Opinion
No. 02-CV070186-DT
March 24, 2003
OPINION AND ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS
Staff Attorney Cheryl Takacs Bell provided quality research assistance.
Petitioner Pamela Boyd, a state prisoner presently confined at the Scott Correctional Facility in Plymouth, Michigan, has filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254. Petitioner pleaded guilty to armed robbery in the Muskegon County Circuit Court in 1994 and was sentenced to 15-40 years imprisonment. Petitioner asserts that her plea was not knowing and voluntary and that she was denied the effective assistance of trial and appellate counsel. For the reasons stated below, the petition for a writ of habeas corpus is denied.
I. Factual Background
Petitioner's convictions stem from the May 11, 1994 robbery of 69-year-old Geraldine Staple in Muskegon, Michigan. Petitioner entered Ms. Staple's unlocked apartment after Ms. Staple had left to do laundry, and was caught there when Ms. Staple returned home unexpectedly. When Ms. Staple attempted to telephone the police, Petitioner struck her several times with the telephone and took some money from her. Ms. Staple suffered two black eyes, cuts and bruises on her head and arms, and a concussion. Petitioner was arrested and charged with armed robbery and assault with intent to do great bodily harm.
On September 2, 1994, Petitioner pleaded guilty to armed robbery in exchange for dismissal of the assault with intent to due great bodily harm charge. As part of the plea agreement, Petitioner agreed to waive her right to appeal her conviction except as to the sentence imposed. Petitioner was subsequently sentenced to 15-40 years imprisonment.
II. Procedural History
On December 12, 1994, Petitioner filed a motion to withdraw her guilty plea, asserting that the plea was not knowing and voluntary, that it was illusory, and that she did not knowingly waive her right to appeal. The trial court denied the motion, but agreed to re-sentence Petitioner based upon the parties' stipulation. Following a hearing on January 11, 1995, the trial court made some corrections to the sentencing report, but again sentenced Petitioner to 15-40 years imprisonment.
Petitioner thereafter filed an appeal as of right with the Michigan Court of Appeals, asserting several claims of error, including those raised in the present petition for a writ of habeas corpus. The Court of Appeals affirmed Petitioner's conviction and sentence. People v. Boyd, No. 180460, 1996 WL 33357138 (Mich.Ct.App. Sept. 27, 1996) (unpublished). Petitioner filed a delayed application for leave to appeal with the Michigan Supreme Court raising the same issues, which was denied. People v. Boyd, 455 Mich. 872, 568 N.W.2d 83 (1997).
Petitioner filed an initial habeas petition with the Court on July 21, 1998, asserting:
I. No evidentiary hearing held as to representations made by prior defense counsel to Petitioner and that Petitioner's plea was not knowingly, understandingly or voluntarily made because she did not receive sentence her attorney said she would.
II. The trial court erred by refusing to permit the Petitioner to withdraw her plea on the grounds that it was an illusory plea bargain. Plea entered on two crimes with common elements arising out the same transaction violated double jeopardy.
III. The trial court erred in failing to find Petitioner did not knowingly and understandingly waive her right to challenge plea bargain.
Respondent filed an answer to the petition on January 28, 1999, but did not submit the necessary state court transcripts and other relevant documents until June 1, 1999.
This Court conducted an evidentiary hearing on January 27, 2000. At that hearing, Petitioner testified that before the instant case arose she had pleaded guilty to a welfare fraud charge and had been sentenced to probation. Petitioner stated that she was represented by three attorneys during the course of her 1994 plea proceedings, attorneys Wilson, Wistrom, and Fisher. She met with Wistrom a couple of times. She testified that Wistrom told her that she was "looking at five to eight" or "eight to 15" depending on whether her prior conviction was a misdemeanor or felony. Petitioner testified that Wistrom did not explain the sentencing guidelines to her and that she thought that he was referring to sentencing ranges, not just maximum minimum sentences. She stated that it was her understanding that she would be sentenced to five to eight years imprisonment if her prior conviction was a misdemeanor or to eight to 15 years imprisonment if it her prior conviction was a felony.
