Stav #208231 v. Palmer

Filing 12

MEMORANDUM 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
SOUTHERN DIVISION

EDWAN DONALD STAV,
# 208231,

)
)
)
Petitioner,
)
)
v.
)
)
CARMEN D. PALMER,
)
)
Respondent.
)
____________________________________)

Case No. 1:13-cv-1185
Honorable Paul L. Maloney
MEMORANDUM OPINION

This is a habeas corpus proceeding brought pro se by a state prisoner pursuant to
28 U.S.C. § 2254. Petitioner seeks to overturn his plea-based convictions in Emmet
County Circuit Court. Petitioner’s convictions stem from a January 3, 2010, incident in
which petitioner shot and killed Nick Sowers.
On February 16, 2010, petitioner pled no contest, pursuant to a plea agreement,
to six criminal charges. In exchange, the prosecutor agreed to dismiss thirteen other
charges against petitioner, including a charge of open murder, which carried a maximum
sentence of life imprisonment. Petitioner pled to three primary offenses: use of firearm
causing death, Mich. Comp. Laws § 750.237(4), felon in unlawful possession of a firearm,
Mich. Comp. Laws § 750.224f, and assault with a dangerous weapon, Mich. Comp. Laws
§ 750.82. Petitioner’s sentences for these crimes were subject to enhancement based on
his status as an habitual offender, fourth felony offense. Petitioner also pled guilty to
three felony-firearm counts, Mich. Comp. Laws § 750.227b.

Judge Charles Johnson sentenced petitioner to concurrent terms of 33 to fifty
years’ imprisonment for use or discharge of a firearm causing death, 19 to forty years’
imprisonment for being a felon in possession of a firearm, ten to fifteen years’
imprisonment for assault with a dangerous weapon, and a consecutive term of two years’
imprisonment for his felony-firearm convictions.
After unsuccessful attempts to overturn his convictions and sentences in state
court, petitioner filed this habeas corpus petition. Petitioner seeks federal habeas
corpus relief on the following grounds:
I.

Petitioner was “denied his fundamental due process protections to
a fair trial” under the Constitution “when the trial court arraigned
petitioner in circuit court, without first having acquired subjectmatter jurisdiction over petitioner, creating a jurisdictional defect
that not only voids petitioner’s convictions, but which demands his
immediate release[.]”

II.

Petitioner was “denied his fundamental due process protections to
a fair trial” under the Constitution “when the prosecution and the
police fabricated and misrepresented evidence that tainted
petitioner’s entire criminal proceeding, and created yet another
jurisdictional defect, [a]nd which manifest injustice demands
petitioner’s immediate release from custody[.]”

III.

Petitioner was “denied his fundamental due process protections to
a fair trial” under the Constitution “when the trial court
acquiesced control of the proceedings, that resulted in structural
error by and through a defective plea process, which mandates
petitioner’s immediate release from custody[.]”

IV.

Petitioner was “denied his fundamental due process protections to
a fair trial” under the Constitution “when trial counsel not only
sabotaged petitioner’s criminal proceedings, but the[n] abandoned
petitioner, which conduct resulted in structural error that
mandates petitioner’s immediate release from custody[.]”

V.

Petitioner was “denied his fundamental due process protections to
a fair trial” under the Constitution “when appellate counsel
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sabotaged petitioner’s appeal, and then abandoned petitioner,
which conduct resulted in structural error that mandates
petitioner’s immediate release from custody[.]”
VI.

“The circuit court judge erroneously granted the petitioner an
upward departure of 14 years above the high end of the guideline
range [under Michigan’s sentencing guidelines] without making
proper findings pursuant to the Gary Smith1 case.”

(Petition at 1-6, ECF No. 1, PageID.1-7; Petitioner’s Brief at ix-xi, ECF No. 3,
PageID.36-38).2
Respondent argues that all six grounds raised by petitioner lack merit. (Answer
at 26-70, ECF No. 9, PageID.132-76). In addition, respondent argues that Grounds II,
III, IV and V, are barred by procedural defaults and petitioner has not shown cause
and prejudice or actual innocence to overcome those defaults. (Id. at 4, 32-36, 45-49,
57, 71, PageID.110, 139-42, 151-55, 163, 177).
After review of the state-court record, the Court concludes petitioner has not
established grounds for federal habeas corpus relief. Petitioner has not shown that the
state court decisions rejecting the grounds raised in the petition were “contrary to, or
involved an unreasonable application of, clearly established Federal law, as

1

2

People v. Smith, 754 N.W.2d 284 (Mich. 2008).

