”
Id. at pp. 16-18.
The prosecutor then made the following offer of proof with respect to case no. 14667,
which involved events that occurred in the Meijer store and parking lot in Three Rivers, Michigan
on June 5, 2007:
On the date in question, [petitioner] was seen acting suspiciously in the store.
One of the things he did is walk up to a woman by the name of Diana Bunch, who
worked at the store and asked him if she could help him. They had a brief
conversation; they were face to face. He reached around behind her and grabbed one
of her bucket – buttocks and squeezed. That – and that’s the basis for the assault and
battery charge.
Then the store personnel started watching him. They saw him pull – pull the
store alarm – fire alarm, and then walk out with other customers in the – in a crowd,
and then alarm went off. They later found that a pair of boots were stolen from the
store that morning, and those boots were in fact work by [petitioner] when he was
arrested in the parking lot that day.
4
When he was arrested, he was trying to gain entry into the car which was
locked. Found in the car was a – a rifle, a forty caliber rifle, which by inference, he
had to have had in the car when he drove to the store, supporting the carrying a
concealed weapons charge.
When the weapon was inspected by Office Sangalli and Sergeant Smith, the
– the rifle was found to be loaded with a – a ten round magazine, supporting
possession of a loaded firearm in or upon a vehicle.
Id. at pp. 18-19.
In support of the no contest plea to case no. 14669, the trial judge reviewed a copy
of the police report, which, according to the judge, included a factual basis for each of the counts.
Id. at p. 20. The judge proposed just admitting the police report to establish the elements of the
offenses. Id. The prosecutor observed that they had taken a break to allow petitioner to read the
report himself. Id. Petitioner’s counsel, Mr. Kleidon, had no objection to proceeding in this manner,
which did not require testimony from the reporting officers. Id. During the course of this
conversation, petitioner’s other counsel, Mr. Bush, entered the courtroom. Id. at p. 21. After some
discussion, the judge concluded that the police report was sufficient to support all of the counts in
case no. 14669, noting that the incident involved petitioner being pulled out of water by police
officers while he was swinging a knife “wildly,” cutting Deputy Chief Ives on the hand. Id. at p.
21.1 Mr. Bush, had no objection to the admission of the police report and stated his belief that the
report satisfied the elements in the eleven counts of case no. 14669. Id. at pp. 22-23.
Upon
questioning by the judge, both of petitioner’s counsel and the prosecutor stated that there were no
other promises, threats of inducements related to the plea. Id. at pp. 24-26.
1
The Court notes that while the police report with petitioner’s attached confession is the document
which provides the factual support for petitioner’s no contest plea, neither party has submitted a copy of the
report to the Court.
5
The judge addressed two other matters related to the plea. The first pertained to
petitioner’s mental competency with the judge noting that petitioner had had a competency hearing
and had been found “competent.” Id. at p.23.
The judge advised petitioner that if the court
accepted his no contest plea that petitioner would be giving up any defense as to mental competency.
Id. at p. 23. Petitioner acknowledged this and stated that he wished to proceed with the plea.
Attorney Bush stated that he and petitioner discussed defenses earlier that day and agreed that there
was a basis for giving up the competency defense. Id. In this regard, Attorney Bush stated that he
met with petitioner at the jail on “Monday afternoon” (January 21, 2008), “yesterday” (January 23,
2008) and on the day of the plea (January 24, 2008). Id. at p. 25. Petitioner agreed that those
meetings occurred. Id. at p. 26.
Based upon the record, the trial court stated:
I believe the plea made is accurate, understanding, and voluntary, with the
advise of counsel, and I’m satisfied from a review of the offer of proof and the police
reports that there is a factual basis to support a finding that you’re guilty of the
offenses charged; therefore, I accept your no contest pleas. We’ll set these matters
for sentencing[.]
Id.
B.
Petitioner’s March 3, 2008 sentencing
Petitioner’s sentencing was scheduled for Monday, March 3, 2008. Sent. Trans.
(docket no. 19). Petitioner’s counsel, Attorney Bush, asked the judge to adjourn the sentencing
because he did not receive the pre-sentence report until the Thursday prior to the sentencing. Id. at
p. 3. Attorney Bush asserted that petitioner needed additional time to “study it, comprehend it, and
basically be able to yet [sic] deal with it” and that petitioner wanted an additional week or two “to
be better mentally able to comprehend what is happening to him” and “to argue on his own behalf.”
6
Id. Attorney Kleidon joined with the request stating that the pre-sentence report was 36 pages long
and that petitioner needed an adjournment for one or two weeks. Id. at p. 4. The prosecutor
responded that the plea agreement was designed to meet petitioner’s demands (e.g., dismissing the
sex crimes so that petitioner would not be labeled as a sex offender), that the body of the presentence report was only five or six pages long (with the rest being a repetition of all of the
charges), and that it was appropriate for the trial court to proceed with sentencing at that time. Id.
at pp. 4-5.
The trial judge noted that a second issue with respect to sentencing arose involving
an undated letter which he had received after petitioner entered the no contest pleas. The judge read
the letter into the record:
I’m under duress by my own counsel and I feel from the start they have not
been working for me. I feel like a lamb being led to the slaughter.
I’m in no way comfortable pertaining to my case, such as my plea, my
lawyers, and my mental state. All in all, with the above court proceedings, I feel it’s
been a lie.
