McDonald #306268 v. Prelesnik
OPINION; signed by District Judge Paul L. Maloney (Judge Paul L. Maloney, cmc)
UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
Case No. 1:13-cv-890
Honorable Paul L. Maloney
This is a habeas corpus action brought by a state prisoner pursuant to 28 U.S.C. § 2254.
Petitioner Terry McDonald pleaded guilty in the Wayne County Circuit Court to two counts of first-degree
criminal sexual conduct (CSC I), MICH. COMP. LAWS §§ 750.520b(1)(c) (sexual penetration occurs
during the commission of another felony) and 750.520b(1)(f) (causing personal injury), one count of armed
robbery, MICH. COMP. LAWS § 750.529, and one count of first-degree home invasion, MICH. COMP.
LAWS § 750.110a(2). On April 24, 2009, he was sentenced as a fourth-offense felony offender, MICH.
COMP. LAWS § 769.12, to 26 to 40 years’ imprisonment on each of the CSC-I and armed-robbery
convictions, and to 15 to 20 years’ imprisonment on the home-invasion conviction. In his pro se petition,
Petitioner raises three grounds for relief, as follows:
THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED THE
MOTION TO WITHDRAW THE PLEA BEFORE SENTENCING.
[PETITIONER] WAS DENIED THE EFFECTIVE ASSISTANCE OF
COUNSEL AS GUARANTEED BY BOTH THE MICHIGAN AND UNITED
STATES CONSTITUTIONS, WHERE TRIAL COUNSEL ABANDONED
[PETITIONER] WAS DENIED THE EFFECTIVE ASSISTANCE OF
COUNSEL AS GUARANTEED BY BOTH THE MICHIGAN AND UNITED
STATES CONSTITUTIONS, WHERE TRIAL COUNSEL PERSUADED
[PETITIONER] TO PLEAD GUILTY TO CRIMINAL OFFENSES WHILE
UNDER THE INFLUENCE OF PSYCHOTROPIC DRUGS.
[PETITIONER] WAS DENIED THE EFFECTIVE ASSISTANCE OF
COUNSEL AS GUARANTEED BY BOTH THE MICHIGAN AND UNITED
STATES CONSTITUTIONS, WHERE APPELLATE COUNSEL FAILED TO
RAISE THE ABOVE ISSUES IN POST-TRIAL APPELLATE
On April 4, 2014, Respondent filed the state-court record, pursuant to Rule 5, RULES GOVERNING § 2254
CASES, and an answer to the petition (ECF No. 7), stating that the grounds should be denied because they
are noncognizable, procedurally defaulted, and/or without merit. Upon review and applying the AEDPA
standards, the Court finds that all habeas grounds are either noncognizable or meritless. Accordingly, the
Court will deny the petition for failure to raise a meritorious federal claim.
Procedural and Factual Background
After breaking into a woman’s home, Petitioner raped her at knife-point and threatened
to kill her. He injured the woman in the process, and he forced her to swallow over a dozen pills. At the
time he committed the offenses, Petitioner was on parole. Petitioner originally was charged with six counts
of CSC I, and one count each of armed robbery, first-degree home invasion, and larceny in a building. As
a fourth-offense felony offender, Petitioner faced a potential life sentence.
Petitioner was appointed counsel to represent him. On February 19, 2009, defense
counsel filed a motion for a polygraph examination and for production of DNA test results. Following a
hearing on March 3, 2009, the trial court granted the motion. On March 27, 2009, the court reviewed a
competency evaluation and concluded that Petitioner was competent to stand trial. (Plea Tr., ECF No.
8-3, PageID.205.) The parties stipulated and the court noted that the criminal responsibility determination
of the psychological evaluation was not ready, but was expected to show that there was not a basis for an
insanity defense. (Id., PageID.203, 205.) The prosecutor also withdrew the motion to introduce other bad
acts and reported that a polygraph had been arranged, but Petitioner had declined to take it. (Id.,
The plea agreement consisted of an offer under which Petitioner would plead guilty to two
counts of CSC I, one count of armed robbery, one count of first-degree home invasion, and to being a
fourth-offense felony offender. The prosecution agreed to dismiss the larceny charge and the remaining
CSC I charges, which merely represented alternate theories for the single act of sexual assault. (Id.,
PageID.205.) The plea also was subject to a Cobbs1agreement to a sentence of 26 to 40 years, which
was toward the lower end of the estimated guidelines range of a minimum sentence of 22 ½ to 75 years.