Petitioner’s claims based on alleged violations of Michigan’s constitution have
been disregarded. Federal habeas corpus relief is available to a person in custody
pursuant to the judgment of a State court “only on the ground that he is in custody in
violation of the Constitution or laws or treaties of the United States.” 28 U.S.C.
§ 2254(a).
Paragraph 12 of the petition lists only four grounds on which petitioner claims
entitlement to habeas corpus relief. (ECF No. 1, PageID.4-7). The Court has
indulgently considered the fifth and sixth grounds, which appear in petitioner’s brief
(ECF No. 3, PageID.38) as if they had been listed in his habeas corpus petition.
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determined by the Supreme Court of the United States” or were “based on an
unreasonable determination of the facts in light of the evidence presented in the State
court proceeding[s].”3 28 U.S.C. § 2254(d). The petition will be denied.
Standard of Review
The Court’s review of this petition is governed by the provisions of the
Antiterrorism and Effective Death Penalty Act, Pub. L. No. 104-132, 110 Stat. 1214
(AEDPA). See Penry v. Johnson, 532 U.S. 782, 792 (2001). AEDPA “dictates a highly
deferential standard for evaluating state-court rulings which demands the state court
decisions be given the benefit of the doubt.” Bell v. Cone, 543 U.S. 447, 455 (2005)
(citations omitted). “AEDPA requires heightened respect for state court factual and
legal determinations.” Lundgren v. Mitchell, 440 F.3d 754, 762 (6th Cir. 2006).
“State-court factual findings [] are presumed correct; the petitioner has the burden of
rebutting the presumption by clear and convincing evidence.” Davis v. Ayala, 135 S.
Ct. 2187, 2199-2200 (2015) (citations and internal quotations omitted).
If a state court adjudicated the claim, deferential AEDPA standards must be
applied.

28 U.S.C. § 2254(d); see Premo v. Moore, 562 U.S. 115, 121 (2011);

Waddington v. Sarausad, 555 U.S. 179, 190 (2009); Holder v. Palmer, 588 F.3d 328,

3

Both the Supreme Court and the Sixth Circuit have indicated that this Court
has discretion to ignore a procedural default and proceed directly to the merits of an
apparently defaulted claim, when to do so would be more expeditious than an analysis
of the complicated procedural default question. See Lambrix v. Singletary, 520 U.S.
518, 525 (1997); Bales v. Bell, 788 F.3d 568, 573 (6th Cir. 2015); Scott v. Houk, 760
F.3d 497, 506 (6th Cir. 2014). In the present case, the grounds raised by petitioner are
meritless, so a detailed analysis of the complicated procedural default issues is
unnecessary.
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341 (6th Cir. 2009) ((“[A]ny claim that was adjudicated on the merits in State court
proceedings’ is subject to AEDPA deference.”) (quoting 28 U.S.C. § 2254(d)). AEDPA
prevents federal habeas “retrials” and ensures that state court convictions are given
effect to the extent possible under law. Bell v. Cone, 535 U.S. 685, 693-94 (2002). It
prohibits “using federal habeas corpus review as a vehicle to second-guess the
reasonable decisions of state courts.” Parker v. Matthews, 132 S. Ct. 2148, 2149 (2012)
(per curiam).
The AEDPA standard is difficult to meet “because it was meant to be.”
Harrington v. Richter, 562 U.S. 86, 102 (2011). “Section 2254(d) reflects that habeas
corpus is a guard against extreme malfunctions in the state criminal justice systems,
not a substitute for ordinary error corrections through appeal.” Id. at 102-03 (citation
and internal quotation omitted); see Woods v. Donald, 135 S. Ct. 1372, 1376 (2015).
Section 2254(d) states that an application for a 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); see White v. Wheeler, 136 S. Ct. 456, 460
(2015); Davis v. Ayala, 135 S. Ct. at 2198; White v. Woodall, 134 S. Ct. 1697, 1702
(2014).
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The only definitive source of clearly established federal law for purposes of
§ 2254(d)(1) is the holdings—not dicta—of Supreme Court decisions. White v. Woodall,
134 S. Ct. at 1702; see Woods v. Donald, 135 S. Ct. at 1377 (“Because none of our cases
confront ‘the specific question presented by this case,’ the state court’s decision could
not be ‘contrary to’ any holding from this Court.”). “[W]here the precise contours of a
right remain unclear, state courts enjoy broad discretion in their adjudication of a
prisoner’s claims.” Id. (quotations and internal citations omitted).
An unreasonable application of the Supreme Court’s holding must be
“‘objectively unreasonable,’ not merely wrong; even ‘clear error’ will not suffice.” White
v. Woodall, 134 S. Ct. at 1702 (quoting Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003)).
Rather, “[a]s a condition for obtaining habeas corpus from a federal court, a state
prisoner must show that the state court’s ruling on the claim being presented in federal
court was so lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fairminded disagreement.”
White v. Woodall, 134 S. Ct. at 1702 (quoting Harrington v. Richter, 562 U.S. at 103).
“[C]ircuit precedent does not constitute ‘clearly established Federal law, as determined
by the Supreme Court,’ ” and “[i]t therefore cannot form the basis for habeas relief
under AEDPA.” Hill v. Curtin, 792 F.3d 670, 677 (6th Cir. 2015) (quoting Parker v.
Matthews, 132 S. Ct. at 2155); see Glebe v. Frost, 135 S. Ct. 429, 431 (2014) (per
curiam) (“As we have repeatedly emphasized, [] circuit precedent does not constitute
‘clearly established Federal law, as determined by the Supreme Court.’”).