I don’t trust my lawyers. I asked Mr. Bush to postpone my sentencing
because I don’t understand all of the charges, plus I feel that I [sic] pressured to take
an unfair plea that I did not want to take.
It’s my hopes that you’ll find this letter reason enough to help me in any way
you see fit.
Id. at pp. 5-6.
After receiving the letter, the judge stated that he had reviewed the tape recording of
petitioner’s plea. Id. at p. 6. The judge recounted that petitioner’s first words when the plea hearing
commenced (at about 3:00 p.m.) were “I don’t know what I’m doing, I’m uncomfortable,” at which
point the judge stopped the proceedings. Id. Petitioner had about 1 1/2 hours to meet with counsel
7
to review the file materials, and when the plea resumed, it took nearly 45 minutes for petitioner to
enter the no contest pleas. Id.2 The judge reviewed petitioner’s testimony at the plea hearing,
petitioner’s testimony that he was entering his plea of his own choice or free will and that no one
had promised him anything or threatened him to give the plea. Id. The judge also discussed that,
prior to entering a plea, petitioner had the benefit of a competency evaluation by the State Forensic
Center as well as the appointment of his own expert at county expense to evaluate the state’s report,
and that his attorneys reviewed this information with him. Id.
The judge rejected petitioner’s claim that his plea was involuntary and denied his
request to withdraw the plea and appoint new attorneys:
For all those reasons, I don’t believe that you’ve established that your plea
was forced, coerced, or that you did not know what you were doing. A review of the
transcript or a review of the tape, even, would put to rest any fears that you were not
of sound mind to make those decisions, or aware of what was being done. You said
several times throughout that it was your choice to do that and that you understood
the plea agreement, so I’m not going to allow you to withdraw your plea. I’m not
going to appoint new attorneys, and we’ll go ahead with sentencing.
Id. at pp. 6-7.
When the proceedings resumed, Attorney Kleidon felt that certain phrasing in the presentence report could be misconstrued to suggest that petitioner had some animosity toward the
police. Id. at pp. 10-11. The judge did not think that petitioner was angry at the police. Id. at pp.
10-11. Attorney Bush had no comments on the report. Id. at p. 11. The prosecutor noted that on
page one of the pre-sentence report, one portion simply referred to an officer as “injured when he
tripped while chasing [petitioner].” Id. The judge agreed with the prosecutor that the nature of the
2
The undersigned notes that because petitioner pled no contest, the plea proceedings did not involve
extensive testimony by him. Rather, the bulk of the plea proceedings involved reviewing petitioner’s rights
with some discussion of the government’s proofs to provide a factual basis for the no contest plea.
8
injury should be explained and added the phrase “[w]hich resulted in the officer having surgery and
missing six months of work.” Id. at pp. 11-12.
Attorney Kleidon noted that his remaining case, no. 14667, did not require any
allocution on sentencing, given that the recommendation was for 263 days, and petitioner was to
receive credit for that time served. Id. at p. 14. Attorney Bush, with respect to case no. 14669,
pointed out that petitioner was “completely different” than when he committed the crimes, that he
has not been in trouble at the jail, that he keeps to himself, and has to the capacity to think, reason
and understand. Id. at p. 15. With respect to the most serious crimes of attempted murder, which
carried a recommended sentence of 20 to 50 years, Attorney Bush felt that 20 years was at the high
end of the guidelines, with the range being 14.25 years to 23.75 years. Id. Attorney Bush felt that
petitioner did not need such a high guideline range to address the issues raised in his convictions,
realizing that an additional two years will be added to the sentence due to the felony firearm
conviction. Id.
Petitioner read a letter to the judge, in which he stated, among other things, that he
was very sorry for his past actions, that he is the only person to blame for this catastrophe, that he
took responsibility for his heinous crimes and for any punishment, that there are no excuses for his
actions, that he deserves to go to prison for the rest of his life, that he also deserves to go to hell,
that he sympathizes with the people he hurt, that since his arrest he has found religion, that after he
serves his time and pays back society he will become a positive influence rather than a negative one,
that he expects to be punished accordingly, that he prays that the judge will punish him the way his
sins deserve by looking at the good as well as the bad, that his actions were inexcusable and
unacceptable, and that he has sincerely repented. Id. at pp. 16-17.
9
For his part, the prosecutor pointed out the gravity of petitioner’s actions with respect
to the incidents charged in case no. 14669, which involved law enforcement officers pursuing
petitioner into a wooded area and a body of water:
Your honor, this young man knew police officers were chasing him. He was
armed with a pistol. He ran into the woods – hid in ambush. He waited until police
officers were within extremely close range, 20 feet, and he shot at them in the area
of the chest.
I want the Court to consider what all – each and every one of these officers
faced as they continued in pursuit of him for the purpose of defending the public’s
safety.
I think that based upon that, the maximum under the guideline is – is barely
adequate. That is more than any human being should be asked to face; the fear that
– that someone in there is really trying to kill them and it’s my job to go after them.
That’s – that’s too much and 20 years is inadequate.
I also – second point. I also feel that this recommendation gives [petitioner]
free crime. I don’t quibble with the 261 days, credit 261, for the crimes that occurred
at Meijer, but I think the sentence should be consecutive and I think that the prison
sentence should start out with zero credit. Thank you.
Id. at p. 18.