In discussing the plea, the trial court explained the tentative nature of the sentence offer to
Petitioner, which the court could reconsider at the time sentence was entered, but only if Petitioner was
allowed to withdraw his plea. Petitioner agreed that he understood the Cobbs agreement. (Id.,
PageID.206.) The court then thoroughly questioned Petitioner about his understanding of the proposed
In People v. Cobbs, 505 N.W.2d 208 (Mich. 1993), the Michigan Supreme Court approved a process under
which a judge conducts a preliminary evaluation of the case and makes a tentative offer of the sentence prior to a
defendant’s entry of a plea. The supreme court held that such an agreement was lawful, if the defendant was given the
right to withdraw the plea when and if the judge on full review decided not to honor the earlier agreement).
plea and the voluntariness of his decision to waive his right to a trial. Petitioner reported that he had
completed education through the seventh grade. He declared that he understood the plea offer and
understood that he was waiving his rights to a jury trial, to the presumption of innocence, to the requirement
of proof beyond a reasonable doubt, to remain silent, and to testify. (Id., PageID.207-209.) Petitioner
also denied receiving any other promises, and he denied being threatened or coerced into pleading guilty.
He acknowledged his signature on the plea agreement. He also acknowledged that, by entering into a plea
agreement, he was giving up his appeal of right, becoming eligible to file only an application for leave to
appeal. (Id., PageID.210-211.) Petitioner stated that, having been advised of all the rights he was waiving,
he still intended to plead guilty, and he specifically entered a guilty plea to each of the offenses of conviction
and admitted that he had three prior felony offenses. (Id., PageID.211.)
The prosecutor then asked questions to establish the factual basis for the plea. Petitioner
admitted that he had broken into the victim’s apartment on October 12, 2008. While he was in the
apartment, the victim came home. Petitioner admitted that, against the victim’s will, he forced his penis into
the victim’s mouth and vagina. He also admitted that he caused the victim injury to her buttocks, shoulder
and vagina. In addition, Petitioner admitted putting a knife to the victim’s throat and threatening to kill her.
Petitioner also forced the victim to swallow between 13 and 15 pills. Finally Petitioner admitted that he
had two prior convictions for first-degree home invasion. The prosecutor also placed on the record the
fact that Petitioner was on parole at the time of his offense conduct. (Id., PageID.212-214.) The court
then found a factual basis to support each of the guilty pleas and the fourth-offense felony-offender notice.
It therefore accepted the pleas. (Id., PageID.214.)
At the time scheduled for sentencing on April 24, 2009, defense counsel described a letter
sent by Petitioner to the court and defense counsel, indicating that Petitioner wanted to withdraw his plea
because he had been emotionally overwrought at the time of the plea, making his plea involuntary.
(Sentencing Hr’g Tr., ECF No. 8-4, PageID.221.) Counsel represented that, in response to the letter, he
had advised Petitioner that the parties had been scheduled to go to trial, so it was inevitable that Petitioner
was required to make a decision that day, but he reminded Petitioner that the court had allowed ample time
for Petitioner to talk with his attorney and with his family. Counsel also reminded Petitioner of his
“astronomical” exposure to twice as long a sentence after trial, given his criminal history and the fact that
he was on parole. (Id.) Nevertheless, Petitioner continued to express his wish to withdraw his plea. (Id.,
PageID.222.) Counsel then argued on behalf of Petitioner’s request to withdraw the plea, reasoning that
withdrawing the plea would not cause prejudice to the prosecution, given the short passage of time since
the entry of the plea and the continuing availability of witnesses. Counsel also represented that he intended
to file no other motions in the case. (Id.)
The prosecutor responded that no basis existed for withdrawing the plea. Petitioner had
been carefully advised of his rights and had repeatedly responded that his decision to plead was knowing
and voluntary. The prosecutor also noted that Petitioner had admitted the conduct on the record and was
not contending that he was actually innocent. (Id., PageID.223.)
The court acknowledged receiving the letter from Petitioner dated April 11, 2009, in which
Petitioner claimed, “‘I was very emotional and unconscious of what was going on.’” (Id., PageID.224.)
