Lumbard #878389 v. Harry

Filing 4

OPINION; Judgment and Order to issue; signed by Judge Janet T. Neff (Judge Janet T. Neff, clb)

UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
NATHAN K. LUMBARD,
Petitioner,
v.

Case No. 1:16-cv-1411
Honorable Janet T. Neff

SHIRLEE HARRY,
Respondent.
_______________________________/
OPINION
This is a habeas corpus action brought by a state prisoner pursuant to 28 U.S.C.
§ 2254. Promptly after the filing of a petition for habeas corpus, the Court must undertake a
preliminary review of the petition to determine whether “it plainly appears from the face of the
petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court.”
Rule 4, RULES GOVERNING § 2254 CASES; see 28 U.S.C. § 2243. If so, the petition must be
summarily dismissed. Rule 4; see Allen v. Perini, 424 F.2d 134, 141 (6th Cir. 1970) (district court
has the duty to “screen out” petitions that lack merit on their face). A dismissal under Rule 4
includes those petitions which raise legally frivolous claims, as well as those containing factual
allegations that are palpably incredible or false. Carson v. Burke, 178 F.3d 434, 436-37 (6th Cir.
1999). After undertaking the review required by Rule 4, the Court will dismiss the petition because
Petitioner’s claim for relief is procedurally defaulted.

Factual Allegations
Petitioner Nathan K. Lumbard is presently incarcerated with the Michigan
Department of Corrections at the Earnest C. Brooks Correctional Facility in Muskegon Heights,
Michigan. Petitioner is serving a sentence of 5 years, 11 months to 15 years’ imprisonment
following his guilty plea in the St. Joseph County Circuit Court to a charge of breaking and entering
a building with intent to commit a felony, MICH. COMP. LAWS § 750.110. Petitioner is serving two
additional sentences of 5 years, 11 months to 15 years imposed by the St Joseph County Circuit
Court following his plea of nolo contendere to another charge of breaking and entering a building
with intent to commit a felony and a charge of second-degree arson, MICH. COMP. LAWS § 750.73.
Petitioner was sentenced as an habitual offender, MICH. COMP. LAWS § 769.10. All of the sentences
are being served concurrently with each other.
As part of the plea bargain, Petitioner secured the trial court’s statement that his
Michigan sentences would not only be concurrent with each other, but that they would be
concurrrent with sentences previously imposed. (Status Hrg. Tr., ECF No. 3-1, PageID.38-39.)
Whether or not that statement carried through to Petitioner’s plea and sentencing is impossible to
determine from Petitioner’s filings in this Court because the transcripts of those proceedings have
not been provided.
The prior sentences were imposed by the United States and the State of Indiana.
Petitioner came to St. Joseph County from the State of Indiana. In that state, on June 5, 2013, the
LaGrange County Circuit Court imposed concurrent sentences of 6 years’ imprisonment on two
counts of criminal recklessness. (Mot. For Expediting Proceedings, ECF No. 3, PageID.28-29.)
Although Petitioner’s Indiana sentences were concurrent with each other, the LaGrange County