In reviewing petitioner’s situation, the trial judge observed that petitioner was not the
typical person charged with these type of crimes, having attended some college on scholarship. Id.
at pp. 19-20. The judge noted that based on the police reports, it appeared that while petitioner shot
in the direction of the police, he did not intend to kill them necessarily, but he wanted them to kill
him. Id. The judge acknowledged that the police shot plaintiff “in the butt” to stop him, and found
it the whole situation “very confusing and very troubling.” Id. at pp. 20-21. The judge observed that
“[t]he punishment has to fit both sides; both the protection of society and also rehabilitation for
you.” Id. at p. 20. When petitioner reminded the judge of his wound, the judge noted that they shot
petitioner to stop him, not to kill him. Id. at p. 21.
10
In case no. 14667, the judge sentenced petitioner to 263 days for carrying a concealed
weapon and possession of a firearm loaded in a vehicle, and 93 days for third degree retail fraud and
assault and battery, with jail credit for 263 days of time served. Id. at pp. 21-22.
In case no 14669, the trial judge sentenced petitioner as follows: on each of the two
counts of assault with intent to commit murder, 20 to 50 years; assaulting/resisting/obstructing
causing serious impairment, four to 15 years with restitution of $453.00; receiving and concealing,
18 months to five years with restitution of $199.00; on each of the two charges of assault with a
dangerous weapon/felonious assault, 23 months to four years; on each of the two charges of assault
with a dangerous weapon, 23 months to four years with restitution of $519.74;
assaulting/resisting/obstructing causing injury, 23 months to four years; and fleeing and eluding
fourth degree, 261 days. Id. at pp. 24-25. As to each of these charges, the judge gave petitioner jail
credit for 261 days served. Id. Finally, on the charge of felony firearm, the judge sentenced
petitioner to two years, with zero credit, to be served prior to the other sentences, which would be
consecutive to it. Id. at pp. 25-26.
On April 10, 2008, petitioner was appointed separate counsel, Attorney Ujlaky, for
post-conviction matters. See State court docket sheet (docket no. 17).3 On June 30, 2008, the trial
judge allowed Attorney Ujlaky to withdraw upon motion because petitioner had only frivolous
claims (e.g., attacking the plea, plea agreement and sentence) to pursue in post-conviction
proceedings. Hearing Trans. at pp. 1-5 (docket no. 20). In support of his motion, Attorney Ujlaky
stated that the record reflected a free and voluntary plea on the record, that petitioner was reluctant
3
The state court docket sheets reflect that Mr. Uljaky was appointed counsel only in case no. 14669,
with case no. 14667 being closed on March 3, 2008 and case no. 14668 being closed on March 13, 2008
(docket nos. 15, 16 and 17).
11
to go to trial on the CSC charge that was ultimately dismissed, and that petitioner was found
mentally capable to stand trial. Id. at pp. 10-11.
The judge agreed with Attorney Ujlaky’s
representations and allowed him to withdraw. Id. at pp. 11-13. The judge then advised petitioner
that his only obligation is to appoint one attorney for appellate review in a plea case and that the
judge did not have to appoint another attorney, “especially after the first one has found no grounds
for appeal.” Id. at p. 12.
The trial judge denied petitioner’s second request for appointment of appellate
counsel. See Order Denying Defendant’s Second Request for Appointment of Counsel (Sept. 8,
2008) (docket no. 21). The order provided in pertinent part:
On July 25, 2008 Defendant filed another Motion for Appointment of
Counsel and to Modify Restitution. The court denied Defendant’s Motion to Modify
Restitution on August 25, 2008 and is denying his request for appointment of another
appellate counsel at this time.
Defendant does not raise any new issues in his motion for new counsel except
to argue that Mr. Ujlaky did not raise on appeal the effective assistance of trial
counsel. Mr. Ujlaky did explain at the June 30, 2008 hearing that he had explored
that issue and found it without merit. His review of the record indicated that Mr.
Pirkel was fully advised of his trial rights that he was not threatened or promised
anything more then [sic] the plea agreement and that all procedures were followed
during sentencing.
The court is obligated to appoint one counsel for appellate reasons; there is
no obligation to appoint successor counsel when the first does not find any
appealable issues.
Order (Sept. 8, 2008) (docket no. 21).
After the denial of this motion, petitioner filed a pro se delayed application for leave
to appeal to the Michigan Court of Appeals raising three issues:
I.
Was court appointed trial counsel, Mr. Bush, constitutionally
ineffective by failing to investigate an involuntary confession? Did
12
this failure, combined with his erroneous advice render [petitioner’s]
plea an unknowing and involuntary one?
II.
Was court appointed appellate counsel, Mr. Ujlaky, constitutionally
ineffective by failing to investigate and raise [petitioner’s] ineffective
assistance of trial counsel claim; by failing to be an advocate in
[petitioner’s] behalf; by causing [petitioner] to procedurally default;
and by improperly withdrawing from representation?
III.
Did the trial court abuse its discretion and violate the Federal
Constitution’s Sixth and Fourteenth Amendments by refusing to
appoint new appellate counsel to assist [petitioner] in pursuing his
first-tier review in the Court of Appeals?
Petitioner’s Delayed Application (docket no. 21). The Michigan Court of Appeals denied the
delayed application for lack of merit in the grounds presented. People v. Pirkel, No. 294032 (Mich.
App. Feb. 1, 2010) (docket no. 21).
Petitioner then filed a pro se application for leave to appeal to the Michigan Supreme
Court:
I.
