Opinion
Civil Action No.: 99-CV-74641-DT.
July 6, 2000.
OPINION
Petitioner, Joseph Johnson, presently confined at the G. Robert Cotton Correctional Facility in Jackson, Michigan, has filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 alleging that he is confined in violation of his constitutional rights.
Background
In his application, Petitioner challenges his June 12, 1998 conviction by guilty plea of one count of second degree criminal sexual conduct in violation of Michigan Compiled Laws ("M.C.L.") § 750.520c. Petitioner was initially charged with four counts of first degree criminal sexual conduct, M.C.L. § 750.520b, and two counts of second degree criminal sexual conduct. In exchange for Petitioner's guilty plea, the remaining counts of first degree and second degree criminal sexual conduct were dismissed. Petitioner was sentenced to ten to fifteen years imprisonment.
Petitioner pleaded guilty to one count of committing second degree criminal sexual conduct upon an eleven-year-old boy. All six of the initial counts charged involved this victim and another victim under thirteen years old. Four of the charged counts alleged sexual penetration. Petitioner was informed that each count of first degree criminal sexual conduct involved an allegation of sexual penetration and that each count was punishable by life imprisonment. (Plea Tr. at 4).
Petitioner was informed that each count of second degree criminal sexual conduct involved an allegation of sexual contact, without penetration, upon a person under the age of thirteen. (Id.). Petitioner was also informed that this sexual contact involved touching an intimate area of the victim's body, or causing the victim to touch an intimate area of Petitioner's body, or the clothing covering those areas, for purposes of sexual gratification. ( Id. at 5). Petitioner was informed that the punishment for second degree criminal sexual conduct was a maximum of fifteen years imprisonment. (Id.).
Before Petitioner tendered his guilty plea, the judge informed him that he had a right to a jury trial or a bench trial on all of the charged counts, and that he was presumed innocent concerning all of the charges against him. (Id. at 6). Petitioner was informed that he had the right to appointed counsel, the right to be present during any trial, the right to cross-examine witnesses, and the right to call witnesses on his behalf. (Id. at 7). Petitioner was further informed of his right to testify on his behalf and his right not to testify at all. (Id. at 7-8). Petitioner was also informed that, if he chose not to testify, his silence could not be used against him. (Id. at 8). The court also told Petitioner that if he pleaded guilty he would be giving up all of the trial rights of which he had been informed. (Id.). Petitioner addressed the court and stated that he understood his rights, and that he wanted to waive them and plead guilty. (Id. at 8-9).
Defense counsel stated on the record that Petitioner was pleading guilty to one count of second degree criminal sexual conduct in exchange for dismissal of the remaining charges, a promise that no habitual offender charges would be filed against him, and in the expectation that he would receive a ten to fifteen year sentence. (Id. at 9). Petitioner stated that no other promises had been made to him. (Id. at 10). Petitioner stated that he was not forced or threatened to plead guilty and that he was pleading guilty of his own free will. (Id. at 11). Petitioner then pled guilty to one count of second degree criminal sexual conduct.
The judge then asked Petitioner if he knew that the victim was under thirteen years of age. Petitioner stated that he knew the victim (his step-son) was under thirteen years old and was, in fact, only eleven years old when the crime took place. (Id. at 12-13). Petitioner admitted that, with "a pair of [his] wife's underwear in [his] pants," he "humped" the victim's leg while they were both clothed. (Id. at 13). The court asked Petitioner if, in fact, he placed his penis, though covered with clothing, against the victim's leg and performed a sort of sexual act for the purpose of his (Petitioner's) sexual gratification. (Id.). Petitioner replied that he did. (Id.). The judge asked Petitioner if he had known that this was a crime. Petitioner replied that he did. (Id.). The court then accepted Petitioner's guilty plea. (Id. at 14-15).
A sentencing hearing was held on July 13, 1998. At sentencing, it was disputed whether Petitioner had ever sexually penetrated the boys he had initially been charged with committing first and second degree criminal sexual conduct upon. Petitioner denied that any penetration occurred. The victims, however, had indicated in interviews with police that penetration had occurred. The judge found as a matter of fact that there were penetrations. (Sentencing Tr. at 11). The judge also stated that Petitioner had one prior felony conviction and prosecutions for misdemeanor stalking and attempted fourth degree criminal sexual conduct, M.C.L. § 750.520e, which occurred during the same time period when he was victimizing the boys involved in the present case. (Id. at 15). Petitioner was then sentenced to the agreed upon ten to fifteen year sentence.
