Ervin #482984 v. Woods
Filing
36
OPINION AND ORDER ; signed by Judge R. Allan Edgar (Judge R. Allan Edgar, cam)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
___________
HARRY BOLTON ERVIN, #482984,
Petitioner,
vs.
No. 2:12-cv-294
Hon R. Allan Edgar
United States District Judge
JEFFREY WOODS,
Respondent.
_______________________________/
OPINION AND ORDER
Petitioner, Harry Ervin, currently confined at Chippewa Correctional Facility, requests
habeas relief pursuant to 28 U.S.C. § 2254. (Docket #6) Ervin pleaded nolo contendere to
assault with intent to commit murder and was sentenced to 30 to 90 years’ incarceration. Ervin
argues that he is entitled to habeas relief because: (1) the trial court failed to adequately consider
his mental health history and history of abuse in mitigating his sentence; (2) his judgment should
include credit for jail time served; (3) ineffective assistance of trial counsel; and (4) ineffective
assistance of appellate counsel.
Respondent has filed an answer to the petition stating that the petition should be denied
because one of the grounds is procedurally barred and three of the grounds are without merit.
(Docket #33) Upon review and applying the AEDPA standards, this Court holds that grounds
one, two, and four are without merit, and ground three is procedurally barred. This Court
concludes that Ervin is not entitled to habeas relief.
I.
This action is governed by the Antiterrorism and Effective Death Penalty Act, PUB. L.
104-132, 110 STAT. 1214 (AEDPA). See Penry v. Johnson, 532 U.S. 782, 791 (2001), cert.
denied, Texas v. Penry, 126 S. Ct. 2862 (June 12, 2006). The AEDPA “prevents federal habeas
‘retrials’” and ensures that state court convictions are given effect to the extent possible under
the law. Bell v. Cone, 535 U.S. 685, 693-94 (2002). The AEDPA has “drastically changed” the
nature of habeas review. Bailey v. Mitchell, 271 F.3d 652, 655 (6th Cir. 2001). An application
for writ of habeas corpus on behalf of a person who is incarcerated pursuant to a state conviction
cannot be granted with respect to any claim that was adjudicated on the merits in state court
unless the adjudication: “(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established federal law as determined by the Supreme Court
of the United States; or (2) resulted in a decision that was based upon an unreasonable
determination of the facts in light of the evidence presented in the state court proceeding.” 28
U.S.C. § 2254(d).
The AEDPA limits the source of law to cases decided by the United States Supreme
Court. 28 U.S.C. § 2254(d). This Court may consider only the “clearly established” holdings,
and not the dicta, of the Supreme Court. Williams v. Taylor, 529 U.S. 362, 412 (2000); Bailey,
271 F.3d at 655. In determining whether federal law is clearly established, the Court may not
consider the decisions of lower federal courts. Bailey, 271 F.3d at 655; Harris v. Stovall, 212
F.3d 940, 943 (6th Cir. 2000). “Yet, while the principles of ‘clearly established law’ are to be
determined solely by resort to Supreme Court rulings, the decisions of lower federal courts may
be instructive in assessing the reasonableness of a state court’s resolution of an issue.” Stewart v.
Erwin, 503 F.3d 488, 493 (6th Cir. 2007). 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 [the petitioner’s] conviction became final.” Onifer v. Tyszkiewicz, 255 F.3d
313, 318 (6th Cir. 2001). A decision of the state court may only be overturned if (1) it applies a
rule that contradicts the governing law set forth by the Supreme Court, (2) it confronts a set of
facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless
arrives at a different result; (3) it identifies the correct governing legal rule from the Supreme
Court precedent but unreasonably applies it to the facts of the case; or (4) it either unreasonably
extends a legal principle from Supreme Court precedent to a new context where it should not
apply or unreasonably refuses to extend a principle to a context where it should apply. Bailey,
271 F.3d at 655 (citing Williams, 529 U.S. at 413); see also Bell, 535 U.S. at 694; Lancaster v.
Adams, 324 F.3d 423, 429 (6th Cir. 2003).
