Davis #954279 v. Winn

Filing 17

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

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
______
SAMUEL CHRISTOPHER-NEA DAVIS,
Petitioner,
v.

Case No. 1:17-cv-621
Honorable Robert J. Jonker

THOMAS WINN,
Respondent.

____________________________/
OPINION
This is a habeas corpus action brought by a state prisoner under 28 U.S.C. § 2254.
Petitioner Christopher Samuel Nea-Davis is incarcerated with the Michigan Department of
Corrections at the Lakeland Correctional Facility (LCF) in Coldwater, Michigan. On January 16,
2015, Petitioner entered a plea of nolo contendere1 in the St. Joseph County Circuit Court to two
counts of armed robbery, Mich. Comp. Laws § 750.529. On March 26, 2015, the court sentenced
Petitioner to concurrent terms of imprisonment of 16 years to 60 years.
Petitioner, with the assistance of counsel, filed an application for leave to appeal
his sentences to the Michigan Court of Appeals raising just one issue:

1

In Michigan, a plea of nolo contendere has essentially the same effect on the criminal prosecution as does a plea of
guilty:
Since a plea of nolo contendere indicates that a defendant does not wish to contest his factual guilt,
any claims or defenses which relate to the issue of factual guilt are waived by such a plea. Claims
or defenses that challenge a state’s capacity or ability to prove defendant’s factual guilt become
irrelevant upon, and are subsumed by, a plea of nolo contendere. Hence, we hold that a plea of nolo
contendere has the same effect upon a defendant’s ability to raise an issue on appeal as does a plea
of guilty. Only those defenses which challenge the very authority of the state to prosecute a
defendant may be raised on appeal after entry of a plea of nolo contendere.

People v. New, 398 N.W.2d 358, 363 (Mich. 1986) (footnotes omitted). Thus, a plea of nolo contendere waives a
claim that the evidence of guilt is insufficient in the same way that a plea of guilty does. See Post v. Bradshaw, 621
F.3d 406, 426-27 (6th Cir. 2010); United States v. Freed, 688 F.2d 24, 25-26 (6th Cir. 1982).

I.

IS MR. DAVIS ENTITLED TO A RESENTENCING BASED UPON THE
THRESHOLD SHOWING THAT: HIS OV LEVEL WAS
CALCULATED USING FACTS BEYOND THOSE FOUND BY THE
JURY OR ADMITTED BY HIM; THE REDUCTION IN HIS OV SCORE
TO ACCOUNT FOR THE ERROR WOULD CHANGE THE
APPLICABLE GUIDELINES MINIMUM SENTENCE RANGE; AND
HE WAS NOT SENTENCED TO AN UPWARD DEPARTURE
SENTENCE.

(Br. in Supp. of Appl. for Leave to Appeal, ECF No. 1-1, PageID.19.) By order entered November
23, 2015, the court of appeals denied Petitioner’s application for lack of merit in the grounds
presented. (Mich. Ct. App. Ord., ECF No. 8-5, PageID.183.)2
Petitioner filed an application for leave to appeal in the Michigan Supreme Court.
(Pet., ECF No. 1, PageID.2.) Petitioner again raised the single issue from his court of appeals brief
and he added several others, paraphrased as follows:
II.

Denial of counsel-ineffective assistance of counsel (plus . . . ineffective
assistance of appeal counsel). Defense counsel did not meet with Petitioner.
Defense counsel was suspended from the practice of law during his
representation of Petitioner. Defense counsel advised Petitioner to plead
guilty.

III.

Investigations of the courts, judge, prosecution, attorney, police reports and
appeal attorneys.

IV.

Prosecutorial misconduct & maliciousness.

V.

Bias & prejudice of courts.

VI.

Rules of Professional Conduct were violated.

VII.

Illegal transcripts. (Petitioner claims the court made things up and picked
and chose what to distribute out in the open and what to cover up).

2

One member of the three-judge Michigan Court of Appeals panel opined that she would remand Petitioner’s case
to the trial court for resentencing, if necessary, under the remand directive set forth in People v. Lockridge, 870
N.W.2d 502 (Mich. 2015).

