Williams #246152 v. MacLaren

Filing 10

MEMORANDUM AND ORDER ; signed by Judge R. Allan Edgar (Judge R. Allan Edgar, cam)

UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION

JEFFREY WILLIAMS,
Petitioner,

Case No. 2:14-cv-51

v.

HON. R. ALLAN EDGAR

DUNCAN MACLAREN,
Respondent.
___________________________________/

MEMORANDUM AND ORDER
Petitioner Jeffrey Williams, filed this petition for writ of habeas corpus challenging
his conviction for first degree home invasion and larceny from a person following Petitioner’s guilty
plea. Petitioner was sentenced to one hundred and twenty months to two hundred and forty months
for the home invasion and to sixty months to one hundred and twenty months for larceny from a
person. Petitioner appealed his convictions. The Michigan Court of Appeals rejected Plaintiff’s
claims for lack of merit in an unreasoned order. PageID.295, ECF No. 9-5. The Michigan Supreme
Court considered and declined to grant Petitioner’s application for leave to appeal the appellate
court’s order because it was “not persuaded that the questions presented should be reviewed by this
Court.” PageID351, ECF No. 9-11.
Petitioner alleges that:
I. Petitioner was denied his right to paid counsel of his own choice
during the preliminary examination proceedings and at sentencing.

II. Petitioner’s trial counsel did not meet with him before the
preliminary exam, failed to conduct any discovery, and induced
Petitioner to accept the prosecution’s plea offer.
III. Petitioner’s guilty plea was involuntary, violated due process, and
was the product of ineffective assistance of counsel.
IV. Michigan’s procedure allowing appointed counsel to withdraw by
leave from a guilty-plea appeal violated due process and equal
protection.
V. Appellate counsel was ineffective by not finding any non-frivolous
issues to file on appeal and seeking to withdraw.
In April of 1996, the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
became effective. Because this petition was filed after the effective date of the AEDPA, this Court
must follow the standard of review established in that statute. Pursuant to the AEDPA, 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 provision marks a “significant change” and prevents the district
court from looking to lower federal court decisions in determining whether the state decision is
contrary to, or an unreasonable application of, clearly established federal law. Herbert v. Billy, 160
F.3d 1131, 1134 (6th Cir. 1998). To justify a grant of habeas corpus relief under this provision of the
AEDPA, a federal court must find a violation of law “clearly established” by holdings of the Supreme
Court, as opposed to its dicta, as of the time of the relevant state court decision. Williams v. Taylor,
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529 U.S. 362, 412 (2000). Recently, the Supreme Court held that a decision of the state court is
“contrary to” such clearly established federal law “if the state court arrives at a conclusion opposite
to that reached by this Court on a question of law or if the state court decides a case differently than
this Court has on a set of materially indistinguishable facts.” Id. A state court decision will be
deemed an “unreasonable application” of clearly established federal law “if the state court identifies
the correct governing legal principle from this Court’s decisions but unreasonably applies that
principle to the facts of the prisoner’s case.” Id. 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.” Id. at 412. Rather, the application must also be “unreasonable.” Id. Further, the habeas
court should not transform the inquiry into a subjective one by inquiring whether all reasonable jurists
would agree that the application by the state court was unreasonable. Id. at 410 (disavowing Drinkard
v. Johnson, 97 F.3d 751, 769 (5th Cir. 1996)). Rather, the issue is whether the state court’s
application of clearly established federal law is “objectively unreasonable.” Williams, 529 U.S. at
409.
The AEDPA requires heightened respect for state factual findings. Herbert v. Billy,
160 F.3d 1131, 1134 (6th Cir. 1998). The habeas corpus statute has long provided that the factual
findings of the state courts, made after a hearing, are entitled to a presumption of correctness. This
presumption has always been 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),
cert. denied, 495 U.S. 961 (1990). Under the AEDPA, a determination of a factual issue made by a
state court is presumed to be correct. The petitioner has the burden of rebutting the presumption of

