Gashi #787180 v. Berghuis
OPINION; signed by Chief Judge Robert J. Jonker (Chief Judge Robert J. Jonker, sdb)
UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
Case No. 1:13-cv-558
Honorable Robert J. Jonker
This is a habeas corpus action brought by a state prisoner pursuant to 28 U.S.C.
§ 2254. Petitioner pleaded nolo contendere in Kent County Circuit Court to one count of first-degree
criminal sexual conduct (CSC I), Mich. Comp. Laws § 750.520b(1)(d). On December 8, 2010, the
trial court sentenced Petitioner to a prison term of 10 to 40 years.
Petitioner, who is represented by counsel in this action, raises the following grounds
for habeas corpus relief:
PETITIONER . . . WAS DEPRIVED OF HIS LIBERTY WITHOUT
DUE PROCESS OF LAW UNDER THE CONSTITUTION
BECAUSE HIS NO CONTEST PLEA WAS NOT VOLUNTARILY,
INTELLIGENTLY AND KNOWINGLY MADE WHEN HIS
ATTORNEY, (A) FAILED TO ADEQUATELY INFORM HIM OF
THE DEPORTATION IMPLICATIONS OF HIS PLEA, (B) FAILED
TO REQUEST AN INTERPRETER, (C) GAVE GROSSLY
INACCURATE INFORMATION REGARDING THE
SENTENCING TERM, (D) FAILED TO PROPERLY
INVESTIGATE THE CASE REGARDING EXCULPATORY
EVIDENCE RELATED TO THE COMPLAINANT, AND
(E) FAILED TO SEEK A SEVERANCE FROM THE
CODEFENDANT WHEN PETITIONER HAD ALWAYS
ASSERTED HIS INNOCENCE AND DESIRE TO GO TO TRIAL.
PETITIONER . . . IS ENTITLED TO AN EVIDENTIARY
(Pet., docket #1, Page ID#6.) Respondent has filed an answer to the petition (ECF No. 10) stating
that the grounds should be denied because his claims are without merit. Petitioner filed a reply (ECF
No. 38.) Upon review and applying the AEDPA standards, the Court finds that the petition should
be denied for failure to raise a meritorious federal claim.
Factual Allegations & Procedural History
Petitioner Nesret Gashi, and his brother, Imer Gashi, were accused of sexually
assaulting nineteen-year-old Hope VanDyke in February of 2010. Both brothers were charged with
six counts of CSC I, MICH. COMP. LAWS § 750.520b(1)(d), involving three counts of oral penetration
and three counts of vaginal penetration.
After the preliminary examination, the prosecution successfully sought to introduce
a prior incident from 2008, when Petitioner, his brother and a third man were accused of sexually
assaulting Melanie Chelette.
At a plea hearing held on November 1, 2010, Petitioner and his brother pleaded nolo
contendere to one count of CSC I. The prosecutor explained that in exchange for the plea, the
remaining charges would be dismissed and the defendants would receive minimum prison sentences
between 51 and 135 months. (Plea Tr. 4-5, ECF No. 17.) The prosecution also agreed not to bring
any charges regarding the incident involving Melanie Chelette. (Id.) The trial court advised
Petitioner of the charges against him and that he faced a maximum prison term of life in prison. (Id.
at 6-7.) Petitioner stated that he understood. (Id. at 7.) Petitioner confirmed that he read and signed
the Advice of Rights form, and that he understood the rights he was giving up by pleading no
contest. (Id. at 8.) Petitioner also stated that he understood that if his plea was accepted, he was
giving up any claim that the plea was the result of undisclosed promises or threats or that it was not
his own choice to enter the plea. (Id.) Petitioner agreed that the plea agreement had been correctly
stated by the prosecutor and that no one had promised him anything other than what had been placed
on the record. (Id. at 9-10.) Petitioner denied that the plea was the result of any threats and that it
was his choice to plead no contest. (Id. at 10.) Referring to the preliminary examination testimony
given by the complainant, the trial court found a factual basis for the plea. (Id.) Trial counsel and
the prosecutor also confirmed that there were no promises, threats or inducements other than what
was mentioned on the record. (Id. at 11.) The trial court accepted the plea, finding that it was
“understanding, voluntary and accurate.” (Id.)
Before sentencing, the Supreme Court held in Padilla v. Kentucky, 559 U.S. 356
(2010), that the Sixth Amendment requires a defense attorneys to inform non-citizen clients of the
deportation risks of guilty pleas. In response to Padilla, Petitioner was brought before the trial court
on November 10, 2010. (Padilla Hr’g Tr. 4, ECF No. 18.) The trial court explained that while the
potential immigration consequences of the plea, i.e., deportation, had been discussed thoroughly in
chambers with both counsel before the plea hearing, the court had neglected to put it on the record.
