Opinion
Case Number 00-10408-BC
September 25, 2003
ORDER ADOPTING RECOMMENDATION IN PART AND DENYING THE PETITION FOR A WRIT OF HABEAS CORPUS
This matter is before the Court on the report of Magistrate Judge Charles E. Binder, to whom this matter had been referred, recommending that the petition for a writ of habeas corpus be dismissed on the ground that the claim was procedurally defaulted and that the petitioner had shown neither cause and prejudice nor a miscarriage of justice. After receiving a copy of the Report and Recommendation, the petitioner filed a motion to dismiss his insufficiency of the evidence claim and timely objected to the recommendation of dismissal. After conducting a de novo review of the magistrate judge's report, the petitioner's objections thereto, and the other materials on file, the Court concludes that the magistrate judge erred in enforcing a procedural default in this case. Nonetheless, the Court agrees with the magistrate judge that the petitioner's claims lack merit, and will therefore deny the petition.
I.
On May 14, 1992, the petitioner, armed with a pistol, robbed a convenience store in Oak Park, Michigan. Present in the store at the time of the robbery were the store owner and his girlfriend. The girlfriend was apparently not employed at the store, but she was behind the counter during the robbery. The petitioner forced the owner to empty the cash register, and then, holding the girlfriend at gunpoint, ordered the owner to retrieve money from the office, which he did. The petitioner then fled, and was later apprehended.
The petitioner pleaded guilty in September 1992 to two counts of armed robbery, Mich. Comp. Laws § 750.529, two counts of possession of a firearm during the commission of a felony ("felony-firearm"), Mich. Comp. Laws § 750.227b, and habitual offender-second offense, Mich. Comp. Laws § 769.10. During the plea colloquy, the trial court and the prosecutor struggled with the questioning to establish a factual basis to support two armed robbery convictions, presumably since there was some doubt that the store owner's girlfriend was actually an armed robbery victim. Nonetheless, the plea was accepted, and the petitioner later was sentenced to two concurrent terms of two years for the felony-firearm convictions, to be followed by two concurrent terms of eighteen to forty years for the armed robbery convictions. He was also ordered to pay restitution. The petitioner's convictions and sentences were affirmed on direct appeal, in which he raised various sentencing issues.
In January 1996, the petitioner filed a motion for relief from judgment pursuant to Michigan Court Rule 6.500 et seq. Therein, the petitioner contended that he had received ineffective assistance of trial and appellate counsel, his plea was involuntary because it was the product of faulty legal advice, his conviction for two counts of armed robbery and felony-firearm violated the prohibition against double jeopardy because the factual basis for the plea disclosed only one armed robbery victim, further jail credit should have been received, and the amount of restitution was improperly set. After directing the prosecution to respond to the motion, the trial court granted the motion with regard to sentencing credit and restitution, but denied it as to the double jeopardy and ineffective assistance of counsel claims. The Michigan Court of Appeals granted the petitioner's request for leave to appeal, and affirmed the trial court's decision in an unpublished, per curiam opinion. People v. Tarpley, No. 201942, 1999 WL 33453805 (Mich.Ct.App. March 5, 1999). The Michigan Supreme Court denied leave to appeal, stating that it was "not persuaded that the questions presented" were worthy of review. People v. Tarpley, 461 Mich. 903, 603 N.W.2d 643 (1999).
The petitioner then timely filed this petition for the writ of habeas corpus on October 20, 2000, alleging that he was denied both due process of law and his right to be free from double jeopardy when he was convicted upon a plea of guilty to a second charge of armed robbery upon which no adequate factual basis had been established. The respondent answered the petition, contending that the double jeopardy claim was procedurally defaulted because the petitioner failed to raise it on direct review in state court, the due process claim was unexhausted because it was never raised by the petitioner in state proceedings, and all of the petitioner's claims lacked merit and were barred by the concurrent sentencing doctrine.
II.
The Court does not agree with the magistrate judge's treatment of the procedural defenses of exhaustion of remedies and procedural default. These defenses do not operate in this case as a bar to consideration of the merits of the constitutional claims.