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“[A] state-court factual determination is not unreasonable merely because the
federal habeas court would have reached a different conclusion in the first instance.”
Wood v. Allen, 558 U.S. 290, 301 (2010). Section 2254 (d)(2) requires that this Court
accord the state trial court substantial deference. If reasonable minds reviewing the
record might disagree about the finding in question, on habeas review that does not
suffice to supersede the trial court’s determination. Brumfield v. Cain, 135 S. Ct. 2269,
2277 (2015); Burt v. Titlow, 134 S. Ct. 10, 15 (2013).
Findings of Fact
A.

Circuit Court Proceedings

The transcript of the plea hearing indicates that Judge Johnson reviewed with
petitioner the trial rights that he was giving up by pleading no contest. Petitioner signed
the Advise of Rights Form. Petitioner read the form and understood it before he added
his signature. He understood his plea agreement. Petitioner related that his no contest
pleas were his own decision. They were not the result of any threats. They were not
based any promises outside the plea agreement. (ECF No. 10-3, PageID.196-99).
Petitioner pled no contest to six felonies: Count 3, use of a firearm causing death; Count
4, felony firearm; Count 10, felon in unlawful possession of a firearm; Count 11, felony
firearm; Count 16, assault with a dangerous weapon; and Count 17, felony firearm. (Id.
at PageID.198-99).
Petitioner was present in Redmond Township, Emmet County on January 3, 2010.
He had consumed a large amount of alcohol on that date. (Id. at PageID.199-200).
Petitioner testified that as a result of his alcohol consumption and intoxication, he was
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unable to accurately recall all of the events that had occurred. Judge Johnson addressed
the factual basis for petitioner’s no contest pleas:
THE COURT:

[Y]ou are willing, pursuant to the plea agreement, to
have the Court review and rely upon the police reports
and the affidavit of probable cause filed in this matter
for both the purposes of establishing a factual basis for
your plea and for the purpose of your sentencing?

MR. STAV:

Yes, sir.
***

THE COURT:

MR. LINDERMAN:
MR. KLAWUHN:

. . . The Court has reviewed the affidavit, both before
coming into Court and again today, or just now. The
Court previously reviewed the police reports in this
matter. Do Counsel agree that they establish the
elements of the offenses to which the Defendant has
pled?
The People would agree, Judge.
Defense, likewise, agrees.