(Id. at 4.) Counsel for both brothers confirmed that they had discussed the immigration ramifications
with their clients in advance of the plea hearing. (Id. at 6.) The court then asked Petitioner if he
understood the potential consequences of the plea and he responded in the affirmative. (Id. at 7.)
On December 8, 2010, the trial court sentenced Petitioner to a prison term of 10 to
40 years. (Sentencing Tr. 25, ECF No. 19.) Before he was sentenced, Petitioner gave a lengthy
statement to the court claiming that he was not a rapist. (Id. at 15-19.)
Petitioner filed a motion for resentencing, claiming that the sentence imposed did not
fairly place Petitioner within the negotiated 51-135 months agreed upon sentence guideline range,
the sentencing court did not have a sufficient basis to conclude that there was a pattern of assaultive
behavior, and the immigration consequences were incorrectly assessed by the sentencing court. The
motion was denied by the trial court on January 28, 2011. Petitioner initially filed an application for
leave to appeal in the Michigan Court of Appeals claiming that the trial court erroneously sentenced
him to imprisonment of 10 to 40 years, but later withdrew his appeal when he retained new counsel.
The Michigan Court of Appeals dismissed his application on June 14, 2011. (See Mich. Ct. App.
Ord., ECF No. 23.)
On June 8, 2011, Petitioner’s new counsel filed a motion in the trial court to withdraw
the plea, for resentencing, and/or for a Ginther1 hearing on his claims of ineffective assistance of
counsel. In the alternative, Petitioner moved for re-sentencing without consideration of the alleged
other bad acts evidence or to hold an evidentiary hearing on the reliability of the information relied
upon at sentencing. Following a hearing on July 8, 2011, the trial court denied the motion. (Plea
Withdrawal Mot. Hr’g, ECF No. 21.) In making its ruling, the trial court stated:
Well, obviously, the Court is well familiar with this case. As I said a few minutes
ago, everybody involved spent considerable time on this case last year. As I stated
on the record previously, extensive involvement by the three attorneys here, very
competent representation on all sides, a very difficult case, very serious allegations,
very serious consequences, and what it came down to is each defendant decided to
accept the certainty of a plea agreement rather than the uncertainty of trial on
multiple counts of criminal sexual conduct, first degree. We had a proper and valid
plea agreement here. The court rule was followed regarding plea procedures. It was
a proper sentence within the – both the sentencing guidelines and the – the plea
agreement. The Court saw absolutely no indication here that either defendant had a
language barrier. As – as I stated before, Mr. Gashi was placed under oath. He did
People v. Ginther, 212 N.W. 2d, 922 (Mich. 1973).
not claim any threats or promises other than what was included in the plea agreement.
He agreed with the plea agreement. He pled no contest, meaning that he did not
contest the allegations against him. There’s absolutely no basis here to allow
withdrawal of a plea. There’s no miscarriage of justice here.
(Id. at 17-18.) Petitioner filed a delayed application for leave to appeal with the Michigan Court of
Appeals on December 8, 2011, raising four grounds for relief, including the claims now presented
in his habeas petition. That court of appeals denied the application on February 6, 2012, for lack of
merit in the grounds presented. (See Mich. Ct. App. Ord., ECF No. 26.) Petitioner then filed an
application for leave to appeal to the Michigan Supreme Court, which was denied on June 25, 2012,
because the court was not persuaded that the questions presented should be reviewed. (See Mich.
Ord., ECF No. 27.)
Standard of Review
The AEDPA “prevents federal habeas ‘retrials’” and ensures that state court
convictions are given effect to the extent possible under the law. Bell v. Cone, 535 U.S. 685, 693-94
(2002). The AEDPA has “drastically changed” the nature of habeas review. Bailey v. Mitchell, 271
F.3d 652, 655 (6th Cir. 2001). An application for writ of habeas corpus on behalf of a person who
is incarcerated pursuant to a state conviction cannot be granted with respect to any claim that was
adjudicated on the merits in state court 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 upon an
unreasonable determination of the facts in light of the evidence presented in the state court
proceeding.” 28 U.S.C. § 2254(d). This standard is “intentionally difficult to meet.” Woods v.
Donald, 575 U.S. __, 135 S. Ct. 1372, 1376 (2015) (quotation marks omitted).