A federal habeas court may not find a state adjudication to be “unreasonable” “simply
because that court concludes in its independent judgment that the relevant state-court decision
applied clearly established federal law erroneously or incorrectly.” Williams, 529 U.S. at 411;
accord Bell, 535 U.S. at 699. Rather, the issue is whether the state court’s application of clearly
established federal law is “objectively unreasonable.” Williams, 529 U.S. at 410.
2
Where the state court has not articulated its reasoning, the federal courts are obligated to
conduct an independent review to determine if the state court’s result is contrary to federal law,
unreasonably applies clearly established law, or is based on an unreasonable determination of the
facts in light of the evidence presented. See Harrington v. Richter, 131 S. Ct. 770, 784–85
(2011) (citing with approval Harris, 212 F.3d at 943 n.1). Where the circumstances suggest that
the state court actually considered the issue, including where a state court has issued a summary
affirmance, the review remains deferential because the court cannot grant relief unless the state
court’s result is not in keeping with the strictures of the AEDPA. Harrington, 2011 WL 148587,
at *9; Harris, 212 F.3d at 943. However, where the state court clearly did not address the merits
of a claim, “there are simply no results, let alone reasoning, to which [the] court can defer.” In
such circumstances, the court conducts de novo review. McKenzie, 326 F.3d at 727 (limiting
Harris to those circumstances in which a result exists to which the federal court may defer); see
also Wiggins v. Smith, 539 U.S. 510, 534 (2003) (reviewing habeas issue de novo where state
courts had not reached the question); Maples v. Stegall, 340 F.3d 433, 437 (6th Cir. 2003)
(recognizing that Wiggins established de novo standard of review for any claim that was not
addressed by the state courts).
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, 324 F.3d at 429; 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). Applying the foregoing standards under the AEDPA, I find that
Petitioner is not entitled to relief.
II.
Ervin argues that this Court should grant him relief because: (1) the trial court failed to
adequately consider his mental health history and history of abuse in sentencing; (2) his
judgment should include credit for jail time served; (3) ineffective assistance of trial counsel; and
(4) ineffective assistance of appellate counsel. This Court reviews each argument in turn.
A. Mental Health History and Abuse in Sentencing
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Ervin argues that the trial court failed to take into account his mental health and history of
abuse in mitigating the length of his sentence. Although there is no constitutional right to
individualized sentencing in non-capital cases, Harmelin v. Michigan, 501 U.S. 957, 995 (1991);
United States v. Thomas, 49 F.3d 253, 261 (6th Cir. 1995), at sentencing the trial court was
aware of Ervin’s hospitalization in a behavioral ward. (Sentencing Tr. 23–24) Additionally, at a
motion for resentencing, the trial court reviewed its previous sentence and more thoroughly
stated its reasons for not modifying the sentence based on these reasons. The trial court did
consider Ervin’s mental health and history of abuse when determining the sentence and then
affirmed its original sentence, even with the addition of other evidence:
The court does recall this case because it was an extremely violent criminal
offense, and there was a plea of no contest and the Court had to read and review a
written account of what occurred here to establish the factual basis to accept a
plea of no contest. And, although the defendant and/or counsel may not like or
may not agree with the sentence imposed, that does not mean that the Court did
not consider the defendant’s mental state. The Court, in fact, read over and
reviewed the entirety of the pre-sentence investigative report prior to imposing
sentence, prior to listening to allocution on the part of the defendant, to Defense
counsel and to the Prosecuting Attorney. I did make inquiry at the time of
sentencing whether or not all parties had read and reviewed the pre-sentence
investigative report and whether or not there any additions or corrections that
needed to be made to that report. In that report the, court reviewed the fact on
page 1 that the defendant claimed he had suffered physical abuse by his father
during his adolescent years. His father was an alcoholic, excuse me, used to
physically beat and whip him all the time. The Court read and reviewed that and
did consider that at the time of sentencing. Also, the claim on the second, page 2
of the report, that he had been using cocaine prior to committing the offense and
different -- had been through different substance abuse treatment programs.