2

(Appl. for Leave to Appeal, ECF No. 8-6, PageID.236-301.) By order entered June 28, 2016, the
Michigan Supreme Court denied leave to appeal. Petitioner did not file a petition for certiorari in
the United States Supreme Court. (Pet., ECF No. 1, PageID.2.)
On July 7, 2017, Petitioner filed his habeas corpus petition.3 Although he identifies
three, or perhaps four, separate habeas grounds, they together simply reiterate the single ground
for relief that Petitioner raised in the Michigan Court of Appeals. (Pet. ECF No. 1, PageID.6-10.)
On April 13, 2018, Petitioner filed a motion to stay this action and hold it in
abeyance pending his exhaustion of additional issues in the state courts. (Mot., ECF No. 11.)
Petitioner now contends that his plea was involuntary and unknowing because his counsel failed
to inform him of the full ramifications of the plea. He also claims that counsel failed to object at
sentencing when the trial court added an additional armed robbery count that should have been
dismissed under the plea agreement.
Respondent has filed an answer to the petition (ECF No. 7) stating that the grounds
should be denied because they are noncognizable and without merit. Upon review and applying
the standards of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. 104-132, 110
Stat. 1214 (AEDPA), I find that the grounds are meritless. Accordingly, the petition will be denied.
Moreover, Petitioner has failed to demonstrate good cause for his failure to previously raise his
new issues and those issues, too, are without merit. Therefore, Petitioner’s motion to stay will be
denied.

3

Under Sixth Circuit precedent, the application is deemed filed when handed to prison authorities for mailing to the
federal court. Cook v. Stegall, 295 F.3d 517, 521 (6th Cir. 2002). Petitioner placed his petition in the prison mailing
system on July 7, 2017. (Pet., ECF No. 1, PageID.14.)

3

Discussion
I.

Factual allegations

The underlying facts are not critical to the resolution of the issue raised by
Petitioner; however, some background is helpful. St. Joseph County Circuit Court Judge Paul
Stutesman described the facts as follows:
This is the fourth of four cases that I’ve had where pleas have been entered. And
the basic facts contained in the police report are that police received a 9-1-1 dispatch
call on September 22nd 2014, from Hilda Welton and Kenneth Welton who were at
the Saint Joseph County fairgrounds where they operated a trailer where they sold
merchandise at the fair, indicating that they had just been robbed by four people
who had weapons; that they had pistols pointed at them; and they described the
people; and it’s contained in the police report.
Mr. HoweBRobert Howe, Mr. Corderrius Cook, and Mr. John Gregory have all
entered pleas at this point where they established factual [bases] for their
involvement and Mr. Davis’s involvement in the events on that day.
The four had traveled from Ohio. They had arrived earlier in the dayBthe day
before, at least; that they then obtained outfits with FBI logos, dark clothing.
That they approached the trailer; that one of the gentlemen went in first, and then
there’s indications that all four went in.
That there were pistols held to the Weltons and that theirBthey were robbed of over
$20,000 in cash from their safe.
That after leaving the WeltonsBthe Weltons were zip-tied and bound in the trailer
and that they left.
They were able to free themselves and phone the police and sheriff’s deputies or
stateBa sheriff’s deputy, I think received and saw a vehicle with four gentlemen
inside; made a stop on the vehicle, and all four gentlemen were inside.
Inside the vehicle were weapons and cash and various items which would tie the
occupants to the events that occurred at the fairground on September 22nd.
That Mr. Gregory then agreed to cooperate with the police and made statements
implicating both himself, Mr. Cook, Mr. Howe, and Mr. Davis, indicating that it
4