The AEDPA limits the source of law to cases decided by the United States Supreme
Court. 28 U.S.C. § 2254(d). This Court may consider only the “clearly established” holdings, and
not the dicta, of the Supreme Court. Williams v. Taylor, 529 U.S. 362, 412 (2000); Bailey, 271
F.3dat 655. In determining whether federal law is clearly established, the Court may not consider
the decisions of lower federal courts. Lopez v. Smith, 135 S. Ct. 1, 3 (2014); Bailey, 271 F.3d at 655.
Moreover, “clearly established Federal law” does not include decisions of the Supreme Court
announced after the last adjudication of the merits in state court. Greene v. Fisher, 132 S. Ct. 38
(2011). Thus, the inquiry is limited to an examination of the legal landscape as it would have
appeared to the Michigan state courts in light of Supreme Court precedent at the time of the statecourt adjudication on the merits. Miller v. Stovall, 742 F.3d 642, 644 (6th Cir. 2014) (citing Greene,
132 S. Ct. at 44).
A federal habeas court may issue the writ under the “contrary to” clause if the state
court applies a rule different from the governing law set forth in the Supreme Court’s cases, or if it
decides a case differently than the Supreme Court has done on a set of materially indistinguishable
facts. Bell, 535 U.S. at 694 (citing Williams, 529 U.S. at 405-06). “To satisfy this high bar, a habeas
petitioner is required to ‘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.’” Woods, 2015 WL 1400852, at
*3 (quoting Harrington v. Richter, 562 U.S. 83, 103 (2011)). In other words, “[w]here the precise
contours of the right remain unclear, state courts enjoy broad discretion in their adjudication of a
prisoner’s claims.” White v. Woodall, 572 U.S. ___, 134 S. Ct. 1697, 1705 (2014) (quotations marks
omitted). The court may grant relief under the “unreasonable application” clause “if the state court
correctly identifies the governing legal principle from our decisions but unreasonably applies it to
the facts of the particular . . . case.” Williams, 529 U.S. at 407. A federal habeas court may not find
a state adjudication to be “unreasonable” “simply because that court concludes in its independent
judgment that the relevant state-court decision applied clearly established federal law erroneously
or incorrectly.” Id. at 411; accord Bell, 535 U.S. at 699. Rather, the issue is whether the state
court’s application of clearly established federal law is “objectively unreasonable.” Id. at 410.
“[R]elief is available under § 2254(d)(1)’s unreasonable-application clause if, and only if, it is so
obvious that a clearly established rule applies to a given set of facts that there could be no
‘fairminded disagreement’ on the question.” White, 134 S. Ct. at 1706-07 (quoting Harrington, 562
U.S. at 103).
Where the state appellate court has issued a summary affirmance, it is strongly
presumed to have been made on the merits, and a federal court cannot grant relief unless the state
court’s result is not in keeping with the strictures of the AEDPA. See Harrington, 562 U.S. at 99;
see also Johnson v. Williams, 133 S. Ct. 1088, 1094 (2013); Werth v. Bell, 692 F.3d 486, 494 (6th
Cir. 2012) (applying Harrington and holding that a summary denial of leave to appeal by a Michigan
appellate court is considered a decision on the merits entitled to AEDPA deference). The
presumption, however, is not irrebuttable. Johnson, 133 S. Ct. at 1096. Where other circumstances
indicate that the state court has not addressed the merits of a claim, the court conducts de novo
review. See id. (recognizing that, among other things, if the state court only decided the issue based
on a state standard different from the federal standard, the presumption arguably might be
overcome); see also Harrington, 562 U.S. at 99-100 (noting that the presumption that the statecourt’s decision was on the merits “may be overcome when there is reason to think some other
explanation for the state court’s decision is more likely”); Wiggins v. Smith, 539 U.S. 510, 534
(2003) (reviewing habeas issue de novo where state courts had not reached the question).
Petitioner vehemently argues that his claims should be reviewed de novo because the
trial court failed to specifically rule on Petitioner’s claims of ineffective assistance of counsel and
the orders of the Michigan appellate courts are “unexplained.” Petitioner relies on the Sixth Circuit’s
opinion in McClellan v. Rapelje, 703 F.3d 344 (6th Cir. 2013), to support his contention that the
Michigan appellate courts did not decide his claims on the merits. The McClellan opinion stated that
the Harrington presumption may be overcome if an analysis of the procedural history and factual
underpinnings of a petitioner’s case indicates that there is a “reason to think some other explanation
for the state court’s decision is more likely.” McClellan, 703 F.3d at 349.
