Russell v. Pitcher

Full title: Lamont Leon Russell, Petitioner, v. Terry Pitcher, Respondent

Court: United States District Court, E.D. Michigan, Southern Division

Date published: Oct 23, 2000

Civil No. 99-CV-76088-DT (E.D. Mich. Oct. 23, 2000)

Opinion

Civil No. 99-CV-76088-DT

October 23, 2000

OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

Honorable Paul D. Borman, United States District Judge

Lamont Leon Russell, ("petitioner"), presently confined at the Muskegon Correctional Facility in Muskegon Michigan, seeks the issuance of writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his pro se application, petitioner challenges his conviction on three counts of armed robbery, M.C.L.A. 750.529; M.S.A. 28.797. For the reasons stated below, petitioner's application for writ of habeas corpus is DENIED.

I. BACKGROUND

On February 28, 1994, petitioner pleaded guilty to three counts of armed robbery arising out of two separate incidents. In exchange for the plea, the prosecutor agreed to a sentence agreement of ten (10) to twenty five (25) years. The prosecutor also agreed to dismiss the felony-firearm charges against petitioner in each case and to dismiss a carrying a concealed weapons count in one case. A third case was dismissed in its entirely. On March 17, 1994, petitioner was sentenced to ten (10) to twenty five (25) years in prison in accordance with the plea agreement.

Petitioner's conviction was affirmed on direct appeal. People v. Russell, 175424 (Mich.Ct.App. August 25, 1995); lv. den. 452 Mich. 863; 550 N.W.2d 793 (1996). On March 28, 1997, petitioner filed a motion for relief from judgment with the Wayne County Circuit Court, which was denied on October 28, 1991. People v. Russell, Wayne County Circuit Court # 92-7669 and 92-7670. The Michigan appellate courts thereafter denied leave to appeal. People v. Russell, 207924 (Mich.Ct.App. September 3, 1998); lv. den. 459 Mich. 992; 595 N.W.2d 851 (1999). Petitioner has now filed an application for writ of habeas corpus, seeking relief on the following grounds:¹

I. Petitioner is incarcerated due to a wrongful conviction which was obtained illegally because the prosecutor denied this petitioner his right to due process by not complying with the 180-day rule, which should have caused all of the charges against petitioner to have been dismissed.

II. The trial court errors were serious enough to violate petitioner's right to be informed of the possible effects that his guilty plea would have on his parole status.

III. Petitioner was denied the effective assistance of counsel.

1 Respondent's contention that the petition for writ of habeas corpus was not filed in compliance with the one year statute of limitations is misplaced. Petitioner's direct appeals ended when the Michigan Supreme Court denied him leave to appeal on June 28, 1996. Because petitioner did not file a petition for certiorari with the U.S. Supreme Court, the one year limitation period for seeking habeas review wider 28 U.S.C. § 2244(d)(1) began to run on the date that the 90 day time period for seeking certiorari with the U.S. Supreme Court expired. Fields v. Jackson, 2000 WL 191531, * 2 (6^th Cir. February 9, 2000). Petitioner's judgment therefore became final on September 28, 1996. Thomas v. Straub, 10 F. Supp.2d 834, 835 (E.D.Mich. 1998). The one year limitations period was tolled one hundred and eighty one (181) days later, pursuant to 28 U.S.C. § 2244(d)(2), when petitioner filed his motion for relief from judgment with the trial court on March 28, 1997. Matthews v. Abramajtys, 39 F. Supp.2d 871, 874 (E.D.Mich. 1999). The tolling of the one year statute of limitations did not end until the Michigan Supreme Court completed collateral review by denying the petitioner's application for leave to appeal on May 25, 1999. Hudson v. Jones, 35 F. Supp.2d 986, 988-989 (E.D.Mich. 1999). Petitioner had one hundred and eighty four (184) days remaining, or until November 25, 1999, to file his petition in accordance with the statute of limitations. Because petitioner's habeas petition is signed and dated October 29, 1999, this Court assumes that this was the date that petitioner actually filed his petition with this Court. See Hudson v. Martin, 68 F. Supp.2d 798, 799, fn. 2 (E.D.Mich. 1999). The petition was timely filed.