The judge indicated that he had a clear recollection of the case because of the terrible nature of the
allegations. He stated that, while all plea decisions are emotionally difficult, he recalled that special
accommodations had been made to allow Petitioner to spend a lengthy period of time with his attorney
and with his family. He recollected that Petitioner understood clearly the discussions that were taking place,
and he remembered no indication that Petitioner had not fully understood what he was doing or the
agreement he was reaching. The judge also recalled that Petitioner was very aware of the sentences he
potentially faced if he decided to go to trial. For all these reasons, the court denied the motion to withdraw
the plea. (Id., PageID.224-225.)
The judge then proceeded to the sentencing phase of the hearing. Defense counsel raised
no objections to the presentence investigation report (PSIR). The prosecutor, however, emphasized the
importance of the accuracy of the PSIR, notwithstanding the Cobbs agreement. She therefore requested
that Offense Variable (OV) 1 be changed from 10 points to 15 points because the victim had a reasonable
apprehension of a battery, based on Petitioner’s use of a knife to threaten her. Defense counsel made no
objection to the change, and the court adopted it. (Id., PageID.226.) The prosecutor next requested that
OV 10 be changed from 5 points to 15 points, based on the predatory nature of the offense, given that
Petitioner had lived in the same building, was known to the victim, and had been in the apartment waiting
when the victim came home from church. The court agreed. (Id., PageID.227-228.) Finally, the
prosecutor requested that OV 19 be changed from a score of zero to a score of 15 for interference with
the administration of justice, based on Petitioner’s threat to kill the victim and her family if she reported the
crime. (Id., PageID.228.) After a break to look at the case law, the court agreed that it was appropriate
to change the scoring of OV 19. (Id., PageID.230-231.) Defense counsel made a lengthy argument to
the contrary, indicating that the variable ordinarily was not used in these circumstances, that the victim was
in no way prevented from calling the police and she did so immediately, making it appear that she did not
take any threat seriously. Petitioner also had admitted his responsibility, undermining any conclusion that
he was attempting to interfere with the administration of justice. (Id., PageID.231-232.) The court
rejected defense counsel’s arguments and increased the OV-19 score to 15 points. As a result, the total
offense-variable score increased to 120 points, raising Petitioner from a level five to a level six offender and
raising the guidelines range for the minimum sentence from 19 to 40 years to 22½ years to 75 years.2 (Id.,
PageID.234.) The Cobbs agreement of a 26-year minimum remained within the guidelines, at the lower
end. (Id., PageID.234-235.)
The victim appeared at sentencing and testified about the horrible violations to her body,
mind and soul caused by the rape, torture and humiliation of Petitioner’s conduct. (Id., PageID.237.) She
testified that, although she was afraid of heights, she was more afraid of Petitioner, and she jumped out of
her second-story window to escape, causing life-long injuries to her leg and back. She testified that she
had gone from a confident and happy woman to a person who was always angry, vulnerable, and afraid.
The victim testified that she was no longer able to live in an apartment and that she depends on others to
do the smallest things she used to take for granted. (Id., PageID.237-238.)
Petitioner used his opportunity for allocution to critique minor, immaterial differences
between the victim’s statement to police and her statement in court, including a difference in time of less
than half an hour and the reason for her return to her apartment. He also critiqued the victim’s claim that
she had life-long injuries, when the medical report had listed no injuries. Petitioner argued that he wanted
to take back the plea because he could have challenged these things at trial, and he expressed his
As reflected in the statement of facts, supra, the longer range of 22½ to 75 years was the estimated range at
the time Petitioner entered his plea.
dissatisfaction with his attorney having failed to show him the DVD of the victim’s police interview. (Id.,
The judge was unimpressed by Petitioner’s decision to attack the victim’s statement, and
he again denied the motion to withdraw the plea, concluding that Petitioner’s statements demonstrated that
Petitioner’s reason for asking to withdraw the plea obviously was that he had belatedly decided that he was
unhappy with spending 26 to 40 years in prison. The judge reiterated his own struggles with agreeing to
a Cobbs evaluation, especially at the low end of the guidelines, having ultimately decided to do so only to
allow some closure for the victim. Despite Petitioner’s continuing apparent denial of the seriousness of his
actions, the judge, with reluctance, decided to follow the Cobbs agreement for the same reason he agreed
to offer it. The court therefore sentenced Petitioner to three concurrent prison term of 26 to 40 years on
the CSC-I and armed-robbery convictions and 15 to 20 years on the home-invasion conviction, all of
which were to run consecutively to the sentences for which Petitioner was on parole at the time he
committed the offense conduct. (Id., PageID.241-246.)