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Circuit Court ordered that they be served consecutive to Petitioner’s federal sentence and to any
possible Michigan sentence(s). (Id.)
Before Petitioner was prosecuted in Indiana, he had entered a plea of guilty in this
Court to a charge of making a false statement in a United States passport application, 18 U.S.C.
§ 1542, and to a charge of aggravated identity theft, 18 U.S.C. § 1028A(a)(1) and (c)(4). See United
States v. Lumbard, 1:10-cr-388 (W.D. Mich. Feb 10, 2012) (Amended Order and Judgment, ECF
No. 42.) The Court imposed consecutive 2-year sentences on the two counts for a total term of
imprisonment of 4 years. Id. (Sentencing Tr., ECF No. 44.) Plaintiff was sent to F.C.I. Ashland in
Kentucky to serve his sentence. See Lumbard v. St. Joseph County Sheriff’s Department, No. 1:15cv-1013 (W.D. Mich.) (Compl., ECF No. 1, PageID.5.)
After Petitioner was sentenced in February of 2014, he was returned to F.C.I.
Ashland. He remained there for several months, but on July 8, 2014, he was transferred to the
custody of the Michigan Department of Corrections to serve his Michigan sentences.
Apparently, when Petitioner was transferred to the Michigan Department of
Corrections, he realized that the inconsistency between what the Indiana court said about whether
his sentences were concurrent and consecutive and what the Michigan court said about whether his
sentences were concurrent or consecutive might operate to his detriment. Petitioner describes his
understanding of the Michigan plea deal in his memorandum supporting the petition: “It was
[Petitioner’s] understanding that while serving his sentences in either federal or Indiana prisons he
would also be serving his Michigan sentence.” (Mem., ECF No. 2, PageID.24.) By virtue of
Petitioner’s Michigan plea agreement, Michigan would accept the time he served in the federal or
Indiana prison, but it was not clear whether the federal bureau of prisons would count the time he

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served in a Michigan correctional facility and it was expressly stated that the Indiana Department
of Corrections would not count the time he served in a Michigan correctional facility. Petitioner
states the problem as follows: “By Michigan making [Petitioner] serve his sentence in Michigan first
he must serve additional time in Indiana because Indiana has no agreement to run their sentence
concurrent with Michigan.” (Id., PageID.24-25.)
Contending that, under these circumstances, the state had failed to fulfill its promises
made in plea bargaining, Petitioner attempted to withdraw his plea. Petitioner’s appointed appellate
counsel filed the motion to withdraw the plea, but counsel withdrew from representing Petitioner
at the hearing because counsel thought it inadvisable to put Petitioner into his original pretrial
position. (Mem., ECF No. 2, PageID.18.) The trial court appointed new appellate counsel. (Id.)
That counsel withdrew at the second scheduled hearing on the motion to withdraw guilty plea for
the same reason. (Id.) Petitioner sought appointment of new counsel, but the trial court denied his
motion and the trial court never ruled on the motion to withdraw Petitioner’s plea. (Id.)
Petitioner proceeded pro se on appeal. More than eighteen months after his
sentencing, he filed a delayed application for leave to appeal raising the “unfulfilled promise” issue.
(Id., PageID.18-19.) At that time, because the trial court never ruled on the motion to withdraw plea,
the only issue Petitioner could timely appeal was the July 14, 2015, trial court order denying
Petitioner the appointment of new appellate counsel.1

1

Michigan Court Rule 7.205 provides that an application for leave to appeal must be filed within 21 days after
entry of the judgment, order or decision appealed. With limited exceptions not applicable here, the Michigan Court of
Appeals may not grant leave on delayed applications filed more than six months after the decision appealed. MICH. CT.
R. 7.205(G).

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The Michigan Court of Appeals dismissed the appeal:
The Court orders the delayed application for leave to appeal is DISMISSED for lack
of jurisdiction because the issue raised in the delayed application does not arise from
the order appealed. People v. Anderson, 531 N.W.2d 780 ([Mich. Ct. App.] 1995).
People v. Lumbard, No. 329178 (Mich. Ct. App. Oct. 19, 2015) (parallel citation omitted).
Petitioner applied for leave to appeal in the Michigan Supreme Court. That court denied leave on
May 2, 2016. People v. Lumbard, 877 N.W. 2d (Mich. 2016). Petitioner did not petition for
certiorari in the United States Supreme Court.
After Petitioner filed his application for leave to appeal in the Michigan Supreme
Court, but before that court denied his application, Petitioner filed a motion for relief from judgment
in the trial court under MICH. CT. R. 6.500 et. seq., raising the same issue he raised in the Michigan
appellate courts. By order entered January 13, 2016, the trial court denied relief for two reasons.
First, the trial court denied relief because the issue was still before the Michigan Supreme Court for
review. People v. Lumbard, Nos. 13-18683-FH, 13-18686 (St. Joseph Cty. Cir. Ct., Jan. 13, 2016)
(App. B, ECF No. 3-2, PageID.44-45.) Second, the trial court denied relief because “[t]he Court
made it clear that [Petitioner] would not get credit for time served on the Indiana charges.”2 (Id.)
Petitioner did not apply for leave to appeal the trial court’s denial of his motion for relief from
judgment to either Michigan appellate court. Instead, on December 9, 2016, Petitioner filed his
petition in this Court raising the same single issue he raised in the state courts:

2

It is not clear whether the trial court’s statement that Petitioner would not get credit for time served on the
Indiana charges is the equivalent of stating that time served in Indiana after sentencing would not count toward his
Michigan sentence. In the transcript of the December 23, 2013, status hearing (App. A., ECF No. 3-1, PageID.34-42.),
the trial court distinguishes between sentences from different jurisdictions running concurrently, on the one hand, and
credit for time already served, on the other hand. Petitioner never served any time on his sentences in Indiana after his
conviction and sentences in Michigan. Accordingly, it is impossible to determine if the trial court was referring to
anything other than jail-credit for time already served at the time of Petitioner’s Michigan plea when he makes his
statement regarding time served in Indiana.

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Appellant’s plea which was induced by an unfulfilled promise to run the sentence
concurrent with [his] federal and Indiana sentences renders the plea involuntary in
violation of Appellant’s due process right. US Const Amends V & XIV.
(Pet., ECF No. 1, PageID.7.)
Discussion
I.

Exhaustion

Before the court may grant habeas relief to a state prisoner, the prisoner must exhaust
remedies available in the state courts. 28 U.S.C. § 2254(b)(1); O’Sullivan v. Boerckel, 526 U.S. 838,
842 (1999). Exhaustion requires a petitioner to “fairly present” federal claims so that state courts
have a “fair opportunity” to apply controlling legal principles to the facts bearing upon a petitioner’s
constitutional claim. See O’Sullivan, 526 U.S. at 842; Picard v. Connor, 404 U.S. 270, 275-77
(1971) (cited by Duncan v. Henry, 513 U.S. 364, 365 (1995) and Anderson v. Harless, 459 U.S. 4,
6 (1982)).
Fair presentation has a substantive component and a procedural component. With
regard to substance, fair presentation is achieved by presenting the asserted claims in a constitutional
context through citation to the Constitution, federal decisions using constitutional analysis, or state
decisions which employ constitutional analysis in a similar fact pattern. Picard, 404 U.S. at 277-78;
Levine v. Torvik, 986 F. 2d 1506, 1516 (6th Cir. 1993). It appears that Petitioner has satisfied the
substantive component of fair presentation.
With regard to procedure, “[t]he fair presentation requirement is not satisfied when
a claim is presented in a state court in a procedurally inappropriate manner that renders
consideration of its merits unlikely.” Black v. Ashley, No. 95-6184, 1996 WL 266421, at *1-2 (6th
Cir. May 17, 1996) (citing Castille v. Peoples, 489 U.S. 346, 351 (1998)); see also Long v.