Court appointed trial counsel Mr. Bush was constitutionally
ineffective by failing to investigate an involuntary (alleged)
confession. This failure combined with counsel’s lack of advice and
diligence rendered [petitioner’s] nolo contendere plea an unknowing
and involuntary one.
II.
Appellate counsel Mr. Ujlaky was constitutionally ineffective by
failing to investigate and raise [petitioner’s] ineffective assistance of
trial counsel claims; by failing to be an advocate in [petitioner’s]
behalf; and by improperly withdrawing from the representation and
by causing [petitioner] to procedurally default claims.
III.
The trial court abused its discretion and violated [petitioner’s]
Federal Constitutional right to effective assistance of counsel by
committing multiple errors.
13
Petitioner’s Application for leave to appeal (docket no. 22). The Michigan Supreme Court denied
the application, stating “we are not persuaded that the questions presented should be viewed by this
Court.” People v. Pirkel, No. 140743 (Mich. June 28, 2010) (docket no. 22).
At the conclusion of his state review, Pirkel filed a pro se habeas petition in this
Court raising three issues with supporting facts (in his words):
I.
The state violated my Sixth & Fourteenth Amendments by failing to
provide the effective assistance of counsel.
After I brought to counsel’s attention to the fact that I don’t
remember supplying parts of an involuntary confession, counsel
failed to ask any questions; nor did he inform me that I could
challenge it or that the plea would waive the issue.
II.
The state violated my Sixth and Fourteenth Amendments by failing
to provide the effective assistance of appellate counsel.
Counsel failed to properly investigate and raise claims that could
allow me to withdraw my invalid plea; failed to file or inform me that
I needed to file a motion for an evidentiary hearing [in state court]
within 6 months of conviction; and failed to follow ANDERS
requirements [Anders v. California, 386 U.S. 738 (1967)] while
withdrawing from representation.
III.
The state courts violated the Sixth and Fourteenth Amendments by
failing to appoint new appellate counsel to represent me.
Trial court allowed counsel to withdraw without filing the proper
brief. The State Courts abused their discretion when failing to appoint
new appellate counsel when meritorious issues were shown to exist.
Petition (docket no. 1). As clarified by petitioner’s supporting memorandum of law, Issue I is
directed at his trial attorney Mr. Bush, Issue II is directed at his appellate attorney Mr. Ujlaky, and
Issue III is directed at “both the trial court and the Michigan Court of Appeals.” See Petitioner’s
Memorandum at p.2 (docket no. 2).
14
II.
Standard of Review and Exhaustion
A.
Standard of Review
Petitioner seeks relief under 28 U.S.C. §2254, which provides that “a district judge
shall entertain an application for a writ of habeas corpus on behalf of a person in custody pursuant
to the judgment of a State court only on the ground that he is in custody in violation of the
Constitution or laws or treaties of the United States.” Where the state court has adjudicated a claim
on its merits, the federal district court’s habeas corpus review is limited by the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”), which provides in pertinent part that:
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–
(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).
The AEDPA “imposes a highly deferential standard for evaluating state-court rulings,
and demands that state-court decisions be given the benefit of the doubt.” Renico v. Lett, 559 U.S.
776, 130 S. Ct. 1855, 1862 (2010) (internal quotation marks and citations omitted).
“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, -- U.S.-- , 131 S. Ct. 770, 786 (2011). The AEDPA’s deferential standard
“requires Petitioner to show ‘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
15
[Supreme Court precedent] beyond any possibility for fairminded disagreement.’” Blackmon v.
Booker, 696 F.3d 536, 538 (6th Cir. 2012), quoting Harrington , 131 S. Ct. at 786-87. “It bears
repeating that even a strong case for relief does not mean the state court’s contrary conclusion was
unreasonable.” Harrington, 131 S. Ct. at 786. “If this standard is difficult to meet, that is because
it was meant to be.” Id.
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.
Id. at 786-87 (internal citations omitted).
Under the “contrary to” clause of § 2254(d)(1), “a federal habeas court may grant the
writ only if the state court arrived at a conclusion opposite to that reached by the Supreme Court on
a question of law, or if the state court decided the case differently than the Supreme Court has on
a set of materially indistinguishable facts.” Jalowiec v. Bradshaw, 657 F.3d 293, 301 (6th Cir.
2011), citing Williams v. Taylor, 529 U.S. 362, 412-13 (2000).
Under the “unreasonable
application” clause of § 2254(d)(1), “a federal court may grant the writ only if the state court
identified the correct governing legal principle from the Supreme Court’s decisions but unreasonably
applied that principle to the facts of the petitioner’s case.” Id. A court may not issue a writ of
habeas corpus “simply because that court concludes in its independent judgment that the relevant
state-court decision applied clearly established federal law erroneously or incorrectly.” Williams,
529 U.S. at 411. Rather, to grant habeas relief, the state court’s application of the law must be found
to be “objectively unreasonable.” Id. at 409.
16
B.
