Opinion
Case No. 00-10362-BC.
December 23, 2004
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
This matter is before the Court on a pro se petition for writ of habeas corpus brought by Anthony J. Kinard, a state prisoner presently confined at the Baraga Maximum Correctional Facility in Baraga, Michigan. Relying on 28 U.S.C. § 2254, Kinard in challenges his 1997 Jackson County, Michigan conviction by plea of no contest to assault with intent to commit great bodily harm less than murder, Mich. Comp. Laws § 750.84, and his resulting sentence of four-and-one-half to ten years for this crime. He raises three grounds in his petition, although this Court previously has determined that the third ground — a freestanding claim of actual innocence — did not assert an independent basis for relief but rather was an argument intended to rebut an anticipated attack of procedural default. Kinard's other two grounds are that his plea was involuntary because of erroneous advice given to him by his attorney and the trial judge, and he was sentenced based on erroneous information. Neither has merit, and therefore the Court will deny the petition for writ of habeas corpus.
I.
The petitioner was convicted of the above offense in the Jackson County, Michigan Circuit Court on November 19, 1997, upon his plea of no contest. The charge arose from an incident that occurred while the petitioner was a detainee awaiting trial on a robbery charge that previously had been reversed by the Michigan Court of Appeals and remanded for a new trial. While awaiting trial, the petitioner hit another inmate in the eye during a fight. Although the incident initially appeared to involve nothing more than a simple assault, about ten days later remnants of a ball point pen were found in the victim's wound during follow-up care, leading to the conclusion that the petitioner used a pen as a weapon to perpetrate the assault and yielding the enhanced charge. Although the petitioner could have been sentenced to life imprisonment as a fourth felony offender, see Mich. Comp. Laws § 769.12, he was able to secure a plea agreement that limited his minimum sentence to a range of forty-eight to sixty months in custody. The armed robbery charge on which Kinard was awaiting retrial was also dismissed as part of the plea agreement.There was other consideration for the no contest plea. The prosecutor agreed to dismiss the supplemental information charging the petitioner as a fourth felony habitual offender under Michigan Compiled Laws Section 769.12, which would have raised the statutory maximum penalty from ten years to life in prison. In addition, defense counsel agreed with the prosecutor that the sentencing judge "would write a letter to the parole board indicating the Mr. Kinard is to be considered for parole, and not to, I guess, consider the supplements when making that determination." Plea Tr. at 6. The trial judge clarified that aspect of the agreement as follows:
And that would be a letter that would be directed by me or my successor at the request of Mr. Kinard, if he was to come up for parole consideration, and they indicated that they wouldn't be doing it because of the supplemental charges.
He would write a letter to me, and then I would, in turn, write to the parole board and say, you know, go ahead and consider him for parole, not considering the habitual offenses. That's the normal way in which it occurs.Id. at 10. The petitioner's attorney acknowledged that the trial judge's explanation was satisfactory. Later in the proceedings, the trial judge repeated:
When you come up for your time of [parole] eligibility, if the parole board indicates they're not going to consider you because of the prior offenses, you write a letter to me and ask me if I would tell the parole board to go ahead and consider you at that time irrespective of the prior offenses.Id. at 16. In response, Kinard stated, "That's fair enough." Id. As the plea colloquy continued, the trial judge asked the petitioner if any promises had been made to him other than those set forth on the record to induce his plea. The petitioner replied, "None other the promises than [sic] we just — (inaudible) that just took place." Id. at 17.
On December 10, 1997, the trial court sentenced the petitioner to four-and-one-half to ten years (fifty-two to 120 months) in custody. Thereafter, the petitioner filed a motion to withdraw his plea raising three issues. First, he claimed that his plea was involuntary because he had been misled into pleading no contest by (1) mis-scoring of sentencing guidelines, (2) being told that a letter to the parole board allowing the board to consider him for parole on the first available opportunity was more valuable than it really was, and (3) being told that he would receive sentence credit for time served on the reversed armed robbery conviction. Second, the petitioner requested credit for time served while awaiting trial on the assault charge. Third, the petitioner requested that his presentence report be amended. The sentencing judge granted the petitioner's request for credit for time served as a detainee on the assault charge and denied petitioner's other claims. Later, upon the parties' stipulation, the sentencing judge granted the petitioner's request to amend his presentence report.