Petitioner recalled Wistrom telling her that the prosecution agreed to drop one of the charges against her as part of the plea and signing the plea agreement in the court hallway just a few minutes before the plea hearing. She recalled entering her plea and informing the judge that no promises had been made to her, but claimed that this was not the truth because she thought Wistrom had "already worked it out with the judge." Petitioner stated that she did not want to say that she was making an agreement to a certain amount of time because she was concerned about the victim getting upset. Petitioner stated that she assumed that Wistrom had discussed her sentence with the prosecutor, but admitted that Wistrom never made such representations. Petitioner acknowledged that the judge informed her that he had not agreed upon a sentence, but said that she nonetheless believed that a sentencing deal had been arranged because she had agreed to plead guilty.
Petitioner recalled that Wistrom did not appear at the sentencing hearing and that she was represented by another attorney (Fisher). Petitioner testified that she was surprised by the sentence imposed by the trial court. She then wrote Wistrom a letter, contacted her father, and obtained the assistance of another lawyer to challenge her sentence.
Following the hearing before this Court, Petitioner moved to dismiss her petition so that she could return to the state courts and exhaust claims of ineffective assistance of counsel. On February 11, 2000, the Court granted her motion and dismissed the case without prejudice.
On March 17, 2000, Petitioner filed a motion for relief from judgment with the state trial court claiming that she was denied the effective assistance of trial and appellate counsel. The trial court denied the motion on April 5, 2000. Petitioner filed an application for leave to appeal with the Michigan Court of Appeals, which was denied. People v. Boyd, No. 231361 (Mich.Ct.App. June 7, 2001). Petitioner also filed an application for leave to appeal with the Michigan Supreme Court, which was denied. People v. Boyd, _ Mich. _, 636 N.W.2d 525 (2001).
Petitioner, through appointed counsel, filed the present habeas petition on January 16, 2002, raising the following claims:
I. Her plea was not knowing, understandingly, and voluntarily made where trial counsel advised her prior to her plea that she would receive a sentence of 3 to 8 years or 8 to 15 years if she had a previous conviction.
II. She was denied the effective assistance of counsel where trial counsel improperly advised her that she would receive a sentence of 3 to 8 years or 8 to 15 years if she had a previous conviction without adequately explaining to her that these were possible minimum sentences and the effective assistance of appellate counsel who failed to raise a claim of ineffective assistance of trial counsel.
Respondent filed an answer to the petition on May 21, 2002 asserting that the first claim should be denied for lack of merit and the second claim should be denied based upon procedural default.
This Court conducted another evidentiary hearing on March 6, 2003. At that hearing, Petitioner's state trial counsel, Kevin Wistrom, testified via telephone with the consent of the parties. Wistrom stated that he had handled numerous guilty plea cases since he began doing criminal defense work in 1990. He acknowledged that he had represented Petitioner during the 1994 plea process and had reviewed the transcripts and other materials provided by counsel. Wistrom indicated that in 1994 he spent about 40% of his work week doing court-appointed felony cases and the remainder of his time handling probate and civil matters. He testified that he was very familiar with the Michigan Sentencing Guidelines at the time he represented Petitioner. He noted that the guidelines established the range of minimum sentences faced by a defendant and that the maximum sentence was governed by the severity of the crime.
Although Wistrom did not have an independent recollection of Petitioner's case, he stated that he discussed the sentencing guidelines, including the calculations, the sentencing ranges, and the fact that a judge had discretion to disregard them, with his clients as a matter of course. Wistrom estimated that he spent six to eight hours on Petitioner's case. He stated that it was possible that he discussed the plea and sentencing with Petitioner while another member of his firm appeared at her sentencing. He could not recall whether he had received a letter from Petitioner following her sentencing. At the conclusion of the hearing, the parties stipulated that Wistrom and his former firm no longer retained any notes or files regarding this matter.
