Opinion
Civil No. 00-CV-75346-DT
August 15, 2001
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
Enrick Hilliard, ("petitioner"), presently confined at the Macomb Correctional Facility in New Haven, Michigan, seeks the issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his application, filed pro so, petitioner challenges his conviction on one count of delivery of less than fifty grams of heroin and two counts of delivery of less than fifty grams of cocaine, all contrary to M.S.A. 333.7401(2)(a)(iv); M.S.A. 14.15 (7401)(2)(iv). For the reasons stated below, petitioner's application for writ of habeas corpus is DENIED.
I. Background
Petitioner pleaded guilty to the above offenses, in exchange for which the prosecutor agreed to dismiss the supplemental information charging petitioner with being an habitual offender. The plea agreement also called for petitioner to cooperate with the police. (Transcript, hereinafter, "T.", 03/23/98, pp. 3-5). Prior to accepting petitioner's plea of guilty to the charges, the trial court advised petitioner of the penalties for the offenses and the rights that he would be relinquishing by pleading guilty. Petitioner also indicated to the court that it was his choice to plead guilty. ( Id. at pp. 6-9). The trial court asked petitioner whether he had any complaints about his attorney's representation of him. Petitioner replied: "I have, but not at the present." Petitioner further indicated that he was not satisfied with his lawyer, but indicated that what he was doing in pleading guilty was: "of my own accord." Upon further questioning from the court, petitioner indicated that he was satisfied that his attorney could continue to represent him. ( Id. at p. 10). Petitioner then made out a factual basis for the crimes, indicating that on three separate occasions, he delivered heroin or cocaine to another person. ( Id. at pp. 11-16).
On July 22, 1998, the date originally set for sentencing, petitioner appeared with new counsel and made a motion to withdraw his plea of guilty. (T., 07/22/98, pp., 3-5). The court adjourned the matter in order to review the guilty plea transcript. ( Id. at p. 13).
Petitioner's motion to withdraw was put over to November 10, 1998. Petitioner testified at this hearing. Petitioner indicated that shortly after entering the plea, he began writing letters to the trial judge asking that he be permitted to withdraw his plea of guilty. Petitioner testified that at the time he entered the plea, he had no intention of honoring the agreement and working with the police. He further admitted that he wasn't telling the court the truth when he entered his plea of guilty. (T., 11/10/98, pp. 8-10). Petitioner indicated that prior to trial, he was informed that he was arrested for selling 106 milligrams or one tenth of a gram of a controlled substance, but the police had alleged that they had paid three hundred and twenty ($320.00) dollars for this one tenth of a gram. Petitioner testified that the planned defense strategy was going to be to argue that one tenth of a gram of a controlled substance does not cost $320.00, thus attacking the credibility of the police witnesses. However, on the morning of trial, petitioner indicated that he was informed by his attorney that the "paperwork" had been changed to allege that petitioner had sold 2.5 grams in the three cases that he was coming to trial on. When petitioner confronted his attorney about never receiving these documents, petitioner's counsel replied that he had sent the documents to him at the jail. When petitioner reiterated that he never received this paperwork, his attorney allegedly told him to "prove it." ( Id. at pp. 12-14).
Subsequent to this confrontation with his attorney, petitioner approached the prosecutor about entering a plea of guilty. Petitioner claimed, however, that his motive in entering the plea was simply to file a grievance against his first attorney in order to discharge him, hire a second attorney, rescind his plea, and proceed to trial. ( Id. at p. 15). Petitioner lastly indicated that he was innocent of the charges that he pleaded guilty to. ( Id. at p. 17). The trial court denied petitioner's motion to withdraw his plea of guilty. ( Id. at pp. 32-33).
Petitioner's conviction was affirmed on appeal. People v. Hilliard, 223244 (Mich.Ct.App. January 31, 2000); lv. den. 617 N.W.2d 557 (2000). Petitioner now seeks the issuance of a writ of habeas corpus on the following grounds:
I. The trial court abused its discretion in denying defendant's pre-sentence motion for plea withdrawal where he asserted innocence and the prosecution did not claim plea withdrawal would be substantially prejudicial.
II. Mr. Hilliard was denied due process of law where trial counsel rendered ineffective assistance through deficient performances that included failing to challenge the jurisdiction of the court on grounds of unconstitutional variance between the information/complaint and antecedent proofs of delivery of drugs.