The petitioner filed an application for leave to appeal in the Michigan Court of Appeals, raising the same issues stated in his motion to withdraw his plea, except for the detainee sentence credit issue. The Michigan Court of Appeals denied leave to appeal. People v. Kinard, Michigan Court of Appeals Docket No. 216463 (Apr. 13, 1999). The petitioner next filed an application for leave to appeal in the Michigan Supreme Court, initially raising the same two issues he presented to the Michigan Court of Appeals, but he subsequently withdrew his claim that his presentence report was inaccurate after the trial judge amended the report in a manner requested by the petitioner. The Michigan Supreme Court denied leave to appeal. People v. Kinard, 461 Mich. 903, 603 N.W.2d 641 (1999).
Sometime thereafter, the petitioner filed a motion for relief from judgment in the trial court asserting that the sentencing judge was not licensed to practice law and therefore could not lawfully sentence him. The motion was denied in an order entered on May 16, 2000 from which Kinard did not seek leave to appeal.
On September 22, 2000, the petitioner filed the pending petition for a writ of habeas corpus presenting the following claims:
I. Petitioner's plea must be vacated and withdrawn as not intelligently, voluntarily made, where the trial court and petitioner's trial attorney both misinformed him of the value of the promised letter to the parole board not to consider any of petitioner's prior record, to induce petitioner to plead nolo contendere, rendering the plea involuntary. U.S.C.A. Const. Amend. 5th, 6th, and 14th.
A. Petitioner was deprived of the effective assistance of counsel where counsel's advice was so erroneously given to petitioner, and if not for counsel's advice petitioner would not have plead guilty and would have went [sic] to trial. Strickland v. Washington, 466 U.S. 668 (1984).
B. Petitioner's plea was not voluntarily made where petitioner was given misadvice that the 48 to 60 months sentencing guidelines that were misscored by the state court, prosecutor, and petitioner's counsel. Petitioner would not have pleaded guilty if he had known that the guidelines had been miscalculated by the parties, and petitioner's counsel was ineffective for not properly scoring the guidelines. Strickland v. Washington, 466 U.S. 668 (1984).
C. Petitioner was deprived of his 5th, 6th, and 14th Amendment constitutional rights to the effective assistance of counsel where the cumulative impact of counsel's misadvice throughout the plea negotiations and sentencing constitutes ineffective assistance of counsel and renders the plea involuntary. Strickland v. Washington, 466 U.S. 668 (1984).
D. Petitioner's federal constitutional rights have been violated and the state court abused its discretion and its legal analysis in denying the petitioner's motion to withdraw his plea and for an evidentiary hearing. U.S.C.A. Const. Amend. 5th, 6th, and 14th.
II. Petitioner is entitled to have irrelevant and inaccurate information remove[d] from the presentence report and trial counsel's failure to challenge the dismissed and unknown dispositions constitutes ineffective assistance of counsel. U.S.C.A. Const. Amend. 6th and 14th.
III. Petitioner is actually innocent of the crime of assault with intent to do great bodily harm less than murder, that resulted from a plea of nolo contendere stemming from an unusual set of circumstances of first impression, and the evidence of petitioner's factual innocence of the crime is meritorious in light of all the evidence, that no reasonable juror would have convicted him.
The respondent first responded to the petition with a motion to dismiss alleging that the petitioner had failed to exhaust his state court remedies on the third ground. As mentioned, the Court denied that motion by construing the petition liberally and interpreting the third ground as a justification that anticipated an argument that there had been a procedural default, since a freestanding claim of actual innocence is not cognizable by a federal habeas court as a constitutional violation. See Herrera v. Collins, 506 U.S. 390, 400 (1993). Thereafter, the respondent answered the merits of the petition and addressed the first two grounds, but did not raise an affirmative defense of procedural default.
II.
The standard on habeas review of a petitioner's substantive claims is whether the state court's decision was contrary to or an unreasonable application of clearly established Supreme Court precedent, or an unreasonable determination of the facts. 28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362, 412-13 (2000) (O'Connor, J., concurring). This standard applies to habeas petitions challenging guilty-plea-based convictions, and by analogy, convictions based on pleas of nolo contendere. See McAdoo v. Elo, 346 F.3d 159, 165-66 (6th Cir. 2003) (internal citation omitted) (observing that "[t]rial court errors in state [guilty plea] procedure and/or evidentiary law do not rise to the level of federal constitutional claims warranting relief in a habeas action unless the error renders the proceeding so fundamentally unfair as to deprive the petitioner of due process under the Fourteenth Amendment").
The provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996), govern this case because the petitioner filed this habeas petition after the AEDPA's effective date. See Lindh v. Murphy, 521 U.S. 320, 336 (1997). That Act "circumscribe[d]" the standard of review federal courts must apply when considering applications for a writ of habeas corpus raising constitutional claims. See Wiggins v. Smith, 539 U.S. 510, 520 (2003).
As amended, 28 U.S.C. § 2254(d) 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 proceeding. 28 U.S.C. § 2254(d). Therefore, federal courts are bound by a state court's adjudication of a petitioner's claims unless the state court's decision was contrary to or involved an unreasonable application of clearly established federal law. Franklin v. Francis, 144 F.3d 429, 433 (6th Cir. 1998). Mere error by the state court will not justify issuance of the writ; rather, the state court's application of federal law "must have been objectively unreasonable." Wiggins, 539 U.S. at 520-21 (quoting Williams, 529 U.S. at 409; internal quotes omitted). Additionally, this Court must presume the correctness of state court factual determinations. 28 U.S.C. § 2254(e)(1) ("In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct."); see also Cremeans v. Chapleau, 62 F.3d 167, 169 (6th Cir. 1995) ("We give complete deference to state court findings unless they are clearly erroneous.").
The Supreme Court has explained the proper application of the "contrary to" clause as follows:
A state-court decision will certainly be contrary to [the Supreme Court's] clearly established precedent if the state court applies a rule that contradicts the governing law set forth in our cases. . . .
A state-court decision will also be contrary to this Court's clearly established precedent if the state court confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from [the Court's] precedent.Williams, 529 U.S. at 405-06.
The Supreme Court held that a federal court should analyze a claim for habeas corpus relief under the "unreasonable application" clause of § 2254(d)(1) "when a state-court decision unreasonably applies the law of this Court to the facts of a prisoner's case." Id. at 409. The Court defined "unreasonable application" as follows:
[A] federal habeas court making the "unreasonable application" inquiry should ask whether the state court's application of clearly established federal law was objectively unreasonable. . . .
[A]n unreasonable application of federal law is different from an incorrect application of federal law. . . . Under § 2254(d)(1)'s "unreasonable application" clause, then, a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.Id. at 409, 410-11. See also McAdoo, 365 F.3d at 493-93; Rockwell v. Yukins, 341 F.3d 507, 512 (6th Cir. 2003) (en banc); Lewis v. Wilkinson, 307 F.3d 413, 418 (6th Cir. 2002).
A.
The petitioner first contends that his no contest plea was involuntary because he received incorrect information with respect to a letter that was to be sent by the trial judge to the parole board, and his state sentencing guidelines were incorrectly scored. A guilty plea, and by analogy a plea of nolo contendere, must be supported by "an affirmative showing that it was intelligent and voluntary." Boykin v. Alabama, 395 U.S. 238, 242 (1969). The Sixth Circuit has observed that:
[a] plea is valid if it is entered voluntarily and intelligently as determined under the totality of the circumstances. Brady v. United States, 397 U.S. 742, 749, 90 S. Ct. 1463, 25 L. Ed. 2d 747 (1970). The constitution requires the circumstances to reflect that the defendant was informed of all the direct consequences of his plea. Id. A plea may be involuntary if the defendant does not understand the nature of the constitutional rights he is waiving, or unintelligent if the defendant does not understand the charges against him. Henderson v. Morgan, 426 U.S. 637, 645 n. 13, 96 S. Ct. 2253, 49 L. Ed. 2d 108 (1976).United States v. Ormsby, 252 F.3d 844, 849 (6th Cir. 2001). A showing of intelligence and voluntariness generally is made by the State's production of a transcript of state court proceedings to establish that the plea was made voluntarily. McAdoo, 346 F.3d at 166 (citing Garcia v. Johnson, 991 F.2d 324, 326 (6th Cir. 1993)). The Supreme Court has held that a defendant must have "sufficient awareness of the relevant circumstances and likely consequences" of his plea. Brady v. United States, 397 U.S. 742, 748 (1970). Thus, a no contest plea is voluntary if it is made with full knowledge of its direct consequences, and it will stand unless it is made under duress or as a result of threats, misrepresentations, or improper inducements. Id. at 755.
