Opinion
No. 99-C-V-73603-DT.
July 24, 2000.
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
Richard Russell, ("petitioner"), presently confined at the Ryan Correctional Facility in Detroit, Michigan, seeks the issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his application, filed pro se, petitioner challenges his conviction and sentence on one count of second degree murder, M.C.L.A. 750.317; M.S.A. 28.549. For the reasons stated below, petitioner's application for writ of habeas corpus is DENIED.
I. BACKGROUND
Petitioner was charged with open murder for the death of his girlfriend Wendy Sue Beyer in Adrian, Michigan. Pursuant to a plea agreement with the Lenawee County Prosecutor, petitioner was permitted to plead guilty to a reduced charge of second degree murder. As part of the agreement, the trial court indicated that it would limit any sentence to a term of years rather than a life sentence, although the trial court did not indicate what the term of years would be that it would impose. Petitioner was sentenced on February 4, 1997 to serve a term of imprisonment of seventy five (75) to one hundred and fifty (150) years.
Under Michigan law, it is proper to charge a defendant with the crime of open murder. Such a charge gives a circuit court jurisdiction to try a defendant on first and second degree murder charges. See People v. McKinney, 65 Mich. App. 131, 135; 237 N.W.2d 215 (1975).
Plea Transcript, December 23, 1996, p. 2.
The Michigan Court of Appeals remanded petitioner's case to the trial court for resentencing, finding his sentence of seventy five to one hundred and fifty years to be disproportionate. The Michigan Court of Appeals denied petitioner leave to appeal on his remaining claims. People v. Russell, 208314 (Mich.Ct.App. April 1, 1998). The Michigan Supreme Court reversed the Michigan Court of Appeals and reinstated petitioner's sentence, finding that the sentence imposed was not disproportionate. The Michigan Supreme Court further denied leave to appeal to petitioner. People v. Russell, 458 Mich. 868; 586 N.W.2d 400 (1998).
Petitioner now seeks the issuance of a writ of habeas corpus on the following grounds:
I. Is a fifty year departure from the sentencing guidelines recommendation disproportionately severe and an abuse of discretion?
II. Is Mr. Russell's guilty plea legally involuntary, and did petitioner receive the ineffective assistance of counsel, because he erroneously and reasonably believed that a "term of years" would mean a sentence less than life imprisonment?
III. Is a sentence of 75 to 150 years imprisonment for a 27 year old defendant excessive and unlawful because it exceeds this offender's life expectancy?
IV. Is Michigan's sentencing and parole scheme, where a person sentenced to a "greater" sentence of life imprisonment is eligible for parole consideration under the "Lifer Law" after the service of ten or fifteen years, but a person sentenced to a "lesser" term of years is denied such consideration, an unconstitutional denial of equal protection and due process of law?
II. STANDARD OF REVIEW
The provisions of the Antiterrorism and Effective Death Penalty Act (A.E.D.P.A) altered the standard of review that a federal court must use when reviewing applications for writs of habeas corpus. 28 U.S.C.§ 2254(d)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. State of Ohio, 128 F.3d 322,326 (6th Cir. 1997).
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 will clearly 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 the Supreme Court's cases. Second, a state-court decision would also be 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. Williams v. Taylor, 120 S.Ct. 1495, 1519-1520 (2000). On the other hand, a "run-of-the-mill state-court decision" which applied the correct legal rule from the Supreme Court's cases to the facts of a petitioner's cases would not fit comfortably within the "contrary to" clause in § 2254(d)(1). Id. at 1520. These cases should be 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. Williams v. Taylor, 120 S.Ct. at 1521. Although the term unreasonable is difficult to define, it is a common term in the legal world, and federal judges are familiar with its meaning. An unreasonable application of federal law is different from an incorrect application of federal law. 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.
III. DISCUSSION
A. Claims #1 and #3. Petitioner is not entitled to habeas relief for the challenge to the length of his sentence.
Petitioner's first and third claims have been consolidated because they are interrelated. In his first claim, petitioner contends that his sentence was disproportionate because his minimum sentence of seventy five years was a fifty year departure above the recommended sentencing guidelines range in his case. In his third claim, petitioner contends that his sentence is unduly excessive because his minimum sentence exceeds his probable life expectancy.