III. Standard of Review
Federal law imposes the following standard of review for habeas cases:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(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 the facts in light of the evidence presented in the State court proceedings.28 U.S.C. § 2254(d). Additionally, this Court must presume the correctness of state court factual determinations. 28 U.S.C. § 2254(e)(1).
IV. Analysis
A. Involuntary Plea
Petitioner first alleges that her guilty plea was not knowing, intelligent, and voluntary. The Michigan Court of Appeals did not specifically address the knowing and voluntary nature of Petitioner's guilty plea as a distinct federal issue on appeal. Accordingly, this Court must conduct an independent review of the state court's decision. See, e.g., Harris v. Stovall, 212 F.3d 940, 943 (6th Cir. 2000). This independent review requires the federal court to "review the record and applicable law to determine whether the state court decision 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." Id. at 943. This independent review is not a full, de novo review of the claims, but remains deferential because the court cannot grant relief unless the state court's result is not in keeping with the strictures of the AEDPA." Id.
When a petitioner is convicted as a result of a guilty plea, habeas review is limited to whether the plea was made voluntarily, intelligently, or knowingly. See United States v. Broce, 488 U.S. 563 (1989); Boykin v. Alabama, 395 U.S. 238 (1969). A plea is voluntary if it is not induced by threats or misrepresentations and the defendant is made aware of the direct consequences of the plea. See Brady v. United States, 397 U.S. 742, 755 (1970). The voluntariness of a plea "can be determined only by considering all of the relevant circumstances surrounding it." Id. at 749. The plea is intelligent and knowing where there is nothing to indicate that the defendant is incompetent or otherwise not in control of his or her mental faculties, is aware of the nature of the charges, and is advised by competent counsel. Id. at 756. The plea must be made "with sufficient awareness of the relevant circumstances and likely consequences." Id. at 748.
In this case, the state court record reveals that Petitioner's plea was voluntary, as well as intelligent and knowing:
Prosecutor: The plea negotiations are that the defendant will plead guilty to Count One, armed robbery. Upon defendant's plea of guilty to Count One, armed robbery, the People will dismiss Count Two, assault with intent to do great bodily harm less than murder. The amended Information will read that on or about May 11, 1994, in the City of Muskegon at 864 Spring, Apartment 611, Pamela Boyd did assault a certain person, to-wit: Geraldine Stable, while being armed with a dangerous weapon or an article used or fashioned in a manner to lead the person so assaulted to reasonably believe it to be a dangerous weapon, to-wit: a telephone handset, and did then and there feloniously rob, steal, and take from the person of said victim or in her presence certain property, to-wit: money, contrary to law. This is a felony punishable by life or any term of years, unless aggravated assault or serious injury involved, not less than two years.
* * *
Court: Miss Boyd, is the plea agreement as stated by the prosecutor?
Defendant: Yes.
Court: Do you agree?
Defendant: Yes, I do.
Court: Have any other promises been made to you to get you to plead guilty?
Defendant: No.
Court: Has anyone threatened you or anyone you know in order to get you to plead guilty?
Defendant: No.
Court: Is it your own idea to do so?
Defendant: Yes.
Court: How old are you?
Defendant: I'm 35.
Court: How far did you go in school?
Defendant: About a marketing (sic) period less than an associates degree in college.
Prosecutor: Your Honor, I apologize for interrupting the Court. There was another element of the plea agreement that I'm sorry I didn't state it earlier. That element was that the defendant would waive her appellate rights as to the plea.
D. Attorney: That's true as to the conviction, not as to a sentence.
Prosecutor: That is correct. I apologize, your Honor.
Court: Do you agree that's part of the plea agreement?
Defendant: Yes.
Court: OK. Have you used any alcohol, drugs, or medicine in the last two days?