Petitioner filed an application for leave to appeal to the Michigan Court of Appeals, raising
the first ground presented in Petitioner’s habeas application. In an order issued on October 12, 2010, the
court of appeals denied leave to appeal for lack of merit in the grounds presented. (ECF No. 8-5,
PageID.249.) Petitioner raised the same ground in his application for leave to appeal to the Michigan
Supreme Court. The supreme court denied leave to appeal on March 8, 2011. (ECF No. 8-6,
On May 12, 2011, Petitioner filed a motion for relief from judgment in the Wayne County
Circuit Court, raising the same issues as those presented in Grounds II through IV of his habeas application.
In an order issued on October 26, 2011, the circuit court denied the motion, both because Petitioner had
failed to demonstrate cause excusing his failure to raise the claims on direct appeal, as required by MICH.
CT. R. 6.508(D)(3)(a), and because the claims Petitioner raised lacked meri(.E C F N o . 8 - 7 ,
Petitioner sought leave to appeal to both the Michigan Court of Appeals and the Michigan
Supreme Court, raising the same three claims presented to the trial court. Both courts denied leave to
appeal, on June 8, 2012 and November 12, 2012, respectively. (See ECF Nos. 8-7, 8-8, PageID.326,
In his habeas application, Petitioner raises all four issues presented to and rejected by the
Michigan courts on direct and collateral review. The petition was timely filed.
This action is governed by the Antiterrorism and Effective Death Penalty Act of 1996, PUB.
L. 104-132, 110 STAT. 1214 (AEDPA). See Penry v. Johnson, 532 U.S. 782, 792 (2001). 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) (internal quotation
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.3d at 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 state-court 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.
86, 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).
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 state-court’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
The AEDPA requires heightened respect for state factual findings. Herbert v. Billy, 160
F.3d 1131, 1134 (6th Cir. 1998). A determination of a factual issue made by a state court is presumed
to be correct, and the 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. This presumption of correctness is accorded to findings of state appellate courts, as well
as the trial court. See Sumner v. Mata, 449 U.S. 539, 546 (1981); Smith v. Jago, 888 F.2d 399, 407
n.4 (6th Cir. 1989).
Grounds I and III: Withdrawal of the Plea
In his first ground for habeas relief, Petitioner argues that the trial court erred when it denied
his motion to withdraw his guilty plea. Petitioner argued in the state appellate courts that the trial court’s
denial of his motion violated MICH. CT. R. 6.310(B), because withdrawal of the plea was in the interests
of justice and the government did not demonstrate substantial prejudice. Plaintiff also contends in both
Ground I and Ground III that his plea was not voluntarily, knowingly, or understandingly made. He
asserted at trial that he was highly emotional and no aware of what was going on. He claimed for the first
time in his motion for relief from judgment that he was taking Seroquel and Zoloft at the time of the plea
and that he had never previously taken psychoactive medications. Finally, he argues that his trial attorney
was ineffective in persuading him to plead guilty while he was on those psychoactive medications.3
A state defendant has no constitutionally guaranteed right to withdraw a guilty plea. See
Carwile v. Smith, 874 F.2d 382 (6th Cir. 1989). The only constitutional challenge that a habeas court
may entertain with regard to a plea of guilty is that the plea was not entered in a knowing and voluntary
fashion under the standards set forth in Brady v. United States, 397 U.S. 742 (1970), and Boykin v.
Alabama, 395 U.S. 238 (1969). A habeas court is restricted to these federal principles, and may not grant
habeas relief on the basis of state law governing the taking or withdrawal of guilty pleas. Riggins v.
McMackin, 935 F.2d 790, 794-95 (6th Cir. 1991). Consequently, Petitioner’s claim that he should have
The Court will address the ineffective-assistance-of-counsel claim in Section II of the Discussion portion of
been permitted under MICH. CT. R. 6.310(B) to withdraw his guilty plea is a state-law question that is not
cognizable on habeas corpus review.
Petitioner also fails to demonstrate that his plea was not valid. In order to find a guilty plea
constitutionally valid, several requirements must be met. The defendant pleading guilty must be competent,
see Brady, 397 U.S. at 756, 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. Tollett, 411
U.S. at 267-68; 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).