A sentence imposed within the statutory limits is not generally subject to habeas review. Townsend v. Burke, 334 U.S. 736,741 (1948); Cook v. Stegall, 56 F. Supp.2d 788, 797 (E.D. Mich. 1999)(Gadola, J.). Second degree murder is punishable by a sentence of life or any term of years. M.C.L.A. 750.317; M.S.A. 28.549. Because petitioner's sentence was within the statutory limits for second degree murder, this Court will not set the sentence aside. See Welch v. Burke, 49 F. Supp.2d 992, 1009 (E.D. Mich. 1999)(Cleland, J.).
Petitioner has no state created-liberty interest in having the Michigan sentencing guidelines applied rigidly in determining his sentence. Thomas v. Foltz, 654 F. Supp. 105, 106-107 (E.D. Mich. 1987)(Cohn, J.). To the extent that petitioner is claiming that his sentence violates the Michigan state sentencing guidelines, his claim is not cognizable in a habeas proceeding because it is a state law claim. Id; See also Johnson v. Abramajtys, 951 F.2d 349, 1991 WL 270829, *9 (6th Cir. December 17, 1991) (Michigan Sentencing Guidelines are not mandatory, do not create substantive rights, and are merely a tool used to assist the sentencing judge in the exercise of discretion).
Petitioner's related claim that his sentence was disproportionate under Michigan law does not state a claim for which habeas relief can be granted. The U.S. Constitution does not require that sentences be proportionate. In Harmelin v. Michigan, 501 U.S. 957, 965(1991), a plurality of the U.S. Supreme Court concluded that the Eighth Amendment does not contain a requirement of strict proportionality between the crime and sentence. The Eighth Amendment forbids only extreme sentences that are grossly disproportionate to the crime. Harmelm, 501 U.S. at 1001. Federal courts will therefore not engage in a proportionality analysis except where the sentence imposed is death or life imprisonment without parole. Seeger v. Straub, 29 F. Supp.2d 385, 392 (E.D. Mich. 1 998)(Tarnow, J.). Petitioner's claim that his sentence is disproportionate under Michigan law would not state a claim upon which habeas relief can be granted. Atkins v. Overton, 843 F. Supp. 258, 260(E.D. Mich. 1994)(Gadola, J.).
With respect to petitioner's third claim, the fact that the trial court imposed a sentence that would exceed petitioner's life expectancy would not entitle petitioner to habeas relief. A sentence of imprisonment for a very long term of years, the effect of which is to deny a prisoner eligibility for parole until a time beyond his life expectancy, does not violate the Eighth Amendment prohibition of cruel and unusual punishment. United States v. O'Driscoll, 761 F.2d 589, 599 (10th Cir. 1985). It is only where a legislatively enacted sentencing scheme has expressly deprived a court of the possibility of imposing a life sentence that a sentence for a term of years exceeding a defendant's life expectancy would normally constitute an abuse of discretion. United States v. Jackson, 97 F.3d 1453, 1996 WL 536418, *2 (6th Cir. September 19, 1996) (citing to United States v. Martin, 63 F.3d 1422(7th Cir. 1995)). Because Michigan's second degree murder statute expressly provides for the imposition of a life sentence, the trial court's imposition of a minimum sentence which exceeds petitioner's likely life expectancy would not violate the Eighth Amendment. Petitioner has failed to state a claim upon which habeas relief can be granted.
B. Claim #2. Petitioner has failed to demonstrate that his plea was involuntary or that he was deprived of the effective assistance of counsel .
Petitioner next claims that his plea was involuntarily made because he erroneously and reasonably believed that the "term of years" sentence that he had bargained for would mean a sentence less than life imprisonment. Stated differently, petitioner contends that his plea was involuntary because he believed that any sentence that he received under the trial court's agreement not to impose a life sentence would be a sentence that he was capable of serving within his lifetime.