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. Stare of Ohio, 128 F.3d 322, 326 (6^thCir. 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, 120 S.Ct. 1495, 1523 (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 1522.

III. DISCUSSION

A. Claims # 1 and # 3. The 180 day rule violation and ineffective assistance of counsel claims.

Petitioner's first and third claims will be considered together for judicial economy. Petitioner first claims that his conviction is void and the trial court was without jurisdiction to accept his plea of guilty because it was obtained in violation of Michigan's 180 day rule. Petitioner was on parole at the time that he was charged with these armed robberies. Petitioner claims that on September 1, 1992, the Michigan Department of Corrections ("M.D.O.C.") issued an administrative warrant for his return to prison to serve his old sentence, Petitioner claims that his trial was not scheduled until April 5, 1993, but was adjourned by he prosecutor for unknown reasons. On July 12, 1993, petitioner entered a plea of guilty to these charges, but was permitted by the trial court to withdraw his plea of guilty on August 3, 1993. Petitioner requested a different attorney and new counsel was appointed. On August 27, 1993, petitioner requested a jury trial. On February 28, 1994, petitioner again pleaded guilty. Petitioner contends that the trial court was without jurisdiction to accept his guilty plea and should have dismissed the charges against him because he was brought to trial more than one hundred and eighty (180) days after the administrative warrant or detainer was placed on him by the M.D.O.C. In his third claim, petitioner claims that counsel was ineffective for failing to move for a dismissal of the charges based on the violation of the 180 day rule.

M.C.L.A. 780.131; M.S.A. 28.969(1) states in pertinent part:

Whenever the department of corrections receives notice that there is pending in this state any untried warrant, indictment, information, or complaint setting forth against any inmate of a correctional facility of this state a criminal offense for which a prison sentence might be imposed upon conviction, the inmate shall be brought to trial within 180 days after the department of corrections causes to be delivered to the prosecuting attorney of the county in which the warrant, indictment, information, or complaint is pending written notice of the place of imprisonment of the inmate and a request for final disposition of the warrant, indictment, information, or complaint.

In rejecting petitioner's 180 day rule claim, the Michigan Court of Appeals found that petitioner's unconditional guilty plea waived any claim for relief on this issue. Likewise, the Wayne County Circuit Court, in denying the motion for relief from judgment, rejected petitioner's ineffective assistance of counsel claim for the same reason. A defendant waives review of a claim that the 180 day rule has been violated upon entry of an unconditional guilty plea. People v. Bordash, 208 Mich. App. 1, 2-3; 527 N.W.2d 17 (1994). An unconditional plea also waives any claim of ineffective assistance of counsel based upon defense counsel's failure to pursue a 180 day rule violation. Id. at 3-4.

A properly invoked guilty plea normally forecloses conviction challenges based on antecedent non-jurisdictional errors. Seeger v. Straub, 29 F. Supp.2d 385, 390 (E.D. Mich. 1998)(Tarnow, J.) (citing Tollett v. Henderson, 411 U.S. 258, 267 (1973)). A guilty plea represents a break in the chain of events which has proceeded it in the criminal process; when a criminal defendant has solemnly admitted in open court that he or she is in fact guilty of the offense which he or she is charged, the defendant may not thereafter raise independent claims relating to the deprivation of constitutional rights which occurred prior to the entry of the guilty plea. Tollett v. Henderson, 411 U.S. at 267; See also United States v. Garavaglia, 5 F. Supp.2d 511, 519 (E.D. Mich. 1998)(Cook, J.). As a general rule, one who voluntarily and intelligently pleads guilty to a criminal charge may not subsequently seek federal habeas relief on the basis of pre-plea constitutional violations. Hudson v. Moran, 760 F.2d 1027.1029 (9^th Cir. 1985); Walters v. People, 997 F. Supp. 1295 (C.D. Cal. 1998).

