Brigham #232668 v. Smith

Filing 6

OPINION ; signed by Judge Robert J. Jonker (Judge Robert J. Jonker, ymc)

UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

TROY JASON BRIGHAM,
Petitioner,
v.

Case No. 1:11-cv-1257
Honorable Robert J. Jonker

WILLIE SMITH,
Respondent.
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OPINION
This is a habeas corpus action brought by a state prisoner under 28 U.S.C. § 2254.
Promptly after the filing of a petition for habeas corpus, the Court must undertake a preliminary
review of the petition to determine whether “it plainly appears from the face of the petition and any
exhibits annexed to it that the petitioner is not entitled to relief in the district court.” Rule 4, RULES
GOVERNING § 2254 CASES; see 28 U.S.C. § 2243. If so, the petition must be summarily dismissed.
Rule 4; see Allen v. Perini, 424 F.2d 134, 141 (6th Cir. 1970) (district court has the duty to “screen
out” petitions that lack merit on their face). A dismissal under Rule 4 includes those petitions which
raise legally frivolous claims, as well as those containing factual allegations that are palpably
incredible or false. Carson v. Burke, 178 F.3d 434, 436-37 (6th Cir. 1999).
After Petitioner filed his petition, but before the Court conducted its preliminary
review, Petitioner filed a motion to stay these proceedings because he intended to add six “newly
discovered” grounds to his petition (docket #4). The Court denied the motion to stay, but directed
Petitioner to file an amended petition stating all of the claims that he intended to raise in this
proceeding (docket #5). The Court gave Petitioner 28 days to comply with its order and indicated

that, if Petitioner failed to file an amended petition within the time allowed, the Court would proceed
with the original petition. More than 28 days have elapsed since the Court’s order and Petitioner has
not filed an amended petition. Thus, the Court has reviewed the original petition as required by Rule
4 and it concludes that the petition must be dismissed because it fails to raise a meritorious federal
claim.
Factual Allegations
Petitioner Troy Jason Brigham is a state prisoner incarcerated at the Carson City
Correctional Facility. In 2010, he pleaded no contest to the following charges: first-degree home
invasion, MICH. COMP. LAWS § 750.110a(2); two counts of second-degree home invasion, MICH.
COMP. LAWS § 750.110a(3); safe breaking, MICH. COMP. LAWS § 750.531b; felon-in-possession,
MICH. COMP. LAWS § 750.224f; two counts of felony-firearm, MICH. COMP. LAWS § 750.227b; and
breaking-and-entering with intent to commit a felony, MICH. COMP. LAWS § 750.110. On April 12,
2010, Petitioner was sentenced to the following terms of incarceration: 13 years and six months to
30 years for the first-degree home invasion conviction; 10 to 25 years for each of the second-degree
home invasion and felon-in-possession convictions; 2 years for the each of the felony-firearm
convictions; and 39 months to 25 years for the breaking-and-entering conviction.
Petitioner raises the following grounds for relief in his petition:
I.

Was defendant deprived of his fifth and sixth amendment
right to counsel during those “critical pretrial stages” after
pre-preliminary examination without representation until
defendant appeared at Circuit Court preliminary examination?

II.

Did trial attorney’s actions or omissions deprive defendant of
effective assistance of counsel by his failure to file
defendant’s motion for dismissal due to violation of
defendant’s Sixth Amendment right to fast speedy trial?

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III.

Did trial attorney render ineffective assistance pursuant to
[Rule 6.120(c) of the Michigan Court Rules] by his failure to
file for severance motion which allowed the prosecution to
“gang tackle” defendant and deprive the defendant’s
fundamental rights to achieve fairness during those “critical
pre-trial stages”?

IV.

Did trial attorney render deficient performance by failing to
file an interlocutory appeal after the trial court had abused its
discretion by its misapplication of state and federal law to
suppress defendant[’]s illegally obtained statements in direct
violation of defendant’s constitutional right under the V, VI,
and XIV amendments?

V.

Did trial attorney vigorously attack or challenge officers
testimony as they were riddled with inconsist[e]ncies and
discrep[]ancies?

VI.

Was defendant’s Fourteenth Amendment right to due process
violated due to the “cumulative errors” in issues I - VIII?

VII.