Petitioner filed an application for leave to appeal his guilty plea and sentence. Petitioner's application contended that his sentence was disproportionate to his crime, criminal history, and circumstances under People v. Milbourn, 435 Mich. 630 (1990). The Michigan Court of Appeals denied Petitioner's application. People v. Johnson, No. 214198 (Mich.Ct.App. Nov. 2, 1998). Petitioner then filed a pro se application for leave to appeal to the Michigan Supreme Court. Petitioner contended that his ten to fifteen year sentence was improper because no penetration was involved in the crime to which he pled guilty and "no penitration [sic] involved in this case at all only humping with both parties pant's [sic] up." (App. for Lv. at 5). Petitioner asserted that a five to twelve year sentence was appropriate. Petitioner's application for leave to appeal to the Michigan Supreme Court was denied. People v. Johnson, 460 Mich. 867 (1999).
On September 29, 1999, Petitioner filed the instant habeas corpus petition. The petition asserts that (I) "there were [sic] no penatration [sic] at all," 2) Petitioner and the victim "both had our pants up," and 3) three people say Petitioner "didn't do it." (Pet. at 5-6). Respondent has answered the petition and contends that it fails to set forth claims cognizable in federal habeas corpus and does not entitle Petitioner to relief. For the reasons set forth below, the petition shall be denied.
Discussion
Standard of Review
The provisions of the Antiterrorism and Effective Death Penalty Act ("AEDPA") govern this case because Petitioner filed his habeas application after the effective date of the AEDPA. See Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 2068, 138 L.Ed.2d 481 (1997). The AEDPA provides:
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. Ohio, 128 F.3d 322, 326 (6th Cir. 1997).
The United States Supreme Court has only recently defined the applicability of § 2254(d)(1). "In sum, § 2254(d)(1) places a new constraint on the power of a federal habeas court to grant a state prisoner's application for a writ of habeas corpus with respect to claims adjudicated on the merits in state court." Williams v. Taylor, 120 S.Ct. 1495, 1523 (2000). With respect to the "contrary to" clause, there are two situations in which a state court decision will be contrary to clearly established federal law. First, a state court decision is contrary to" the Supreme Court's clearly established precedent if the state court applies a rule that contradicts the governing law set forth in the Supreme Court's cases. Second, a state court decision is also "contrary to" the Supreme Court's clearly established precedent if the state court confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at a result different from the Supreme Court precedent. Id. at 1519-20.
On the other hand, a "run-of-the-mill state-court decision" that applied the correct legal rule from the Supreme Court's cases to the facts of a petitioner's case does not fit comfortably within the "contrary to" clause of § 2254(d)(1). Id at 1520. These cases, therefore, are reviewed under the "unreasonable application" language of § 2254(d)(1). A federal habeas court making the "unreasonable application" inquiry must ask whether the state court's application of clearly established federal law was "objectively unreasonable." Id. at 1521. Thus, a federal habeas court may not issue a writ simply because the court concludes in its independent judgment that the relevant state court decision applied clearly established federal law erroneously or incorrectly. Rather, the application must also be unreasonable. Id. at 1522.
Finally, the term "clearly established federal law" refers to the holdings, as opposed to the dicta, of the United States Supreme Court's decisions at the time of the relevant state court decision. Id. at 1523.
The federal court reviewing a habeas petition must apply the presumption of correctness to evidence-supported factual determinations made by a state court. West v. Seabold, 73 F.3d 81, 84 (6th Cir. 1996), cert. denied, 518 U.S. 1027, 116 S.Ct. 2569, 135 L.Ed.2d 1086 (1996). This presumption may only be overcome by the presentation of clear and convincing evidence by the petitioner. 28 U.S.C. § 2254(e)(1).
This Court shall interpret the present pro se habeas petition liberally in accordance with the rule from Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972) (per curiam). The present petition may be construed as either an attack on the legality of Petitioner's sentence (as he argued on direct appeal) or an attack on the legality of his guilty plea.