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Sparkman, No. 95-5827, 1996 WL 196263, at *2 (6th Cir. April 22, 1996); Fuller v. McAninch, No.
95-4312, 1996 WL 469156, at *2 (6th Cir. August 16, 1996). On his direct appeals, Petitioner has
failed to satisfy the procedural component of fair presentation. Petitioner presented the issue
regarding unfulfilled plea bargain promises to the Michigan Court of Appeals by seeking leave to
appeal an order entered more than eighteen months after his plea and sentence, an order that was
entirely unrelated to his plea or sentence. Consideration of the merits of Petitioner’s claim was so
procedurally inappropriate that consideration of its merits was highly unlikely. The only decision
the court of appeals made was that the procedural posture deprived the court of jurisdiction to hear
Petitioner’s challenge. That was the only decision the Michigan Supreme Court declined to review.
Petitioner has since presented his “unfulfilled promise” issue to the state court by way
of his motion for relief from judgment. That presentation was also procedurally flawed in that it
preceded the Michigan Supreme Court’s decision on Petitioner’s “direct” appeal; however, the trial
court considered the claim on its merits. Petitioner failed to seek leave to appeal the merits denial
of that motion in either the Michigan Court of Appeals or the Michigan Supreme Court. The time
for seeking leave to appeal that decision; however, has long passed. See note 1, infra.
In short, Petitioner has failed to fairly present his federal constitutional challenge to
the state courts. An applicant has not exhausted available state remedies if he has the right under
state law to raise, by any available procedure, the question presented. 28 U.S.C. § 2254(c).
Exhaustion is only a problem; however, if there is a state court remedy available for petitioner to
pursue, thus providing the state courts with an opportunity to cure any constitutional infirmities in
the state court conviction. Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994).

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II.

Procedural default

If no further state remedy is available to the petitioner, exhaustion does not present
a problem, but the claim is procedurally defaulted and the federal court must determine whether
cause and prejudice exists to excuse the failure to present the claim in state court. Id.
Under Michigan law effective August 1, 1995, a defendant may file one motion for
relief from judgment under Michigan Court Rule 6.500 et. seq. See MICH. CT. R. 6.502(G)(1).
Petitioner already has filed his one allotted motion. Therefore, Plaintiff has no available remedy.
At this juncture, the Court must consider whether there is cause and prejudice to excuse Petitioner’s
failure to present the claims in state court. See Gray v. Netherland, 518 U.S. 152, 161-62 (1996);
Rust, 17 F.3d at 160. To show cause sufficient to excuse a failure to raise claims on direct appeal,
Petitioner must point to “some objective factor external to the defense” that prevented him from
raising the issue. Murray v. Carrier, 477 U.S. 478, 488 (1986); see McCleskey v. Zant, 499 U.S.
467, 497 (1991). A petitioner who fails to demonstrate cause and prejudice cannot have a
cognizable claim. Gray, 518 U.S. at 162. Further, where a petitioner fails to show cause, the court
need not consider whether he has established prejudice. See Engle v. Isaac, 456 U.S. 107, 134 n.43
(1982); Leroy v. Marshall, 757 F.2d 94, 100 (6th Cir. 1985).
A.

Cause

Petitioner offers no “cause” for his failure to appeal the trial court’s denial of his
motion for relief from judgment under MICH. CT. R. 6.500 et seq. Therefore, prejudice need not be
considered. Nonetheless, it is apparent that Petitioner cannot show prejudice here.

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B.

Prejudice

Prejudice requires the Petitioner to show that the alleged error “worked to his actual
and substantial disadvantage.” Perkins v. LeCureux, 58 F.3d 214, 219 (6th Cir. 1995) (quoting
United States v. Frady, 456 U.S. 152, 170 (1982)). “‘[T]he prejudice component of the cause and
prejudice test is not satisfied if there is strong evidence of Petitioner’s guilt and a lack of evidence
to support his claim.’” Perkins, 58 F.3d at 219 (quoting Rust, 17 F.3d at 161-62).
A plea not voluntarily and intelligently made has been obtained in violation of due
process and is void. See McCarthy v. United States, 394 U.S. 459, 466 (1969). 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 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).
The Sixth Circuit has recognized that a state prosecutor’s breach of a plea bargain
is a violation of the federal constitution cognizable on habeas review. Dixon v. Alexander, 741 F.2d
121, 123 (6th Cir. 1984). The government may not openly breach a plea agreement. See Mabry v.
Johnson, 467 U.S. 504, 509 (1984) (“[W]hen the prosecution breaches its promise with respect to
an executed plea agreement, the defendant pleads guilty on a false premise, and hence his conviction
cannot stand[.]”). As the Supreme Court stated in Mabry, “‘when a plea rests in any significant
degree on a promise or agreement of the prosecutor, so that it can be said to be part of the