Did law enforcement officials violate defendant’s right to
counsel and gain tactical advantage over defendant during that
“critical pre-trial stage” when defendant was without counsel
to elicit statements?

VIII.

Were the statements made to law enforcement officials
obtained illegally under Edwards, Miranda, and Roberson a
poisonous tree?

IX.

Should the statements to police made by the defendant while
in continuous physical custody and without the presence of
assistance of counsel be suppressed as they were obtained in
violation of U.S. and Michigan Constitutions as well as
relevant law?

X.

Absent the improperly admitted incriminating statements, is
it clear beyond a reasonable doubt a jury would have returned
a guilty verdict?

(See Pet., docket #1, Attachs. A-J).

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Petitioner appealed his convictions to the Michigan Court of Appeals, which denied
the appeal on September 24, 2010, for lack of merit in the grounds presented. Petitioner sought
further review by the Michigan Supreme Court, which denied his application for leave to appeal on
March 8, 2011, because it was not persuaded that the questions presented should be reviewed by that
court.
Discussion
Petitioner pleaded no contest to the charges at issue in his petition. (See Pet. at 1,
docket #1.) It has long been the case that a valid guilty plea bars habeas review of most
non-jurisdictional claims alleging antecedent violations of constitutional rights. See Tollett v.
Henderson, 411 U.S. 258, 267 (1973). The same is true for no-contest pleas. United States v. Freed,
688 F.2d 24, 25-26 (6th Cir. 1982). Among claims not barred are those that challenge “the very
power of the State to bring the defendant into court to answer the charge against him,” Blackledge
v. Perry, 417 U.S. 21, 30 (1974), and those that challenge the validity of the plea itself. See Hill v.
Lockhart, 474 U.S. 52, 58 (1985); Haring v. Prosise, 462 U.S. 306, 320 (1983); Tollett, 411 U.S.
at 267. Petitioner does not challenge the power of the state to bring him into court; thus, the only
means available for challenging his conviction is to claim that his plea is invalid.
The test for determining a plea’s validity is “‘whether the plea represents a voluntary
and intelligent choice among the alternative courses of action open to the defendant.’” Hill, 474 U.S.
at 56 (quoting North Carolina v. Alford, 400 U.S. 25, 31 (1970)). A plea not voluntarily and
intelligently made has been obtained in violation of due process and is void. See McCarthy v. United
States, 394 U.S. 459, 466 (1969). In order to find a plea constitutionally valid, several requirements
must be met. The defendant pleading guilty (or no contest) must be competent, see Brady v. United

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States, 397 U.S. 742, 756 (1970), and must have notice of the nature of the charges against him, see
Henderson v. Morgan, 426 U.S. 637, 645 n.13 (1976); Smith v. O’Grady, 312 U.S. 329, 334 (1941).
The plea must be entered “voluntarily,” i.e., not be the product of “actual or threatened physical
harm,” “mental coercion overbearing the will of the defendant,” Brady, 397 U.S. at 750, or “stateinduced emotions so intense that the defendant was rendered unable to weigh rationally his options
with the help of counsel,” Matthew v. Johnson, 201 F.3d 353 (5th Cir. 2000). See Machibroda v.
United States, 368 U.S. 487, 493 (1962) (“A guilty plea, if induced by promises or threats which
deprive it of the character of a voluntary act, is void.”). The defendant must also understand the
consequences of his plea, including the nature of the constitutional protections he is waiving.
Henderson, 426 U.S. at 645 n.13; Brady, 397 U.S. at 755; Machibroda, 368 U.S. at 493. Finally,
the defendant must have available the advice of competent counsel. Tollett, 411 U.S. at 267-68;
Brady, 397 U.S. at 756. The advice of competent counsel exists as a safeguard to ensure that pleas
are voluntarily and intelligently made. Cf. Henderson, 426 U.S. at 647 (“[I]t may be appropriate to
presume that in most cases defense counsel routinely explain the nature of the offense in sufficient
detail to give the accused notice of what he is being asked to admit.”); Brady, 397 U.S. at 754
(suggesting that coercive actions on the part of the state could be dissipated by counsel).
Though Petitioner raises several claims regarding the effectiveness of his counsel’s
representation during the early phases of his criminal proceedings, Petitioner does not claim that his
counsel’s ineffectiveness undermined the validity of his plea. Petitioner makes several statements
indicating that his decision to plead no contest may have been influenced by his counsel’s allegedly
ineffective assistance. For example, in Claim III Petitioner asserts that his counsel was ineffective
for failing file a motion to sever the felony-firearm charge from the rest of the case, and in Claim IV

