Opinion
Case Number: 01-10031-BC
January 26, 2004
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
Petitioner Mark Owczarczak, a state inmate currently incarcerated at the Thumb Correctional Facility in Lapeer, Michigan, has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 alleging that he is in custody in violation of his constitutional rights. He challenges his convictions of two counts of armed robbery and one count of second-degree home invasion. The petitioner claims that these convictions were unconstitutionally obtained pursuant to an involuntary and unknowing guilty plea and that the sentence exceeded the plea agreement. The Court finds that the petitioner has failed to establish that he is in custody on violation of the Constitution or laws of the United States, and his petition for the writ of habeas corpus, therefore, will be denied.
I.
The petitioner was originally charged with two counts of armed robbery and three counts of second-degree home invasion. His convictions resulted from his pleas of guilty in Macomb County, Michigan Circuit Court to the two counts of armed robbery and one count of second-degree home invasion that were entered pursuant to a plea agreement. In consideration for the petitioner's trial-day guilty pleas, the state agreed to dismiss two counts of second-degree home invasion and the court agreed to cap the minimum sentence at the lesser of nine years or the top of the sentencing guideline range.
Prior to accepting the petitioner's guilty pleas, the trial court judge engaged in a colloquy with the petitioner as set forth below:
The Court: Tell me how you understand the agreement. What charges are you pleading guilty to? Petitioner: Two armed robbery, one home invasion.
The Court: What do you understand the agreement to be?
Petitioner: That I got cap on a nine year, on the preinvestigation, whatever, if the sentence is whatever between the nine —
The Court: The guidelines — there's a chance that the guidelines could come back lower than the nine year?
Petitioner: Right.
The Court: They have agreed it is either going to be nine years or the top of guidelines, whichever is less; do you understand that?
Petitioner: Right.
The Court: Do you understand that I'm going to accept the plea today?
Petitioner: Yes.
The Court: That's the only way to withdraw the plea if I decided at the end that I couldn't go along with the nine years or the top of guidelines; do you understand that?
Petitioner: Yes.
The Court: Do you understand that the reason the court is accepting the plea today is because the prosecutor is ready to proceed to trial and you are dressed for trial, we have a jury available, your counsel is ready, we have the witnesses subpoenaed and the court finds that it would be prejudicial to the People at this point in time to allow you later on to withdraw when you know what the agreement is and you know all of the parameters and the fact that this case dates back to January of `99 and February of `99. Witnesses become unavailable, and their memories tend to fade, it would be prejudicial to later on allow you to withdraw the plea; do you understand that?
Petitioner: Yes.
The Court: . . . Mr. Switalksi [prosecuting attorney], are you aware of any promises, threats or inducements other than what has been disclosed?
Prosecutor: No, Judge.
* * *
The Court: Do you understand that . . . the agreement or the cap is only on the minimum. The Court could go to whatever on the maximum if the Court wants to do that; you understand that?
Petitioner: Yes.
The Court: That the agreement is only on the minimum sentence, top of the guidelines or nine years, whatever is less?
Petitioner: Yes.
The Court: . . . Mr. Rodnick [defense attorney], are you aware of any promises, threats or inducements other than what's been disclosed?
Defense counsel: No, Your Honor.
Guilty Plea Transcript, Oct. 19, 1999, at 8-10, 14-15.
On November 15, 1999, prior to sentencing, the petitioner moved to withdraw his guilty plea on the ground that he did not have an understanding of the sentence he could face. The trial court judge noted that before accepting the petitioner's guilty plea the court had explained the plea agreement to the petitioner and the petitioner had affirmed his understanding of the plea agreement. In addition, the petitioner's attorney informed the judge that although he and the petitioner had certain hopes with regard to the guidelines score, the petitioner's attorney did not promise the petitioner a particular guidelines range. The trial court held that the petitioner had received a benefit by the plea bargain and that the petitioner understood the plea agreement at the time it was entered. The trial court then denied the petitioner's motion to withdraw his plea. Then, on that same day, the petitioner was sentenced to 108 months (nine years) to 240 months (twenty years) for each armed robbery conviction, and 30 months to 180 months for the home-invasion conviction.
Following sentencing, the petitioner filed an application for leave to appeal in the Michigan Court of Appeals presenting the following claims:
I. Appellant's plea was not intelligently and voluntarily made where (1) the sentencing agreement was based on a calculation of a 51 to 85 month guideline range, which was correct for only one of the two armed robbery cases; and (2) it was the product of ineffective assistance provided by his attorney.
II. Where appellant pled guilty in case 99-909 [armed robbery] with an agreement capping the minimum sentence at either nine years or the top of the guidelines, whichever is less, and where the guidelines were scored at 51 to 85 months, appellant's sentence of 9 to 20 years exceeds the agreement and appellant is entitled to receive specific performance of his sentence agreement or vacate the plea.
The Michigan Court of Appeals denied leave to appeal. People v. Owczarczak, No. 224118 (Mich.Ct.App. Feb. 14, 2000).
The petitioner then filed a delayed application for leave to appeal in the Michigan Supreme Court presenting the same claims presented to the state court of appeals and the following additional claim:
III. Defendant was denied his right to due process as guaranteed by the Fifth and Fourteenth Amendment of the state and federal constitution where trial court abused its discretion imposing restitution when the plea agreement was silent as to any restitution or any monetary fees, rendering his guilty plea involuntary.
The Michigan Supreme Court denied leave to appeal. People v. Owczarczak, 463 Mich. 860, 617 N.W.2d 337 (2000).
