Opinion
Civil Action 99-CV-71714-DT
June 12, 2001
OPINION ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DENYING CERTIFICATE OF APPEALABILITY
Pursuant to a plea agreement, Petitioner John Rocha ("Petitioner") entered a conditional plea of guilty to child sexually abusive activity, MICH.COMP.LAWS § 750.145(c)(2); extortion, MICH.COMP.LAWS § 750.2132; and habitual offender, fourth offense, MICH.COMP.LAWS 769.12 in the Saginaw County Circuit Court. Petitioner was sentenced to ten to twenty years imprisonment. Petitioner filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 21 § 2254 alleging that he is confined in violation of his constitutional rights. For the reasons set forth below, the petition shall be denied.
I. Background
Petitioner's convictions arose out of telephone sex he engaged in with a thirteen year old girl between 1991 and 1993, a recording Petitioner made of at least one of the phone calls, and threats he made to induce the girl not to report him to the police or cooperate with a police investigation of the matter.
On February 14, 1995, Petitioner entered a plea of guilty to extortion, child sexually abusive activity and habitual offender fourth or more offense. ( See 2/14/95 Plea Tr.). Petitioner was advised of his constitutional rights before the trial judge allowed inquiry into the factual basis of Petitioner's guilty plea. Petitioner was advised of his privilege against compulsory selfincrimination, his right to trial by jury, and his right to confront and cross-examine his accusers and other constitutional rights. ( Id.. at 7-9). Petitioner was also informed that, as a fourth felony habitual offender, his maximum sentence exposure was life imprisonment. ( Id.. at 8). Petitioner was also informed that, because he was on parole at the time of the charged offenses, if he pleaded guilty he could be returned to prison as a parole violator upon his prior sentence. ( Id.. at 7-8). Petitioner stated that he was aware of the constitutional rights that he was waiving and his potential sentence exposure, and that he wanted to plead guilty of his own free choice. ( Id.. at 9-10).
Petitioner admitted talking to the girl on the telephone while she was masturbating, encouraging her to do so, and making a tape recording of at least one such incident while knowing that she was under eighteen years old. ( Id. at 8-22). Petitioner also admitted that, after becoming aware that the girl's parents knew of the telephone conversations, he threatened to kidnap the girl and/or harm her family to try to dissuade her from providing information against him to the police or otherwise cooperating with the police investigation of the matter. Id. The trial court found that these admissions established the factual basis of Petitioner's guilty pleas to the charges of child sexually abusive activity and extortion. Petitioner also admitted to having committed three prior felonies, establishing the basis for his fourth felony offender guilty plea.
In exchange for Petitioner's guilty plea, the prosecution recommended that Petitioners minimum sentence be no more than ten years and dismissed one count of extortion. Petitioner was sentenced to ten to twenty years imprisonment on his guilty plea.
II. Procedural history
Petitioner appealed his convictions in the Michigan Court of Appeals raising the following claims:
I. Defendant was denied an opportunity for a fair trial when the defense had planned to admit guilt of the misdemeanors to the jury, but all misdemeanor counts were dismissed over a defense objection just prior to the commencement of trial and the judge refused to adjourn the trial to give defense counsel time to recover.
II. Defendant's guilty plea is involuntary when defendant never wanted to plead guilty, defense counsel lost confidence in his ability to defend following a surprise dismissal of all misdemeanor counts and defendant was convinced the judge was biased.
III. All evidence following the execution of a search warrant should be suppressed because the affidavit in support is based on stale information and improperly supplemented beyond oral communications.
The Michigan Court of Appeals affirmed Petitioner's conviction in an unpublished opinion. People v. Rocha, Michigan Court of Appeals Docket No. 185757 (February 25, 1997)(memorandum). Petitioner did not file an application for leave to appeal in the Michigan Supreme Court. ( See, Affidavit of Corbin R. Davis dated May 20, 1999). Petitioner subsequently filed a motion for relief from judgment which was denied in the trial court on April 30, 1998. On September 14, 1998, Petitioner filed a delayed application for leave to appeal this denial in the Michigan Court of Appeals raising the following claims:
I. Defendant's plea was unknowing, unintelligent and taken under conditions of duress, rendering it constitutionally infirm requiring that it be set aside and defendant's convictions reversed.