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correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); see also Warren v. Smith, 161
F.3d 358, 360-61 (6th Cir. 1998), cert. denied, 527 U.S. 1040 (1999).
Petitioner argues that he was denied his right to paid counsel of his own choice during
the preliminary examination proceedings and at sentencing. Petitioner asserts that his trial counsel
did not meet with him before the preliminary exam, failed to conduct any discovery, and induced
Petitioner to accept the prosecution’s plea offer. Petitioner claims that his guilty plea was involuntary,
violated due process, and was the product of ineffective assistance of counsel.
During the first day of his preliminary examination in early August 2009, Petitioner,
without voicing objections, was represented by appointed counsel’s partner. PageID.275, ECF No.
9-2. The prosecutor presented terms of a plea agreement: In exchange for a guilty plea on two counts
of first-degree home invasion, the prosecution would dismiss charges of unarmed robbery, fourth
habitual offender, and gun law violations. PageID.275-276, ECF No. 9-2. After a continuance of the
preliminary examination to secure a witness on a material witness warrant, the preliminary
examination continued in late August 2009. PageID.275, 278, ECF 9-2. At that time, the prosecution
made a modified plea offer: In exchange for his guilty plea on first-degree home invasion and larceny
from a person, the prosecution would dismiss one count of first-degree home invasion, not bring a
felony firearm charge, or charge Petitioner as a habitual offender. PageID.281, 284, 285, ECF No.
9-3. In the course of discussing the plea agreement in court, the prosecution indicated that Petitioner
could potentially cut his prison time in less than half if he accepted the plea offer instead of being
convicted at trial on all the charged counts. PageID.281, 282, ECF No. 9-3.
During the hearing, Petitioner requested new counsel and requested to retain his own
counsel:

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THE DEFENDANT: Sir, I’d like to say, um, I’ve been incarcerated
a whole month and this is my first time seeing my lawyer. At this time
I’d like to um, dismiss him as my counsel. My family wants to get me
a paid attorney and I’d rather go with a paid attorney. Right now, I
feel like I’m being rail-roaded.
THE COURT: Well, there’s a couple of issues. If you don’t want Mr.
Watkins to represent you, that’s I guess up to you to a certain degree.
If he’s Court appointed, then you don’t have a whole lot of say in who
get’s appointed to you. I’ve known Mr. Watkins for over a decade.
When I was a prosecutor, he and I had cases together and I know that
he’s - - he’s entirely competent and one of the most respected
attorney’s around.
THE DEFENDANT: I mean - THE COURT: So unless you have a real good reason why you don’t
want Mr. Watkins, you’re going to have to live with him. The second
thing is, is that if you don’t want to waive or enter a plea today, that’s
fine, I don’t care what you do but I’m here; the witness that we had to
get a material witness warrant on is here. They’ve got their tapes and
whatever else they have. So if you don’t want to plead today, that’s
fine, but we’re are going to finish the prelim today - -.
PageID.281, ECF No. 9-3.
Petitioner was provided with an Advice of Rights form and the Court began to discuss
the rights that Petitioner would give up if he entered a guilty plea. Petitioner thought that he could
adjourn the preliminary examination hearing and believed that his counsel was not ready to put forth
a defense during the preliminary examination. Petitioner’s counsel attempted to explain to Petitioner
that they were not required to “put on a defense at a preliminary exam.” PageID.283, ECF No. 9-3.
The Court explained:
You’ve had plenty of time to hire a new attorney, if that’s what you
wanted to do. You know, you’re here; she’s here. If you want, we can
run the prelim and see what happens. It might get bound over on one
charge. It may get bound over on no charges. It may get bound over
on all the charges. And then if you feel like you need to get a new
attorney up at the circuit court, you’re welcome to do that but we’re
not delaying this any longer that it had to - - this proceeding. After
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you’re out of my Court, I don’t care what you do. But we’re either
having your prelim today, or we’re - -you’re entering a plea today. It
doesn’t matter to me which one you do, but they’re not willing to
waive it - - and I’m not willing to adjourn it. So you’ve either got to
finish running it, which you started anyway, so if you want to finish it,
we can finish it. Again, that doesn’t matter to me. The only thing
you’ve got to consider is that if you do that and it gets bound over,
chances are you may never get a plea offer and that’s what you’re kind
of risking. So like I said, it doesn’t make a difference to me, but we
just need to know one way or another. . . .
PageID.283, ECF No. 9-3.
Petitioner accepted the plea agreement and agreed to plead guilty to first degree home
invasion and to larceny from a person. Petitioner was told by the court that the plea offer included
the prosecution’s “sentence recommendation” that Petitioner serve his sentences concurrently and
that, if the sentencing judge did not follow this recommendation, Petitioner could withdraw his plea.
PageID.284, ECF No. 9-3. Petitioner was aware that a specific sentencing range was not part of the
plea agreement. PageID.285, ECF No. 9-3. Petitioner admitted that he unlawfully entered a
residence, assaulted a victim, and stole the victim’s cell phone in July 2009. PageID.285, ECF No.
9-3. Prior to sentencing, Petitioner’s March 2011 brief accompanying his motion to withdraw his
guilty plea argued that, due to his confusion over the sentencing range, his guilty plea was not
understanding or voluntary. The sentencing judge denied that motion. PageID.84-92, ECF No. 4-1.
The constitutional validity of a guilty plea entered in the state courts is to be judged
under the due-process standard set forth by the United States Supreme Court in Boykin v. Alabama,
395 U.S. 238 (1969). Under Boykin, a guilty plea must be knowing and voluntary in order to
withstand scrutiny under the Due Process Clause. A criminal defendant enters a guilty plea
knowingly when he understands the nature of the charge and the “direct consequences” of his guilty
plea. See Brady v. United States, 397 U.S. 742, 748 (1970). In general, a defendant is aware of the