Exhaustion
Before the Court may grant habeas relief to a state prisoner, however, the prisoner
must exhaust remedies available in the state courts. 28 U.S.C. § 2254(b)(1); O’Sullivan v. Boerckel,
526 U.S. 838, 842 (1999). Exhaustion requires a petitioner to “fairly present” federal claims so that
state courts have a “fair opportunity” to apply controlling legal principles to the facts bearing upon
a petitioner’s constitutional claim. See O’Sullivan, 526 U.S. at 842; Picard v. Connor, 404 U.S. 270,
275-77 (1971), cited in Duncan v. Henry, 513 U.S. 364, 365 (1995), and Anderson v. Harless, 459
U.S. 4, 6 (1982). To fulfill the exhaustion requirement, a petitioner must have fairly presented his
federal claims to all levels of the state appellate system, including the state’s highest court. Duncan,
513 U.S. at 365-66; Silverburg v. Evitts, 993 F.2d 124, 126 (6th Cir. 1993); Hafley v. Sowders, 902
F.2d 480, 483 (6th Cir. 1990). “[S]tate prisoners must give the state courts one full opportunity to
resolve any constitutional issues by invoking one complete round of the State’s established appellate
review process.” O’Sullivan, 526 U.S. at 845.
Petitioner bears the burden of showing exhaustion. See Rust v. Zent, 17 F.3d 155,
160 (6th Cir. 1994). However, the district court can and must raise the exhaustion issue sua sponte,
when it clearly appears that habeas claims have not been presented to the state courts. See Prather
v. Rees, 822 F.2d 1418, 1422 (6th Cir. 1987); Allen, 424 F.2d at 138-39.
In his answer, respondent stated that “[t]he prisoner raised the instant claims on direct
appeal and, therefore, exhausted his state remedies.” Respondent’s Answer at p. 8 (docket no. 13).
The Court disagrees. As discussed, supra, the habeas petition set forth three broad grounds for
federal habeas relief. Petitioner filed a supporting memorandum which provided factual background
with respect to his broad constitutional claims, and in so doing raised related claims which
17
petitioner did not exhaust in the state courts.4 Given the number of claims raised in this matter, the
Court will compare the claims raised in the habeas petition to those claims which petitioner raised
in the Michigan appellate courts.
B.
Petitioner’s habeas claims
1.
Issue I (Attorney Bush)
a.
Issues presented in the delayed application for
leave to appeal to the Michigan Court of Appeals
In his delayed application for leave to appeal to the Michigan Court of Appeals,
petitioner’s Issue I raised the following alleged errors against Attorney Bush: (1) Bush “made a
serious error when he failed to investigate and attack [petitioner’s] involuntary (alleged)
confession;” that a competent attorney would have investigated the confession and challenged it
through a Walker hearing; (2) petitioner did not remember receiving medical attention or Miranda
warnings prior to his confession; (3) petitioner was “dehydrated, shot, bled for three hours, tazzered
[sic] eleven times, and maced” prior to his confession; (4) petitioner did not know he had the right
to an attorney prior to the confession or that it could be challenged and might not be admissible
against him; (5) “[t]he Plea that [petitioner] reluctantly accepted was . . . ridiculous; and, (6) based
on these circumstances petitioner’s plea was not an intelligent act.
See Petitioner’s Delayed
application (docket no. 21). Petitioner contends that he was prejudiced because a reasonable person
in his shoes “would not have taken the plea had he known all of the relevant facts.” Id.
4
In reaching this determination, Court notes that respondent filed a cryptic, three paragraph answer
to petitioner’s Issues II and III.
18
b.
Issues presented in the application for leave to
appeal to the Michigan Supreme Court
In his application for leave to appeal to the Michigan Supreme Court, petitioner’s
Issue I raised the following claims: (1) Attorney Bush violated various sections of the Michigan
Rules of Professional Conduct (MRPC) by failing to investigate petitioner’s “involuntary
statements,” even though they were specifically brought to his attention; (2) the alleged confession
was made after petitioner “had been extremely dehydrated, shot, bled for three hours, tazzered [sic]
numerous times, and maced”; (3) when petitioner told Bush that he did not remember making some
of these statements, Bush violated MRPC 1.4(b) “by failing to explain to [petitioner] that he had the
right to challenge the alleged confession” and “that a plea would waive this rights”; (4) due to these
errors, petitioner did not make a fully informed decision to plead guilty; (5) petitioner “was being
pressured to take the plea”; (6) his plea was resulted from “ignorance or persuasion” and subject to
be withdrawn under Michigan law; and (7) “[m]ore evidence of [petitioner’s] issues should be
uncovered at an evidentiary hearing.” See Petitioner’s Application for leave to appeal (docket no.
22).
c.
Issues presented in the habeas petition
In the habeas petition, Pirkel stated that his ineffective assistance of counsel claim
involved the following acts: (1) Attorney Bush failed to ask any questions after petitioner told Bush
that he did not remember supplying parts of the “involuntary confession”; (2) Bush did not inform
petitioner that he could challenge the confession; and (3) Bush did not inform petitioner that the plea
would waive the issue of the involuntary confession. In his supporting “Memorandum of Law”,5
5
The Court notes that petitioner’s memorandum refers to a number of exhibits which are not a part
of the record.
19
petitioner presented additional acts which he contends support his claim of ineffective assistance
against Attorney Bush: (4) Bush violated MRPC Rule 1.3 when he failed to provide answers to
“specific questions” related to the confession; (5) petitioner never understood his right to counsel
while being interrogated, that his confession could be subject to a hearing to test its admissibility,
or that “a plea would waive the right to challenge the issue on appeal if the Trial Court made an
adverse ruling;” (5) Bush violated MRPC Rule 1.4(b) “when he failed to properly inform petitioner
of these important aspects of his case;” and (6) his “plea was not an intelligent act done with
sufficient awareness of the relevant circumstances” because Bush did not give him “appropriate
advice at a critical stage of the proceeding” as required under Brady v. United States, 397 U.S. 742
(1970). See Petitioner’s Memorandum at pp. 8-10. Finally, petitioner claims he was prejudiced
because “had he known that he could challenge the alleged confession, he would have refused to
accept the plea agreement.” Id. at p. 11.