Legality of Sentence
Petitioner's state court appeal contended that his sentence was disproportionate under People v. Milbourn. Because Petitioner did not fairly present this claim to the state courts, as a federal constitutional claim, it is unexhausted. See Duncan v. Henry, 513 U.S. 364, 366, 115 S. Ct. 887, 888, 130 L.Ed.2d 865 (1995) (per curiam). However, this Court shall exercise its discretion and address this claim on the merits despite Petitioner's failure to exhaust his state court remedies. See 28 U.S.C. § 2254(b)(2).
Petitioner's claim that his sentence is disproportionate under Milbourn is a state law sentencing claim which is not cognizable in federal habeas corpus. Atkins v. Overton, 843 F. Supp. 258, 260 (E.D. Mich. 1994). Habeas corpus relief is available only when a prisoner's federal constitutional rights have been violated. 28 U.S.C. § 2254(a); Pulley v. Harris, 465 U.S. 37, 104 S.Ct. 871, 79 L.Ed.2d 29 (1983).
Furthermore, Petitioner's sentence is within statutory limits. Consequently, Petitioner must show that the sentence imposed was wholly devoid of discretion or amounted to an arbitrary or capricious use of discretion or, in the alternative, that the sentence constitutes cruel and unusual punishment to obtain federal habeas relief. Haynes v. Butler, 825 F.2d 921, 924 (5th Cir. 1987).
Petitioner's minimum sentence of ten years was within the guideline minimum sentence. Therefore, it was presumptively proportionate under Michigan law. People v. Dukes, 189 Mich. App. 262 (1991). Further, the judge lawfully considered the fact that Petitioner had a prior felony conviction. It is constitutional to impose a more severe sentence for a given crime on a defendant with a prior felony record than on a defendant with no prior felony record. See Rummel v. Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980).
The judge found that Petitioner had committed acts of sexual penetration upon the boy he admittedly committed second degree criminal sexual conduct upon and upon another victim under the age of thirteen. The sentencing judge stated that he was "satisfied there is a basis for finding that there were penetrations totally apart from the final conviction or totally apart from what may have been proven at trial." (Sentencing Tr. at 11). The United States Supreme Court has held that a sentencing court may consider uncharged criminal conduct, or criminal conduct which resulted in acquittal at trial, as long as the conduct was proven by a preponderance of the evidence. United States v. Watts, 519 U.S. 148, 156, 117 S.Ct. 633, 638, 136 L.Ed.2d 554 (1997). In short, because of the nature of his crime, his prior criminal history, and the proof of other criminal acts put before the sentencing court, Petitioner has not shown that imposition of a ten to fifteen year sentence for his crime was an unconstitutional abuse of discretion.
Petitioner does not explicitly claim that his sentence violates the Eighth Amendment's prohibition against cruel and unusual punishment. In any event, Petitioner's ten to fifteen year sentence for second degree criminal sexual conduct does not violate the Eighth Amendment. The United States Supreme Court expressly limited review of allegedly disproportionate sentences in Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991), a case in which the Supreme Court ruled that a mandatory life sentence without possibility of parole for a first offense of possession with intent to distribute more than 650 grams of cocaine was not cruel and unusual punishment prohibited by the Eighth Amendment.
Following Harmelin, the Sixth Circuit has ruled that "there is no requirement of strict proportionality; the eighth amendment is offended only by an extreme disparity between crime and sentence." United States v. Hopper, 941 F.2d 419, 422 (6th Cir. 1991). Based upon the reasoning of Harmelin and Hopper, this Court concludes that Petitioner's sentence does not violate the Eighth Amendment's constitutional prohibition against grossly or extremely disproportionate punishment and that imposition of a ten to fifteen year sentence was not an arbitrary or capricious abuse of discretion. Consequently, because the state court determinations were not objectively unreasonable, Petitioner's attack on his sentence is without merit.
Validity of Guilty Plea
Petitioner's habeas application may also be construed as an attack on his guilty plea. Petitioner has not exhausted state court remedies concerning an attack on his guilty plea. However, the habeas corpus statute gives this Court the discretion to deny this claim on the merits despite Petitioner's failure to exhaust state court remedies. 28 U.S.C. § 2254 (b)(2).