This issue was raised by petitioner's appellate counsel in a postconviction motion to withdraw his guilty plea. The trial court denied the motion on November 24, 1997. In finding petitioner's plea to have been voluntarily made, the trial court indicated that petitioner had bargained to receive a sentence of a "term of years" rather than a life sentence, and further found that petitioner understood that the trial court could consider petitioner's life expectancy at sentencing. The trial court also noted-that petitioner's trial counsel had informed him in chambers on the morning of the plea that he had discussed petitioner's options with him and had explained to petitioner that he could serve a number of years that would far exceed the time that he would be eligible for parole if he were given a life sentence. The court further noted that petitioner's counsel had actually recommended to petitioner that he not enter into this agreement with the court, but that petitioner had been adamant about receiving a term of years as opposed to a life sentence.
Motion Transcript, November 24, 1997, p. 14.
Id. at p. 4-5; 6-7.
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 (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, 17F.3d 151, 154 (6th Cir. 1994). The state bears the burden of proving that the defendant's plea of guilty was made knowingly and voluntarily. Boykin v. Alabama, 395 U.S. 238, 242 (1969). 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.
Petitioner contends that he was misled into believing that a sentence involving a term of years would amount to a sentence less than life imprisonment because in advising him of the possible penalties for second degree murder, the trial court indicated that the maximum possible sentence would be any term of years up to a term of life. However, petitioner's counsel indicated on the record that there had been an in chambers conference, where he had asked the trial court to limit itself to imposing a term of years rather than a life sentence. Counsel indicated that the trial court had promised to keep the sentence at a term of years, although the court did not indicate what the term of years would be. Petitioner thereafter indicated to the court that he wished to plead guilty. A defendant may learn of information not relayed to him by the trial court from other sources, such as his attorney. Riggins v. McMackin, 935 F.2d 790, 795 (6th Cir. 1991); See also Pitts v. United States, 763 F.2d 197, 200 (6th Cir. 1985); North Carolina v. Alford, 400 U.S. 25, 29 n. 3 (1970). Here, petitioner's attorney stated on the record that the trial court had not agreed to any specific term of years, only that the court would not impose a life sentence. It is reasonable to assume, in light of the trial court's subsequent factual findings at the motion to withdraw the guilty plea, that counsel had advised petitioner that a term of years could exceed his life expectancy. See Berry v. Mintzes, 529 F. Supp. 1067, 1079-1080 (E.D. Mich. 1981)(Cohn, J.). In fact, petitioner's counsel indicated in an affidavit that petitioner has attached to his petition that while he did not discuss with petitioner the fact that he could receive a sentence of 75 to 150 years, counsel did explain to petitioner that the trial court could consider his life expectancy in imposing sentence. Thus, petitioner has failed to show that he was not informed prior to entering his plea of guilty that he could receive a sentence that would exceed his possible life expectancy.
See Affidavit of Trial Counsel, attached as Appendix E.
Moreover, it is not clear that the sentence received by petitioner is a greater sentence than a life sentence. In an almost identical case, the Michigan Supreme Court held that a twenty six year old defendant had a reasonable prospect of actually serving a prison term of seventy five to one hundred and fifty years for second degree murder and becoming eligible for parole, because any sentence that he received could be reduced by the automatic disciplinary credits that he would receive monthly. See People v. Rushlow, 437 Mich. 149, 154-156; 468 N.W.2d 487 (1991). By contrast, statistics show that only rarely are Michigan prisoners who are sentenced to parolable life terms ever paroled. See Jeanice Dagher-Margosian, Life Means Life, Parole Rarely Granted on Nonmandatory, Life Terms, 73 MICH.B.J. 1184, 1184-1185 (1994). Thus, petitioner's sentence would be less severe than a parolable life sentence as a factual matter if not as a matter of law. Alvarez v. Straub, 64 F. Supp.2d 686, 697, fn. 3 (E.D. Mich. 1999)(Rosen, J.).
In fact, both petitioner and his trial attorney indicated in affidavits which petitioner has provided to this Court that petitioner did not want to receive a life sentence because he was afraid that he would never be paroled. See Affidavit of Trial Counsel and Affidavit of Defendant, attached as Appendix E.