This record reflects that Pirkel’s habeas petition included claims related to the
ineffective assistance of his trial counsel which were not raised to both the Michigan Court of
Appeals and the Michigan Supreme Court on his direct appeal. Those claims are: that Attorney Bush
was ineffective because he violated MRPC Rules 1.3 and 1.4(b); that Bush was ineffective because
he did not tell petitioner that a no contest plea would waive his right to challenge the validity of his
confession; and that petitioner was pressured into making a plea.
2.
Issue II (Attorney Ujlaky)
a.
Issues presented in the delayed application for
leave to appeal to the Michigan Court of Appeals
In his delayed application for leave to appeal to the Michigan Court of Appeals,
petitioner’s Issue II included the following claims related to his appellate counsel, Attorney Ujlaky:
20
(1) that Ujlaky did not address his claim of ineffective assistance of Attorney Bush, advising him
that “since you [] told the Trial Court that the plea was voluntary and the transcripts indicate a
voluntary plea, you can not subsequently claim that it was not voluntary”; (2) that petitioner stopped
communicating with Ujlaky after the latter sent him a proposed stipulation and order dismissing the
pursuit of post-judgment relief; (3) that Ujlaky did not raise and argue any substantive issues during
his motion to withdraw (suggesting a violation of Anders v. California, 386 U.S. 738 (1967)); (4)
that “there is a possible double jeopardy issue because [petitioner] was prosecuted twice for
substantially the same offense in that he received two felonies which did arise out of the same
transaction”; and (5) that the trial judge erred because there was not a valid reason for him to accept
petitioner’s no contest plea. See Petitioner’s Delayed application (docket no. 21).
b.
Issues presented in the application for leave to appeal to
the Michigan Supreme Court.
In his application for leave to appeal to the Michigan Supreme Court, petitioner’s
Issue II included the following claims: (1) that Attorney Ujlaky dismissed petitioner’s claim of
ineffective assistance of trial counsel without asking any questions or filing a motion for an
evidentiary hearing; (2) that Ujlaky improperly withdrew from representing petitioner because he
failed to file “a brief drawing attention to anything in the record that might arguably support the
appeal”; (3) that Ujlaky’s conduct at the withdrawal hearing “was similar to filing a brief against his
client”; (4) that Ujlaky violated Standards 4 and 8 of Michigan’s Supreme Court Administrative
Order 2004-6 by failing to “accurately inform the defendant of the courses of action that may be
pursued” (Standard 8) and failing to give petitioner proper procedural advice to pursue relief in
propria persona (Standard 4); (5) that Ujlaky failed to advocate any issues on petitioner’s behalf
contrary to Anders and MRPC Rule 1.3.; and (6) the petitioner procedurally defaulted his ability to
21
withdraw his plea due to Ujlaky’s failure to file a motion to withdraw the plea. See Petitioner’s
Application for leave to appeal (docket no. 22).6
c.
Issues presented in the habeas petition
In the habeas petition, Pirkel stated that his ineffective assistance of appellate counsel
claim involved the following acts: (1) that Attorney Ujlaky failed to properly investigate and raise
claims that could allow petitioner to withdraw his invalid plea; (2) that Ujlaky failed to file or
inform petitioner that he needed to file a motion for an evidentiary hearing in state court within six
months of conviction; and (3) that Ujlaky failed to follow the requirements of Anders while
withdrawing from representation. In his supporting “Memorandum of Law” petitioner specified
additional acts which he contends support his claim of ineffective assistance against Attorney
Ujlaky: (4) that Ujlaky “made every attempt to convince Petitioner that he could not withdraw his
plea based upon a claim of ineffective assistance of Trial Counsel”; (5) that Ujlaky did not
investigate “a different issue under the umbrella of ineffective assistance of trial counsel” suggested
by petitioner; (6) that petitioner stopped communicating with Ujlaky on May 13, 2008, when Ujlaky
sent petitioner a stipulation and order dismissing the pursuit of any post judgment relief; (7) that
Ujlaky failed to file a brief drawing attention to anything that might arguably support petitioner’s
appeal as required by Anders, attaching only letters exchanged between himself and petitioner; (8)
that Ujlaky could have raised a possible double jeopardy claim with respect to the assaults in case
no. 14669; (9) that Ujlaky violated MRPC Rules 1.6(a) and 1.8(b) when he used “information
relating to representation” of petitioner to his (petitioner’s) disadvantage; (10) that Ujlaky “was
6
The Court notes that petitioner included Attorney Ujlaky’s final alleged error as part of his
discussion of Issue I.,
22
actively representing conflicting interests” during the hearing on his motion to withdraw; (11) that
Ujlaky displayed a disregard for petitioner’s case; (12) that Ujlaky’s loyalty did not lie with his
client; (13) that Ujlaky failed to move to withdraw petitioner’s pleas within six months of the
sentencing contrary to Standards 3 and 8 of the Michigan Supreme Court Administrative Order
2004-6; and that Ujlaky “caused Petitioner to default his [i]neffective assistance of trial counsel
claims pursuant to MCR 6.310(c) because [p]etitioner did not find out about this deadline before it
had passed.” Petitioner’s Memorandum at pp. 16-21.