Petitioner’s situation is distinguishable from McClellan. In McClellan, where the
lower state appellate court had explicitly rejected the petitioner’s claim on procedural grounds.
Accordingly, the Sixth Circuit presumed that the later Michigan Supreme Court affirmation of the
Michigan Court of Appeals decision rested on the same procedural grounds. While the trial court
in this case did not individually address Petitioner’s claims of ineffective assistance of counsel, it
clearly denied Petitioner’s motion to withdraw his plea on the merits. The Michigan Court of
Appeals denied Petitioner’s application for leave to appeal for lack of merit in the grounds presented,
and the Michigan Supreme Court similarly denied Petitioner’s application because it was not
persuaded that the questions presented should be reviewed by the court. There is no evidence that
the Michigan appellate courts denied Petitioner’s claims on procedural grounds, as it did in
McClellan. Contrary to Petitioner’s assertions, the lack of a specific ruling on his claims of
ineffective assistance of counsel does not mean that the Harrington presumption has been overcome.
Rather, in the absence of information that some other explanation for the Supreme Court’s decision
is more likely, this Court must presume that the Michigan appellate courts denied Petitioner’s
ineffective assistance of counsel claims on the merits. See Sadler v. Howes, 541 F. App’x 682, 689
(6th Cir. 2013) (distinguishing McClellen in a case involving similar facts). Accordingly, the Court
will apply AEDPA deference in reviewing Petitioner’s claims.
Validity of Guilty Plea
The test for determining a guilty plea’s validity is “‘whether the plea represents a
voluntary and intelligent choice among the alternative courses of action open to the defendant.’”
Hill v. Lockhart, 474 U.S. 52, 56 (1985) (quoting North Carolina v. Alford, 400 U.S. 25, 31 (1970)).
In order to find a guilty plea constitutionally valid, several requirements must be met. The defendant
pleading guilty must be competent, see Brady v. United 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, or . . . mental coercion overbearing
the will of the defendant” or of state-induced emotions so intense that the defendant was rendered
unable to weigh rationally his options with the help of counsel. Brady, 397 U.S. at 750;
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 protection he is
waiving. Henderson, 426 U.S. at 645 n.13; Brady, 397 U.S. at 755; Machibroda, 368 U.S. at 493
(“Out of just consideration for persons accused of crime, courts are careful that a plea of guilty shall
not be accepted unless made voluntarily after proper advice and with full understanding of the
consequences.”) (internal quotations and citation omitted). Finally, the defendant must have
available the advice of competent counsel. See Tollett v. Henderson, 411 U.S. 258, 267-68 (1973);
Brady, 397 U.S. at 756; McMann v. Richardson, 397 U.S. 759, 771 & n.14 (1970). 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). Ineffective assistance of counsel will render a plea
of guilty involuntary. See Hill, 474 U.S. at 56-57.
When a state defendant brings a federal habeas petition challenging the voluntariness
of his plea, the state generally satisfies its burden of showing a voluntary and intelligent plea by
producing a transcript of the state-court proceeding. Garcia v. Johnson, 991 F.2d 324, 326 (6th Cir.
1993); see also McAdoo v. Elo, 365 F.3d 487, 494 (6th Cir. 2004) (citing Garcia, 991 F.3d at 326).
Where the transcript is adequate to show that the plea was voluntary and intelligent, a presumption
of correctness attaches to the state court findings of fact and to the judgment itself. Id. A
satisfactory state-court transcript, containing findings after a proper plea colloquy, places upon
petitioner a “heavy burden” to overturn the state findings. Id. at 328; see also Parke v. Raley, 506
U.S. 20, 29 (1992) (holding that the factual findings of voluntariness made by the state court are
entitled to a presumption of correctness); Blackledge v. Allison, 431 U.S. 63, 73 (1977) (a solemn
plea of guilty presents a “formidable barrier” to a subsequent claim to the contrary).
Here, the transcript of the plea hearing shows that, after conducting a thorough plea
colloquy, the trial court found that the plea was knowing and voluntary. The trial court advised
Petitioner of the charges against him and that he faced a maximum prison term of life in prison.