By pleading guilty to these charges, petitioner cannot now seek federal habeas relief on the claim that his conviction was obtained in violation of the 180 day rule. Petitioner's guilty plea also precludes him from obtaining relief on his ineffective assistance of counsel claim. A voluntary guilty plea waives all nonjurisdictional defects in the proceedings against a defendant, including claims of ineffective assistance of counsel, except insofar as the ineffectiveness is alleged to have rendered the guilty plea involuntary. United States v. Glinsey, 209 F.3d 386, 392 (5^th Cir. 2000); Smith v. Estelle, 711 F.2d 677, 682 (5^th Cir. 1983).

Moreover, petitioner's claim that his conviction was obtained in violation of the 180 day rule would not entitle him to federal habeas relief. A violation by state officials of a state speedy trial law, taken alone, does not present a federal claim reviewable in a habeas petition. Poe v. Caspari, 39 F.3d 204, 207 (8^th Cir. 1994). A state statute has no bearing upon whether a state has violated a petitioner's federal constitutional right to a speedy trial as protected by the Sixth Amendment. Stewart v. Nix, 972 F.2d 967, 970 (8^th Cir. 1992). Federal consideration of a claim that a state has violated its own speedy trial rules is limited to a determination of whether the state's action has violated a petitioner's [federal] constitutional right to a speedy trial or due process. Flenoy v. Russell, 902 F.2d 33, 1990 WL 61114, * 3 (6^th Cir. May 8, 1990)( citing to Millard v. Lynaugh, 810 F.2d 1403, 1406 (5^th Cir. 1987)).

Petitioner's contention that the State of Michigan violated its own 180 day rule would not entitle him to relief. The Third Circuit rejected a similar claim when it ruled that Pennsylvania's 180 day rule does not define the contours of the federal constitutional right to a speedy trial. Wells v. Petsock, 941 F.2d 253, 256 (3^rd Cir. 1991). Michigan's 180 day rule likewise does not define the contours of the federal constitutional right to a speedy trial and the violation of this rule alone would not entitle petitioner to federal habeas relief.

To the extent that petitioner's claim could be construed as a Sixth Amendment speedy trial claim, it would have to be rejected as well. First, petitioner relies almost primarily on Michigan cases dealing with violations of the 180 day rule in support of his claim. In supporting a Sixth Amendment speedy trial claim under § 2254, reliance on state court case law is improper. See Beckwith v. Anderson, 89 F. Supp.2d 788, 799 (S.D. Miss. 2000). More importantly, petitioner has failed to demonstrate that the delay between his arrest and his plea of guilty violated his Sixth Amendment right to a speedy trial, because he has not established any improper reason for the delay, has not alleged that he asserted his right to a speedy trial, and most importantly, has not shown that he was materially prejudiced because of the delay. Wallace v. Lockhart, 701 F.2d 719, 729 (8^th Cir. 1983).

Finally, it is not even clear that the 180 day rule was violated and thus, petitioner's ineffective assistance of counsel claim must also be rejected. It is well settled in Michigan that the 180 day rule does not apply to an incarcerated parolee unless and until his parole is revoked. People v. Chavies, 234 Mich. App. 274, 279; 593 N.W.2d 655 (1999); cert. denied ___ U.S. ___; 2000 WL 719765 (October 2, 2000); People v. Von Everett, 156 Mich. App. 615, 618-619; 402 N.W.2d 773 (1986). There is no indication that petitioner's parole had actually been revoked at the time that petitioner pleaded guilty. Indeed, petitioner's pre-sentence report indicated only that his parole agent had placed an administrative warrant on him on September 1, 1992. The presentence report also indicated that petitioner's parole agent informed the presentence investigator that he expected the M.D.O.C. to close their interest in the parole matters once petitioner was sentenced on the new armed robbery charges.² The Department of Corrections' "administrative warrant" was not a warrant within the meaning of 180-day rule. See People v. Roscoe, 162 Mich. App. 710, 716; 413 N.W.2d 483 (1987). If a speedy trial motion likely would have been unsuccessful, trial counsel's failure to make the motion does not constitute ineffective assistance. Boyd v. Hawk, 965 F. Supp. 443, 450 (S.D.N.Y. 1997). Because petitioner has failed to show that his 180 day rule claim had any merit, he is unable to show that counsel was ineffective for failing to raise the claim.