The doctrine of exhaustion of state remedies requires state prisoners to present their claims to the state courts before raising them in a federal habeas corpus petition. See 28 U.S.C. § 2254(b)(1)(A) and (c); O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). The exhaustion requirement is satisfied if a prisoner invokes one complete round of the state's established appellate review process, including a petition for discretionary review to a state supreme court. O'Sullivan, 526 U.S. at 839-40, 845. Thus, state prisoners in Michigan must present their claims to the Michigan Court of Appeals and the Michigan Supreme Court before presenting them in a federal habeas corpus petition. Mohn v. Bock, 208 F. Supp.2d 796, 800 (E.D. Mich. 2002). Furthermore the claims must either be "fairly presented" or actually "considered" by the state courts. Anderson v. Earless, 459 U.S. 4, 6, 8 (1982). A claim is "fairly presented" to the state courts if it "(1) relie[s] upon federal cases employing constitutional analysis; (2) relie[s] upon state cases employing federal constitutional analysis; (3) phras[es] the claim in terms of constitutional law or in terms sufficiently particular to allege a denial of a specific constitutional right; or (4) allege[s] facts well within the mainstream of constitutional law." McMeans v. Brigano, 228 F.3d 674, 681 (2000).
However, the exhaustion rule bars review only when the state still provides a remedy to exhaust. Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994). In this case, the petitioner cannot return to the Michigan courts to further attack his conviction by filing a new post-conviction motion in which he might raise his due process challenge because the Michigan Court Rules prohibit filing successive motions for relief which raise issues that could have been raised in an earlier appeal or post-conviction motion. See Mich. Ct. R. 6.508(D)(3). Moreover, as discussed more fully below, the state appellate court actually considered the petitioner's due process claim. Since the state trial court has ruled on the petitioner's claims, refiling these claims in the trial court for the purpose of running the complete state gamut would not be allowed. Thus, the petitioner is barred from pursuing an otherwise available state court remedy, and any claims that might otherwise be insulated from review must be deemed exhausted. Gray v. Netherland, 518 U.S. 152, 161 (1996).
The evaporation of state procedural remedies will not completely excuse a prisoner's failure to avail himself of them, however. The Court may review such procedurally defaulted claims on the merits only if he shows cause for not raising his claims at all levels of state court review and prejudice, or that he is actually innocent of the crimes for which he was convicted. Hannah v. Conley, 49 F.3d 1193, 1195-96 1196 n. 3 (6th Cir. 1995) (citing Coleman v. Thompson, 501 U.S. 722, 750 (1991), and Murray v. Carrier, 477 U.S. 478, 496 (1986)). See also Mohn, 208 F. Supp.2d at 801. To establish "cause," a petitioner must show that "some objective factor external to the defense impeded [his] efforts to comply with the State's procedural rule." Murray, 477 U.S. at 488. Objective impediments may include an unavailable claim, some interference by state officials, and ineffective assistance of counsel. Ibid.
For the doctrine of procedural default to apply, a firmly established and regularly followed state procedural rule applicable to the petitioner's claim must exist, and the petitioner must have failed to comply with that state procedural rule. Williams v. Coyle, 260 F.3d 684, 693 (6th Cir. 2001), cert. denied, 122 S.Ct. 2635 (2002); see also Warner v. United States, 975 F.2d 1207, 1213-14 (6th Cir. 1992). Additionally, the last state court from which the petitioner sought review must have invoked the state procedural rule as a basis for its decision to reject review of the petitioner's federal claim. Coleman, 501 U.S. at 729-30. Whether the independent state ground is adequate to support the judgment is itself a federal question. Lee v. Kemna, 534 U.S. 362, 375 (2002).
If the last state court from which the petitioner sought review affirmed the conviction both on the merits and, alternatively, on a procedural ground, the procedural default bar may be invoked and the petitioner must establish cause and prejudice in order for the federal court to review the petition. Rust, 17 F.3d at 161. If the last state court judgment contains no reasoning, but simply affirms the conviction in a standard order, the federal habeas court must look to the last reasoned state court judgment rejecting the federal claim and apply a presumption that later unexplained orders upholding the judgment or rejecting the same claim rested upon the same ground. Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991).
A.