(Plea Tr. at 6-7.) Petitioner stated that he understood. (Id. at 7.) Petitioner confirmed that he read
and signed the Advice of Rights form, and that he understood the rights he was giving up by pleading
no contest. (Id. at 8.) Petitioner also understood that if his plea was accepted, he was giving up any
claim that the plea was the result of undisclosed promises or threats or that it was not his own choice
to enter the plea. (Id.) Petitioner agreed that the plea agreement had been correctly stated by the
prosecutor and that no one had promised him anything other than what had been placed on the
record. (Id. at 9-10.) Petitioner denied that the plea was the result of any threats and that it was his
choice to plead no contest. (Id. at 10.) Trial counsel and the prosecutor also confirmed that there
were no promises, threats or inducements other than what was mentioned on the record. (Id. at 11.)
In light of the record, the trial court’s factual findings of voluntariness are entitled to a presumption
of correctness, and Petitioner has the burden of rebutting the presumption by clear and convincing
evidence. 28 U.S.C. § 2254(e)(1); Lancaster v. Adams, 324 F.3d 423, 429 (6th Cir. 2003); Bailey,
271 F.3d at 656.
Ineffective Assistance of Counsel
Petitioner contends that his plea was not knowing, intelligent and voluntary because
he was denied the effective assistance of counsel. In Strickland v. Washington, 466 U.S. 668, 687-88
(1984), the Supreme Court established a two-prong test by which to evaluate claims of ineffective
assistance of counsel. To establish a claim of ineffective assistance of counsel, the petitioner must
prove: (1) that counsel’s performance fell below an objective standard of reasonableness; and
(2) that counsel’s deficient performance prejudiced the defendant resulting in an unreliable or
fundamentally unfair outcome. A court considering a claim of ineffective assistance must “indulge
a strong presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance.” Id. at 689. The defendant bears the burden of overcoming the presumption that the
challenged action might be considered sound trial strategy. Id. (citing Michel v. Louisiana, 350 U.S.
91, 101 (1955)); see also Nagi v. United States, 90 F.3d 130, 135 (6th Cir. 1996) (holding that
counsel’s strategic decisions were hard to attack). The court must determine whether, in light of the
circumstances as they existed at the time of counsel’s actions, “the identified acts or omissions were
outside the wide range of professionally competent assistance.” Strickland, 466 U.S. at 690. Even
if a court determines that counsel’s performance was outside that range, the defendant is not entitled
to relief if counsel’s error had no effect on the judgment. Id. at 691.
The two-part Strickland test applies to challenges to guilty pleas based on ineffective
assistance of counsel. Hill v. Lockhart, 474 U.S. 52, 58 (1985). Regarding the first prong, the court
applies the same standard articulated in Strickland for determining whether counsel’s performance
fell below an objective standard of reasonableness. Id. In analyzing the prejudice prong, the focus
is on whether counsel’s constitutionally deficient performance affected the outcome of the plea
process. “[I]n order to satisfy the ‘prejudice’ requirement, the defendant 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.” Id. at 59.
Specifically, Petitioner asserts that counsel was ineffective when he: (1) failed to
adequately inform Petitioner of the immigration implications of his plea; (2) failed to request an
interpreter; (3) provided grossly inaccurate information regarding the length of his sentence;
(4) failed to properly investigate the case regarding exculpatory evidence related to the complainant;
and (5) failed to seek a severance from the co-defendant when Petitioner consistently asserted his
innocence and desire to go to trial.
Failure to adequately inform regarding immigration implications of
Petitioner first claims that his counsel was ineffective for failing to advise him about
the deportation consequences of his guilty plea. In support of his claim, Petitioner cites Padilla v.
Kentucky, 559 U.S. 356 (2010), which was decided by the Supreme Court before Petitioner was
sentenced in this case. In Padilla, the petitioner, a lawful permanent resident for over forty years,
faced deportation after pleading guilty to drug distribution charges in Kentucky. Id. at 359. The
petitioner argued his counsel not only failed to advise him of the deportation consequences to
entering a guilty plea, but also told him he “did not have to worry about immigration status since he
had been in the country so long.” Id. The petitioner relied on his counsel’s erroneous advise when
he pled guilty to drug charges that made his deportation “virtually mandatory.” Id. Indeed, the
relevant immigration statute unequivocally stated “[a]ny alien who at any time after admission has
been convicted of a violation of . . . any law or regulation . . . relating to a controlled substance . . .
is deportable.” See 8 U.S.C. § 1227(a)(2)(B)(i).
