Smith #742633 v. Woods
ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 14 , denying certificate of appealability ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
ISAIAH Z. SMITH,
Case No. 2:15-cv-73
HON. ROBERT HOLMES BELL
OPINION AND ORDER
This is a habeas corpus petition brought by a state prisoner under 28 U.S.C. § 2254.
The matter was referred to Magistrate Judge Timothy Greeley, who issued a Report and
Recommendation (“R&R”) on July 25, 2016, recommending that this Court deny the
petition. (ECF No. 14.) The matter is before the Court on Petitioner’s objections to the
R&R. (ECF No. 15.)
This Court is required to make a de novo review upon the record of those portions of
the R&R to which specific objections have been made, and may accept, reject, or modify any
or all of the magistrate judge’s findings or recommendations. 28 U.S.C. § 636(b)(1); Fed.
R. Civ. P. 72(b); see also Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995) (“[A] general
objection to a magistrate’s report, which fails to specify the issues of contention, does not
satisfy the requirement that an objection be filed. The objections must be clear enough to
enable the district court to discern those issues that are dispositive and contentious.”).
Petitioner objects to the Magistrate Judge’s conclusion that Petitioner’s plea was
knowing and voluntary, and that trial counsel was effective during the plea phase. Petitioner
raised the same claims in a delayed application for leave to appeal, and the Michigan Court
of Appeals denied leave to appeal for “lack of merit in the grounds presented.” (ECF No.1-2,
PageID.16.) When a petitioner’s claim has been adjudicated on the merits in state court,
§ 2254(d) provides that a habeas petition shall not be granted 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 on an unreasonable
determination of facts in light of the evidence presented in the statecourt proceeding.
28 U.S.C. § 2554(d)(1)-(2).
This Court may only consider the clearly established holdings of the Supreme Court
when analyzing Petitioner’s claim under § 2254(d). Williams v. Taylor, 529 U.S. 362, 412
(2000). A state-court decision may only be overturned if: (1) it applies a rule contradicting
Supreme Court governing law; (2) it contradicts a set of facts materially indistinguishable
from a Supreme Court decision; (3) it unreasonably applies correct Supreme Court precedent
to the facts of the case; (4) it unreasonably extends Supreme Court legal principles where it
should not apply; or (5) it unreasonably refuses to extend Supreme Court legal precedent
where it should apply. Bailey v. Mitchell, 271 F.3d 652, 655 (6th Cir. 2001). This Court
defers to state-court decisions when the state court addressed the merits of Petitioner’s claim.
Harris v. Stovall, 212 F.3d 940, 943 (6th Cir. 2000). The state court’s factual findings are
presumed to be correct but may be rebutted by clear and convincing evidence. 28 U.S.C.
Petitioner argues that he did not “receive proper advice or [know of] the consequences
of a guilty plea.” (ECF No. 15, PageID.709.) A guilty plea must be knowing and voluntary
in order to withstand scrutiny under the Due Process Clause. Boykin v. Alabama, 395 U.S.
238 (1969). A criminal defendant knowingly pleads guilty when he understands the nature
of the charge and the likely consequences. Brady v. United States, 397 U.S. 742, 748 (1970).
This includes whether the defendant is aware of the maximum and minimum sentences that
may be imposed. See Brown v. Perini, 718 F.2d 784 (1983). A guilty plea entered by a
defendant who is “ fully aware of the direct consequences . . . , must stand unless induced by
threats (or promises to discontinue improper harassment), misrepresentation (including
unfulfilled or unfulfillable promises), or perhaps by promises that are by their nature
improper as having no proper relationship to the prosecutor’s business (e.g. bribes).” Talbert
v. Stovall, No.06-CV-12254, 2007 WL 1599702 (E.D. Mich. May 31, 2007). When a
defendant brings a federal habeas petition challenging his guilty plea, the state generally
satisfies its burden to show that the plea was voluntary and intelligent by producing a
transcript of the state-court proceeding. Garcia v. Johnson, 991 F.2d 324, 326 (6th Cir.
Here, the prosecutor gave a written plea agreement to Petitioner, his attorney, and the
trial judge. (ECF No. 10-4, PageID.254.) At the plea hearing, the prosecutor also read the
agreement onto the record. (Id. at PageID.257-58.) Then, the court conducted the plea
colloquy. After the colloquy, the court found that petitioner’s guilty plea was knowing and
voluntary, and that there was no undue influence, compulsion, duress, or promises made,
except for those stated on the record or contained in the written plea agreement. (Id. at
During Petitioner’s plea colloquy, he admitted that he knew the
consequences of his plea. (Id. at PageID.264.) Petitioner has not presented clear and
convincing evidence to overturn the state-court finding that Petitioner’s plea was knowing
Petitioner also argues that his plea is illusory because double jeopardy precludes a
defendant from being convicted of both first-degree murder and felony murder. An illusory
plea bargain is one that offers no real benefit to the defendant. Johnson v. Michigan Parole
Bd., No. 2:11-CV-11674, 2012 WL 6853535, at *12 (E.D. Mich. Dec. 6, 2012) (citing United
States v. Randolph, 230 F.3d 243, 250-51 (6th Cir. 2000)). If a prosecutor’s promise is
illusory, then a plea is not voluntary and knowing. Wolfe v. McKee, No. 1:12-CV-600, 2015
WL 1275416, at *12 (W.D. Mich. Mar. 19, 2015) (citing Randolph, 230 F.3d at 250-51). For
example, a defendant’s plea is not knowing and voluntary if there is a legal bar to conviction
on the charge that is dismissed under a plea bargain, and a defendant’s plea is induced by a
promise to forgo that charge. See People v. Graves, 523 N.W.2d 876, 878 (Mich. Ct. App.