This record reflects that Pirkel’s habeas petition included claims related to the
ineffective assistance of his trial counsel which were not raised to both the Michigan Court of
Appeals and the Michigan Supreme Court on his direct appeal. Those claims are: that Ujlaky “made
every attempt to convince Petitioner that he could not withdraw his plea based upon a claim of
ineffective assistance of Trial Counsel”; that Ujlaky did not investigate “a different issue under the
umbrella of ineffective assistance of trial counsel” suggested by petitioner; that petitioner stopped
communicating with Ujlaky on May 13, 2008, when Ujlaky sent petitioner a stipulation and order
dismissing the pursuit of any post judgment relief; that Ujlaky violated MRPC Rules 1.6(a) and
1.8(b) when he used “information relating to representation” of petitioner to his (petitioner’s)
disadvantage; that Ujlaky “was actively representing conflicting interests” during the hearing on his
motion to withdraw; that Ujlaky displayed a disregard for petitioner’s case; and, that Ujlaky’s
loyalty did not lie with petitioner, his client.
23
3.
Issue III (Trial Court and Court of Appeals)
a.
Issues presented in the delayed application for
leave to appeal to the Michigan Court of Appeals
Petitioner raised the following claims related to the trial judge’s alleged errors in his
delayed application for leave to appeal to the Michigan Court of Appeals: (1) that the June 30, 2008
proceeding was unfair because Attorney Ujlaky failed to file a proper brief; (2) that if Ujlaky’s
submissions were considered a brief, they did not reflect zealous advocacy as required under Penson
v. Ohio, 488 U.S. 75 (1988); (3) that the trial court did not have an adequate basis to determine
whether Ujlaky’s evaluation of the case was sound; (4) that the trial judge failed to allow Ujlakey
to withdraw without outlining possible grounds for an appeal; and (5) that the trial judge abused his
discretion in failing to appoint new counsel to pursue non-frivolous issues on appeal in violation of
Halbert v. Michigan, 545 U.S. 605 (2005). See Petitioner’s Delayed application (docket no. 21).
b.
Issues presented in the application for leave to
appeal to the Michigan Supreme Court.
In his application for leave to appeal to the Michigan Supreme Court, petitioner
raised the following matters in Issue III: (1) the trial judge granted appellate counsel’s motion to
withdraw without an accompanying brief in support of that motion violating Penson v. Ohio, 488
U.S. 75; (2) the trial judge failed to examine the record to determination whether counsel’s
evaluation of the case was sound; (3) the trial judge erred in failing to appoint new counsel after it
discovered arguable grounds for appeal; (4) the trial judge made a clearly erroneous finding of fact
in denying petitioner’s motion for reconsideration for appointment of counsel; (5) the trial judge
“was presented with an arguable claim and then chose an outcome falling outside the principle range
of outcomes”; and, (6) the Michigan Court of Appeals erred “when it failed to grant [petitioner] the
24
appropriate relief to rectify the Trial Court’s errors” (including appointing appellate counse). See
Petitioner’s Application for leave to appeal (docket no. 22).
c.
Issues presented in the habeas petition
In the habeas petition, Pirkel stated that the Michigan state courts (i.e., the trial court
and the Michigan Court of Appeals) violated his Sixth and Fourteenth Amendment rights by failing
to appoint new appellate counsel because: (1) the trial court allowed Attorney Ujlaky to withdraw
without filing the proper brief; and (2) the trial court and Michigan Court of Appeals abused their
discretion when failing to appoint new appellate counsel when meritorious issues were shown to
exist. In his supporting “Memorandum of Law” petitioner included additional acts which he
contends support his claim: (1) the motion for withdrawal of appellate counsel was unfair “because
it became a competition placing [p]etitioner against his own [a]ttorney and the [p]rosecution”; (2)
the trial judge did not have “an adequate basis for determining that counsel had performed his duty
of carefully searching the record for arguable error”; (3) the trial judge could not fairly decide
whether petitioner’s claims were frivolous without someone advocating those claims to the best of
their abilities in [p]etitioner’s behalf”; (4) the trial judge violated petitioner’s 14th Amendment
rights by adjudicating Attorney Ujlaky’s deficient motion to withdraw; (5) the trial judge abused his
discretion when it failed to appoint new counsel to represent petitioner in his first-tier review of his
conviction contrary to Halbert, 545 U.S. 605; and, (6) the Michigan Court of Appeals abused its
discretion when it was presented with this non-frivolous issue and failed to appoint petitioner
counsel.
This record reflects that Pirkel’s habeas petition included claims related to the state
court’s rulings on his appellate counsel which were not raised to both the Michigan Court of Appeals
25
and the Michigan Supreme Court on his direct appeal. Those claims are: the motion for withdrawal
of appellate counsel was unfair “because it became a competition placing [p]etitioner against his
own [a]ttorney and the [p]rosecution”; the trial judge could not fairly decide whether petitioner’s
claims were frivolous without someone advocating those claims to the best of their abilities in
[p]etitioner’s behalf”; the trial judge abused his discretion when he failed appoint new counsel to
represent petitioner in his first-tier review of his conviction contrary to Halbert, 545 U.S. 605; and
the Michigan Court of Appeals abused its discretion when it failed to appoint new appellate counsel
when meritorious issues were shown to exist.
C.