Defendant: No.
Court: Are you having any difficulty understanding any part of these legal proceedings?
Defendant: No.
Court: The prosecutor read the information. Did you listen to it carefully?
Defendant: Yes, I did.
Court: Did you have any problems hearing or understanding the charge of armed robbery?
Defendant: No.
Court: Is it your wish to plead guilty to this charge as part of the plea agreement?
Defendant: Yes.
Court: Do you understand the maximum possible penalty for this crime is life in prison?
Defendant: Yes.
Court: There is a mandatory minimum if there was any serious injury involved or aggravated assault. Is that claimed by the prosecutor?
* * *
Court: So you're asking for a two-year minimum?
Prosecutor: Yes, your Honor?
Court: Consult with your —
D. Attorney: I'm going to need to, your Honor. We're going to do that.
* * *
Court: So what you're saying is that at the time of sentence you're going to put forth the argument that it is . . . something that constitutes a minimum of two years and you're going to argue against that.
D. Attorney: That's correct.
Court: OK.
Prosecutor: Yes, your Honor.
Court: You understand that, too?
Defendant: Yes.
Court: All right. You understand if your plea is accepted you won't have a trial of any kind; you will, therefore, be giving up the rights you'd have at the trial?
Defendant: Yes.
Court: Do you understand that you give up the right to be tried by a jury?
Defendant: Yes.
Court: Give up the right to be tried by the Court sitting without a jury if the prosecutor and the Court agree?
Defendant: Yes.
Court: Do you understand that you're giving up the right to be presumed innocent by saying that you're guilty?
Defendant: Yes.
Court: Do you understand you're giving up the right to require that the prosecutor prove you guilty beyond a reasonable doubt before you can be convicted?
Defendant: Yes.
Court: And do you understand you're giving up the right to have the prosecutor's witnesses appear at trial and the right to question those witnesses through your attorney?
Defendant: Yes.
Court: Do you understand you're also giving up the right to have the Court order your witnesses to appear at trial?
Defendant: Yes.
Court: Do you understand that you're giving up the right to remain silent during the trial, to not have your silence held against you by anyone?
Defendant: Yes.
Court: Finally do you understand you're giving up the right to testify for yourself at trial if you wanted to do so?
Defendant: Yes.
* * *
Court: I haven't agreed upon any possible plea or sentence with anyone involved in this case. Do you still wish to plead guilty?
Defendant: Yes.
Court: I find that the plea is made with understanding: it's voluntarily offered. I find the plea to be accurate. The plea is accepted.
9/2/94 Plea Tr., pp. 2-14.
The record reveals that Petitioner's plea was knowing and voluntary. At the time of her plea, Petitioner was 35 years old and had almost two years of college education. Petitioner was represented by legal counsel and conferred with counsel during the plea process. The trial court advised Petitioner of her trial rights and the fact that she would be giving up those rights by pleading guilty. The court also informed Petitioner that, by pleading guilty to armed robbery, she faced a maximum sentence of life imprisonment. Petitioner indicated that she was pleading guilty of her own free will and had not been coerced or threatened into entering her plea. She also indicated that no promises, other than those outlined in the plea agreement, had been made to her to induce her to plead guilty.
Petitioner argues that her plea was not knowing and voluntary because her attorney advised her that the possible sentences she faced were three to eight years imprisonment or eight to 15 years imprisonment with a prior conviction. Petitioner, however, does not have any corroborating evidence to support her assertion that she was misled about the consequences of her plea. Although attorney Wistrom could not recall his conversations with Petitioner, he demonstrated his understanding of the Michigan Sentencing Guidelines and testified that he informed clients of the sentencing guidelines and their meaning as a matter of course. Wistrom's testimony contradicts or, at the very least, fails to support Petitioner's assertions.
The Court notes that Petitioner's hearing testimony concerning Wistrom's advice regarding her possible sentence absent a prior felony conviction (five to eight years imprisonment) varies from her affidavit and habeas petition assertions (three to eight years imprisonment), but finds the variation to be inconsequential.