With respect to the letter that the trial judge was to send to the Michigan Parole Board, the petitioner claims that his "understanding of the letter was that it would release him on parole as part of the plea agreement being that it would make him a first felony offense [sic] and that parole board would have to release him per the letter on the advice of the court and his attorney." Pet. at 2-3. However, there is no factual basis in the record supporting this claim. The trial judge stated clearly on the record not once, but twice, that upon petitioner's request, when he became eligible for parole, the judge would write the parole board to advise its members to consider the petitioner for parole, and not use the petitioner's habitual offender charges to bar consideration. The petitioner and his attorney acknowledged that they understood this term and that no additional promises had been made. Nothing the trial judge said suggests in any way a promise that the parole board would be required to release the petitioner on parole.
The petitioner's subjective belief that the words plainly stated on the record meant something else will not render the plea involuntary. The petitioner does not offer the testimony of defense counsel or any other corroborating evidence to support an assertion that he was misled or confused about this aspect of the plea agreement. As aptly stated by the United States Court of Appeals for the Sixth Circuit when faced with a challenge to a plea bargain:
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)).
The petitioner also claims that his trial counsel promised him that he would receive credit for all of the time served on his vacated robbery sentence. However, the record once again contradicts this allegation. At the plea proceeding, the petitioner testified under oath that no promises had been made which were not reflected in the record. Plea Tr. at 17. Credit for time served on an offense different than the offense of conviction was not part of the plea agreement. The petitioner's allegation that his lawyer promised him this benefit, therefore, does not merit relief. See Hastings v. Yukins, 194 F. Supp. 2d 659 (E.D. Mich. 2002).
Next, the petitioner contends that he was misled into pleading no contest by an incorrect scoring of his sentencing guidelines. He claims that his guideline minimum sentence should have been thirty-six to eighty months, not forty-eight to eighty months. The guideline range stated at the plea proceeding was forty-eight to sixty months. This claim has no merit. Michigan uses an indeterminate sentencing scheme for custodial sentences in which the sentencing court sets a minimum term of imprisonment that may be as long as two-thirds of the statutory maximum sentence. See Mich. Comp. Laws § 769.34(2)(b); People v. Babcock, 469 Mich. 247, 255 n. 7, 666 N.W.2d 231, 237 n. 7 (2003) (citing People v. Tanner, 387 Mich. 683, 690, 199 N.W.2d 202 (1972)). If the statutory maximum sentence is life in prison, then the sentencing court has discretion to set the maximum term as well. Babcock, 469 Mich. at 256 n. 7, 666 N.W.2d at 237 n. 7. The Michigan parole board has the discretion to release a prisoner after he has served his minimum sentence. Mich. Comp. Laws § 791.233(1); Hopkins v. Michigan Parole Bd., 237 Mich. App. 629, 646, 604 N.W.2d 686, 695 (1999).
Michigan also has adopted sentencing guidelines to limit the discretion of sentencing courts. However, it is well established under Michigan law that the sentencing-guideline range only applies to a defendant's minimum sentence. See Administrative Order No. 1984-1, 418 Mich. xxiv; People v. Ridley, 142 Mich. App. 129, 133-34, 369 N.W.2d 274 (1985). The result of properly scored sentencing guidelines in a given case is a range of months within which a sentencing court may set the minimum sentence. The top end of that range is the "maximum-minimum" sentence. To complete a criminal sentence under the indeterminate sentence law, the court also must establish a maximum term, which, as noted earlier, is set automatically by statute or established by the sentencing judge's unrestricted discretion.
In this case, even if the range for the minimum sentence was scored incorrectly as the petitioner contends, there is no evidence that the mistake had any impact on the proceedings. The trial judge established a minimum sentence — fifty-four months — that fell within the range that the petitioner contends is correct. There was no promise that the judge would choose a minimum sentence at the low end of the range, and there is no evidence that the state court would have done so even if it believed that a lower range was available. At the time of sentencing, the petitioner had five prior felony convictions. Sentencing Tr. at 11. The trial judge noted on the record that the petitioner viciously assaulted the victim, causing him severe injuries, and that the petitioner had a history of violent, assaultive behavior. Id. at 10. The judge stated his belief that "we just can't tolerate that in civilized society. So at some point in time, you've got to learn to control your emotions when dealing with people. Obviously, we have to deter this conduct by you and others." Id. at 11. There is no reasonable probability that a lower "minimum-minimum" sentence range would have resulted in a shorter sentence.