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direct consequences of the plea if he or she is aware of the maximum and minimum (if any) sentence
that may be imposed. See King v. Dutton, 17 F.3d 151, 153-54 (6th Cir.), cert. denied, 504 U.S. 1222
(1994); Hart v. Marion Corr. Inst., 927 F.2d 256, 259 (6th Cir.), cert. denied, 502 U.S. 816 (1991).
When a state prisoner brings a federal habeas petition challenging the voluntariness
of his plea, the state generally satisfies its burden of showing a voluntary and intelligent plea by
producing a transcript of the state-court proceeding. Garcia v. Johnson, 991 F.2d 324, 326 (6th Cir.
1993). Where the transcript is adequate to show that the plea was voluntary and intelligent, a
presumption of correctness attaches to the state court findings of fact and to the judgment itself. Id.
A satisfactory state-court transcript, containing findings after a proper plea colloquy, places upon
petitioner a “heavy burden” to overturn the state findings. Id. at 328; see Parke v. Raley, 113 S. Ct.
517, 523 (1992). In the present case, after a thorough interrogation of Petitioner, the state judge found
that petitioner’s plea of guilty was entered knowingly and voluntarily.
At his plea hearing, Petitioner indicated that he understood the rights that he was
giving-up as a result of his guilty plea, and that he understood the potential sentence range that he
could receive. Further, Petitioner entered into a favorable plea deal where the prosecutor agreed to
dismiss one count of home invasion, and the unarmed robbery charge. The prosecutor agreed not to
charge Petitioner with felony firearm and to dismiss the supplemental habitual offender charge in
exchange for a plea to one count of home invasion and one count of larceny from a person. The
prosecutor agreed to recommend that the sentences on each of the charges run concurrently. As a
result, Petitioner limited his exposure to a much more significant minimum and maximum term of
imprisonment. The record establishes that Petitioner entered into a voluntary and knowing plea.
A valid guilty plea extinguishes claims that arose prior to the plea.

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[A] guilty plea represents a break in the chain of events which has
preceded it in the criminal process. When a criminal defendant has
solemnly admitted in open court that he is in fact guilty of the offense
with which he is charged, he may not thereafter raise independent
claims relating to the deprivation of constitutional rights that occurred
prior to the entry of the guilty plea. He may only attack the voluntary
and intelligent character of the guilty plea by showing that the advice
he received from counsel was not within the standards set forth in
McMann [v. Richardson, 397 U.S. 759 (1970)].
Tollett v. Henderson, 411 U.S. 258, 267 (1973).
Refining these “standards” for attacking a guilty plea in a subsequent opinion, the
Court held:
[T]he two-part Strickland v. Washington [466 U.S. 668 (1984)] test
applies to challenges to guilty pleas based on ineffective assistance of
counsel. In the context of guilty pleas, the first half of the Strickland
v. Washington test is nothing more than a restatement of the standard
of attorney competence already set forth in Tollett v. Henderson,
supra, and McMann v. Richardson, supra. The second, or “prejudice,”
requirement, on the other hand, focuses on whether counsel’s
constitutionally ineffective performance affected the outcome of the
plea process. In other words, in 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.
Hill v. Lockhart, 474 U.S. 52, 58-59 (1985). Petitioner has failed to show that he received advice
from counsel that was ineffective. Petitioner claimed that counsel was not prepared to present a
defense at the preliminary examination. As counsel explained, Petitioner was not required to present
a defense, the issue was whether the prosecutor had evidence to establish probable cause for the
charges.1