II. Trial counsel was ineffective, thereby violating defendant's Sixth Amendment rights as guaranteed by the United States Constitution, by A) coercing defendant into pleading guilty to felony charges, when the most defendant should have been found guilty of were misdemeanors; B) failing to recognize and argue at sentencing that when imposing a minimum sentence the court should consider that CSC offenders effectively serve longer minimum sentences than offenders of all other crimes in Michigan, due to parole board continuances (flops).
III. Michigan's new sexual offender registration act, which went into effect over three years after defendant was sentenced, cannot be applied retroactively, regardless of legislative intent, because it violates the constitutional ban on ex post facto laws, in that it increases punishment which the court had no way of considering when imposing defendant's sentence.
IV. Appellate counsel was ineffective for failing to raise the meritorious issues raised herein in defendant's appeal of right, thereby violating defendant's Sixth Amendment right to the effective assistance of counsel.
V. Defendant has demonstrated the requisite "cause" and "prejudice" required under M.C.R. 6.508(D)(3)(a) and explained in People v. Reed, 449 Mich. 375 (1995), for excusing procedural default, by proving ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984).
The Michigan Court of Appeals denied Petitioner's application for leave to appeal. People v. Rocha, Michigan Court of Appeals Docket No. 214305 (April 17, 1999). Petitioner did not seek leave to appeal in the Michigan Supreme Court. ( See Affidavit of Corbin R. Davis dated May20, 1999).
On or about March 31, 1999, Petitioner filed the present petition for a writ of habeas corpus presenting the following issues:
I. Petitioner was subjected to coercive proceedings.
II. Petitioner did not receive proper notice of the prosecution's intent to seek an enhanced sentence based on his status as a habitual offender, as required by Michigan law.
III. Petitioner received ineffective assistance of counsel.
III. Standard of Review
The provisions of the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (April 24, 1996)("AEDPA" or "the Act"), govern this case because Petitioner filed his habeas corpus petition after the effective date of the Act. Lindh v. Murphy, 520 U.S. 321 (1997). The AEDPA altered the standard of review that a federal court must use when reviewing applications for writs of habeas corpus. As amended, 28 U.S.C. § 2254 provides that:
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).
The United States 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 eases. . .
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 v. Taylor, 120 S.Ct. 1495, 1519-20 (2000).
With respect to the "unreasonable application" clause of § 2254(d)(1), the United States Supreme Court held that a federal court should analyze a claim for habeas corpus relief under the "unreasonable application" clause when "a state-court decision unreasonably applies the law of this Court to the facts of a prisoner's case." Id. at 1521. 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 1521-22.
IV. Discussion
Petitioner contends that 1) his guilty plea was coerced by the trial judge's dismissal of the misdemeanor charges against Petitioner immediately prior to trial, 2) he was not sentenced as a habitual offender in accordance with Michigan law, and 3) he received ineffective assistance of counsel. Respondent asserts that these claims are barred by Petitioner's procedural defaults.
Petitioner was initially charged with two felony counts of extortion, one felony count of child sexually abusive activity, one count of misdemeanor stalking, one misdemeanor count of accosting a child for an immoral purpose, and one misdemeanor count of making an obscene phone call. Trial counsel asserted that his planned trial strategy was to inform the jury that petitioner was guilty of the misdemeanor charges, but innocent of the felony charges. After the misdemeanor counts against petitioner were dismissed, trial counsel advised petitioner to plead guilty in exchange for a favorable sentencing recommendation.
A state prisoner's habeas corpus claims are procedurally defaulted if the prisoner has failed to comply with an independent and adequate state procedural rule, thus causing default of the prisoner's federal claims in state court. Coleman v. Thompson, 501 U.S. 722, 750 (1991). This can occur when an individual fails to present an issue to a state appellate court upon the only opportunity to do so. Teague v. Lane, 489 U.S. 288, 297-98 (1989); Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994). in Coleman, the Supreme Court held that if the decision of the last state court to which a habeas petitioner presented his federal claims fairly appeared to rest primarily on federal law, or to be interwoven with federal law, and did not clearly and expressly rely on an independent and adequate state ground, a federal court may address the petition. Id. at 735. The Court went on to note:
This rule does not apply if the petitioner failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred. In such a case there is a procedural default for purposes of federal habeas regardless of the presented his claims. [citation omitted]Id.. at 735 n. 1.