Further, paragraph 3 on page 2 indicates that it should be noted the defendant - after the defendant committed this criminal act, he tried to take his own life by
using a razor to cut his wrist on both arms and his Achilles tendon on his left
ankle. The Court read, understood, reviewed and considered that prior to
imposing sentence. In the next paragraph it indicates that the defendant said that
he has good mental health and was receiving no previous mental health treatment;
however, the defendant states, after being arrested, while at the hospital, he was
presa - - prescribed Prozac. And he was receiving a medication equivalent to
Prozac in the jail, while being lodged in the jail.
So, again, no one informed the Court that there were any additions or corruptions,
or there was anything incorrect about that portion of the pre-sentence
investigative report. The Court did consider, read and review that this pre-
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sentence investigative report stated the defendant reports himself having good
mental health and receiving no previous mental health treatment.
Further, on page 3, and the second paragraph down, it indicates, once again, that
the defendant said he cut his wrist and ankle because he wanted to die. The Court
read, reviewed and considered that statement, as well as the last paragraph on that
page: after being released from the emergency room, slash, hospital, Mr. Harry
Lonzo-Bolton Ervin was transported to the Berrien County jail, charged with
several crimes.
Now, on page 9 of the report, under the heading “Health” - - under “Physical
health” it says, health problems, none. The Court read and reviewed that. Under
“Mental health” it says, health problems, none.
There was a discussion and the Defense counsel pointed out that the defendant
had been hospitalized. And the Defense counsel indicated - and this is from my
notes, I’m not reading from the transcript – but, at 14:01:14 the Defense counsel
informed the Court that the defendant did everything he could do to take his live –
he cut his wrist, his tendons and his ankle, and, for that reason, the Defense
counsel request that the Court deviate downward from the guideline range. And
the defendant told the Court that, during allocution, he lost his mind and feels now
he has no reason to live. The Defense attorney went on further to indicate once
again the Court should deviate from the guidelines in a downward departure
because the defendant was hospitalized in the behavioral ward of Lakeland
Hospital immediately after this happened, which would seem to confirm that he
did – his word was – break, as he said, or, certainly he was despondent and had
some kind of mental problem, so this was addressed, again, by Defense counsel
on the record, not only what was addressed in the PSI report. And I noted on the
record that he didn’t mention that in the PSI report and that the PSI report
indicates he had no previous mental health treatment, and there was nothing at the
time of sentencing that indicated to the Court that he had any previous mental
health treatment, and even as of today’s date in the brief submitted by Defense
counsel, or the report that is submitted here from the hospital, showing that the
defendant had any prior history of mental health illness or treatment. He
indicated he was depressed and had anxiety. I do note that it says that. And, it
was noted on the record at the time of sentencing that there was no question the
defendant was hospitalized in Lakeland, but it was for a short period of time; and
the Defense attorney indicated that was correct.
So, I have had an opportunity to read over and review Defendant’s Exhibit A,
which is history on physical report of the defendant, and it was written by Dr.
Sajja, and that indicates that the defendant indicated to a social worker that he had
been depressed and had anxiety for a long time and was requesting help for that.
And there’s a history of drug abuse, which was noted in the PSI, and the Court did
consider and review that. The doctor went on to indicate that the patient was
quite angry, upset, argumentative, and agitated and was not engaging in an
5
interview, basically was demanding and was sarcastic. Under mental health status
the doctor indicates, from seeing for admission, it was noted the defendant to be
alert, oriented to person, who was very angry, hostile, argumentative, irritable,
says, paranoid, suspicious and he seemed to be blaming everybody for his
predicament at that point. His affect, mood and behavior did not really indicate
any depression, and he seemed to be more, gamy than anything else at that point.
His history indicates that he is homeless and is quite like - - and it is quite likely
that he’s trying to get as many solutions as he can at this point. He is not
psychotic nor any major mood disorder seen. Personality issues are definitely
evident with a history of a lot of antisocial activity in the past. Motivation is
questionable. Diagnosis: depression, nos/drug addiction, antisocial personality.
So, after review of this report by Dr. Sajja, the Court is not convinced that there is
an appropriate reason or there are significant issues of a mental health issue or
problem that the Court was unaware of at the time of sentencing that need to be
addressed or change the Court sentence from what was originally imposed.
On page 5 of the defendant’s brief, the last paragraph, counsel indicates, a trial
court may, and I am underlining and stressing the may, consider defendant’s need
for mental health treatment in determining an appropriate sentence. It cites
People v Dean. And, even in counsel’s own brief, it doesn’t indicate shall, but
may.