After a lengthy discussion on the evolving landscape of federal immigration law, the
Supreme Court sided with the petitioner, holding that his counsel “could have easily determined that
his plea would make him eligible for deportation simply from reading the text of the statute,” which
“specifically commands removal for all controlled substances convictions except for the most trivial
of marijuana possession offenses.” Id. at 368. The Court emphasized that the relevant statute made
the removal consequence for petitioner’s conviction “succinct, clear, and explicit.” Id. Because
petitioner’ adverse immigration consequences were “truly clear,” counsel’s duty to give correct
advice was also clear. Id. at 369. However, the Court specifically warned against applying its
newly-created “duty to advise” rule too broadly:
Immigration law can be complex, and it is a legal specialty of its own. Some
members of the bar who represent clients facing criminal charges, in either state or
federal court or both, may not be well versed in it. There will, therefore, undoubtedly
be numerous situations in which the deportation consequences of a particular plea are
unclear or uncertain. The duty of the private practitioner in such cases is more
limited. When the law is not succinct and straightforward . . . a criminal defense
attorney need do no more than advise a noncitizen client that pending criminal
charges may carry a risk of adverse immigration consequences. But when the
deportation consequence is truly clear, as it was in this case, the duty to give correct
advise is equally clear.
Id. (emphasis added). In summation, the Court announced, “[W]e now hold that counsel must
inform her client whether his plea carries a risk of deportation.” Id. at 374.
As set forth above, the trial court held a post-plea hearing on November 10, 2011, to
address the immigration consequences of Petitioner’s plea. The trial court explained that while the
potential immigration consequences of the pleas, i.e., deportation, had been discussed thoroughly
in chambers with both counsel before the plea hearing, the court had neglected to put it on the record.
(Padilla Hr’g Tr. 4.) Counsel for both brothers confirmed that they had discussed the immigration
ramifications with their clients before the plea hearing. (Id. at 6.) Petitioner’s counsel further
Since the November 1 plea, we have had discussions with third parties, and
I’ve spoken with Mr. German back and forth, and our understanding is that they are
currently residents of the United States with a refugee status.
And our understanding is, it is that refugee status that might create a problem,
if you will, in terms their being able to be deported or being eligible for deportation,
given the circumstances which they were facing at the time. They were granted
refugee status in order to escape the former Yugoslavia, which is now Kosovo, and
I have no idea what would happen if they were to return.
That is very much an issue, as I understand it, from the INS perspective,
anything could happen, and as a result, the United State government may not deport
them, even though they plead guilty to a crime which would normally result in
deportation; they may say, “For your protection and safety, we’re going to keep you
in the U.S.”
We’ve discussed that with our clients again today and they understand that
situation. They understand that, as a result, they may serve whatever sentence the
court meeds [sic] out to them at the time of sentencing, and they then may be
deported or they may stay here, or – all bets are off with regard to what will happen,
and our clients understand that, your Honor.
(Id. at Tr. 6-7.) Mr. German, counsel to Petitioner’s brother, Ismer Gashi, told the court that he had
“little, if any” experience with immigration issues, but had consulted with a local immigration
attorney. (Id. at 5.) He further noted that the Gashi “family has also consulted with an immigration
attorney in Detroit.” (Id.)
The court then asked Petitioner if he understood the potential
consequences of the plea and he responded in the affirmative. (Id. at 7.)
Unlike Padilla, defense counsel clearly did not tell Petitioner “not to worry” about
his immigration status. To the contrary, it is clear from the record that there was discussion before
and after the plea hearing about the impact of the plea on Petitioner and his brother’s immigration
status and that Petitioner was well aware that he could be deported as a result of his plea. The record
also shows that the Gashi family was aware of the issue and had consulted with an immigration
attorney in Detroit. Petitioner attempts to argue that, like Padilla, counsel could have easily
determined from reading the removal statute that his plea would make him subject to mandatory
deportation, and, thus, was ineffective for failing to give correct advice.
Under 8 U.S.C.
§ 1227(2)(A)(iii), “Any alien who is convicted of an aggravated felony at any time after admission
is deportable.” For purposes of the statute, an “aggravated felony” is defined as “murder, rape, or
sexual abuse of a minor.” 8 U.S.C. §1101(A)(43). Assuming that CSC I is the equivalent of “rape,”
making Petitioner “deportable” under the statute, his case is unique because he came to the United
States as a refugee from the war in Kosovo. At the November 10 hearing, defense counsel
acknowledged that Petitioner was pleading guilty to an offense that “would normally result in
deportation,” but also discussed the possibility, however remote, that Petitioner could obtain relief
from removal in light of his circumstances. (Padilla Hr’g Tr. 6-7); See also Office of Immigration
Litigation, U.S. Department of Justice, Immigration Consequences of Criminal Convictions: Padilla
v. Kentucky, sec. 2(B) (rev. Nov. 2010) (discussing forms of removal relief available to aliens
convicted of aggravated felony offenses). Because the immigration consequences in this case were
not “clear, succinct and explicit,” defense counsel fulfilled his duty under Padilla by informing his
client that his plea carried a risk of deportation. Padilla, 559 U.S. at 368-69. Petitioner, therefore,
cannot show a violation of clearly established Supreme Court precedent.