(Id. at PageID.200-01). Petitioner admitted that he had been convicted of all the crimes
that formed the basis for sentencing him as an habitual offender. (Id. at PageID.201-02).
The attorneys agreed that Judge Johnson had complied with the requirements of
Michigan’s court rules for accepting petitioner’s no contest pleas. (Id. at PageID.202-03).
Judge Johnson held that petitioner’s no contest pleas were knowing and voluntary. (Id.
at PageID.202).
On March 29, 2010, Judge Johnson conducted a sentencing hearing. (ECF No. 104). Judge Johnson reviewed petitioner’s long and disturbing history of violent crimes,
which included five felony and seven misdemeanor convictions. Petitioner had two
convictions for assault with a dangerous weapon, one conviction for assault with intent
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to do great bodily harm, one conviction for resisting arrest resulting in injury, and three
convictions for assault and battery. (Id. at PageID.216-17). Petitioner’s scores on the
prior record variables and his offense variables “greatly exceeded the scores necessary
to achieve the highest or longest ranges” under Michigan’s sentencing guidelines. (Id.
at PageID.217). Judge Johnson found that the guidelines “fail[ed] to adequately reflect
the seriousness of [petitioner’s] criminal record, and the gravity of his criminal
conduct[.]” (Id. at PageID.218). Petitioner’s “history of violent crime coupled with his
continual disregard for the law and the rights and safety of others coupled with his
continued substance abuse add[ed] up to a propensity to drink and commit violent crimes
which necessitate[d] a longer sentence than that provided by the guidelines to
adequately protect the public. (Id.). Further, petitioner had a history of non-compliance
with probation and parole. He committed the crimes for which he was being sentenced
while he was “on the status of absconding from probation.” (Id.). Judge Johnson noted
that through his plea bargain, petitioner had secured dismissal of more serious charges
against him, including extortion and open murder. (Id. at PageID.218-19). Judge
Johnson sentenced petitioner to 33 to fifty years’ imprisonment for use or discharge of
a firearm causing death, 19 to forty years’ imprisonment for being a felon in possession
of a firearm, ten to fifteen years’ imprisonment for assault with a dangerous weapon, and
a consecutive term of two years’ imprisonment on the felony-firearm convictions. (Id. at
PageID.219; Judgment of Sentence Commitment to Corrections Department, ECF No.
10-5, PageID.222-23).

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B.

Subsequent Proceedings

Petitioner’s appellate counsel filed an application seeking leave to appeal in the
Michigan Court of Appeals. (ECF No. 10-6, PageID.227-39). He raised the challenge
to petitioner’s sentence, which now appears as Ground VI in the habeas corpus
petition. (Id. at PageID.232). On September 7, 2010, the Michigan Court of Appeals
denied petitioner’s application for leave to appeal “for lack of merit in the grounds
presented.” (ECF No. 10-6, PageID.224).
Petitioner filed an application for leave to appeal to the Michigan Supreme
Court. (ECF No. 10-7, PageID.256-58). He raised the same challenge to his sentence
that had been rejected by the Michigan Court of Appeals for lack of merit. (Id. at
PageID.257). On March 8, 2011, the Michigan Supreme Court denied petitioner’s
application. (Id. at PageID.241).
Petitioner filed a motion for relief from judgment in the Emmet County Circuit
Court. (ECF No. 10-8, PageID.319-63). He raised issues corresponding to Grounds I
through V of his habeas corpus petition. (Id. at PageID.327-29). On April 19, 2012,
Judge Johnson denied petitioner’s motion because all his claims were “without factual
or legal merit.” (ECF No. 10-10, PageID.393).
Petitioner filed a delayed application for leave to appeal in the Michigan Court
of Appeals. (ECF No. 10-11, PageID.402-48). On December 14, 2012, the Michigan
Court of Appeals denied petitioner’s application for leave to appeal “for failure to meet
the burden of establishing entitlement to relief under MCF 6.508(D).”

(Id. at

PageID.394). Petitioner sought leave to appeal to Michigan’s highest court. (ECF No.
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10-12, PageID.450-58).

On July 30, 2013, the Michigan Supreme Court denied

petitioner’s application for leave to appeal because he “failed to meet the burden of
establishing entitlement to relief under MCR 6.508(D).” (Id. at PageID.449).
On October 29, 2013, petitioner filed his habeas corpus petition.
Discussion
I.

Jurisdiction
In Ground I, petitioner claims that the trial court lacked subject-matter