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Petitioner asserts that his counsel was ineffective for failing to file an interlocutory appeal
challenging the trial court’s denial of his motion to suppress. In support of Claim III, Petitioner
alleges that he “felt helpless in this desp[e]rate situation, and compelled to put himself in the mercy
of the court and accept a plea bargain because any defense offered by trial attorney would have been
a sham . . . with all (5) case dockets stacked against me, I had felt completely abandoned and after
the motion to suppress, any defense offered with all the cases combined would have been a ‘farce.’”
(Pet., Attach. C, docket #1-1, Page ID#20.) Notwithstanding Petitioner’s seemingly poor position
with respect to success at trial, however, he does not claim that his counsel’s ineffectiveness
rendered his plea involuntary or invalid, nor does he contend that he would have would have rejected
a plea if the court had severed his case or if his counsel had filed an interlocutory appeal. See Hill,
474 U.S. at 59 (holding that a defendant challenging a guilty plea “must show that there is a
reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would
have insisted on going to trial”). Therefore, Petitioner’s claims are barred under Tollett.
Conclusion
Because Petitioner’s claims are barred, the Court will summarily dismiss Petitioner’s
application pursuant to Rule 4.
Certificate of Appealability
Under 28 U.S.C. § 2253(c)(2), the Court must determine whether a certificate of
appealability should be granted. A certificate should issue if Petitioner has demonstrated a
“substantial showing of a denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This Court’s
dismissal of Petitioner’s action under Rule 4 of the Rules Governing § 2254 Cases is a determination
that the habeas action, on its face, lacks sufficient merit to warrant service. It would be highly

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unlikely for this Court to grant a certificate, thus indicating to the Sixth Circuit Court of Appeals that
an issue merits review, when the Court has already determined that the action is so lacking in merit
that service is not warranted. See Love v. Butler, 952 F.2d 10 (1st Cir. 1991) (it is “somewhat
anomalous” for the court to summarily dismiss under Rule 4 and grant a certificate); Hendricks v.
Vasquez, 908 F.2d 490 (9th Cir. 1990) (requiring reversal where court summarily dismissed under
Rule 4 but granted certificate); Dory v. Comm’r of Corr. of New York, 865 F.2d 44, 46 (2d Cir. 1989)
(it was “intrinsically contradictory” to grant a certificate when habeas action does not warrant service
under Rule 4); Williams v. Kullman, 722 F.2d 1048, 1050 n.1 (2d Cir. 1983) (issuing certificate
would be inconsistent with a summary dismissal).
The Sixth Circuit Court of Appeals has disapproved issuance of blanket denials of
a certificate of appealability. Murphy v. Ohio, 263 F.3d 466 (6th Cir. 2001). Rather, the district
court must “engage in a reasoned assessment of each claim” to determine whether a certificate is
warranted. Id. at 467. Each issue must be considered under the standards set forth by the Supreme
Court in Slack v. McDaniel, 529 U.S. 473 (2000). Murphy, 263 F.3d at 467. Consequently, this
Court has examined each of Petitioner’s claims under the Slack standard. Under Slack, 529 U.S. at
484, to warrant a grant of the certificate, “[t]he petitioner must demonstrate that reasonable jurists
would find the district court’s assessment of the constitutional claims debatable or wrong.” Id. “A
petitioner satisfies this standard by demonstrating that . . . jurists could conclude the issues presented
are adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327
(2003). In applying this standard, the Court may not conduct a full merits review, but must limit its
examination to a threshold inquiry into the underlying merit of Petitioner’s claims. Id.

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The Court finds that reasonable jurists could not conclude that this Court’s dismissal
of Petitioner’s claims was debatable or wrong. Therefore, the Court will deny Petitioner a certificate
of appealability.

A Judgment and Order consistent with this Opinion will be entered.

Dated:

March 15, 2012

/s/ Robert J. Jonker
ROBERT J. JONKER
UNITED STATES DISTRICT JUDGE

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