had been planned and that they had arrived from Ohio and that they had gone on
that date with the intent to commit the armed robbery and did so.
(Plea Tr., ECF No. 8-3, PageID.166-167.)4
At the plea hearing, although he entered a plea of nolo contendere, Petitioner
attempted to present mitigating facts to the judge. Petitioner claimed that he had not possessed a
firearm. (Id., PageID.162-163.) At sentencing, the court reviewed Petitioner’s admitted role in
the offense as reported by the presentence investigator:
The defendant admits that he knew and participated in the planning of the crime
but denies actually being present during the robbery. He claims he had second
thoughts and got out of the vehicle prior to arriving at the crime scene and was later
picked up by the codefendants.
(Sentencing Hr’g Tr., ECF No. 8-4, PageID.178.) Although Petitioner’s version might have
reduced his offense variable score under the guidelines, it would still support a guilty verdict as an
aider and abettor. More importantly, Petitioner’s version was not particularly convincing. The
other three perpetrators had already entered pleas of guilty and implicated Petitioner as an active
participant at the crime scene5 and the victims identified four robbers, not three as Petitioner
claims.
At the sentencing hearing, Petitioner was apparently suffering from pleader’s
remorse. He claimed that he did not possess a firearm and that he did not commit the robbery.
4

Because Petitioner entered a plea of nolo contendere, there were no admissions at the plea hearing upon which the
court could base the required finding that the plea was accurate. Mich. Ct. R. 6.302(A) and (D)(1). To support the
determination that a nolo contendere plea is accurate, the court must hold a hearing to establish support for a finding
that the defendant is guilty of the offense to which he is entering a plea. Mich. Ct. R. 6.302(D)(2)(b). In Petitioner’s
case, the court, the prosecutor, and the defense agreed to forego the hearing and permit the court to establish support
for a finding that Petitioner was guilty from the police report. (Plea Hr’g Tr., ECF No. 8-3, PageID.165-168.)
5

John Earl Gregory entered a plea of guilty to one count of armed robbery on November 17, 2014. (J. of Sentence,
ECF No. 8-5, PageID.229.) Robert William Howe entered a plea of guilty to one count of armed robbery on December
3, 2014. (J. of Sentence, ECF No. 8-5, PageID.226.) George Corderrius Cook entered his plea of guilty to one count
of armed robbery on December 3, 2014, as well. (J. of Sentence, ECF No. 8-5, PageID.223.) Petitioner was offered
the same opportunity to enter a plea of guilty to one count of armed robbery on December 3, 2014. (Status Conf. Tr.,
ECF No. 8-2, PageID151-154.) He was told the offer would no longer be available if he did not accept it that day.
(Id.) He declined. (Id., PageID.154.)

5

(Id., PageID.180.) The trial court explained that the time to challenge the factual support for the
charges had passed. (Id.)
Petitioner’s remorse has also apparently colored his recollection of the plea
negotiation and hearing. He now claims that he never agreed to enter pleas with respect to two
counts of armed robbery. The plea transcript indicates otherwise:
THE COURT: Okay. So, if I heard the prosecutor correctly, the offer in the case is
to plead to count one and two, charges of armed robbery, which carry a potential
sentence of up to life or any term of years.
Count three, home invasion, will be dismissed.
Count four, unlawful imprisonment, would be dismissed.
Count five, unlawful imprisonment, would be dismissed.
Count six, larceny of $20,000 or more would be dismissed.
Count seven the felony firearm, which is a two-year mandatory
minimum consecutive to and preceding any other case, would be dismissed.
And the habitual criminal third offense notice would also be
dropped.
In addition, the prosecutor agreed to recommend that your minimum
sentence not exceed 16 years.
Now is that your understanding, Mr. Grubbs?
MR. GRUBBS:Yes, your Honor, it is.
THE COURT: And, Mr. Davis, is that your understanding?
THE DEFENDANT: Yes, your Honor.
(Plea Tr., ECF No. 8-3, PageID.158-159.)
Similarly, Petitioner’s complaint that he was not informed of the ramifications of
his plea is belied by the transcript. Petitioner asked: “With me taking a 16-year plea, does that
mean that I have from zero to 16 years that I could do up to; or does that mean I have to take a
6