Discussion
The record reflects that petitioner has not exhausted a number of claims raised in
Issues I, II and III. See §§ II.B.1.c., 2.c. and 3.c., supra. An applicant for federal habeas relief has
not exhausted available state remedies if he has the right under state law to raise, by any available
procedure, the question presented. 28 U.S.C. § 2254(c). Here, petitioner has such a remedy because
he has not yet filed his one allotted motion for relief from judgment under MCR 6.500 et. seq.
Therefore, the Court concludes that petitioner has at least one available state remedy to exhaust these
claims.
Because Petitioner has some claims that are exhausted and some that are not, his
petition is “mixed.” Under Rose v. Lundy, 455 U.S. 509, 22 (1982), district courts are directed to
dismiss mixed petitions without prejudice in order to allow petitioners to return to state court to
exhaust remedies. However, since the habeas statute was amended to impose a one-year statute of
limitations on habeas claims, see 28 U.S.C. § 2244(d)(1), dismissal without prejudice often
precludes future federal habeas review. This is particularly true after the Supreme Court ruled in
26
Duncan v. Walker, 533 U.S. 167, 181-82 (2001), that the limitations period is not tolled during the
pendency of a federal habeas petition. In this case, the limitations period has expired, effectively
precluding petitioner’s ability to exhaust these claims and file a future federal habeas petition.
A district court, however, has the discretion to stay a habeas corpus proceeding “in
limited circumstances.” Rhines v. Weber, 544 U.S. 268, 277 (2005). A “stay and abeyance”
procedure may be employed when the petitioner has filed a “mixed petition,” i.e., a petition raising
both exhausted and unexhausted claims. Id. Under the stay and abeyance procedure, “courts now
have discretion to stay a mixed habeas petition to allow a petitioner to present his unexhausted
claims to the state court, and then return to federal court.” Poindexter v. Mitchell, 454 F.3d 564, 570
n. 2 (6th Cir. 2006). However, the Supreme Court cautioned that federal courts should not utilize
the “stay and abeyance” procedure frequently since doing so undermines the purpose of the AEDPA,
which is to encourage finality and streamline federal habeas proceedings. In its discretion, a district
court contemplating stay and abeyance should stay the mixed petition pending prompt exhaustion
of state remedies if there is “good cause” for the petitioner’s failure to exhaust, if the petitioner’s
unexhausted claims are not “plainly meritless” and if there is no indication that the petitioner
engaged in “intentionally dilatory litigation tactics.” Rhines, 544 U.S. at 277-78. Moreover, under
Rhines, if the district court determines that a stay is inappropriate, it must allow the petitioner the
opportunity to delete the unexhausted claims from his petition, especially in circumstances in which
dismissal of the entire petition without prejudice would “unreasonably impair the petitioner’s right
to obtain federal relief.” Id.
The Court concludes that the stay and abeyance procedure set forth in Rhines should
be applied in this case. Petitioner has filed a mixed petition containing both exhausted and
27
unexhausted habeas claims. Petitioner’s unexhausted claims, specifically those related to the
appointment of an appellate attorney under Halbert and the withdrawal of that appellate attorney
under Anders, are not plainly meritless.
There is no indication that petitioner engaged in
intentionally dilatory tactics. Finally, the Court finds that petitioner has good cause for his failure
to exhaust these claims. In this case, in which the trial judge allowed petitioner’s appointed
appellate counsel to withdraw, petitioner faced the unanticipated task of identifying and briefing
issues for a direct appeal, which included appealing the trial judge’s order allowing the withdrawal
of his appellate counsel. Under the circumstances of this particular case, the Court considers
petitioner’s unanticipated burdens associated with bringing a pro se “first-tier” appeal as good cause
for allowing a stay and abeyance. “‘[G]ood cause’ for failing to exhaust state remedies . . . is not
intended to impose the sort of strict and inflexible requirement that would ‘trap the unwary pro se
prisoner.’” Rhines, 544 U.S. at 279 (Stevens, J. concurring) (internal citation omitted). That being
said, petitioner should be given the opportunity to either return to state court and exhaust the
unexhausted claims or to re-file an amended habeas petition which drops the unexhausted claims.
IT IS ORDERED that within 28 days of this order, petitioner shall return to the state
court to present his unexhausted claims identified in §§ II.B.1.c., 2.c. and 3.c.
IT IS FURTHER ORDERED that petitioner’s action is hereby stayed until
petitioner files a motion to amend his petition to include the exhausted claims. Such motion must
be filed not later than 28 days after a final decision by the Michigan Supreme Court on these claims
and shall include the dates and substance of decision at each step of state-court review.
28
IT IS FURTHER ORDERED that petitioner may, in the alternative, file a motion
to amend his petition to dismiss his unexhausted claims identified in §§ II.B.1.c., 2.c. and 3.c. Such
motion must be filed not later than 28 days after the entry of this order.
IT IS FURTHER ORDERED that if petitioner fails to comply with the deadlines
imposed in this order, the Court may dismiss the petition.
IT IS FURTHER ORDERED that petitioner shall advise the Court of any change
of address occurring during the pendency of the stay.
IT IS FURTHER ORDERED that this case shall be administratively closed until
such time a petitioner files a motion to amend his petition in accordance with the procedures set
forth in this order.
Dated: March 3, 2014
/s/ Hugh W. Brenneman, Jr.
HUGH W. BRENNEMAN, JR.
United States Magistrate Judge
29
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