jurisdiction. He argues: (1) that the felony complaint was invalid because it was
authorized by an assistant prosecutor rather than the prosecutor; (2) the felony
complaint lacked information to support an independent judgment that probable cause
existed for the felony warrant to be issued; and (3) petitioner’s arrest was predicated
on a null and void affidavit. (Petition at 3, ECF No. 1, PageID.4; Petitioner’s Brief at
3-11, ECF No. 3, PageID.41-49).
Petitioner’s arguments in Ground I do not provide a basis for federal habeas
corpus relief. The determination of whether a state court is vested with jurisdiction
under state law over a criminal case is a function of the state courts, not the federal
courts. Wills v. Egeler, 532 F. 2d 1058, 1059 (6th Cir. 1976); Nelson v. Jackson, No.
2:16-cv-12260, 2016 WL 6441287, at * 4 (E.D. Mich. Oct. 31, 2016). It is well-settled
that a purported violation of state law does not provide a basis for federal habeas relief.
See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). “In conducting habeas review, a
federal court is limited to deciding whether a conviction violated the Constitution,
laws, or treaties of the United States.” Id. “A state court’s interpretation of state
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jurisdictional issues conclusively establishes jurisdiction for purposes of federal habeas
review.” Strunk v. Martin, 27 F. App’x 473, 475 (6th Cir. 2001); see Milner v. Hoffner,
No. 16-10127, 2017 WL 24793, at *10 (E.D. Mich. Jan. 3, 2017); Longenecker v. Morris,
1:11-cv-1276, 2011 WL 6299068, at *2 (W.D. Mich. Dec. 16, 2011). Petitioner’s claim
that the trial court lacked jurisdiction to try his case raises only state law issues.
Thus, to the extent that petitioner challenges the state court’s jurisdiction over his
criminal case, he fails to state a claim on which federal habeas corpus relief may be
granted.
Any Fourth Amendment challenge to the validity of the arrest warrant and
criminal complaint is non-cognizable on habeas review because petitioner had the
opportunity to challenge the legality of the arrest warrant and complaint. A federal
habeas review of a petitioner’s arrest is barred where the state has provided a full and
fair opportunity to litigate an illegal arrest. Stone v. Powell, 428 U.S. 465, 494-95
(1976). For such an opportunity to have existed, the state must have provided, in the
abstract, a mechanism by which the petitioner could raise the claim, and presentation
of the claim must not have been frustrated by a failure of that mechanism. See Riley
v. Gray, 674 F.2d 522, 526 (6th Cir. 1982); see also Hurick v. Woods, No. 16-1554,
7093988, at *3 (6th Cir. Dec. 5, 2016). Michigan provided the requisite procedural
mechanism and petitioner had a full and fair opportunity to bring Fourth Amendment
challenges to his arrest and charging documents. See Nelson v. Jackson, 2016 WL
6441287, at *4-5; Hurick v. Woods, No. 2:14-cv-81, 2016 WL 1127971, at *5-6 (W.D.

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Mich. Mar. 23, 2016); Steele v. Warren, No. 2:11-cv-12064, 2014 WL 4829556, at *5
(E.D. Mich. Sept. 29, 2014).
Petitioner’s assertion that the criminal complaint filed against him was invalid
because it was not supported by probable cause is not a basis for federal habeas corpus
relief. There is no general right to a probable cause determination before trial. See
Gerstein v. Pugh, 420 U.S. 103, 125 n.26 (1975); see also Cornelius v. Prelesnik, No.
1:13-cv-992, 2016 WL 5538045, at *7 (W.D. Mich. Sept. 30, 2016); Orlando v. Smith,
No. 13-15203, 2014 WL 555182, at *2 (E.D. Mich. Feb. 12, 2014).
Further, although the Fourth Amendment requires probable cause to support
an arrest, the propriety of an arrest is irrelevant to the constitutional validity of any
subsequent conviction. “An illegal arrest, without more, has never been viewed as a
bar to subsequent prosecution, nor as a defense to a valid conviction.” United States
v. Crews, 445 U.S. 463, 474 (1980). The presence or absence of probable cause
sufficient to arrest or detain a person is irrelevant to the ultimate validity of an
ensuing conviction:
Nor do we retreat from the established rule that illegal arrest or
detention does not void a subsequent conviction. Frisbie v. Collins, 342
U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541 (1952); Ker v. Illinois, 119 U.S. 436,
7 S.Ct. 225, 30 L.Ed. 421 (1886). Thus, as the Court of Appeals noted
below, although a suspect who is presently detained may challenge the
probable cause for that confinement, a conviction will not be vacated on
the ground that the defendant was detained pending trial without a
determination of probable cause.
Gerstein v. Pugh, 420 U.S. 103, 119 (1975). Petitioner is in the MDOC’s custody on the
basis of his plea-based convictions, and the presence or absence of probable cause to
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support a charging document or his arrest is irrelevant to the continuing validity of
that custody.
Finally, even assuming that petitioner’s jurisdictional challenges had
constitutional underpinnings, he cannot overcome the deference to which the statecourt decision rejecting these claims is entitled.