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Petitioner was not denied the right to retain his own attorney. Petitioner never exercised that
right prior to entering his plea. Further, there is nothing within the record that could support
Petitioner’s claim that his counsel induced him to accept a plea. In fact, the record shows that
Petitioner received effective assistance of counsel and that Petitioner benefitted from the plea deal
(continued...)
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At sentencing in April 2011, Petitioner’s new counsel raised the sentencing guideline
issue again, but the sentencing judge found that, since there was no Killebrew agreement, Petitioner
was not entitled to withdraw his plea because the minimum range of 81 to 135 months the prosecution
mentioned during the preliminary examination was off by less than 10% from the accurate range.
PageID.292, ECF No. 9-4. The judge noted: “[N]one of this is going to change the sentence that I
would impose because my sentence is going to be well within the guidelines range, no matter which
guideline range you use.” Id.
Taking account of the fact that Petitioner, having been released on bond, “disappeared”
and did not show up for his scheduled sentencing hearing, the judge sentenced Petitioner to one
hundred and twenty to two hundred and forty months on the home invasion charge and to sixty to one
hundred and twenty months of the larceny charge, to be served concurrently. PageID.293-294, ECF
No. 9-4. At sentencing the Judge set forth his reasons to support Petitioner’s sentence:
Well, I have two fundamental problems in this case. The first problem
is that regardless of the circumstances and whether it was a
misunderstanding or not, the idea that you would have a firearm
around your two-year-old son is just unfathomable to me.
The second that has always bothered me about this case is that at the
time of your plea hearing, Judge Cortes talked to you and the issue of
bond came up and they released you on bond and you disappeared and
I don’t know what other conclusion to draw from that, other than the
fact that you decided that you really don’t care what sentence you get
as long as you didn’t get caught in the first place. Because I’ll tell
you, everybody that knows anything about me knows that I am very
tough on people who don’t show up for their sentencing hearing
because when we release people on bond, we’re releasing them with
the Court’s trust that they’ll come in. And so, every time somebody
doesn’t show up for sentencing, the sentence goes way up with me.