The respondent contends, and the magistrate judge agreed, that the double jeopardy claim in this case was procedurally defaulted. The Court disagrees. The Michigan Court of Appeals, which issued the last reasoned decision in this case, attempted to default the petitioner's double jeopardy claim on the basis of Michigan Court Rule 6.503(D)(3), which bars claims that could have been raised on direct appeal from being raised in post-conviction motions. As noted above, a state procedural rule must be adequate as a matter of federal habeas law to preclude review of a petitioner's federal constitutional claims. State procedural rules are adequate for this purpose only if they are "firmly established and regularly followed." James v. Kentucky, 466 U.S. 341, 348 (1984). The state court of appeals' attempt to invoke Michigan Court Rule 6.508(D)(3) fails on both counts. Although the Sixth Circuit has held that Rule 6.508(D)(3) is firmly established and regularly followed as a general matter of Michigan procedure, see Simpson v. Jones, 238 F.3d 399, 407 (6th Cir. 2000), this Court has recognized that the Michigan courts do not regularly enforce the rule for certain claims. See Bentley v. Bock, 239 F. Supp.2d 686, 694 (E.D. Mich. 2002). The rule as applied in this case is not firmly established because Rule 6.508(D)(3) explicitly exempts jurisdictional challenges from its procedural bar. Double jeopardy is considered a jurisdictional challenge in Michigan, see People v. Carpentier, 446 Mich. 19, 47-48, 521 N.W.2d 195, 207-208 (1994), and thus such a claim is not barred by Rule 6.508(D)(3) if not raised in a direct appeal. The procedural default argument also fails because such a rule is not regularly followed. Indeed, when Michigan courts correctly apply the plain language of Rule 6.508(D)(3), they consistently excuse as jurisdictional challenges double jeopardy claims raised in post-conviction motions. See, e.g., People v. Hughes, No. 203069, 2000 WL 33395308, at *1 (Mich.Ct.App. Dec. 1, 2000); People v. Hall, No. 227845, 2001 WL 1029647, at *5-6 (Mich.Ct.App. Sept. 7, 2001); People v. Rusiecki, No. 236651, 2002 WL 552709, at *2 (Mich.Ct.App. April 12, 2002).
B.
The magistrate judge also agreed with the respondent's contention that the petitioner's claim based on the Due Process Clause was unexhausted. Again, this Court disagrees. Although it is true that the petitioner's insufficient factual basis argument was not fairly presented as a due process claim to any Michigan court, such a claim will still be considered exhausted if the claim was nonetheless addressed by the Michigan courts. See Anderson, 459 U.S. at 7 (finding claim to be unexhausted where it was "plain from the record that this constitutional argument was never presented to, or considered by, the Michigan courts"). That is what occurred in this case. The claim allegedly unexhausted raises the same argument as that in the double jeopardy claim, but couches the violation as an abridgment of the petitioner's rights under the Due Process Clause of the Fourteenth Amendment. The basis for relief would be identical under both counts, and it is this basis that the Michigan Court of Appeals addressed in its opinion affirming the trial court's refusal to grant the petitioner relief from his convictions. Although not fairly presented to the Michigan Court of Appeals as a due process claim, the Michigan courts nonetheless considered whether the petitioner's plea had a factual basis, and this claim was therefore properly exhausted.
III.
The petitioner's double jeopardy and due process claims are reviewed against the standards established by the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (AEDPA). This Act altered the standard of review federal courts must apply when reviewing applications for a writ of habeas corpus. The AEDPA applies to all habeas petitions filed after the effective date of the Act, April 24, 1996. Lindh v. Murphy, 521 U.S. 320, 336 (1997). Because the petitioner's application was filed after that date, the provisions of the AEDPA, including the amended standard of review, apply to this case.
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). 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 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 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 v. Taylor, 529 U.S. 362, 405-06 (2000).
With respect to the "unreasonable application" clause of § 2254(d)(1), the 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 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 Lewis v. Wilkinson, 307 F.3d 413, 418 (6th Cir. 2002).
A.
As previously noted, the petitioner's claims stem from his assertion that the trial judge lacked a factual basis upon which to accept his plea to the second count of armed robbery. The petitioner's due process claim is easily dispatched, as the Supreme Court has made clear that, as a matter of federal constitutional law, a factual basis for a guilty plea need not be established for a state court to accept it. See North Carolina v. Alford, 400 U.S. 25, 37 (1970) ("An individual accused of crime may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime."). As the Supreme Court explained in Alford, although the federal courts are required by Rule 11 of the Federal Rules of Criminal Procedure to establish a factual basis for any guilty plea, the Constitution imposes no such requirement upon the States. Id. at 38 n. 11.
The claim therefore lacks merit, and will be denied.
B.
Ordinarily, a plea of guilt conclusively admits the defendant's guilt to the crimes charged, and any subsequent collateral attack upon that plea is limited to an inquiry as to whether it was voluntarily and knowingly given. United States v. Broce, 488 U.S. 563, 569 (1989). In the double jeopardy context, an exception to this rule exists when it is plain from the language of the charging document that no legally cognizable additional crime was charged to which the defendant could properly have entered a plea of guilt. Id. at 576. In all other respects, any right to assert a claim of double jeopardy is waived by the entry of the guilty plea. Ibid.