Judge Johnson found that all

petitioner’s claims of jurisdictional defects lacked merit. Petitioner’s first claim was
meritless because the Michigan Court of Appeals had “specifically rejected” petitioner’s
jurisdictional argument based on an assistant prosecutor’s signature. (ECF No. 10-10,
PageID.390). Petitioner’s second claim of a jurisdictional defect fared no better: “The
amended felony complaint issued against [petitioner] was authorized by the Magistrate
on January 13, 2010, based upon the amended affidavit of probable cause likewise
dated January 13, 2010. The amended affidavit set[] forth ample factual support for
the Magistrate’s determination of probable cause to support the issuance of the
complaint and the warrant for [petitoner’s] arrest. Thus, this claim of a jurisdictional
defect is without merit.” (Id. at PageID.390-91). Judge Johnson rejected petitioner’s
third claim of a jurisdictional defect based on an assertion that his arrest had been
predicated on a null and void affidavit. Judge Johnson found that although petitioner
claimed gross prosecutorial and police misconduct, no such misconduct had been
shown. (Id. at PageID.391).
The Court finds that petitioner has not shown that the state-court decision
rejecting all the arguments found in Ground I was “contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the
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Supreme Court of the United States” or an “unreasonable determination of the facts
in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d).
II.

Evidence
In Ground II, petitioner argues that the prosecution and the police fabricated

and misrepresented evidence in order to obtain a conviction. He contends that his
blood alcohol content was so high that it was physically impossible for him to have
committed the crimes. (Petition at 4, ECF No. 1, PageID.5; Petitioner’s Brief at 12-16,
ECF No. 3, PageID.50-54).
Judge Johnson rejected petitioner’s claim for lack of merit.

Petitioner’s

argument was based on the false premises that his blood alcohol content would have
necessarily rendered him comatose and that the police and prosecutor intentionally
misled a magistrate in order to obtain the arrest warrant. “The record before the Court
established that [petitioner] was a frequent and heavy drinker. Also there was no
evidence which establishe[d] that [petitioner] did not consume additional alcohol
between the time of the shooting and the time when he was arrested.” (ECF No. 10-10,
PageID.391). Further, petitioner presented “nothing to factually support his argument
that ‘the prosecution and police fabricated and misrepresented evidence in order to
obtain a conviction.’ ” (Id.). Petitioner knowingly and voluntarily entered his no
contest pleas. (Id.). He waived his constitutional right to test the strength of the
prosecution’s evidence against him at trial. See Brady v. United States, 397 U.S. 742,
757 (1970); see also Post v. Bradshaw, 621 F.3d 406, 426-27 (6th Cir. 2010); Marin v.
Rapelje, No. 2:14-cv-11436, 2016 WL 4362865, at *4 (E.D. Mi ch. Aug. 16, 2014).
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The Court finds that Ground II does not provide a basis for federal habeas
corpus relief. 28 U.S.C. § 2254(d).
III.

No Contest Pleas
In Ground III, petitioner claims that there was an inadequate factual basis for

his no contest pleas. (Petition at 5, ECF No. 1, PageID.6; Petitioner’s Brief at 17-21,
ECF No. 3, PageID.55-59).
Judge Johnson rejected this claim for lack of merit. Petitioner was not deprived
of his right to a fair trial. There was “no trial” because petitioner knowingly and
voluntarily entered no contest pleas pursuant to a plea agreement. (ECF No. 10-10,
PageID.391-92). Petitioner presented no evidence supporting his assertion that his
pleas were “invalid and coerced.” (Id. at PageID.392). To the contrary, petitioner’s
own testimony establish that his pleas were voluntary and not coerced. The benefits
that petitioner received through his plea agreement were real, not illusory. (Id. at
PageID.392). Petitioner “received the benefit of his plea agreement, in that numerous
additional charges against him were dismissed,” including a charge of open murder
which carried a maximum sentence of life imprisonment. (Id.).
Petitioner’s argument that his plea should be set aside because the trial court
judge failed to elicit an adequate factual basis for his guilty plea falters on the first
step of analysis under AEDPA –– it is not founded on clearly established holdings of
the Supreme Court. The Supreme Court has never held that the federal Constitution
requires that the state court establish a factual basis for a no contest or guilty plea
before accepting it. There is no federal constitutional requirement that a court
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establish an adequate factual basis for a guilty plea. See North Carolina v. Alford, 400
U.S. 25, 37-38 (1970); Post v. Bradshaw, 621 F.3d 406, 427 (6th Cir. 2010); United
States v. Tunning, 69 F.3d 107, 111 (6th Cir. 1995). “An individual accused of crime
may voluntarily, knowingly, and understandingly consent to the imposition of a prison
sentence even if he is unwilling or unable to admit his participation in the acts
constituting the crime.” North Carolina v. Alford, 400 U.S. at 37. In Haring v. Prosise,
462 U.S. 306, 318 (1983), the Supreme Court noted that a defendant’s decision to plead
guilty or no contest may have any number of motivations that are not related to guilt
or evidence thereof, including “a prospect of a favorable plea agreement, or the
expectation or hope of a lesser sentence” than might be imposed after an unsuccessful
trial. As long as the plea is voluntary and intelligent, the federal Constitution is
satisfied. See Alford, 400 U.S. at 37-38. The requirement that a factual basis be
established for a plea is a creature of state law, not the federal Constitution. Roddy
v. Black, 516 F.2d 1380, 1385 (6th Cir. 1975).
Judge Johnson had the opportunity to hear petitioner’s testimony and view
petitioner’s demeanor throughout the plea hearing. He found that petitioner’s no
contest pleas were knowing and voluntary. These findings are entitled to deference
under AEDPA. The test for determining the validity of a plea 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. at 31). The state court findings that petitioner’s no contest