II. Standard of Review
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 proceeding.28 U.S.C. § 2254(d); Harpster v. State of Ohio, 128 F.3d 322, 326 (6th Cir. 1997).
A decision of a state court is "contrary to" clearly established federal law if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if the state court decides a case differently than the Supreme Court has on a set of materially indistinguishable facts. An "unreasonable application" occurs when the state court identifies the correct legal principle from a Supreme Court's decision but unreasonably applies that principle to the facts of the prisoner's case. Williams v. Taylor, 529 U.S. 362, 412-413 (2000). 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 411.
III. Discussion
A. The Court will deny respondent's motion to dismiss on exhaustion grounds.
In their answer to the petition, respondent argues that the current petition should be dismissed because neither of petitioner's claims have been properly exhausted by presenting them both to the Michigan Court of Appeals and the Michigan Supreme Court. In the alternative, respondent argues that the petition should be denied, because the grounds presented are without merit. Although petitioner disputes respondent's assertion that he failed to present his first claim to the Michigan Supreme Court, petitioner admits that his second claim, involving ineffective assistance of counsel, was never presented to the Michigan Court of Appeals, being raised only for the first time in the Michigan Supreme Court. Because petitioner failed to present this claim on his direct appeal to the Michigan Court of Appeals, his subsequent presentation of the issue to the Michigan Supreme Court did not satisfy the exhaustion requirement for habeas purposes. See Winegar v. Corrections Department, 435 F. Supp. 285, 288-289 (W.D. Mich. 1977). Therefore, petitioner by his own admission acknowledges that he has filed a mixed petition containing exhausted and unexhausted claims with this Court.
The Court declines to dismiss the petition on the ground that it contains unexhausted claims. A habeas petitioner may not present a "mixed" petition containing both exhausted and unexhausted claims to a federal court. Rockwell v. Yukins, 217 F.3d 421, 423 (6th Cir. 2000). However, a habeas petitioner's failure to exhaust his or her state court remedies does not deprive a federal court of its jurisdiction to consider the merits of the habeas petition. Cranberry v. Greer, 481 U.S. 129, 131 (1987). An unexhausted claim may be addressed if the unexhausted claim is without merit, such that addressing the claim would be efficient and would not offend the interest of federal-state comity. Matthews v. Abramajtys, 92 F. Supp.2d 615, 628 (E.D. Mich. 2000) (Tarnow, J.) (internal citations omitted). In these circumstances, a federal court should dismiss a non-federal or frivolous claim on the merits to save the state courts the useless review of meritless constitutional claims, Cain v. Redman, 947 F.2d 817, 820 (6th Cir. 1991). Because petitioner's claims lack merit, in the interests of efficiency and justice, the Court will address petitioner's claims, rather than dismiss the petition on exhaustion grounds. Welch v. Burke, 49 F. Supp.2d 992, 998 (E.D. Mich. 1999) (Cleland, J.).
B. The individual claims.
I. Claim # 1. The plea withdrawal claim.
Petitioner first claims that the trial court abused its discretion in denying his pre-sentence motion to withdraw his plea of guilty, where petitioner asserted that he was innocent of the crime and the prosecution did not establish that they would be substantially prejudiced by petitioner withdrawing his plea, as required by M.C.R. 6.310.
Ordinarily, a state judge's denial of a motion to withdraw a guilty plea is not subject to habeas corpus review, unless such plea was not entered intelligently and voluntarily. Martuzas v. Reynolds, 983 F. Supp. 87, 94 (N.D.N.Y. 1997) (internal citations omitted). A federal court will uphold a state court guilty plea if the circumstances demonstrate that the defendant understood the nature and consequences of the charges and voluntarily chose to plea guilty. See Cunningham v. Diesslin, 92 F.3d 1054, 1060 (10th Cir. 1996).
A review of petitioner's guilty plea transcript shows that petitioner knowingly and intelligently pleaded guilty to these charges. Petitioner was advised of the possible penalties for these crimes and the rights that he would be giving up by pleading guilty. In response to the trial court's inquiry, petitioner indicated that it was his own choice to plead guilty. Petitioner made out a sufficient factual basis to the crimes. Under the circumstances, petitioner has failed to show that his plea of guilty was not voluntarily and intelligently made.