In Harris v. Reed, 489 U.S. 255 (1989), Justice O'Connor noted that "dismissing such petitions for failure to exhaust state court remedies would often result in a game of judicial ping-pong between the state and federal courts, as the state prisoner returned to state court only to have the state procedural bar invoked against him." Id. at 270 (concurring opinion). The record demonstrates that Petitioner did not seek review of his convictions and sentence on direct appeal to the Michigan Supreme Court. Nor did Petitioner seek review in the Michigan Supreme Court of the Michigan Court of Appeals' decision denying him relief on his motion for relief from judgment. Consequently, Petitioner is now barred from seeking such review under Michigan Court Rule 7.302(C)(3), which imposes a 56-day time limit for filing delayed applications for leave to appeal with the Michigan Supreme Court.
Further, Petitioner has already filed one motion for relief from judgment. M.C.R. 6.502(G) allows only one such motion to be filed with regard to a conviction, unless a subsequent motion is based on a retroactive change in the law that occurred after the first motion for relief from judgment or a claim of new evidence that was not discovered before the first such motion. None of Petitioner's claims are based on a retroactive change in the law or a claim of newly discovered evidence. Thus, Petitioner has procedurally defaulted his claims as he failed to present these issues to the Michigan Supreme Court upon the only opportunity to do so. Teague v. Lane, 489 U.S. at 297-98.
Absent cause and prejudice, a federal court may not reach the merits of a claim that has been procedurally defaulted in state court by a state prisoner in his direct criminal appeal. Reed v. Farley, 512 U.S. 339 (1994). The cause and prejudice test should be applied to all occasions where a procedural default bars state litigation of a constitutional claim. Coleman, 501 U.S. at 750. Accordingly, Petitioner must demonstrate cause and prejudice for his procedural defaults for this Court to consider any of his claims as a basis for habeas relief.
To establish cause, a petitioner must present a substantial reason to excuse the default. Amadeo v. Zant, 486 U.S. 214, 223 (1988); Rust, 17 F.3d at 161. Here, Petitioner has not even alleged, let alone established, cause for failing to seek leave to appeal to the Michigan Supreme Court with respect to his claims. Therefore, Petitioner is not entitled to habeas review of his claims.
When a petitioner has defaulted his state remedies and has not demonstrated cause and prejudice, a federal court may entertain the habeas petition only if the petitioner makes a showing of actual innocence. Murray v. Carrier, 477 U.S. 478, 496 (1986). Petitioner has not, and in light of his guilty plea, cannot make such a showing in this case. His habeas claims are thus barred by the doctrine of procedural default.
V. Certificate of Appealability
At this time the Court shall also make a determination as to any certificate of appealability that may be requested by Petitioner. 28 U.S.C. § 2253 governs appeals of habeas corpus proceedings, providing that "[i]n a habeas corpus proceeding. . . before a district judge, the final order shall be subject to review, on appeal, by the court of appeals for the circuit in which the proceeding is held." However, unless a certificate of appealability is issued, an appeal may not be taken to the court of appeals from the final order in a habeas corpus proceeding. Section 2253(c)(2) states, in pertinent part: "A certificate of appealability may issue under paragraph (1) only if the applicant has made a substantial showing of the denial of a constitutional right." See also Lyons v. Ohio Adult Parole Auth., 105 F.3d 1063, 1073 (6th Cir. 1997). however, when a petition is denied on procedural grounds, a somewhat different standard applies. See Slack v. McDaniel, 120 S.Ct. 1595, 1604 (2000). In such cases, a certificate of appealability shall issue only "when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Id.(emphasis added).
As the Court does not believe that "jurists of reason would find it debatable whether the district court was correct in its procedural ruling," the Court shall deny any request for a Certificate of Appealability.
VI. Conclusion
Accordingly, for the reasons set forth above,
IT IS ORDERED that the petition for a writ a habeas corpus is DENIED.
IT IS FURTHER ORDERED that a Certificate of Appealability is DENIED.