Failure to request an interpreter
Petitioner claims that he immigrated to the United States in 1999, at the age of nine,
as a refuge from the conflict in Kosovo. At the time of his arrest, Petitioner had been living in the
United States for ten years. Petitioner asserts that he speaks English as a second language, with
Albanian being his first language, and that while he is proficient in conversational English, his
command of the English language is not sufficient for him to fully comprehend the complexities of
legal proceedings. In an affidavit executed in June 6, 2011, Petitioner avers that he expressed to his
attorney on more than one occasion that he was having difficulty understanding the criminal
proceedings and requested a translator, but his attorney responded, ‘“F@#k that,” and refused to
pursue acquiring a translator.’ (Aff. of Nesret Gashi, ¶8, ECF No. 3-5, PageID.160.)
Petitioner’s claim that he had difficultly understanding the criminal proceedings is
belied by the record. At the plea hearing on November 1, 2010, Petitioner responded appropriately
to the trial court’s questions. Petitioner stated that he read, signed and understood the “Advice of
Rights” form, that he understood the charges against him and that the maximum penalty was life in
prison, that he understood the rights he would be giving up by pleading no contest and that it was
his choice to enter the plea. (Plea Tr. 5-10.) Before sentencing, Petitioner wrote a two-page letter
to the Court asking to be sentenced at the “low end” of the range. (11/26/10 Nesrit Gashi Letter,
ECF No. 36.) While the letter contained some minor spelling errors, it was well written and clearly
demonstrated his ability to read and write in English. Petitioner’s firm grasp of the English language
also was evident from his allocution at the sentencing hearing, which spanned about three-and-a-half
pages of transcript. (Sentencing Hearing Tr. 15-18.) At no time during the course of the plea
proceedings, sentencing hearing or motion for resentencing did Petitioner express any difficulty
understanding the proceedings or request an interpreter. Petitioner first raised the issue in his motion
to withdraw the plea, which was filed eight months after he entered his plea of no contest.
In light of the record, the Court cannot find that counsel rendered deficient
performance by failing to request an interpreter for Petitioner. Moreover, because the record shows
that Petitioner could comprehend, speak and read English, he cannot establish prejudice from not
having the assistance of an interpreter.
Failure to provide accurate information regarding the length of
Petitioner contends that trial counsel provided him with grossly inaccurate
information regarding the length of his sentence. According to Petitioner, counsel told him that, if
he pleaded guilty, he would receive a sentence of time served or time at the county jail. His family
allegedly was told that Petitioner would be sentenced to no more than 51 months if he entered the
plea, but would serve 40 years or more if he went to trial and was convicted.
Even if Petitioner could show that his counsel incorrectly advised him concerning the
length of his sentence, the Sixth Circuit has held, within the context of a habeas claim for ineffective
assistance of counsel, that there is no prejudice where the state court’s plea colloquy specifically
addresses the confused term. See Ramos v. Rogers, 170 F.3d 560, 565 (6th Cir. 1999) (citing Barker
v. United States, 7 F.3d 629, 633 (7th Cir. 1993)). “[T]he state trial court’s proper colloquy can be
said to have cured any misunderstanding [a petitioner] may have had about the consequences of his
plea.” Ramos, 170 F.3d at 565. As previously discussed, the record shows that the trial judge
adhered to proper plea colloquy procedure. With regard to Petitioner’s sentence, the prosecutor
explained the plea agreement, including that it included a minimum prison sentences between 51 and
135 months. (Plea Tr. 4-5, ECF No. 17.) Petitioner agreed that the plea agreement had been
correctly stated by the prosecutor and that no one had promised him anything other than what had
been placed on the record. (Id. at 9-10.) The trial court advised Petitioner of the charges against him
and that he faced a maximum prison term of life in prison. (Id. at 6-7.) Petitioner stated that he
understood. (Id. at 7.) Under these circumstances, Petitioner cannot show that he was prejudiced
by counsel’s alleged misadvice regarding the length of his sentence. Petitioner, therefore, is not
entitled to relief on this claim. See Ewing v. United States, __ F. App’x __, No. 14-1869, 2016 WL
3182704, at *4-5 (6th Cir. June 7, 2016) (petitioner’s claim that counsel was ineffective for
misadvising him as to the length of his sentence if he pleaded guilty was foreclosed by a proper plea
Failure to investigate and to move for a severance
Petitioner’s next two claims of ineffective assistance of counsel involve complaints
about how defense counsel litigated the case before Petitioner entered his guilty plea. Petitioner
claims that counsel failed to investigate the complaining witness for the purpose of diminishing her
credibility. According to Petitioner, his family paid counsel $3,000 to hire a private investigator, but
after numerous inquiries, no proof was provided that any investigation took place. In addition,
Petitioner contends that counsel was ineffective for failing to move to sever Petitioner’s case from
that of his brother.