Petitioner, however, claims that he should have been permitted to withdraw his plea of guilty in light of his assertion of innocence. Bald assertions of innocence are insufficient to permit a defendant to withdraw his or her guilty plea. United States v. Brown, 250 F.3d 811, 818 (3rd Cir. 2001). The mere assertion of innocence, absent a substantial supporting record, is insufficient to overturn a guilty plea, even on direct appeal. Everard v. United States, 102 F.3d 763, 766 (6th Cir. 1996). Petitioner's mere recantation of his guilty plea, without any support, would therefore be insufficient to have his plea overturned. Id. Thus, for a plea withdrawal motion to be successful, a defendant must set forth a legally cognizable defense to the charges against him or her, which requires more than a general denial to put the government to its proofs; rather, a defendant must affirmatively advance an objectively reasonable argument that he or she is innocent. United States v. Weaver, 112 F. Supp.2d 1, 7-8 (D.D.C. 2000) (internal citations omitted).
In the present case, petitioner has presented no factual evidence or reasonable arguments that he is innocent of these charges. Petitioner's bald assertion of innocence is insufficient to grant him habeas relief on this claim. Moreover, petitioner pleaded guilty to these charges in open court. The self-inculpatory statements made by a defendant under oath at a plea hearing "carry a strong presumption of verity", and a court, in reviewing belated claims of innocence, must draw all permissible inferences in favor of the government and against the defendant. United States v. Maher, 108 F.3d 1513, 1530 (2nd Cir. 1997) ( quoting Blackledge v. Allison, 431 U.S. 63, 74(1977)). Moreover, a trial judge who addressed a defendant individually in taking a defendant's guilty plea, and had the opportunity to observe the defendant's demeanor and observe his or her credibility, is entitled to reject belated claims of innocence that contradict credible pleas of guilty. Id. at 1531; See also United States v. Lasky, 23 F. Supp.2d 236, 243 (E.D.N.Y. 1998). In light of the fact that petitioner's post-plea claims of innocence contradict the statements that he made under oath at the guilty plea hearing in which he admitted to these crimes, petitioner is not entitled to habeas relief on this claim, particularly where he has presented this Court with no evidence or arguments to support his claim that he is innocent of these charges.
Lastly, petitioner's claim that the trial court did not comply with Michigan court rules concerning pre-sentence plea withdrawals is noncognizable in federal habeas review. Violations of state law and procedure which do not infringe specific federal constitutional protections are not cognizable claims under Section 2254. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).
II. Claim # 2. The ineffective assistance of counsel claim.
Petitioner next claims that he was deprived of the effective assistance of counsel.
To show that he was denied the effective assistance of counsel under federal constitutional standards, a defendant must satisfy a two prong test. First, the defendant must demonstrate that, considering all of the circumstances, counsel's performance was so deficient that the attorney was not functioning as the "counsel" guaranteed by the Sixth Amendment. Strickland v. Washington, 466 U.S. 668, 687 (1984). In so doing, the defendant must overcome a strong presumption that counsel's behavior lies within the wide range of reasonable professional assistance. Id.; O'Hara v. Wigginton, 24 F.3d 823, 828 (6th Cir. 1994). In other words, petitioner must overcome the presumption that, under the circumstances, the challenged action might be sound trial strategy. Strickland, 466 U.S. at 689. Second, the defendant must show that such performance prejudiced his defense. Id. To demonstrate prejudice, the defendant must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," Strickland, 466 U.S. at 694.
To establish the prejudice component in a claim of ineffective assistance of counsel in the context of a guilty plea, petitioner must establish that there was a reasonable probability that but for counsel's errors, he or she would not have pleaded guilty but would have insisted on going to trial with the obvious chance of being acquitted. Hogan v. Ward, 998 F. Supp. 290, 293-294 (W.D.N.Y. 1998) ( quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985) (court's assessment of whether a defendant would have gone to trial but for counsel's errors "will depend largely on whether the affirmative defense likely would have succeeded at trial"); See also Russell v. Smith, 2000 WL 1137727, * 6 (ED. Mich. July 24, 2000) (O'Meara, J.).
In the present case, petitioner claims that his trial counsel was ineffective for failing to challenge the jurisdiction of the trial court to accept his guilty plea on the grounds of an unconstitutional variance between the information and the complaint and "antecedent proofs of delivery of drugs." Specifically, petitioner claims that either the complaint or information or both charged petitioner with delivering 106 milligrams of cocaine, but that on or before the day of trial, the prosecutor either amended the information or disclosed evidence to the defense which alleged that petitioner actually sold a total of 2.5 grams of cocaine during these three transactions.