solid 16 years . . . ?” (Id., PageID.161.) The court explained that 16 years “would be on the
minimum, not on the maximum.” (Id., PageID.162.) The court explained further that it would
also set a maximum:
THE COURT: But, when I set the minimum, that’s the minimum that is to be
served; and then you would become eligible for release from the Michigan
Department of Corrections through a parole.
THE DEFENDANT: Okay.
THE COURT: If you don’t achieve parole, then whatever I set at the top end, you
have to be let out at. Okay? Do you understand that?
THE DEFENDANT: Yes, your Honor.
(Id.)
The court also identified the rights Petitioner would be giving up by availing
himself of the plea agreement. Petitioner signed the Advice of Rights form indicating he would
be giving up his rights: to be tried by a jury; to be presumed innocent until proved guilty; to have
the prosecutor prove beyond a reasonable doubt that he was guilty; to have the witnesses against
him appear at trial; to question the witnesses against him; to have the court order any witnesses for
the defense to appear at the trial; to remain silent during the trial; to not have that silence used
against him; and, to testify at the trial if he wanted to testify. (Advice of Rights Form, ECF No.
8-5, PageID.218.)
II.

AEDPA standard

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, 69394 (2002). 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,
7

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 omitted).
The AEDPA limits the source of law to cases decided by the United States Supreme
Court. 28 U.S.C. § 2254(d). This Court may consider only the “clearly established” holdings, and
not the dicta, of the Supreme Court. Williams v. Taylor, 529 U.S. 362, 412 (2000); Bailey v.
Mitchell, 271 F.3d 652, 655 (6th Cir. 2001). 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, 565 U.S. 34 (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, 565 U.S. at 38).
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,

8

135 S. Ct. at 1376 (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) (internal quotations omitted).
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).
III.

The use of judge-found facts at sentencing

Petitioner argues that the trial court judge violated his Sixth Amendment right to a
trial by jury and his Fourteenth Amendment right to due process, by using, to enhance his sentence,
facts that had not been admitted by Petitioner or found by a jury beyond a reasonable doubt.
Petitioner bases his argument on the line of cases beginning with Apprendi v. New Jersey, 530
U.S. 466 (2000), and including Blakely v. Washington, 542 U.S. 296 (2004), United States v.
Booker, 543 U.S. 220 (2005), and Alleyne v. United States, 570 U.S. 99 (2013).
In Apprendi, the Supreme Court held that “[o]ther than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi, 530
U.S. at 490. Apprendi enunciated a new rule of Sixth Amendment jurisprudence. Justice Souter
has since described the holding in Apprendi as follows:

9

We held that exposing a defendant to an increased penalty beyond the range for a
basic crime, based on facts determined exclusively by a judge, violated the Sixth
Amendment, in the absence of a jury waiver; a defendant could not be subjected to
a penalty more serious than one authorized by the facts found by the jury or
admitted by the defendant.
Rita v. United States, 551 U.S. 338, 387 (2007) (J. Souter dissenting) (emphasis added).6
In the subsequent case of Blakely, the Court applied the rule of Apprendi to a state
sentencing-guideline scheme, under which the maximum penalty could be increased by judicial
fact-finding. The Blakely Court held that the state guideline scheme violated the Sixth and
Fourteenth Amendments, and reiterated the rule that any fact that increased the maximum sentence
must be “admitted by the defendant or proved to a jury beyond a reasonable doubt.” See Booker,
543 U.S. at 232 (citing Blakely, 542 U.S. at 303). The Blakely Court recognized, however, that
“nothing prevents a defendant from waiving his Apprendi rights.” Blakely, 542 U.S. at 310.

In

responding to Justice Breyer’s dissent, the majority explained “that the Sixth Amendment was not
written for the benefit of those who choose to forgo its protection.” Id. at 312.
In United States v. Booker, 543 U.S. 220 (2005), the Supreme Court determined its
conclusion with regard to the state sentencing guideline scheme in Blakely would also apply to the
federal sentencing guidelines. One group of five Justices concluded that mandatory federal
sentencing guidelines ran afoul of the Sixth Amendment.