This Court, in fact, did consider the information regarding the defen - defendant’s mental health at the time of sentencing.
In this case counsel argued that there was inaccurate information that the Court
relied upon at the time of sentencing regarding his mental health condition.
Inaccurate, I would argue this point is different from and can be distinguish from,
perhaps, incomplete. I’m not even sure that what the Court had in front of it at
that time was incomplete. What I’m reading here in Exhibit A truly does not
differ much in any stretch of the imagination from the information the Court had
available, if anything else, it probably just bolters the information and the
understanding the Court had of the defendant’s mental health state at the time the
offense was committed. And, once again, I did consider that all - - all that
information. I’m now considering Exhibit A in conjunction with that, and find
that the sentence was appropriate, it was proportional, it was within the guideline
range. I did consider, and continue at this time in making this decision to
consider all the information available to me regarding the defendant’s mental
health state, and I’m not convinced that he is entitled to re-sentencing for the
reasons indicated or requested by counsel. So re-sentencing on that ground is
denied.
(Motion for Resentencing Tr. at 18–22) Since Petitioner has no federal right to an individualized
sentence, this ground presents an issue of state law only. Petitioner has not alleged grounds for
6
the Court to conclude that this is one of those rare instances where an alleged state-law
sentencing error was so egregious that it led to a fundamentally unfair outcome. See Koras v.
Robinson, 123 F. App’x 207, 213 (6th Cir. Feb. 15, 2005) (citing Bowling v. Parker, 344 F.3d
487, 521 (6th Cir. 2003)). Moreover, the state court considered this issue and came to an
objectively reasonable conclusion. This is a non-cognizable claim of state law and Ervin is not
entitled to relief.
B. Credit for Jail Time Served
Next, Ervin argues that he should have received credit for jail time served after he
committed the current offense. When Ervin committed the assault with intent to murder he was
on parole for a previous offense, and his jail time was for the violation of parole not for time
while awaiting trial. How a state determines whether time served for parole violations applies
backward to the violation or forward to a fresh offense is a matter of state law. Cox v. Maxwell,
366 F.2d 765, 766–67 (6th Cir. 1966). In any event, the state considered this issue as well:
Now, issue two indicates, with the credit for time served. And the Court did not
grant the defendant any credit for time served as it was a mandatory consecutive
sentence. The defendant was at - - on parole at the time that this Court sentenced
him. And the Court has reviewed the information in Defense counsel’s brief and
also People v Stead, S-T-E-A-D, found at 270 Mich. App. 550, a 2006 case. In
that particular case the defendant was on parole at the time that he was sentenced
and the PSI recommended the defendant receive credit for 159 days time already
served. So the sole issue on appeal is whether the trial court erred in declining to
apply that time against the sentence for the defendant in the case, and, it was
determined by the Court of Appeals there that the Court did not err, that no credit
for time served was allowed. And it spoke about reliance on the case that is cited
by Defense counsel, Wayne County Prosecutor v Department of Corrections,
found at 451 Mich. 569, a 1969 case. And this case indicates that credit is not
available to a parole detainee for time spent in jail attendant to a new offense
because, quote, bond is neither set nor denied when a defendant is held in jail on a
parole detainer, unquote. And that’s page 707 of People v Seiders, S-E-I-D-E-RS, 262 Mich. App. 702.
Now, I understand and appreciate the fact that the case law in this matter is being
reviewed, this issue is preserved for the defendant, and it may be, in fact, that the
Court of Appeals will decide differently than the - - Supreme Court will decide
differently than the Court of Appeals did here in Michigan in this Stead case.
But, at this juncture, the Court is going to follow on the ruling in Stead and I will
not grant the defendant any credit for time served because he was on parole;
again, that issue has been preserved, okay.
7
(Motion for Resentencing Tr. at 22–23) Moreover, this is not a rare instance where an alleged
state-law sentencing error was so egregious that it led to a fundamentally unfair outcome. See
Koras v. Robinson, 123 F. App’x 207, 213 (6th Cir. 2005) (citing Bowling, 344 F.3d at 521 (6th
Cir. 2003)). Ervin is not entitled to relief on this claim.