As earlier discussed, the trial court expressly found Petitioner competent to stand trial,
based on the report of an independent psychological expert. (ECF No. 8-3, PageID.205.) The court also
exercised great care in ensuring that Petitioner understood the gravity of the charges against him, the
maximum penalty he faced, the rights he would waive by pleading guilty, including the impact of his plea
on the appellate review available to him, and the nature of a Cobbs plea. Petitioner declared on not less
than 15 occasions that he understood the charges and his rights and that he was not being coerced into
entering the plea. (Id., PageID.207-211.) In addition, Petitioner responded clearly and unequivocally to
the court’s repeated questions about his understanding of the plea and reaffirmed his desire to enter the plea
after being advised of all of the rights he was waiving. (Id.) Under settled Sixth Circuit authority, a
“defendant is bound by his statements in response to that court’s inquiry.” Baker v. United States, 781
F.2d 85, 90 (6th Cir. 1986)(quoting Moore v. Estelle, 526 F.2d 690, 696-97 (5th Cir. 1976)).
Moreover, nothing in the record suggests any hesitancy or lack of clarity in Petitioner’s
demeanor or in the consistency of his response. Petitioner’s mere statement that he was taking
psychoactive medications, an issue not even raised at the time he sought to withdraw his plea,4 does not
rise to the level of clear and convincing evidence necessary to overcome the strong presumption accorded
his decision to plead guilty, made even stronger by the AEDPA presumption accorded the trial court’s
finding that Petitioner was competent and the plea was voluntary. See 28 U.S.C. § 2254(e)(1); Lancaster,
324 F.3d at 429; Bailey, 271 F.3d at 656. Further, the record reflects that the court took great care to
provide Petitioner substantial time to fully discuss the choices he faced with defense counsel, and the court
made special arrangements to allow Petitioner to meet with his family in the jury room to discuss his options.
(Id., PageID.203; ECF No. 8-4, PageID.221, 224.) In addition, Petitioner obtained substantial benefit
from the plea deal. Although he still faced a lengthy prison term under the plea agreement, he could have
been sentenced to as much as life imprisonment, and his guidelines range could have justified a minimum
sentence of 75 years.
In sum, the trial court’s determination that the plea was made knowingly and voluntarily was
fully supported by the record. Petitioner has utterly failed to meet his “heavy burden” to overcome the
presumption of correctness accorded the state court’s finding. Parke, 506 U.S. at 29. Petitioner is not
In fact, Petitioner did not suggest that he was under the influence of psychoactive medications until he filed
his application for leave to appeal to the Michigan Supreme Court.
entitled to habeas relief on his first and third habeas grounds, because the state court’s decision constituted
a reasonable application of clearly established Supreme Court precedent and was based on a reasonable
determination of the facts. 28 U.S.C. § 2254(d).
Grounds II andd III: Ineffective Assistance of Trial Counsel
In his second ground for habeas relief, Petitioner contends that his trial attorney was
ineffective when he abandoned Petitioner’s only defense to the sexual assault allegations. Specifically, he
alleges that counsel asked for production of DNA results, but then failed to have the evidence analyzed for
DNA comparison. In Ground III, Petitioner argues that counsel was ineffective in persuading Petitioner
to plead guilty while Petitioner was under the influence of psychoactive medication.
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.
Moreover, as the Supreme Court repeatedly has recognized, when a federal court reviews
a state court’s application of Strickland under § 2254(d), the deferential standard of Strickland is
“doubly” deferential. Harrington v. Richter, 562 U.S. 86, 105 (2011) (citing Knowles v. Mirzayance,
556 U.S. 111, 123 (2009)); see also Burt v. Titlow, 134 S. Ct. 10, 13 (2013); Cullen v. Pinholster,
131 S. Ct. 1388, 1403 (2011); Premo v. Moore, 562 U.S. 115, 122 (2011). In those circumstances,
the question before the habeas court is “whether there is any reasonable argument that counsel satisfied
Strickland’s deferential standard.” Id.; Jackson v. Houk, 687 F.3d 723, 740-41 (6th Cir. 2012) (stating
that the “Supreme Court has recently again underlined the difficulty of prevailing on a Strickland claim in
the context of habeas and AEDPA . . . .”) (citing Harrington, 562 U.S. at 102).
With respect to Ground II of his petition, at the time Petitioner entered his guilty plea, he
was fully aware of counsel’s ostensible failure to ensure the availability of DNA evidence. Yet Petitioner
elected to proceed to enter a guilty plea, in order to obtain the substantial benefit of a sentencing agreement.