Additionally, Petitioner's affidavit testimony, initially presented to the trial court with her motion to withdraw her guilty plea, conflicts with her sworn testimony at the plea hearing in which she denied being promised anything beyond the terms of the plea agreement. Further, the trial court specifically informed Petitioner at the time she rendered her guilty plea that it had not agreed to any particular sentence. The fact that Petitioner was subsequently dissatisfied with her sentence or may have hoped for more lement treatment does not render her plea unknowing or involuntary. Brady, 397 U.S. at 757. As aptly stated by the United States Court of Appeals for the Sixth Circuit when faced with a challenge to a plea bargain based upon an alleged off-the-record agreement:
If we were to rely on [the petitioner's] alleged subjective impression rather than the record, we would be rendering the plea colloquy process meaningless, for any convict who alleges that he believed the plea bargain was different from that outlined in the record could withdraw his plea, despite his own statements during the plea colloquy . . . indicating the opposite. This we will not do, for the plea colloquy process exists in part to prevent petitioners . . . from making the precise claim that is today before us. "[W]here the court has scrupulously followed the required procedure, the defendant is bound by his statements in response to that court's inquiry."Ramos v. Rogers, 170 F.3d 560, 566 (6th Cir. 1999) (quoting Baker v. United States, 781 F.2d 85, 90 (6th Cir. 1986). Having carefully reviewed the record, the Court is satisfied that Petitioner's guilty plea was knowing, intelligent, and voluntary. Petitioner is therefore not entitled to habeas relief on this claim.
B. Ineffective Assistance of Counsel
Petitioner relatedly asserts that trial counsel was ineffective because he led her to believe that she would be sentenced under the Michigan Sentencing Guidelines to three to eight years imprisonment or eight to 15 years imprisonment with a prior conviction and did not advise her that the ranges referred to the minimum sentence she faced upon conviction. Petitioner also claims that appellate counsel was ineffective for failing to raise this issue on direct appeal.
The Court notes that Petitioner has not established that trial counsel misadvised her as to the substance and effect of the Michigan Sentencing Guidelines. Her testimony as to counsel's advice conflicts with her prior sworn testimony at the plea hearing as well as counsel's recollections of his normal practice. Nonetheless, even if Petitioner were misinformed by counsel, she is not entitled to habeas relief. A trial court's proper plea colloquy cures any misunderstandings that a defendant may have about the consequences of a plea. See Ramos, 170 F.3d at 565. Consequently, a claim of ineffective assistance of counsel predicated on allegedly misleading information given by counsel about the terms of a plea agreement does not provide grounds for habeas relief when the trial court conducts a proper plea colloquy. Id.; see also Curry v. United States, 39 Fed. Appx. 993, 994, 2002 WL 1774222, *2 (6th Cir. July 31, 2002); Hastings v. Yukins, 194 F. Supp.2d 659, 669-70 (E.D. Mich. 2002). In this case, the trial court specifically informed Petitioner that she could be subject to a minimum sentence of two years imprisonment and that she faced a maximum sentence of life imprisonment upon conviction. Further, the court advised her that it had not entered into any sentencing agreement. Under such circumstances, Petitioner cannot prevail on her ineffective assistance of trial counsel claim.
Lastly, given that Petitioner's ineffective assistance of trial counsel claim lacks merit, she cannot establish that appellate counsel was ineffective under the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984), for failing to raise the issue on direct appeal. Petitioner is thus not entitled to habeas relief on her ineffective assistance of counsel claims.
Given this determination, the Court need not address the issue of procedural default.
V. Conclusion
For the reasons stated, this Court concludes that Petitioner is not entitled to federal habeas relief on the claims presented. Accordingly,IT IS ORDERED that the petition for a writ of habeas corpus is DENIED WITH PREJUDICE.