C. Ineffective Assistance of Trial and Appellate Counsel
Ervin takes issue with the performance of his trial and appellate counsel, specifically that
his trial counsel should have filed an insanity defense instead of the nolo contendere plea and
that his appellate counsel should have raised this issue during his direct appeal. The state of
Michigan argues that the claim of ineffective assistance of trial counsel is procedurally defaulted
because it was not raised on direct appeal. In response to a motion for post-conviction relief, the
trial court denied this claim because he failed to raise it on direct appeal. These failures
generally result in procedural default. See Willis v. Smith, 351 F.3d 741, 744 (6th Cir. 2003).
The claim of ineffective assistance of trial counsel is procedurally defaulted.
With respect to Ervin’s claim of ineffective assistance of appellate counsel, this Court is
obligated to deferentially review the state courts conclusions, not to review anew the issue of
ineffective assistance of appellate counsel. Ordinarily, claims of ineffective assistance of
counsel are subject to Strickland’s two-part test: that the lawyer provided deficient counsel and
that the defective representation prejudiced the outcome. 466 U.S. 668, 687 (1984). Specific to
appellate counsel, an appellant has no constitutional right to have every non-frivolous issue
raised on appeal. “‘[W]innowing out weaker arguments on appeal and focusing on’ those more
likely to prevail, far from being evidence of incompetence, is the hallmark of effective appellate
advocacy.” Smith v. Murray, 477 U.S. 527, 536 (1986) (quoting Jones v. Barnes, 463 U.S. 745,
751-52 (1983)). To require appellate counsel to raise every possible colorable issue “would
interfere with the constitutionally protected independence of counsel and restrict the wide
latitude counsel must have in making tactical decisions.” Strickland, 466 U.S. at 688. As the
Supreme Court recently observed, it is difficult to demonstrate that an appellate attorney has
violated the performance prong where the attorney presents one argument on appeal rather than
another. Smith v. Robbins, 528 U.S. 259, 289 (2000). In such cases, the petitioner must
demonstrate that the issue not presented “was clearly stronger than issues that counsel did
present.” Id.
8
The Michigan courts use an analogous standard for claims of ineffective assistance of
counsel, which were applied to Ervin’s claims of ineffective trial and appellate counsel:
Defendant claims that his trial counsel was ineffective for failing to raise an
insanity defense, and that his appellate counsel was ineffective for failing to raise
that issue on appeal. In order to establish that his appellate counsel was
ineffective for failing to raise the instant issue in the original appeal, the defendant
must show that counsel’s performance “fell below an objective standard of
reasonableness, and that the representation so prejudiced the defendant as to
deprive him of a fair trial.” Pickens, supra, at 303. While not insurmountable,
this burden is “highly demanding.” Reed, at 390. Further, the reasonableness of
counsel’s performance is to be evaluated from counsel’s perspective at the time of
the alleged error and in light of all the circumstances, and the standard is highly
deferential. Strickland, at 689; Kimmelman v Morrison, 477 US 365, 381; 106 S
Ct 2574; 91 L Ed 2d 305 (1986).
Under the deferential standard of review, appellate counsel’s decision to winnow
out weaker arguments and focus on those more likely to prevail is not ineffective
assistance. Jones v Barnes, 463 US 745, 752; 103 S Ct 3308; 77 L Ed 2d 987
(1983). Failure to assert all arguable claims is not sufficient to overcome the
presumption that counsel functioned as a reasonable appellate attorney in
selecting the issues presented. Reed, at 391. The question is whether a
reasonable appellate attorney could conclude that these issues were not worthy of
mention on appeal. Id.