Thereafter, the petitioner filed the pending petition for a writ of habeas corpus presenting the following claims:
I. Plea was not intelligently made and voluntarily where (1) the sentence agreement was based on a calculation of 51 to 85 month[s] guideline range which was incorrect, [and the] product of ineffective assistance.
II. Sentence exceeded the plea agreement.
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. 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").
Under Michigan law, there is no absolute right to withdraw a guilty plea after it has been accepted. People v. Haynes, 221 Mich. App. 551, 558, 562 N.W.2d 241 (1997). If a defendant moves to withdraw a plea before sentencing, the decision whether to grant the motion falls within the discretion of the trial court. People v, Wilhite, 240 Mich. App. 587, 594, 618 N.W.2d 386, 389 (2000). The petitioner here alleges that the trial court erred by denying his motion to withdraw the plea. According to the petitioner, his plea was not voluntary and intelligent because his attorney mistakenly advised him about the likely sentencing guideline scoring that might eventuate.
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). Moreover, the Supreme Court has stated 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). Furthermore, 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.
At the plea hearing, the plea agreement was fully explained to the petitioner in the following terms: in exchange for the petitioner's plea of guilty to two counts of armed robbery and one count of home invasion, the prosecutor would dismiss two home-invasion charges and the prosecutor would agree to a sentence cap on the minimum sentence of either nine years or the top of the guideline range, whichever was less. The petitioner asserted that he understood the agreement. These "[s]olemn declarations in open court carry a strong presumption of verity." Blackledge v. Allison, 431 U.S. 63, 74 (1977). Moreover, the Sixth Circuit has stated that in cases challenging the voluntariness of a plea agreement a petitioner is bound by his in-court statements regarding his understanding of the plea:
If we were to rely on [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 (which he now argues were untruthful) 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. "Where 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)).
Because the trial court explained to the petitioner all the terms of the plea agreement, the petitioner stated that he understood the plea agreement and did not mention any additional promises, and the trial court found credible the petitioner's attorney's statements that although there was a hope that the guidelines score would be lower, no promises to that effect were made to the petitioner, the Court finds that the petitioner has failed to establish that his guilty pleas were involuntary or that the trial court's conclusion regarding the voluntariness of the petitioner's plea was contrary to or an unreasonable application of Supreme Court precedent.
The petitioner, however, contends that he was given bad advice by his attorney as to how his sentencing guidelines would be scored, and that he pleaded guilty in reliance on the likelihood that his minimum sentence would be scored in a range lower than the nine-year cap, giving him a further benefit of his bargain. Thus, he claims, he was denied the effective assistance of counsel guaranteed by the Constitution.
The petitioner presented his ineffective assistance of counsel claim in his applications for leave to appeal in both the Michigan Court of Appeals and Michigan Supreme Court. Both state courts denied leave to appeal in one sentence orders that did not address the merits of the claims. Where a state court declines to address the merits of a properly raised issue, this Court conducts an independent review of the issue. See Harris v. Stovall , 212 F.3d 940, 943 (6th Cir. 2000) (holding that where a state court, although deciding a claim, does not offer some explanation of its decision, a federal court must conduct an independent review of the state court's decision).
Ineffective assistance of counsel claims:
[A]re guided by the now familiar two-element test set forth by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). First, a petitioner must prove that counsel's performance was deficient, which "requires showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687. The Court explained that to establish deficient performance, a petitioner must identify acts that were "outside the wide range of professionally competent assistance." Id. at 690. Second, a petitioner must show that counsel's deficient performance prejudiced the petitioner. A petitioner may establish prejudice by "showing that counsel's errors were so serious as to deprive the defendant of a fair trial." Id. at 687. The Supreme Court has applied this test to evaluate the performance of attorneys representing guilty-pleading defendants, with special attention to the second element:
The 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. Hill v. Lockhart, 474 U.S. 52, 59 (1985).Smith v. United States, 348 F.3d 545, 551 (6th Cir. 2003).
In this case, the trial court conducted a rather truncated but adequate hearing on the question of the advice that the petitioner's lawyer gave him before the petitioner entered the guilty plea. After questioning the petitioner and his attorney prior to sentencing, the trial court determined that the petitioner had an accurate understanding of the plea agreement prior to entry of his guilty plea, that the petitioner's attorney did not promise the petitioner that a particular guidelines range would result, and that the petitioner's expectations were merely based on "certain hopes" he had with regard to the guidelines score. Other than simply disagreeing with that conclusion, the petitioner has failed to show that this conclusion was erroneous. The present record does not support a finding that the petitioner's attorney gave bad advice on the sentencing guideline scoring, or that with the correct advice the petitioner would have rejected the plea agreement and proceeded to trial.
Finally, the petitioner claims that he is entitled to habeas corpus relief because his sentence exceeded the plea agreement. The petitioner bases this claim on his alleged understanding that the sentencing guidelines should have been scored at 51 to 85 months, and that pursuant to the plea agreement his minimum sentence should have been 51 months rather than nine years.
The trial court found that the sentencing agreement required only that the petitioner's minimum sentence would be the lesser of nine years or the top of the guidelines range. The sentencing agreement did not specify what the guidelines range would be. The petitioner's allegations of the terms of the plea agreement contradict the state court's findings and the statements on the record at the guilty plea hearing. The petitioner has not provided any evidence that would call into doubt the state court's finding of the terms of the plea agreement. Thus, the petitioner has not shown that the plea agreement was violated. Accordingly, he is not entitled to habeas corpus relief with respect to this claim.
III.
The petitioner has not established that he is in the State of Michigan's custody in violation of the Constitution or laws of the United States.
Accordingly, it is ORDERED that the petition for a writ of habeas corpus [dkt #l]is DENIED.