In conclusion, petitioner has failed to show that anyone made any promises or representations to him that any sentence of a term of years would be one that he could serve within his lifetime. Moreover, under Michigan law, the sentence received by petitioner was a sentence that petitioner had a reasonable prospect of serving and of becoming eligible for parole, albeit at an old age. Petitioner has failed to show that his plea of guilty was not voluntarily made.
Petitioner also claims that he was deprived of the effective assistance of counsel at his guilty plea. To show that he was denied the effective assistance of counsel under federal constitutional standards, a defendant must satisfy a two prong test. First, the defendant must demonstrate that, considering all of the circumstances, counsel's performance was so deficient that the attorney was not functioning as the "counsel" guaranteed by the Sixth Amendment. Strickland v. Washington, 466 U.S. 668, 687 (1984). In so doing, the defendant must overcome a strong presumption that counsel's behavior lies within the wide range of reasonable professional assistance. Id.; O'Hara v. Wigginton, 24 F.3d 823, 828 (6th Cir. 1994). In other words, petitioner must overcome the presumption that, under the circumstances, the challenged action might be sound trial strategy. Strickland, 466 U.S. at 689. Second, the defendant must show that such performance prejudiced his defense. Id. To demonstrate prejudice, the defendant must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694.
Petitioner does not clearly identify how his attorney was ineffective. A habeas petitioner must come forward with some evidence that his or her claim has merit. Bald assertions and unsupported, conclusory allegations do not entitle a habeas petitioner to an evidentiary hearing in federal court. Nickerson v. Lee, 971 F.2d 1125, 1136 (4th Cir. 1992); Zettlemoyer v. Fulcomer, 923 F.2d 284 (3rd Cir. 1991). A contrary rule would "encourage meritless petitions burdening judicial resources." Zettlemoyer, 923 F.2d at 301. Although counsel in his affidavit indicates that he never discussed with petitioner the fact that the trial court could sentence him to seventy five to one hundred and fifty years in prison, counsel also indicated in the affidavit that he did explain to petitioner that the trial court could consider his life expectancy in imposing sentence. Because petitioner's own evidence shows that counsel informed petitioner that he could receive a sentence that was based upon his life expectancy, petitioner has failed to establish that counsel was deficient.
Moreover, petitioner has failed to show that he was prejudiced by any alleged deficiencies by counsel. To establish the prejudice component in a claim of ineffective assistance of counsel in the context of a guilty plea, petitioner must establish that there was a reasonable probability that but for counsel's errors, he or she would not have pleaded guilty but would have insisted on going to trial with the obvious chance of being acquitted. Hogan v. Ward, 998 F. Supp. 290, 293-294 (W.D.N.Y. 1998) (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)(court's assessment of whether a defendant would have gone to trial but for counsel's errors "will depend largely on whether the affirmative defense likely would have succeeded at trial"); See also Jones v. White, 992 F.2d 1548, 1557 (11th Cir. 1993).
In the present case, petitioner has failed to show that he was prejudiced by any alleged deficiencies on counsel's part because he has failed to show that but for counsel's error, he would have insisted on going to trial with the obvious chance of being acquitted. The trial court indicated at sentencing that the autopsy showed that death was by ligature strangulation by a telephone cord. The autopsy also showed three shallow cutting wounds and two stab wounds in front of the victim's neck. The victim also had bruises and scrapes on her face, hands, and leg. Petitioner confessed to killing the victim. Under the circumstances, petitioner is unable to show that he had any viable defenses to this case or that he would have been acquitted had he insisted on going to trial. Petitioner has failed to show that he was prejudiced by any alleged deficiencies on counsel's part. Petitioner has failed to establish that he was deprived of the effective assistance of counsel.
Sentence Transcript, p. 23.
Id at p. 17.
C. Claim #4. Michigan's parole scheme does not violate petitioner's equal protection rights.
Petitioner lastly claims that Michigan's parole scheme violated his rights to due process and equal protection. Specifically, petitioner claims that Michigan's parole scheme is irrational because a person sentenced to life imprisonment is eligible for parole consideration after serving fifteen years in prison, whereas a defendant like himself who draws a "lesser" term of years will actually be ineligible for parole consideration until much later, depending on the length of the minimum sentence.
