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Tumele v. Davis

March 17, 2010

DENISE TUMELE, PETITIONER,
v.
SUSAN DAVIS, RESPONDENT.



The opinion of the court was delivered by: Nancy G. Edmunds United States District Judge

Honorable Nancy G. Edmunds

OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY AND LEAVE TO PROCEED ON APPEAL IN FORMA PAUPERIS

I. INTRODUCTION

This is a habeas case filed under 28 U.S.C. § 2254. Petitioner Denise Tumele, a state inmate currently incarcerated at the Women's Huron Valley Correctional Facility in Ypsilanti, Michigan, filed this pro se habeas petition, alleging that she is incarcerated in violation of her constitutional rights. On December 11, 2003, pursuant to a plea agreement, Tumele pleaded no contest to arson of a dwelling house and three counts of uttering and publishing, in the Muskegon County, Michigan, circuit court. In exchange for her no-contest plea, the State agreed not to file other possible charges against her and also agreed to reduce her status as a habitual offender fourth to a habitual offender second. The trial court also entered into a Cobbs*fn1 agreement with Tumele, in which her minimum sentence for the uttering and publishing convictions would not exceed eighteen months, and her minimum sentence for the arson conviction would not exceed ten years.

On January 12, 2004, Tumele was sentenced in accordance with the plea agreement to a prison term of ten to thirty years for the arson conviction and eighteen months to twenty-one years for the uttering and publishing convictions. In her pro se pleadings, Tumele raises twelve claims, including but not limited to, improper sentencing and ineffective assistance of trial and appellate counsel. For the reasons stated below, the Court will deny the petition and will also decline to issue a certificate of appealability and leave to proceed on appeal in forma pauperis.

II. BACKGROUND

Following her sentencing, Tumele filed a delayed application for leave to appeal in the Michigan Court of Appeals, raising the following claims:

I. [Petitioner's] score for OV 2, Lethal Potential of the Weapon Possessed or Used, at fifteen points is plain error when the trial court treats the mere presence of gasoline as an explosive device.

II. [Petitioner's] score for OV 13, Continuing Pattern of Criminal Behavior, at ten points is plain error when the trial court includes in this score offenses committed well after the instant offense.

III. [Petitioner] was unconstitutionally denied effective assistance of counsel when trial counsel failed to object to the OV 2 and OV 13 score because [Petitioner] could have received a significantly lower minimum sentence.

On September 22, 2005, the Michigan Court of Appeals denied Tumele's delayed application for lack of merit in the grounds presented. People v. Tumele, No. 262063 (Mich.Ct.App. Sept. 22, 2005). Subsequently, Tumele filed an application for leave to appeal that decision in the Michigan Supreme Court. The Michigan Supreme Court denied the application on January 30, 2006, "because we are not persuaded that the questions presented should be reviewed by this Court." People v. Tumele, 474 Mich. 1026, 708 N.W.2d 410 (2006).

Subsequently, on or about August 25, 2006, Tumele filed a post-conviction motion, pursuant to Mich.Ct.R. 6.500 et. seq., in the trial court, asserting that appellate counsel was ineffective for failing to raise the following seven issues on direct appeal: (1) she should be resentenced because of improper scoring of fifteen points for OV 2 and ten points for OV 14, ( 2) she signed a waiver of her right to a preliminary exam at a time when she was unable to read, (3) her attorney in the circuit court was not the same public defender she had in the district court, (4) her first public defender advised her that she would receive seven-and-one-half to ten years in prison, and that representation was not carried out, (5) trial counsel was ineffective because he failed to investigate the crime charged, failed to do discovery, failed to review the police report, and never advised her that she was being charged as a habitual offender, (6) trial counsel was ineffective for failing to request a mental competency hearing, and (7) appellate counsel did not file a timely application for leave to appeal with the Michigan Court of Appeals.

On September 7, 2006, the circuit court issued an order denying Tumele's post-conviction motion. People v. Tumele, No. 03-49405-FH (Muskegon County Circuit Court, Sept. 7, 2006).

Tumele filed a delayed application for leave to appeal the circuit court's decision in the Michigan Court of Appeals, raising the following ten claims:

I. Trial counsel was incorrect in having [Petitioner] sign a waiver of her right to a preliminary exam where [she] could not read so she did not know what she was signing.

II. The [Petitioner's] attorney was switched after the preliminary exam without [] [her] knowledge, and the promise that she was going to receive seven-and-one-half to ten years no longer existed.

III. Trial counsel was ineffective for failing to investigate the crime charged.

IV. Trial counsel failed to seek discovery, review police reports and any material the [Petitioner] had a right to view.

V. Attorney Swanson failed to inform [Petitioner] that she was being charged [as a] habitual offender.

VI. Attorney Smedley was ineffective in that she failed to object to the scoring of OV 2 and she did not object to it increasing the minimum guideline range.

VII. Attorney Smedley was ineffective because she failed to ask the courts for a mental competency hearing and she relied on the government's version of facts.

VIII. Appellate counsel was ineffective because he failed to file the application for leave to appeal in a timely manner.

IX. Appellate counsel should have argued [Petitioner's] reason which did have merit on why her conviction should have been ...


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