Another group of five Justices

determined the appropriate remedy was to make the guidelines discretionary. Leaders of both
groups recognized the ability of a defendant to waive the Sixth Amendment right. “[I]t is
axiomatic that a defendant may waive his Sixth Amendment right to trial by jury.” Booker, 543
U.S. at 276-77 (Stevens, J. dissenting in part as to remedy); (Justice Breyer for the remedial

6

It is noteworthy that Apprendi, like Petitioner, entered a plea. Apprendi, however, expressly reserved the right to
challenge the sentence enhancing factor. The Michigan Court Rules also permit the entry of a conditional plea that
has the effect of preserving an issue or issues for appeal despite the plea. Mich. Ct. R. 6.301(C)(2). In Petitioner’s
case, however, his plea was not conditional.

10

majority acknowledging the Sixth Amendment is not implicated in plea bargaining). Booker, 543
U.S. at 248.
Subsequently, in Alleyne v. United States, 570 U.S. 99 (2013), the Supreme Court
held that the Blakely line of cases applies equally to statutory mandatory minimum sentences.
Shortly thereafter, the Michigan Court of Appeals concluded that Alleyne did not prohibit judicial
factfinding in scoring the Michigan sentencing guidelines that generated the minimum range under
Michigan’s indeterminate sentencing regimen. See People v. Herron, 845 N.W.2d 533, 539 (Mich.
App. 2013).7 The Sixth Circuit similarly concluded that Alleyne did not invalidate Michigan’s
indeterminate sentencing scheme. See Kittka v. Franks, 539 F. App’x 668, 673 (6th Cir. 2013).
As a consequence, the Sixth Circuit held there is no clearly established Supreme Court precedent
on the issue. Id. (citing Montes v. Trombley, 599 F.3d 490, 498 (6th Cir. 2010)); see also Saccoccia
v. Farley, 573 F. App’x 483, 485 6th Cir. 2014) (“But Alleyne held only that ‘facts that increase a
mandatory statutory minimum [are] part of the substantive offense.’. . . It said nothing about
guidelines sentencing factors . . . .”) (quoting Alleyne, 133 S. Ct. at 2161 (emphasis added)).
However, in People v. Lockridge, 870 N.W.2d 502 (Mich. 2015), in a 5-2 decision,
the Michigan Supreme Court held to the contrary. The court reasoned that, because the “guidelines
require judicial fact-finding beyond facts admitted by the defendant or found by the jury to score
offense variables (OVs) that mandatorily increase the floor of the guidelines minimum sentence
range,” they increase the “mandatory minimum” sentence within the meaning of Alleyne.
Lockridge, 870 N.W.2d at 506 (emphasis in original). As a consequence, the Lockridge court held
that the mandatory application of Michigan’s sentencing guidelines was unconstitutional. The
Court’s remedy, consistent with Booker, was to make the guidelines advisory only. Id. at 520-21.

7

Under Michigan’s system, only the minimum term is affected by the guideline determination. The maximum term
is always the maximum punishment permitted by statute.

11

The Michigan Supreme Court made its holding in Lockridge applicable to cases
still “pending on direct review.” Id. at 523. Petitioner’s case was still pending on direct review at
the time the Lockridge court reached its decision. Accordingly, Lockridge applies. The fact that
Lockridge applies to Petitioner’s case, however, does not mean that Petitioner is entitled to relief.
The Lockridge court identified a limited group of defendants that might
demonstrate the potential for plain error sufficient to warrant a remand to the trial court:
“defendants (1) who can demonstrate that their guidelines minimum sentence range was actually
constrained by the violation of the Sixth Amendment and (2) whose sentences were not subject to
an upward departure . . . .” Id. at 522 (footnote omitted). If a remand is appropriate, the trial court,
on remand, must determine if it “would have imposed a materially different sentence but for the
unconstitutional restraint . . . .” Id. at 524.
Here, Petitioner cannot demonstrate that his minimum sentence was constrained by
a violation of the Sixth Amendment, for two reasons.