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(...continued)
that he made with the prosecutor.
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In addition to that, as I’m sure you know, you have an enormous
number of prior convictions. You only have three felonies, but you
have 21 prior misdemeanors and so, you know better than this. I
mean, you’re 32 years only and you really have been in a heck of a lot
of trouble in that time.
PageID.293, ECF No. 9-4.
Petitioner was represented by counsel during his preliminary examination. Petitioner
accepted a plea deal that, but for his pre-sentencing absconding, would have significantly reduced his
prison time. Petitioner made all the required admissions concerning the intelligent and voluntary
nature of his guilty plea as well as concerning his criminal conduct during his plea colloquy with the
trial judge. Petitioner also understood that, while the concurrent sentencing was part of the deal, the
sentencing scoring and range was not part of his plea bargain. Petitioner took “full responsibility for
[his] actions” during sentencing (PageID.293, ECF No. 9-4). The sentencing judge honored the
concurrent sentencing agreement on the two counts to which Petitioner had pled guilty. Petitioner
has failed to show a violation of his constitutional rights during the plea proceeding and during
sentencing. The Michigan court decisions did not result in any 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 result in a decision that was based upon an unreasonable determination
of the facts in light of the evidence presented in the state court proceeding.
In his final two claims, Petitioner raises the post-plea issue of representation during
his appeal by leave, claiming that Michigan’s procedure allowing appointed counsel to withdraw by
leave from a guilty-plea appeal violated due process and equal protection, and that his appointed
appellate counsel was ineffective for failing to find any non-frivolous issues and seeking to withdraw
from Petitioner’s appeal. The Michigan Court of Appeals rejected these claims as well for lack of
merit in an unreasoned order. PageID.295, ECF No. 9-5. The Michigan Supreme Court considered
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and declined to grant Petitioner’s application for leave to appeal the lower court’s order because it
was “not persuaded that the questions presented should be reviewed by this Court.” PageID.351, ECF
No. 9-11.
At the end of Petitioner’s sentencing hearing, the sentencing judge instructed Petitioner
that, while he did not have an automatic right to appeal, he could still appeal this decision to the
Michigan Court of Appeals by leave. The judge also instructed Petitioner concerning the timeliness
of such an appeal and directed him to his attorney at the time to discuss the matter. Finally, he also
informed Petitioner that the court would appoint an attorney for him if he could not afford one.
PageID.294, ECF No. 9-4. Petitioner was appointed appellate counsel. The appointed attorney, after
reviewing the record, stated that he was not aware of any appealable errors and asked the trial court
to have his appointment withdrawn. The trial court granted this motion and declined to appoint a
substitute attorney for Petitioner. PageID.111, ECF No. 4-1.
In the context of an attorney’s alleged failure to file an appeal, the Supreme Court has
indicated that the Strickland standard continues to apply. Roe v. Flores-Ortega, 528 U.S. 470, 477
(2000). In reviewing such a claim, “‘[j]udicial scrutiny of counsel’s performance must be highly
deferential.’” Id. at 477 (quoting Strickland, 466 U.S. at 689). Regarding the first Strickland-prong
in an appellate context, the Sixth Circuit has held that “‘appellate counsel cannot be ineffective for
a failure to raise an issue that lacks merit.’” Willis v. Smith, 351 F.3d 741, 745 (6th Cir. 2003)
(quoting Greer v. Mitchell, 264 F.3d 663, 676 (6th Cir. 2001)). See also Smith v. Bradshaw, 591 F.3d
517, 523 (6th Cir. 2010). To satisfy the prejudice-prong of Strickland in the appeals process, the
Supreme Court has held that a defendant “must show a reasonable probability that, but for his
counsel’s unreasonable failure [to raise Petitioner’s issues], he would have prevailed on his appeal.”
Smith v. Robbins, 528 U.S. 259, 285 (2000).
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Petitioner has failed to demonstrate that any of the issues he raised on appeal have
merit. Therefore, he cannot accuse his appointed appellate counsel of ineffectiveness of counsel.
Petitioner cannot show that his constitutional rights were violated by the appeal process or due to
ineffective assistance of appellate counsel. The Michigan court decisions did not result in any
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 result in a decision that was based
upon an unreasonable determination of the facts in light of the evidence presented in the state court
proceeding.
Accordingly, the Petition is dismissed.
In addition, if Petitioner should choose to appeal this action, a certificate of
appealability is denied as to each issue raised by the Petitioner in this application for habeas corpus
relief. Under 28 U.S.C. § 2253(c)(2), the court must determine whether a certificate of appealability
should be granted. A certificate should issue if Petitioner has demonstrated a “substantial showing
of a denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
The Sixth Circuit Court of Appeals has disapproved issuance of blanket denials of a
certificate of appealability. Murphy v. Ohio, 263 F.3d 466 (6th Cir. 2001). Rather, the district court
must “engage in a reasoned assessment of each claim” to determine whether a certificate is warranted.
Id. Each issue must be considered under the standards set forth by the Supreme Court in Slack v.
McDaniel, 529 U.S. 473 (2000). Murphy, 263 F.3d at 467.
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.” The undersigned concludes that reasonable jurists could

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not find that a dismissal of each of Petitioner’s claims was debatable or wrong. Therefore, the court
will deny Petitioner a certificate of appealability.
A Judgment consistent with this Memorandum and Order will be entered.
SO ORDERED.

Dated:

6/7/2016

/s/ R. Allan Edgar
R. ALLAN EDGAR
UNITED STATES DISTRICT JUDGE

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