A complaint or indictment need not be perfect under state law so long as it adequately informs the petitioner of the crime in sufficient detail so as to enable him or her to prepare a defense. Therefore, an indictment "which fairly but imperfectly informs the accused of the offense for which he is to be tried does not give rise to a constitutional issue cognizable in habeas proceedings." Mira v. Marshall, 806 F.2d 636, 639 (6th Cir. 1986); Ransom v. Davis, 613 F. Supp. 430, 431 (M.D. Tenn. 1984). A claim of a variance between a criminal information and the evidence at the state court trial is not reviewable by way of federal habeas corpus. See Bradshaw v. State of Oklahoma, 398 F. Supp. 838, 844 (E.D. Okla. 1975); See also Anderson v. Love, 681 F. Supp. 1279, 1283 (M.D. Tenn. 1986). A charge is sufficiently specific when it contains the elements of the crime, permits the accused to plead and prepare a defense, and allows any disposition of the ease to be used as a bar against any further prosecutions. Fawcett v. Bablitch, 962 F.2d 617, 618 (7th Cir. 1992).
In the present case, petitioner claims that his attorney was ineffective for failing to challenge the trial court's jurisdiction to accept his guilty plea, because of a fatal variance between the amount of drugs alleged in the complaint or information and the quantity of drugs that the prosecution intended to allege were sold at trial. Petitioner's claim that his attorney was ineffective for failing to challenge any variance between the amount of drugs alleged in the complaint or information and the amount of drugs that the prosecution intended to present at trial fails, because he has failed to show how he was prejudiced by this alleged variance. Olden v. United States, 224 F.3d 561, 567 (6th Cir. 2000). In the present case, the possible penalties that petitioner was facing were not increased by this alleged variance in the amount of drugs, because the amounts alleged in the information and the amounts that the prosecutor intended to introduce at trial were both under 50 grams. A defense counsel's failure to raise an argument that the evidence presented at trial constituted a variance or constructive amendment of the indictment does not constitute ineffective assistance of counsel, where the evidence does not enlarge the scope of the crimes charged in the indictment. See Kowalczyk v. United States, 936 F. Supp. 1127, 1141-1142 (E.D.N.Y. 1996). Because petitioner has presented no evidence that the scope of the crimes charged in the complaint or information was enlarged by the alleged variance concerning the amount of drugs, petitioner is unable to show that counsel was ineffective for failing to challenge this alleged variance.
Moreover, petitioner is unable to show that he was prejudiced by counsel's failure to challenge the alleged variance between the complaint or information and the prosecutor's proofs because he has failed to show that the prosecution could not have withstood this challenge by simply amending the information in this case prior to trial. See United States v. Rasco, 697 F. Supp. 343, 346 (N.D. Ill. 1988) (rejecting ineffective assistance claim for failing to challenge adequacy of indictment). More importantly, petitioner has offered no reasons why he would have pled differently in the event that a challenge to the sufficiency of the information had any merit. Id. Accordingly, petitioner's ineffective assistance of counsel claim is without merit.
IV. Conclusion
The Court will deny the petition for writ of habeas corpus. The Court will also deny a certificate of appealability to petitioner. In order to obtain a certificate of appealability, a prisoner must make a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). To demonstrate this denial, the applicant is required to show that reasonable jurists could debate whether, or agree that, the petition should have been resolved in a different manner, or that the issues presented were adequate to deserve encouragement to proceed further. Slack v. McDaniel, 529 S.Ct. 473, 483-484 (2000). When a district court rejects a habeas petitioner's constitutional claims on the merits, the petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims to be debatable or wrong. Id. at 484. A district court has the power to deny a certificate of appealability sua sponte. See Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000). For the reasons stated in this opinion, the Court will deny petitioner a certificate of appealability because he has failed to make a substantial showing of the denial of a federal constitutional right. The Court will also deny petitioner leave to appeal in forma pauperis. because the appeal would be frivolous. Hence v. Smith, 49 F. Supp.2d 547, 549 (E.D. Mich. 1999) (Gadola, J.).
V. Order
Based upon the foregoing, IT IS ORDERED that the petition for a writ of habeas corpus is DENIED WITH PREJUDICE.
IT IS FURTHER ORDERED That a certificate of appealability is DENIED.
IT IS FURTHER ORDERED that petitioner will be DENIED leave to appeal in forma pauperis.