In Broce, the defendant entered guilty pleas to two separate indictments alleging conspiracies under the Sherman Act, 15 U.S.C. § 1, and later moved to vacate his sentences on the basis that there was in reality only a single conspiracy, and therefore his right under the Double Jeopardy Clause was violated. The Supreme Court focused on the charging documents to determine if the defendant's double jeopardy challenge survived his guilty plea. The Court noted: "Just as a defendant who pleads guilty to a single count admits guilt to the specified offense, so too does a defendant who pleads guilty to two counts with facial allegations of distinct offenses concede that he has committed two separate crimes." Broce, 488 U.S. at 570. The defendant's claim was premised on the contention that the two indictments alleged separate parts of the same illegal agreement. However," [r]espondents had the opportunity, instead of entering their guilty pleas, to challenge the theory of the indictments and to attempt to show the existence of only one conspiracy in a trial-type proceeding. They chose not to, and hence relinquished that entitlement." Id. at 571.
In this case, the criminal information filed against the petitioner alleged two counts of armed robbery, one each against two separate victims. The elements of armed robbery in Michigan are "(1) an assault, (2) a felonious taking of property from the victim's person or presence, and (3) the defendant must be armed with a weapon described in the statute." People v. Johnson, 206 Mich. App. 122, 123, 520 N.W.2d 672, 673 (1994); see Mich. Comp. Laws § 750.529. The plea colloquy demonstrates that the petitioner admitted to walking into a store, pointing a gun at both the store owner and another person behind the counter, and directed the owner to hand over the money he had on the premises. The owner complied, and the petitioner left the store.
Relying on People v. Graves, 207 Mich. App. 217, 523 N.W.2d 876 (1994), which was decided after the petitioner's plea of guilt and sentence, the petitioner contends he could not be convicted for armed robbery of both a store employee and the store itself where only the store's property was taken. Graves, however, is distinguishable. There, the defendant was charged with two counts of armed robbery even though only one employee was present when the robbery occurred. The Michigan Court of Appeals found that the second count of armed robbery lacked any factual basis in the record, even though the property stolen did not belong to the employee who was actually robbed.
Here, there were two individuals present, not one: the store owner and his girlfriend. It is undisputed that the petitioner assaulted them both, even though the only property stolen belonged to the store owner. In such a situation, the Michigan Court of Appeals has made clear that two armed robbery charges are properly brought. See People v. Rodgers, 248 Mich. App. 702, 645 N.W.2d 294 (2001). In that case, the defendant argued that he committed only one actual armed robbery because two store employees also present at the time did not themselves own the property that was taken from the store. The court of appeals rejected this claim, noting that it has long been the rule in Michigan that a robbery can occur of any individual who is both present during the robbery and has a right to the property taken superior to that of the robber. Id. at 707, 645 N.W.2d at 298. "[T]he essence of armed robbery is not that the property belonged to the victim, but rather that it belonged to someone other than the thief." Id. at 711, 645 N.W.2d at 300. The defendant did not contest that a store employee, as a general rule, has a right to possess store property that is superior to that of a would-be robber.
There is little doubt but that the State could certainly charge the petitioner with two counts of armed robbery, although whether it could have convicted the petitioner on the facts is another matter. In other words, the charging document was valid on its face. The petitioner argues here, however, that the facts he admitted at the guilty plea hearing did not establish that the store owner's girlfriend was actually a robbery victim, since no property was taken from her. Indeed, the record demonstrates the difficulty encountered by both the prosecutor and the trial judge in questioning the petitioner on this point, portending, perhaps, a problem in proving anything more than an assault against the second person. However, the petitioner could have challenged the factual claim that there were two robbery victims, not one, in a trial proceeding, but chose instead to admit guilt to both counts. He may not now collaterally attach his guilty-plea-based conviction on double jeopardy grounds after having "relinquished that entitlement." Broce, 488 U.S. at 571.
IV.
Although the court disagrees with certain aspects of the magistrate judge's report, as noted above, the decision of the Michigan Court of Appeals affirming the petitioner's convictions ultimately was neither contrary to, nor an unreasonable application of, clearly established Federal law as determined by the Supreme Court of the United States. See 28 U.S.C. § 2254(d)(1). This conclusion obviates the need to consider the respondent's additional argument that relief in this case should be barred by the concurrent sentencing doctrine.
Accordingly, it is ORDERED that the Recommendation [dkt # 12] is ADOPTED IN PART, and the Report is REJECTED IN PART.
It is further ORDERED that the petition for a writ of habeas corpus is DENIED.
It is further ORDERED that the petitioner's motion to dismiss [dkt # 13] is DENIED as moot.