First, Petitioner waived his Sixth

Amendment rights. Blakely, 542 U.S. at 310 (“[N]othing prevents a defendant from waiving his
Apprendi rights.”); United States v. Ramirez, 528 F. App’x 678, 679 (7th Cir. 2013) (“Counsel
recognizes, however, that by pleading guilty Ramirez waived his right to have a jury, rather than
the district judge, determine the drug quantity.”); United States v. Lefebvre, 189 F. App’x 767, 774
(10th Cir. 2006) (“In this case, Mr. LeFebvre waived his right to a jury trial without qualification,
thereby precluding him from challenging his sentence on grounds the district court committed
constitutional Booker error by not affording him a jury determination on facts relevant to
sentencing.”).
Second, Petitioner’s minimum sentence was derived from the parties’ Killebrew
agreement.

Petitioner specifically asked that the court impose the recommended sentence.

12

(Sentencing Hr’g Tr., ECF No. 8-4, PageID.175) (“[PETITIONER]: And I’m just asking that you
not sentence me by the guidelines and that you sentence me not to exceed 16 years . . . .”). As
Petitioner requested, the court specifically imposed the 16-year minimum sentence pursuant to the
plea agreement. (Sentencing Hr’g Tr., ECF No. 8-4, PageID.174.) (“THE COURT: The guideline
range would call for a minimum sentence of anywhere from 171 to 285 months on the minimum.
The plea agreement contemplates a sentence within that guideline range, so I won’t interfere with
the plea agreement.”)

The sentence agreement “‘obviates the scoring of the sentencing

guidelines[.]’” People v. Dunbar, No. 333510, 2017 WL 5759754, at *4 (Mich. Ct. App. Nov. 28,
2017) (“Lockridge does not apply to defendant’s sentences because defendant was sentenced
pursuant to a plea agreement, rather than the sentencing guidelines . . . .”); see also United States
v. Cieslowski, 410 F3d 353, 364 (7th Cir. 2005) (concluding that a Booker challenge was not
available because the sentence imposed under a plea agreement “arises directly from the agreement
itself” and not from the sentencing guidelines) cited in People v. Velez, No. 315209, 2015 WL
5945364, at *4 (Mich. Ct. App., Oct. 13, 2015) (P.J. Boonstra concurring) (“[B]ecause defendant
agreed to a sentence within the guidelines range, the sentence imposed by the trial court ‘arose
directly from the plea agreement and was not based on any facts found only by the trial court.’”);
People v. Banks, No. 326795, 2016 WL 3946207, at *2 (Mich. Ct. App., July 21, 2016); People v.
Faher, No. 328285, 2016 WL 6127902. at *4 (Mich. Ct. App. Oct. 18, 2016) (“[W]hen a
sentencing court imposes a sentence pursuant to the terms of a plea agreement bargained for and
accepted by the defendant, the sentence is not affected by the court’s perception of the mandatory
or advisory nature of the sentencing guidelines; thus the constitutional concerns underpinning
Lockridge and Alleyne are not implicated.”).8 Therefore, even it Petitioner had not waived his

8

The Michigan courts have relied on the waiver that follows from accepting a specific sentence in other contexts as
well. See, e.g., People v. Wiley, 693 N.W.2d 800 (Mich. 2005) (where defendant agreed to a minimum sentence of

13

right to a jury trial, he waived his objection to the court’s scoring of the guidelines by agreeing
that a specific sentence of 16 years was acceptable, without reference to the guidelines.
IV.

Petitioner is not entitled to a stay

Petitioner has filed a motion to stay these proceedings and hold them in abeyance
so that he might return to the state courts to exhaust a new claim, a claim that Petitioner asserts he
only recently discovered. (Mot. for Stay, ECF No. 11, PageID.343.) The “stay and abeyance”
relief requested by Petitioner was authorized by the Supreme Court in Rhines v. Weber, 544 U.S.
269 (2005), but “only in limited circumstances.” Id., at 277. Under Rhines, a district court may,
in its discretion, stay the mixed petition pending prompt exhaustion of state remedies if there is
“good cause” for the petitioner’s failure to exhaust, if the petitioner’s unexhausted claims are not
“plainly meritless” and if there is no indication that the petitioner engaged in “intentionally dilatory
litigation tactics.” Rhines. at 278. Because Petitioner’s new claims are plainly meritless, the Court
will deny his motion.
Petitioner’s new claims are centered on his counsel’s alleged ineffectiveness during
the plea negotiation process and at the plea hearing. Petitioner claims his plea was neither
voluntary nor knowing because his counsel was ineffective. It has long been the case that a valid
guilty plea bars habeas review of most non-jurisdictional claims alleging antecedent violations of
constitutional rights. See Tollett v. Henderson, 411 U.S. 258, 267 (1973). Among claims not
barred are those that challenge “the very power of the State to bring the defendant into court to
answer the charge against him,” Blackledge v. Perry, 417 U.S. 21, 30 (1974), and those that