Claims about the deprivation of constitutional rights that occur before the entry of a
guilty plea are foreclosed by that plea. See United States v. Broce, 488 U.S. 563, 569 (1989); Tollett,
411 U.S. at 267. The United States Supreme Court has explained:
[A] guilty plea represents a break in the chain of events which has preceded it in the
criminal process. When a criminal defendant has solemnly admitted in open court
that he is in fact guilty of the offense with which he is charged, he may not thereafter
raise independent claims relating to the deprivation of constitutional rights that
occurred prior to the entry of the guilty plea. He may only attack the voluntary and
intelligent character of the guilty plea by showing that the advice he received from
counsel was not within [constitutional standards].
Tollett, 411 U.S. at 267.
Consequently, a knowing and voluntary guilty plea waives all
nonjurisdictional defects in the proceedings, including a claim of ineffective assistance of counsel
that does not relate to the voluntariness of the plea. See United States v. Stiger, 20 F. App’x 307,
308–09 (6th Cir. 2001). Petitioner’s claims of ineffective assistance do not attack the voluntary or
intelligent nature of his plea by showing that counsel’s advice was inadequate, but instead relate to
earlier alleged constitutional deprivations. His claims have therefore been waived by his subsequent
guilty plea. See Stiger, 20 F. App’x at 308-09; see also United States v. Bohn, 956 F.2d 208, 209
(9th Cir. 1992) (pre-plea ineffective assistance of counsel claims are waived).
To the extent Petitioner claims that trial counsel’s failure to investigate the
complainant and move for a severance prevented the plea from being knowing and voluntary, see
Tollett, 411 U.S. at 266–67, he has failed to make such a showing in this case. Because Petitioner
was well aware of counsel’s alleged failures at the time he decided to plead no contest, he cannot
show prejudice, i.e., that but for counsel’s failures he would have insisted on going to trial and not
pled guilty. Petitioner’s vague and conclusory assertions of prejudice are insufficient to demonstrate
his plea was not knowing or voluntary under the circumstances. Petitioner, therefore, is not entitled
to habeas corpus relief as the result of his counsel’s performance.
In his second ground for habeas corpus relief, Petitioner contends that he is entitled
to an evidentiary hearing when the state court refused to conduct an evidentiary hearing on his claims
of ineffective assistance of counsel, even when presented with supporting affidavits. This Court
disagrees. In Cullen v. Pinholster, 563 U.S. 170 (2011), the Supreme Court explained that “[i]f a
claim has been adjudicated on the merits by a state court, a federal habeas petitioner must overcome
the limitation of § 2254(d)(1) on the record that was before that state court.”• Id. at 185.
Consequently, “district courts are precluded from conducting evidentiary hearings to supplement
existing state court records when a state court has issued a decision on the merits with respect to the
claim at issue.” Ballinger v. Prelesnik, 709 F.3d 558, 561 (6th Cir. 2013). As previously discussed
with regard to the standard of review, the decisions of the Michigan appellate courts are considered
to have been made “on the merits.” See Harrington, 562 U.S. at 99; Werth, 692 F.3d at 494. “While
allowing a petitioner to supplement an otherwise sparse trial court record may be appealing,
especially where he diligently sought to do so in state court, the plain language of Pinholster and
Harrington precludes it.” Ballinger, 709 F.3d at 562. Because the orders denying Petitioner’s
applications for leave to appeal were “on the merits,” this Court’s review of his ineffective assistance
of counsel claims is limited to the existing record.
In light of the foregoing, the Court will deny the petition for failure to raise a
meritorious federal claim.
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).
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.
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
A Judgment and Order consistent with this Opinion will be entered.
August 10, 2016
/s/ Robert J. Jonker
ROBERT J. JONKER
CHIEF UNITED STATES DISTRICT JUDGE
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