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inducement or consideration, such promise must be fulfilled.’” Id. at 509 (quoting Santobello v.
New York, 404 U.S. 257, 262 (1971)).
Plea agreements are contractual in nature. In interpreting and enforcing them, courts
use traditional principles of contract law. See Smith v. Stegall, 385 F.3d 993, 999 (6th Cir. 2004)
(citing United States v. Robison, 924 F.2d 612, 613 (6th Cir. 1991)).
One fundamental principle of contract interpretation is that “primary importance
should be placed upon the words of the contract. Unless expressed in some way in
the writing, the actual intent of the parties is ineffective, except when it can be made
the basis for reformation of the writing.” 11 Williston on Contracts § 31:4 (4th ed.
2000). Consistent with the principle articulated by Williston, this court has held that
the state will be held to the literal terms of the plea agreement.
Id. (citing United States v. Mandell, 905 F.2d 970, 973 (6th Cir. 1990)). The content of a plea
agreement and what the parties agreed to is a question of fact. United States v. Lukse, 286 F.3d 906,
909 (6th Cir. 2002).
Petitioner contends that his pleas were involuntary and unknowing or, alternatively,
that the State of Michigan breached the plea agreement, by failing to make all of his sentences from
Michigan, Indiana, and the United States, run concurrently. The precise nature of the State of
Michigan’s constitutionally violative conduct is difficult to grasp. Petitioner describes it as follows:
Petitioner believed that by pleading guilty his sentences would run concurrent with
both federal and Indiana sentences. It was his understanding that while serving his
sentence in either federal or Indiana prisons he would also be serving his Michigan
sentence. By Michigan making him serve his sentence in Michigan first he must
serve additional time in Indiana because Indiana has no agreement to run their
sentence concurrent with Michigan. Petitioner will serve an additional 6-years
because when he is released from Michigan prison Indiana will require him to serve
a sentence in their prison.
(Mem., ECF No. 2, PageID.24-25.)

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To the extent Petitioner complains that the State of Michigan breached a promise to
permit Petitioner to serve his sentences in Indiana or federal prison first, he offers no facts to support
the existence of such a promise. In the absence of such an agreement, “a defendant who has violated
both federal and state criminal statutes has no constitutional right to determine the order of his
sentences.” Tinsley v. United States, No. 95-5564, 1997 WL 63156 *4 (6th Cir. Feb. 12, 1997)
(citations omitted).
Moreover, the State of Michigan does not have the sovereign authority, without the
cooperation of the federal government or the State of Indiana, to determine the order in which
Petitioner will serve his sentences. In Ponzi v. Fessenden, 258 U.S. 254, 260-262 (1922), the
Supreme Court recognized the doctrine of primary custody, to provide an orderly method of
prosecuting an individual who has violated the law of more than one sovereign. The primary
custody doctrine provides that the sovereign that first arrests an individual has primary control over
him; its claim over him has priority over all other sovereigns that subsequently arrest him; it is
entitled to have him serve a sentence that it imposes, before he serves any sentence imposed by
another sovereign; and it retains this priority until it has relinquished its jurisdiction to some other
sovereign. Id., see also United States v. Collier, 31 F. App’x 161, 162 (6th Cir. 2002). The fact that
the federal government released Petitioner to be prosecuted in Indiana, and then Michigan, did not
relinquish the federal government’s primary custody. See e.g. Ruff v. Butler, No. 6:15-6-DLB, 2016
WL 1452375 *7 (E.D. Ky. Apr. 13, 2016). When those prosecutions were complete, Petitioner
returned to federal prison because the federal government had primary custody.
Apparently, the federal government relinquished its primary custody to the State of
Michigan by mutual agreement. Petitioner does not identify any plea promise that precludes such