38 years, but guidelines range was 15 to 25 years, the court held “a defendant waives appellate review of a sentence
that exceeds the guidelines by understandingly and voluntarily entering into a plea agreement to accept that specific
sentence.”); People v. Cobbs, 505 N.W.2d 208, 213 (Mich. 1993) (“[W]e caution that a defendant who pleads guilty
or nolo contendere with knowledge of the sentence, and who later seeks appellate sentence relief under People v.
Milbourn, 435 Mich. 630, 461 N.W.2d 1 (1990), must expect to be denied relief on the ground that the plea
demonstrates the defendant’s agreement that the sentence is proportionate to the offense and offender.”).

14

challenge the validity of the guilty plea itself. See Hill v. Lockhart, 474 U.S. 52, 58 (1985); Haring
v. Prosise, 462 U.S. 306, 320 (1983); Tollett, 411 U.S. at 267. 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). Petitioner’s claim does not challenge the power of the
state to bring him into court. Thus, the only means available for challenging his conviction is to
claim that his plea is invalid, i.e., it was not knowingly and voluntarily entered into. See Mabry v.
Johnson, 467 U.S. 504, 508 (1984) (“It is well-settled that a voluntary and intelligent plea of guilty
made by an accused person, who has been advised by competent counsel, may not be collaterally
attacked.”).
The test for determining a guilty plea’s validity is “‘whether the plea represents a
voluntary and intelligent choice among the alternative courses of action open to the defendant.’”
Hill, 474 U.S. at 56 (quoting North Carolina v. Alford, 400 U.S. 25, 31 (1970)). Courts assessing
whether a defendant’s plea is valid look to “all of the relevant circumstances surrounding it[.]”
Brady v. United States, 397 U.S. 742, 749 (1970).
In order to find a constitutionally valid guilty plea, 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

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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 at the plea stage will render a plea of
guilty involuntary. See Hill, 474 U.S. at 56-57.
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.
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.

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The two-part Strickland test applies to challenges to guilty pleas based on
ineffective assistance of counsel. Hill, 474 U.S. at 58. 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.
The flaw in Petitioner’s arguments regarding his counsel’s ineffectiveness is that
they are directly contrary to his representations at the plea hearing. Under settled Sixth Circuit
authority, Petitioner’s responses to the trial judge, given under oath at the plea hearing, preclude a
subsequent contrary assertion. In Baker v. United States, 781 F.2d 85 (6th Cir. 1986), the trial
court inquired concerning the terms of any plea bargain, received a response from the prosecutor
on the record, and received denials from defense counsel, the prosecutor, and the defendant
concerning the existence of any other terms. The Sixth Circuit held that where the trial court has
scrupulously followed the required procedure, “the defendant is bound by his statements in
response to that court’s inquiry.” Baker, 781 F.2d at 90 (quoting Moore v. Estelle, 526 F.2d 690,
696-97 (5th Cir. 1976)). The Sixth Circuit, noting the obvious, observed that a trial judge cannot
possibly administer a plea agreement, if it consists of “secret terms known only to the parties.” Id.
at 90. The court again addressed this issue in Warner v. United States, 975 F.2d 1207 (6th Cir.
1992), and United States v. Todaro, 982 F.2d 1025 (6th Cir. 1993), section 2255 cases. In Todaro,
the defendant attempted to attack his guilty plea, claiming that his attorney had promised him that
he would be sentenced to probation if he pled guilty. The defendant had testified at the plea