The defendant asserts that his trial attorney was constitutionally ineffective for failing to detect the scoring error. However, the petitioner has not established that he would have chosen not to plead guilty and insisted on going to trial but for counsel's conduct. See Smith v. United States, 348 F.3d 545, 551 (6th Cir. 2003) (addressing the two-fold requirement of Strickland v. Washington, 466 U.S. 668 (1984), and stating that "[t]he second, or `prejudice,' requirement . . . 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") (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)). The petitioner received a very favorable plea agreement. He was charged with two separate felonies; the armed robbery charged carried a potential maximum sentence of life in prison, and the assault charge was enhanced to a life maximum offense because of the accompanying habitual offender charge. Because these offenses did not arise from the same incident or transaction and the assault was committed while the petitioner was awaiting trial on the robbery charge, the sentences could have been imposed consecutively. The plea bargain was carefully stated on the record. The sentence was within the range agreed by the parties. The defendant does not suggest that more or different information would have changed his outlook on the situation at the time.
The petitioner has not established that his no contest plea was unintelligently or involuntarily made or that he was misled by erroneous information from either his attorney or the state trial judge. He was not deprived of any federal rights when he was no allowed to withdraw his no contest plea. There is no federal constitutional right, or absolute right under state law, to withdraw a plea. United States ex rel. Scott v. Mancusi, 429 F.2d 104, 109 (2d Cir. 1970); Freeman v. Muncy, 748 F. Supp. 423, 429 (E.D. Va. 1990); People v. Bencheck, 360 Mich. 430, 432, 104 N.W.2d 191-92 (1960); People v. Harris, 224 Mich. App. 130, 131, 568 N.W.2d 149 (1997). The decision to permit a defendant to withdraw his plea invokes the trial court's discretion. Scott, 429 F.2d at 109. A trial court's abuse of discretion generally is not a basis for habeas corpus relief. See Sinistaj v. Burt, 66 F.3d 804, 808 (6th Cir. 1995) (finding no authority for the proposition that, when a state court abuses its discretion in denying a defendant's motion to withdraw a waiver of jury trial, the result violates the United States Constitution). The state trial judge's decision denying the motion to withdraw the plea was not contrary to or an unreasonable application of federal law as established by the Supreme Court. The petitioner is not entitled to relief on his first claim.
B.
The petitioner next claims that information about his juvenile record should have been stricken from his presentence report. A prisoner has the right to be sentenced on the basis of correct and accurate information. See Roberts v. United States, 445 U.S. 552,556(1980). However, the petitioner has not shown either that the information in question is materially incorrect or that the trial judge relied on it in any way when sentencing the petitioner. Moreover, the record indicates that the prosecutor stipulated to the petitioner's request to strike the information, and the trial judge granted it. No relief is warranted on the basis of the petitioner's second claim.
C.
The Court previously addressed the petitioner's third claim of actual innocence when it denied the respondent's motion to dismiss. The Court found that the third claim was not cognizable here under the rule in Herrera v. Collins. However, the petitioner has filed an affidavit in opposition to the respondent's answer to the petition for writ of habeas corpus in which he maintains that, by declining to address his allegations of factual innocence, the respondent has admitted them. As the Court previously explained, the actual innocence claim was treated as an argument in anticipation of a defense of procedural default by the respondent. The respondent has not raised that affirmative defense, and therefore he was not required to answer the petitioner's actual innocence exception argument in the procedural default context. This Court declines to raise the matter of procedural default sua sponte. Trest v. Cain, 522 U.S. 87, 89, 90-91 (1997) (holding that a "court of appeals is not `required' to raise the issue of procedural default sua sponte."). Because there is no question of procedural default before the Court, and a freestanding claim of actual innocence does not itself warrant habeas relief, Herrera, 506 U.S. at 400, there is no need to address petitioner's claim of actual innocence any further. However, the Court notes that to be credible, "a claim of actual innocence must be based on reliable evidence not presented at trial." Calderon v. Thompson, 523 U.S. 538, 559 (1998) (quoting Schlup v. Delo, 513 U.S. 298, 324 (1995)). The petitioner has presented no new evidence.
III.
The petitioner's no contest plea was knowing and voluntary, and he enjoyed the benefit of competent counsel. The Court therefore concludes that the petitioner is not being held in custody in violation of the Constitution, laws, or treaties of the United States. See 28 U.S.C. § 2254(a).
Accordingly, it is ORDERED that the petition for writ of habeas corpus DENIED.
It is further ORDERED that the petitioner's motion for miscellaneous relief [dkt #56], motion for summary judgment [dkt #62], and motion in support of petition for writ of habeas corpus [dkt #63] are DENIED as moot.