Under M.C.L.A. 791.234(6), M.S.A. 28.2304(6), a person serving a parolable life sentence is subject to the jurisdiction of the parole board after serving either ten or fifteen years in prison, depending on when the crime was committed. In Re Parole of Johnson, 235 Mich. App. 21, 23; 596 N.W.2d 202 (1999).
This Court will review petitioner's equal protection challenge under the rational basis test because prisoners are not a suspect class and there is no fundamental constitutional right to parole. Glauner v. Miller, 184 F.3d 1053, 1054 (9th Cir. 1999).
The Illinois Supreme Court rejected the same challenge to its parole laws over fifty years ago. In People v. Nowak, 387 Ill. 11; 55 N.E.2d 63 (1944), the defendant had been sentenced to one hundred years in prison for murder. Petitioner challenged Illinois's parole law, because it provided that a person sentenced to life imprisonment would be eligible for parole after twenty years, whereas a person sentenced to a term of years would be eligible for parole after serving one third of their sentence, which in Nowak's case would have been thirty three and a third years. The Illinois Supreme Court found that Illinois' parole scheme did not violate the equal protection clause. Nowak, 387 Ill, at 14-15.
Similarly, another judge in this district recently rejected a similar equal protection clause challenge to Michigan's drug laws. In Alvarez v. Straub, 64 F. Supp.2d 686 (E.D. Mich. 1999)(Rosen, J.), the defendant had been convicted of possession of 225-650 grams of cocaine and had received the mandatory sentence of twenty to thirty years, whereby he would be eligible for parole after serving the minimum twenty years. Petitioner challenged Michigan's parole scheme, noting that had he been convicted of the greater offense of possession of 650 grams of cocaine, an offense carrying a [mandatory] life sentence, he would have been eligible for parole after serving only ten years in prison. Petitioner claimed that Michigan's parole scheme was therefore irrational because he would have been eligible for parole in a shorter time had he been convicted of a higher offense than the offense that he had been convicted of.
In rejecting petitioner's claim, Judge Rosen found that Michigan's parole scheme was not irrational or based on an invidious discriminatory animus in violation of the equal protection clause. Alvarez, 64 F. Supp.2d at 697-699. Judge Rosen noted that while a person convicted of the greater offense of possession of 650 grams or more of cocaine was eligible for parole sooner than petitioner, they were still subject to the potential of life imprisonment. Judge Rosen further noted that persons sentenced to parolable life terms were rarely paroled. Id. at 697 and fh.3. Judge Rosen further found that the [Michigan] legislature could rationally conclude that where a mandatory minimum sentence had been imposed, it was appropriate to require a prisoner to serve the minimum sentence before being eligible for parole. Similarly, as a "simple administrative matter", the legislature could choose some time at which persons serving life sentences could become eligible for parole. That this scheme might at times result in the "anomalous result" of a person being convicted of a more serious crime being eligible for parole sooner than someone who had been convicted of a lesser offense did not render the parole scheme irrational. Alvarez, 64 F. Supp.2d at 698.
This Court concludes that Michigan's parole scheme does not violate the equal protection clause. As a prisoner, petitioner is not a member of a suspect class. Moreover, petitioner is not complaining of the denial of a fundamental right because there is no federal constitutional right to parole. Lee v. Withrow, 76 F. Supp.2d 789, 792 (ED. Mich. 1999)(Duggan, J.). As a "simple administrative matter", the legislature could choose some time at which persons serving life sentences become eligible for parole. That this scheme may at times result in the "anomalous result" of a person who receives a life sentence becoming eligible for parole sooner than someone like petitioner who receives a long term of years does not render the parole scheme irrational, particularly in light of the fact that very few defendants in Michigan who receive parolable life sentences are ever actually paroled. Petitioner's last claim must fail.
IV. ORDER
Based upon the foregoing, IT IS ORDERED that the petition for a writ of habeas corpus is
DISMISSED WITH PREJUDICE.