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pleas were knowing and voluntary easily pass review under deferential AEDPA
standards. 28 U.S.C. § 2254(d).
IV.

Sixth Amendment
A.

Trial Counsel

In Ground IV, petitioner claims ineffective assistance of trial counsel. He claims
that his attorney “sabotaged” the proceedings and “abandoned” petitioner by not
raising the issues that petitioner later raised in his motion for relief from judgment.
(Petition at 6, ECF No. 1, PageID.7; Petitioner’s Brief at 22-28, ECF No. 3, PageID.6066).
In Strickland v. Washington, 466 U.S. 668 (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.
Petitioner 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)). On the prejudice prong, petitioner “must show there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland, 466 U.S. at 694.
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Because the trial court decided petitioner’s claims of ineffective assistance of
counsel on their merits, its decision must be afforded deference under AEDPA. See
Burt v. Titlow, 134 S. Ct. 10, 15-16 (2013); Harrington v. Richter, 562 U.S. at 98-102.
To receive habeas relief, petitioner must demonstrate that the state court’s decision
was contrary to, or represented an unreasonable application of, Strickland v.
Washington. See Bell v. Cone, 535 U.S. 685, 698-99 (2002).
Hence, it is not enough to convince the federal habeas court that, in its
independent judgment, the state-court decision applied Strickland incorrectly. Rather,
petitioner must show that the state court “applied Strickland to the facts of his case
in an objectively unreasonable manner.”4 Bell, 535 U.S. at 699; see Campbell v.
Bradshaw, 674 F.3d 578, 586-87 (6th Cir. 2012). This creates a “high burden” for
petitioner. See Carter v. Mitchell, 443 F.3d 517, 525 (6th Cir. 2006); see also Hodges
v. Colson, 727 F.3d 517, 534 (6th Cir. 2013). “[B]ecause the Strickland standard is a
general standard, a state court has even more latitude to reasonably determine that
a defendant has not satisfied that standard.” Knowles v. Mirzayance, 556 U.S. 111, 123
(2009).
Supreme Court decisions describe this as “the doubly deferential judicial review
that applies to a Strickland claim evaluated under the § 2254(d)(1) standard.”

4

Petitioner has not shown that the state court decision finding that the
Strickland standard, rather than the Cronic standard, applied was contrary to, or
involved an unreasonable application of, clearly established federal law, as determined
by the Supreme Court of the United States. See Woods v. Donald, 135 S. Ct. 1372,
1375-77 (2015).
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Knowles, 556 U.S. at 123; see Woods v. Donald, 135 S. Ct. at 1375-77; Yarborough v.
Gentry, 540 U.S. 1, 5-6 (2003) (per curiam). The question before the habeas court is
“whether there is any reasonable argument that counsel satisfied Strickland’s
deferential standard.” Premo v. Moore, 562 U.S. 115, 123 (2011); see McGowan v. Burt,
788 F.3d 510, 515 (6th Cir. 2015). Petitioner must show that the state court’s ruling
on the claim being presented in federal court was “so lacking in justification that there
was an error well understood and comprehended in existing law beyond any possibility
for fairminded disagreement.”

Woods v. Donald, 135 S. Ct. at 1376 (quoting

Harrington v. Richter, 562 U.S. at 103); see also Woods v. Etherton, 136 S. Ct. 1149,
1151 (2016) (per curiam).
Judge Johnson rejected petitioner’s claims of ineffective assistance of counsel for
lack of merit. (ECF No. 10-10, PageID.393). The Court finds that petitioner has not
shown that the state-court decision rejecting his claims of ineffective assistance of trial
counsel were “contrary to, or an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United States” under the
“doubly deferential” standard of review. 28 U.S.C. § 2254(d)(1).
B.