Defendant specifically argues that his appellate counsel was ineffective for failing
to raise a “dead-bang winner” argument on appeal. Some federal appellate courts
and courts of other jurisdictions have recognized that an appellate advocate may
deliver deficient performance and prejudice a defendant by omitting a “dead-bang
winner” argument, even though counsel may have presented strong but
unsuccessful claims on appeal. Page v United States, 884 F.2d 300, 301 (7th Cir
1989). A “dead-bang winner” issue has been defined as an issue which was
obvious from the trial record, and one which would have resulted in a reversal on
appeal. US v Cook, 45 F3d 388 295 (10th Cir 1995) (citing Matire v Wainwright,
811 F2d 1430, 1438 (11th Cir 1987). Notably, the “dead-bang winner” doctrine,
while referred to in unpublished cases of the Sixth Circuit, has not been adopted
by Michigan appellate courts or the Sixth Circuit Federal Court of Appeals. Thus,
the appropriate standard of review is whether it was objectively reasonable for
appellate counsel to not have raised the insanity defense argument. Regardless of
whether review is by the “dead-bang winner” standard or the objectively
reasonable standard, an analysis of the merits of Defendant’s claim of insanity
shows that appellate and trial counsel were not ineffective for failing to raise the
issue.
In 1843, the English House of Lords formulated a rule to fix criminal
responsibility in England that has come to be known as the M’Naghten Rule, or
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the “right from wrong test.” The M’Naghten rule asked whether, at the time of
committing the criminal act, the accused party was laboring under such a defect of
reason, from disease of the mind, as not to know the nature or quality of the act he
was doing, or, if he did know what he was doing, that he did not know what he
was doing was wrong. People v Martin, 386 Mich 407, 415; 192 NW2d 215
(1971), quoting Daniel M’Naghten’s Case, (HL 1843) 10 C1.Fin. 200 (8
Eng.Rep. 718), 722 (1843). In many American jurisdictions, this test was adopted
with modifications. For years, Michigan followed the Durfee test, which was
based on the M’Naghten rule. The Durfee test added a volitional component to
the M’Naghten rule, asking whether the accused’s mental disease or abnormality
prevented him from controlling his actions. In other words, the inquiry became
whether the accused lacked the substantial capacity to appreciate the
wrongfulness of his conduct and, if he did, whether he lacked the ability to
conform his conduct to the requirements of the law. People v Crawford, 89 Mich
App 30; 279 NW2d 560 (1979).
Since 1975, however, when 1975 PA 180 was enacted, the use of the insanity
defense has been governed by statute.
Our legislature has enacted a
comprehensive statutory scheme that sets forth the requirements for a defense
based mental illness,1 today codified in MCL 768.21a. Legal insanity is an
affirmative defense requiring proof that, as a result of mental illness or being
mentally retarded as defined in the mental health code, the defendant lacked
“substantial capacity either to appreciate the nature and quality or the
wrongfulness of his or her conduct or to conform his or her conduct to the
requirements of the law.” MCL 768.21a(1). Mental illness or being mentally
retarded does not otherwise constitute a defense of legal insanity. Id. Further, an
individual who was under the influence of voluntarily consumed alcohol or
controlled substances at the time of the alleged offense is not considered to have
been legally insane solely because of being under the influence of the alcohol or
controlled substances. MCL 768.21a(2). The defendant has the burden of
proving the defense of insanity by a preponderance of the evidence.
The definitions of mental illness and insanity, for the purposes of avoiding
criminal responsibility, must come from law. People v Drossart, 99 Mich App
66; 297 NW2d 863 (1980). “Legal insanity,” by definition, must be the result of a
mental illness. People v Clark, 172 Mich App 1; 432 NW2d 173 (1988).
MCL 330.1100d(3) defines “serious mental illness” as:
1
Our Supreme Court has ruled that by the Legislature’s enactment of MCL 768.21a, it has created an “all or
nothing” insanity defense, meaning that there is no defense of diminished capacity in the State of Michigan.
Carpenter, infra, at 237. The alternative for defendants who are mentally ill or retarded, but not legally insane, is to
plead “guilty but mentally ill,” which results in sentencing in the same manner as for any other defendant
committing the same offense, subject to psychiatric evaluation and treatment. MCL 768.36(3). Thus, mental
incapacity short of insanity cannot be used to avoid or reduce criminal responsibility by negating specific initent.
Carpenter, 464 Mich at 238.