Since prejudice in a guilty-plea case requires a showing that Petitioner would not have pled guilty, see Hill,
474 U.S. at 58, Petitioner cannot demonstrate the requisite prejudice. “When deciding ineffectiveassistance claims, courts need not address both components of the inquiry ‘if the defendant makes an
insufficient showing on one.’” Campbell v. United States, 364 F.3d 727, 730 (6th Cir. 2004) (quoting
Strickland, 466 U.S. at 697). “If it is easier to dispose of an ineffectiveness claim on the ground of lack
of sufficient prejudice, which we expect will often be so, that course should be followed.” Strickland, 466
U.S. at 697. Because Petitioner fails to demonstrate prejudice, the Court need not reach the performance
prong of Strickland.
Moreover, Petitioner’s claim under Ground II also fails because 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). Counsel’s decisions concerning the preparation of
evidence for trial are clearly such antecedent violations, which were waived by Petitioner’s decision to enter
the plea. As previously discussed, Petitioner’s plea was valid, as it was knowingly, understandingly and
voluntarily entered. His claim of ineffective assistance of counsel with respect to the DNA evidence
therefore is barred. Id.
Finally, Petitioner’s claim under Ground III fails because the Court already has determined
that Petitioner was competent and that his guilty plea was validly entered. As fully discussed supra,
Petitioner utterly fails to demonstrate that his judgment was impaired at the time he entered his plea. Even
without the deference owed to the state-court determinations, it is apparent from the record that Petitioner
was competent and entered a knowing and voluntary plea. As a consequence, Petitioner cannot overcome
the presumption that counsel acted reasonably in permitting him to plead guilty while knowing that Petitioner
was taking psychoactive medications, Strickland, 466 U.S. at 689, much less the presumption that the
state court acted reasonably in so concluding. See, e.g., Harrington, 562 U.S. at 105 (emphasizing the
double deference owed to state-court determinations that counsel’s performance was reasonable).
For all these reasons, Petitioner’s claims of ineffective assistance of trial counsel are
Ground IV: Ineffective Assistance of Appellate Counsel
In his final ground for habeas relief, Petitioner argues that his appellate attorney was
ineffective in failing to raise Grounds II and III on direct review. An appellant has no constitutional right
to have every non-frivolous issue raised on appeal. “‘[W]innowing out weaker arguments on appeal and
focusing on’ those more likely to prevail, far from being evidence of incompetence, is the hallmark of
effective appellate advocacy.” Smith v. Murray, 477 U.S. 527, 536 (1986) (quoting Jones v. Barnes,
463 U.S. 745, 751-52 (1983)). To require appellate counsel to raise every possible colorable issue
“would interfere with the constitutionally protected independence of counsel and restrict the wide latitude
counsel must have in making tactical decisions.” Strickland, 466 U.S. at 688. As the Supreme Court
recently has observed, it is difficult to demonstrate that an appellate attorney has violated the performance
prong where the attorney presents one argument on appeal rather than another. Smith v. Robbins, 528
U.S. 259, 289 (2000). In such cases, the petitioner must demonstrate that the issue not presented “was
clearly stronger than issues that counsel did present.” Id.
Here, Petitioner cannot demonstrate that his claims were clearly stronger than the single
appellate ground raised by his attorney. As the Court has discussed, Petitioner’s belatedly raised grounds
for relief lack merit. Where a claim lacks merit, appellate counsel is not ineffective in declining to raise the
issue on direct appeal. See Moore v. Mitchell, 708 F.3d 760, 776 (6th Cir. Feb. 26, 2013) (“[A]
petitioner cannot show that appellate counsel was ineffective for failing to raise a claim on appeal if the
underlying claim itself lacks merit.”); Burton v. Renico, 391 F.3d 764, 781-82 (6th Cir. 2004) (where
claim of prosecutorial misconduct lacks merit, counsel is not ineffective in declining to raise issue on
appeal). Accordingly, Petitioner fails to demonstrate any error in the state-courts’ decisions, much less that
those decisions were either contrary to or an unreasonable application of clearly established Supreme Court
In light of the foregoing, the Court will deny Petitioner’s application because it fails 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 denial of
Petitioner’s claims was debatable or wrong. Therefore, the Court will deny Petitioner a certificate of
A Judgment and Order consistent with this Opinion will be entered.
Dated: July 29, 2016
/s/ Paul L. Maloney
Paul L. Maloney
United States District Judge
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