2 See Pre-Sentence Report, p. 5, attached to Petitioner's Brief on Appeal to the Michigan Supreme Court, dated September 10, 1998.

B. Claim # 2. The trial court's failure to inform petitioner that his parole status would render him ineligible to receive credit for the time spent in the Wayne County Jail while awaiting trial.

Petitioner next claims that the plea taking process was deficient because the trial court failed to inform him that due to his status as a parolee, he would be ineligible to receive credit for the time spent in the Wayne County Jail awaiting trial. Petitioner claims that he was under the impression that he would receive credit towards his sentence for the six hundred and thirty seven (637) days spent awaiting trial.³ Because he was not informed otherwise by the trial court, petitioner claims that his plea was involuntary.

3 Petitioner also claims that his plea is involuntary because the trial court and prosecutor promised him that he would receive credit for the time spent awaiting trial. When petitioner pleaded guilty the first time on July 12, 1993, the trial court promised petitioner that he would credit his sentence, unless there was a reason he could not. See Plea T., July 12, 1993, p. 7. However, by petitioner's own admission, he withdrew this plea of guilty on August 3, 1993 and demanded and received a new attorney. When petitioner pleaded guilty again on February 28, 1994, no such promise was made by the trial court. Thus, petitioner cannot claim that his plea was induced by this promise, when it was not made in connection with the plea of guilty that forms the basis of his conviction.

A plea of guilty must be knowingly and voluntarily made. The defendant must be aware of the "relevant circumstances and likely consequences" of his plea. Hart v. Marion Correctional Institution, 927 F.2d 256, 257 (6^th Cir. 1991). The defendant must also be aware a 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 (6^th 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 (6^th Cir. 1993).

In Wellman v. State of Me., 962 F.2d 70, 72-73 (1^st Cir. 1992), the First Circuit held that a defendant's guilty plea was not rendered involuntary by the retraction of previously awarded 546 days of credit against his sentence, even if the failure of the prosecutor and the trial judge to consider Maine's statute which prohibited such credit for pretrial detention could be considered misinformation, absent a showing by the defendant that he would not have accepted the plea offer and would have instead chosen to go to trial if he had known that he would not receive credit towards his sentence.

In this case, petitioner has failed to show that he would not have accepted this plea offer had he known that he would not have received credit for the six hundred and thirty seven days spent awaiting trial. Petitioner was charged with multiple armed robbery counts, which carried up to life in prison. His sentencing range under the Michigan Sentencing Guidelines called for a minimum sentence of one hundred and twenty to three hundred months or life imprisonment.⁴ Petitioner was also charged with several counts of felony-firearm. Because petitioner already had a prior conviction for felony-firearm, he was facing a mandatory consecutive five year prison term under Michigan law. M.C.L.A. 750.227b; M.S.A. 28.424(2).⁵ Thus, petitioner was looking at the potential of receiving a life sentence plus a consecutive five year prison term had he gone to trial and been convicted. By contrast, the plea agreement called for dismissal of the felony-firearm charges and a sentence agreement often to twenty five years on the armed robbery counts. It is difficult to see how, if the plea bargain as described above was acceptable to petitioner, that the same bargain, with the addition of 637 days, or approximately twenty one months, would have been unacceptable and would have deterred him from pleading guilty and instead proceeding to trial with the risk of receiving a life sentence on the armed robbery charges, as well as a consecutive five year sentence on the felony-firearm charges. Wellman, 962 F.2d at 73. Because of the substantial liability that petitioner was facing on these charges, petitioner is unable to show that he would have rejected the plea agreement had he known that he was unable to receive credit for the six hundred and thirty seven (637) days spent awaiting trial. Petitioner has failed to show that he is entitled to habeas relief on this claim.

4 See Plea and Sentence T, dated February 28, and March 17, 1994, p. 25.

5 See Plea T., July 12, 1993, p. 4.

IV. ORDER

Based upon the foregoing, IT IS ORDERED that the petition for a writ of habeas corpus is DENIED WITH PREJUDICE.