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an agreement. Indeed, so long as the State of Michigan counted the federal time Petitioner served
between February and July of 2014 toward his Michigan sentences, the State of Michigan fulfilled
its end of the bargain with respect to “concurrent sentences.” That is all that Michigan can do. It
can accept the time Petitioner serves in federal prison or an Indiana prison towards the Michigan
sentence. The State of Michigan cannot; however, compel the State of Indiana or the United States
to accept the time Petitioner serves in Michigan towards the sentences imposed by those sovereigns.
See United States v. Wheeler, 435 U.S. 313, 320 (1978) (“State and Federal Governments ‘[derive]
power from different sources’ . . . [e]ach has the power, inherent in any sovereign, independently
to determine what shall be an offense against its authority and to punish such offenses, and in doing
so each ‘is exercising its own sovereignty, not that of the other.’”) (citations omitted). To argue that
the State of Michigan, by way of its plea agreement with Petitioner, agreed to circumvent the
authority of the federal government, or the government of another sovereign state, would be contrary
to clearly established law. Ford v. Turner, No. 5:13CV00571, 2015 WL 413889 *6 (N.D. Ohio, Jan.
30, 2015).
Critically, based on Petitioner’s description of the problem quoted above, it is
apparent that Petitioner had a sufficient understanding of this issue at the time of his plea and
sentencing. Under these circumstances, even if Petitioner could establish cause, he cannot show
prejudice, because his own presentation of the issues indicates that the state fulfilled its obligations
under the plea agreement and the plea agreement was voluntarily and knowingly made.
Accordingly, I conclude that Petitioner’s claim is procedurally defaulted.3

3

Petitioner also has not demonstrated that manifest injustice would result if the Court does not consider his claim
because he has not made a colorable claim of innocence; he has not shown that any constitutional error “probably”
resulted in the conviction of one who was actually innocent. Schlup v. Delo, 513 U.S. 298, 322 (1995) (citing Murray,
477 U.S. at 495). Petitioner makes no claim of innocence here.

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Conclusion
In light of the foregoing, the Court will summarily dismiss Petitioner’s application
pursuant to Rule 4 because the claim Petitioner seeks to raise is procedurally defaulted.
Certificate of Appealability
Under 28 U.S.C. § 2253(c)(2), the Court must determine whether a certificate of
appealability should be granted. A certificate should issue if Petitioner has demonstrated a
“substantial showing of a denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This Court’s
dismissal of Petitioner’s action under Rule 4 of the Rules Governing § 2254 Cases is a determination
that the habeas action, on its face, lacks sufficient merit to warrant service. It would be highly
unlikely for this Court to grant a certificate, thus indicating to the Sixth Circuit Court of Appeals that
an issue merits review, when the Court has already determined that the action is so lacking in merit
that service is not warranted. See Love v. Butler, 952 F.2d 10 (1st Cir. 1991) (it is “somewhat
anomalous” for the court to summarily dismiss under Rule 4 and grant a certificate); Hendricks v.
Vasquez, 908 F.2d 490 (9th Cir. 1990) (requiring reversal where court summarily dismissed under
Rule 4 but granted certificate); Dory v. Comm’r of Corr. of New York, 865 F.2d 44, 46 (2d Cir.
1989) (it was “intrinsically contradictory” to grant a certificate when habeas action does not warrant
service under Rule 4); Williams v. Kullman, 722 F.2d 1048, 1050 n.1 (2d Cir. 1983) (issuing
certificate would be inconsistent with a summary dismissal).
The Sixth Circuit Court of Appeals has disapproved issuance of blanket denials of
a certificate of appealability. Murphy v. Ohio, 263 F.3d 466 (6th Cir. 2001). Rather, the district
court must “engage in a reasoned assessment of each claim” to determine whether a certificate is
warranted. Id. at 467. Each issue must be considered under the standards set forth by the Supreme

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

Dated:

January 10, 2017

/s/ Janet T. Neff
Janet T. Neff
United States District Judge