A plea of guilty must be knowingly and voluntarily made. Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 1711-12, 23 L.Ed.2d 274 (1969). The defendant must be aware of the "relevant circumstances and likely consequences" of his plea. Hart v. Marion Correctional Inst., 927 F.2d 256, 257 (6th Cir. 1991). The defendant must also be aware of the maximum sentence that can be imposed for the crime for which he or she is pleading guilty. King v. Dutton, 17 F.3d 151, 154 (6th Cir. 1994). When a petitioner brings a federal habeas petition challenging his plea of guilty, the state generally satisfies its burden by producing a transcript of the state court proceedings showing that the plea was made voluntarily. Garcia v. Johnson, 991 F.2d 324, 326 (6th Cir. 1993). The factual findings of a state court that the guilty plea was properly made are generally accorded a presumption of correctness. Petitioner must overcome a heavy burden if the federal court is to overturn these findings by the state court. Id.
It is only when the consensual character of a guilty plea is called into question that the validity of a guilty plea may be impaired. Mabry v. Johnson, 467 U.S. 504, 508-09, 104 S.Ct. 2543, 2547, 81 L.Ed.2d 437 (1984). A guilty plea "entered by one fully aware of the direct consequences, including the actual value of any commitments made to him by the court, prosecutor, or his own counsel, must stand unless induced by threats (or promises to discontinue improper harassment), misrepresentation (including unfulfilled or unfulillable promises), or perhaps by promises that are by their nature improper as having no proper relationship to the prosecutor's business ( e.g., bribes)." Id. at 509, 104 S.Ct. at 2547 (quoting Brady v. United States, 397 U.S. 742, 755, 90 S.Ct. 1463, 1472, 25 L.Ed.2d 747 (1970)). 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 plead guilty. See Cunningham v. Diesslin, 92 F.3d 1054, 1060 (10th Cir. 1996).
A review of the record shows that Petitioner's guilty plea was voluntary and intelligent and made after being fully informed of his constitutional rights. Petitioner was also informed of the maximum sentence he faced and the elements of the crime to which he pled guilty. The court carefully questioned Petitioner about whether he had been coerced or threatened to plead guilty and he stated that he had not been. Therefore, Petitioner is not entitled to relief from his guilty plea for these reasons.
Petitioner does not contend that he did not receive the sentence he had been promised. Therefore, he has not shown that the plea agreement was broken and is not entitled to habeas relief on this account. See Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). Rather, Petitioner argues that his sentence is disproportionate. As previously explained, this claim lacks merit. Furthermore, dissatisfaction with a lawful sentence imposed in exchange for a knowing and voluntary guilty plea does not render the guilty plea involuntary.
Petitioner also asserts in his application that no penetration occurred. This allegation does not entitle Petitioner to habeas relief. First, Petitioner did not plead guilty to a crime which included an element of sexual penetration. The elements of second degree criminal sexual conduct are sexual contact with another person for purposes of sexual gratification where the other person is under thirteen years of age. M.C.L. § 750.520c(1)(a). The record unambiguously shows that Petitioner admitted knowingly committing all of these elements of the crime. Petitioner's sworn admissions of factual guilt in open court are entitled to great weight. Campbell v. Marshall, 769 F.2d 314, 321-22 (6th Cir. 1985).
Petitioner pled guilty, upon the advice of counsel, after being fully advised by the trial judge of his rights, the elements of the crime to which he was pleading guilty, and his maximum sentence exposure. The Court concludes that Petitioner voluntarily and intelligently admitted his factual guilt. Petitioner also received the sentence for which he bargained and dismissal of four life sentence counts and one additional fifteen-year sentence count in exchange for his guilty plea. For all of the above-stated reasons, and because the state court determinations were "objectively reasonable," Petitioner's attack on his guilty plea is meritless.
Conclusion
Whether construed as an attack on his sentence or as an attack on his guilty plea, the claims set forth in the instant petition have no merit and do not entitle Petitioner to habeas relief. Petitioner's sentence and his guilty plea are not unconstitutional. Therefore, Petitioner's habeas corpus petition shall be denied.