1994) (holding that defendant was entitled to withdraw his guilty plea when he was induced
by a promise to forgo a charge that was legally barred).
Petitioner is correct that convictions for both first-degree murder and felony murder,
arising from the death of a single victim, would violate double jeopardy. See People v.
Bigelow, 581 N.W.2d 744, 745-45 (Mich. Ct. App. 1998) (overruling People v. Passeno, 489
N.W.2d 152 (1992), and holding that dual convictions for premeditated murder, Mich. Comp.
Laws § 750.316(1)(a), and felony murder, Mich. Comp. Laws § 750.316(1)(b), arising from
the death of a single victim, violated double jeopardy). Petitioner was charged with firstdegree murder, first-degree felony murder, first-degree home invasion, firearm possession,
and possession of a firearm when committing a felony. (ECF No.10-1, PageID.173.) The
prosecutor dismissed the charges of first-degree murder and felony murder in exchange for
Petitioner’s plea of guilty to second-degree murder. (ECF No. 10-4, PageID.254.) Petitioner
was not induced to plead guilty by a promise to forgo a charge that was legally barred.
Petitioner could have been convicted of first-degree murder or felony murder. By pleading
guilty, Petitioner avoided a life sentence without parole. See Mich. Comp. Laws §750.316
(first-degree murder carries a sentence of life imprisonment without parole); Mich. Comp.
Laws §750.317 (second-degree murder carries a sentence of any term of years or life with
the possibility of parole). Petitioner received real benefits in exchange for his guilty plea.
Therefore, the plea was not illusory, and the Michigan Court of Appeals decision that this
claim lacked merit was not based on an unreasonable determination of the facts in light of
the evidence presented in the state-court proceeding.
Petitioner also argues that trial counsel was ineffective because counsel did not
challenge the prosecution’s case or assess all of the discovery materials before finalizing plea
negotiations. Petitioner claims that counsel failed to investigate and determine whether the
prosecutor had legally sufficient evidence for a first-degree murder conviction.
There is a two-prong test to evaluate claims of ineffective assistance of counsel.
Strickland v. Washington, 466 U.S. 668, 687-88 (1984). 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. Id. A court considering a claim of ineffective assistance
must “indulge a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.” Id. at 689. Petitioner bears the burden of overcoming
this presumption. Id. To satisfy the prejudice prong, Petitioner must show that there is a
reasonable probability that, but for counsel’s constitutionally-deficient performance, he
would not have pleaded guilty and would have gone to trial. Hill v. Lockhart, 474 U.S. 52,
During Petitioner’s plea hearing, he expressly acknowledged that his attorney was
well-prepared and ready to proceed with trial. (ECF No. 10-5, PageID.261-62.) Under oath,
Petitioner agreed that he had met with his attorney to discuss trial strategies, potential
witnesses, evidence, and the likelihood that the jury would find him guilty of first-degree
murder or felony murder. (Id. at PageID.261.) He acknowledged that his attorney was
prepared, and that they had spoken in length about defenses and trial plans. (Id.) He agreed
that his attorney told him that it would be difficult for a jury to return a verdict of seconddegree murder based on the prosecutor’s evidence. (Id.) He also admitted that a reason why
he wanted to take the deal was because he “didn’t want to put [his] family members through
this again.” (Id. at PageID.262.) The record is clear: Petitioner’s attorney was not unprepared
for trial. Moreover, Petitioner has not shown that he would have chosen to go to trial but for
his attorney’s allegedly deficient performance. Petitioner has not satisfied either prong of
Strickland. The Michigan Court of Appeals did not unreasonably determine that Petitioner’s
claim lacked merit in light of the evidence presented in the state-court proceeding. Further,
the decision was not contrary to, and did not involve an unreasonable application of, clearly
established federal law.
Although Petitioner disagrees with the Magistrate Judge’s conclusions regarding these
issues, Petitioner has not demonstrated that the conclusions were erroneous. The R&R
accurately recites the facts and correctly applies pertinent law. The Court agrees with and
adopts the Magistrate Judge’s analysis on these issues.
With regard to the sections of the R&R not specifically objected to, the Court has
reviewed the matters and concludes that the R&R correctly analyzes the issues and makes
a sound recommendation.
IT IS HEREBY ORDERED that Petitioner’s objections to the R&R (ECF No. 15)
IT IS FURTHER ORDERED that the R&R (ECF No. 14) is APPROVED and
ADOPTED as the opinion of the Court.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED. 28
U.S.C. § 2253(c). Reasonable jurists would not disagree with the Court’s conclusion that
the claims are meritless. See Slack v. McDaniel, 529 U.S. 473, 483-84 (2000).
A judgment will enter that is consistent with this order.
Dated: October 11, 2016
/s/ Robert Holmes Bell
ROBERT HOLMES BELL
UNITED STATES DISTRICT JUDGE
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