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“a diagnosable mental, behavioral, or emotional disorder affecting
an adult that exists or has existed within the past year for a period
of time sufficient to meet diagnostic criteria specified in the most
recent diagnostic and statistical manual of mental disorders
published by the American psychiatric association and approved
by the department and that has resulted in functional impairment
that substantially interferes with or limits 1 or more major life
activities. Serious mental illness includes dementia with delusions,
dementia with depressed mood, and dementia with behavioral
disturbance but does not include any other dementia unless the
dementia occurs in conjunction with another diagnosable serious
mental illness. The following disorders also are included only of
they occur in conjunction with another diagnosable serious mental
illness: (a) A substance abuse disorder; (b) A developmental
disorder; (c) A “V” code in the diagnostic and statistical manual of
mental disorders.”
“[B]y enacting a comprehensive statutory scheme setting forth the requirements
for and the effects of asserting a defense based on either mental illness or mental
retardation, the Legislature has signified its intent not to allow a defendant to
introduce evidence of mental abnormalities short of legal insanity to avoid or
reduce criminal responsibility by negating specific intent.” People v Carpenter,
464 Mich 223, 226; 627 NW2d 276, 277 (2001).
When Defendant was sentenced, he expressed remorse for what he did,
embarrassment for hurting the victim, and indicated that he hoped for forgiveness.
(S Tr., pp 20-22). This shows that Defendant, at a minimum, had an appreciation
of the wrongfulness of his conduct.
Nor has Defendant made a prima facie showing that due to mental illness he was
unable to conform his behavior to the confines of the law on June 3, 2008. The
record indicates that appellate counsel was in possession of the report from
Lakeland Hospital, prepared in connection with Defendant’s hospitalization for
slitting his wrists the day the underlying offense was committed. In that report,
Dr. Sajja indicates that Defendant was alert and oriented, was not psychotic and
had no major mood disorder, but instead appeared “to be more gamey than
anything.”
Appellate counsel used this report in moving for resentencing.
Because Dr. Sajja indicates that there was no mental illness, it is unlikely that
Defendant had a successful case for an insanity defense. Considering this report,
it is clear that, based on the record, an insanity defense is not a “dead-bang
winner” issue, or one which is apparent from the record and would have resulted
in a reversal on appeal. Contrarily, because of that report and its likely impact on
the viability of an insanity defense, it was objectively reasonable for appellate
counsel to not have raised the issue on appeal. Therefore, because appellate
counsel was not ineffective for failing to raise this issue on appeal, Defendant has
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not shown good cause under MCR 6.508(D)(3)(a), and Defendant’s motion is
denied.
Because the record is sufficient to evaluate Defendant’s claims, a Ginther hearing
is not necessary. The motion for a Ginther hearing is therefore denied.
(Relief from Judgment Order at 9–13) The Michigan court’s review of these claims is thorough
and this Court will not second guess it. Whether the claim that trial counsel was ineffective is
defaulted this claim lacks merit. All indications, including multiple reviews of this claim by the
Michigan courts, are that Ervin is not insane. Because his trial counsel was not ineffective, his
appellate counsel was not ineffective for failing to raise this issue on appeal. Ervin has not met
the first prong of Strickland: that his appellate counsel was deficient in his performance. Ervin
has not put forth any new facts that would change this outcome. Ervin fails to show that his trial
and appellate counsels provided deficient counsel.
III.
The Court holds that Ervin’s claims are without merit. In addition, if petitioner should
choose to appeal this action, 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). Each issue must be considered under the standards set forth
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.” 529 U.S. at 484. The Court
examined each of Petitioner’s claims under the Slack standard and concludes that reasonable
jurists could not find that a dismissal of each of Petitioner's claims was debatable or wrong.
For the same reasons that the Court has dismissed this action, the Court will certify
pursuant to 28 U.S.C. § 1915(a)(3) and Fed. R. App. P. 24 that any appeal by petitioner from the
Court’s decision and judgment would be frivolous and not taken in good faith. Therefore, any
application by Petitioner for leave to proceed in forma pauperis on appeal is hereby DENIED.
Pursuant to Rule 5, Ervin’s motion for post-conviction relief pursuant to 28 U.S.C. §
2255 is DENIED AND DISMISSED WITH PREJUDICE. A judgment consistent with this
Opinion and Order will be entered.
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SO ORDERED.
Dated:
10/27/2014
/s/ R. Allan Edgar
R. Allan Edgar
United States District Court Judge
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