Appellate Counsel

In Ground V, petitioner argues that his appellate counsel sabotaged his appeal
and abandoned him by not raising the issues that petitioner later raised in his motion
for relief from judgment. (Petitioner’s Brief at 29-32, ECF No. 3, PageID.67-70).
Claims of ineffective assistance of appellate counsel are measured under the
Strickland standards. See Evitts v. Lucey, 469 U.S. 387 (1985). The trial court was
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correct that petitioner did not have a constitutional right to have every nonfrivolous
issue raised on appeal. (ECF No. 10-10, PageID.393). Appellate counsel acts within the
fair range of professional assistance when counsel chooses not to assert weak or
unsupported issues on appeal. See Smith v. Murray, 477 U.S. 527, 536 (1986). Tactical
choices regarding issues on appeal are properly left to the sound judgment of counsel.
See United States v. Perry, 908 F.2d 56, 59 (6th Cir. 1990). “ ‘Winnowing out weaker
arguments on appeal and focusing on’ those more likely to prevail, far from being
evidence of incompetence, is the hallmark of appellate advocacy.” Smith v. Murray,
477 U.S. at 536 (quoting Jones v. Barnes, 463 U.S. at 751-52). Where appellate counsel
is charged with ineffectiveness for failure to raise a particular claim, “it is difficult to
demonstrate that counsel was incompetent.” Smith v. Robbins, 528 U.S. 259, 288
(2000). To overcome the presumption of competence of appellate counsel in these
circumstances, petitioner must show that the omitted issues were “clearly stronger”
than those counsel chose to assert. Id.; see Bourne v. Curtin, 666 F.3d 411, 414 (6th
Cir. 2012). Appellate counsel has no duty to raise meritless issues. Evitts, 469 U.S.
at 394; Jones v. Barnes, 463 U.S. 745, 753-54 (1983); Lewis v. Alexander, 11 F.3d 1349,
1354 (6th Cir. 1993).
As for prejudice, the court focuses on whether “counsel’s deficient performance
renders the result of the trial unreliable or the proceeding fundamentally unfair,”
Lockhart v. Fretwell, 506 U.S. 364, 372 (1993), and “[t]he defendant must show there
is a reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different.” Strickland v. Washington, 466 U.S. at 694.
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Consequently, counsel’s failure to raise an issue on appeal is ineffective assistance
“only if there is a reasonable probability that inclusion of the issue would have changed
the result of the appeal.” Howard v. Bouchard, 405 F.3d 459, 485 (6th Cir. 2005).
The arguments that petitioner raised in his motion for relief from judgment were
“utterly without merit.” (ECF No. 10-10, PageID.393). Petitioner suffered no prejudice
stemming from his appellate counsel’s decision not to raise those arguments on direct
appeal. The Court finds that the trial court’s decision rejecting all petitioner’s claims
of ineffective assistance of counsel easily withstands scrutiny under the “doubly
deferential” standard of review. See 28 U.S.C. § 2254(d)(1).
V.

Sentencing
Ground VI is petitioner’s claim that the trial court erred in making an upward

departure from Michigan’s sentencing guidelines. The three cases that petitioner cites
in support of his argument are decisions of Michigan’s highest court, not decisions of
the Supreme Court of the United States. (Petitioner’s Brief at 33-37, ECF No. 3,
PageID.71-75).
State courts are the final arbiters of state law. Bradshaw v. Ritchey, 546 U.S.
74, 76 (2005). Here, the Michigan Court of Appeals rejected petitioner’s challenge to
his sentence for lack of merit. (ECF No. 10-6, PageID.224). “Federal habeas corpus
relief does not lie for errors of state law.” Estelle v. McGuire, 502 U.S. at 67; see 28
U.S.C. § 2254(a); see also Kisser v. Palmer, 826 F.3d 898, 902 (6th Cir. 2016). Ground
VI does not provide a basis for federal habeas corpus relief.

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VII.

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. Each issue must be considered under the
standards set forth by the Supreme Court in Slack v. McDonnell, 529 U.S. 473 (2000).
Murphy, 263 F.3d at 467. Consequently, the Court has examined each of petitioner’s
claims under the Slack standard.
Petitioner cannot demonstrate that reasonable jurists would find that the denial
of habeas corpus relief on each of the grounds raised in his petition is debatable or
wrong. See Slack, 529 U.S. at 484. Accordingly, the Court will enter an order denying
petitioner a certificate of appealability.
Conclusion
For the foregoing reasons, the habeas corpus petition will be denied.

Dated: February 8, 2017

/s/ Paul L. Maloney
Paul L. Maloney
United States District Judge

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