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colloquy, however, that no other promises had been made to him, other than those stated in the
plea agreement. Todaro, 982 F.2d at 1026. Consequently, the Sixth Circuit was again faced with
a situation in which a defendant’s post-conviction allegations were directly contrary to his
statements at the plea hearing. Relying on Baker, the court reiterated its earlier holding, under
which a defendant is bound by his statements in response to the trial court’s inquiry, where there
has been a careful plea colloquy. In Warner, the Sixth Circuit likewise rejected claims of attorney
promises in the face of defendant’s flat denial of promises at the plea, holding that the petitioner’s
statements “estopped” him from relying on undisclosed promises. Warner, 975 F.2d at 1210. See
also Ramos v. Rogers, 170 F.3d 560, 565 (6th Cir. 1999) (concluding that “a claim of ineffective
assistance of counsel predicated on allegedly misleading information given by counsel about the
terms of a plea agreement can never constitute an ‘extraordinary circumstance’ under Baker when
the court conducts a proper, clear, and thorough plea colloquy”).
Petitioner’s present recollection that he only agreed to enter a plea as to one count
of armed robbery—and that counsel was ineffective for failing to object to entry of pleas as to two
counts—is belied by the state court record. The December 3, 2014, Status Conference Transcript
(ECF No. 8-2) discloses that the prosecutor offered Petitioner the opportunity to enter a plea as to
only one count of armed robbery. That was the same deal the prosecutor offered to the other three
participants in the robbery.9 The court informed Petitioner that the offer had to be accepted that
day. Petitioner rejected the offer. Six weeks later, at Petitioner’s plea hearing, the court reviewed
the terms of the plea agreement. Petitioner, under oath, acknowledged that it was his understanding
he was entering a plea to two counts of armed robbery, not one. Petitioner is bound by his
statement under oath at the hearing

9

See note 4.

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If counsel’s failings had caused Petitioner any misperceptions regarding the number
of counts, the trial court corrected those misperceptions at the plea hearing. Ramos, 170 F.3d at
565 (“[T]he state trial court’s proper colloquy can be said to have cured any misunderstanding
Ramos may have had about the consequences of his plea.”) To hold otherwise would “[render]
the plea process meaningless . . . .” Id. Indeed, “the plea colloquy process exists in part to prevent
petitioners . . . from making the precise claim that is today before” the Court. Id. Accordingly,
even if counsel failed to inform Petitioner regarding the number of counts that were part of the
plea agreement, Petitioner has failed to show that he suffered any prejudice as a result.
Petitioner’s more general complaint, that counsel failed to inform Petitioner of the
ramifications of his plea, is also entirely unsupported by the state court record. The court carefully
reviewed the nature of the sentence, informing Petitioner that 16 years was not 0 to 16 years, but
a minimum of 16 years. The court also carefully reviewed with Petitioner the rights Petitioner was
giving up by entering his plea. To the extent Petitioner’s counsel failed to effectively inform
Petitioner, or even misinformed him, of these facts—a claim that finds no evidentiary support in
the record—the court corrected any possible misperception by its careful plea colloquy. Thus,
once again, even if counsel failed Petitioner, no prejudice resulted. The claims that Petitioner is
seeking a stay to pursue are plainly meritless. Accordingly, the requested stay will be denied.
Certificate of Appealability
Unless a certificate of appealability is issued, an appeal of the denial of a habeas
corpus petition may not be taken. 28 U.S.C. § 2253(c)(1). 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

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court must “engage in a reasoned assessment of each claim” to determine whether a certificate is
warranted. Id. at 467.
I have examined each of Petitioner’s claims under the standards set forth by the
Supreme Court in Slack v. McDaniel, 529 U.S. 473 (2000). Under Slack, 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.
I find that reasonable jurists would not conclude that this Court’s denial of
Petitioner’s claims is debatable or wrong.
A Judgment and Order consistent with this Opinion will be entered.

Dated:

June 15, 2018

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

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