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Nelson v. Birkett

March 24, 2010


The opinion of the court was delivered by: Honorable David M. Lawson


Petitioner Jonnard Kenyon Nelson, presently confined at the Michigan Reformatory in Ionia, Michigan, has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petitioner pleaded guilty to second-degree murder and first-degree criminal sexual conduct in the Genesee County, Michigan circuit court and was sentenced to concurrent prison terms of 43 years 9 months to 66 years 8 months on each count. He alleges that he is incarcerated in violation of his constitutional rights because his guilty plea was involuntary, he did not have competent counsel, his sentence was disproportionate and based on incorrectly-scored guidelines, and proceedings in the trial of a co-defendant were marred by various irregularities. The respondent asserts that the state court's adjudication of the petitioner's claims was consistent with federal law, some of the claims are based only on state law and therefore are unreviewable by this Court, and the petitioner's guilty plea waived review of most of his other claims. The Court agrees that the petitioner's claims do not warrant habeas relief. Therefore, the habeas petition will be denied.


The petitioner was charged by the Genesee County, Michigan prosecuting attorney with first-degree premeditated murder, felony murder, conspiracy to commit first-degree premeditated murder, kidnapping, first-degree criminal sexual conduct, being a felon in possession of a firearm, and possession of a firearm during the commission of a felony. He was also charged as an habitual offender, third offense. The charges arose from the torture, sexual penetration, and execution of eighteen-year-old Johnny Ray McFadden on January 18, 2003, in Flint, Michigan. The petitioner and five other men were charged with the crimes.

On July 22, 2003, the prosecutor amended the first count from first-degree premeditated murder to second-degree murder. The petitioner then pleaded no contest to second-degree murder, Mich. Comp. Laws § 750.317, and first-degree criminal sexual conduct, Mich. Comp. Laws § 750.520b. In return, the prosecutor dismissed the other charges and the notice charging the petitioner as an habitual offender. There was no sentence agreement in place, but the petitioner was expected to pay restitution and to acknowledge that two of his co-defendants did horrible things to the victim.

On September 4, 2003, the trial court sentenced the petitioner to imprisonment for two concurrent terms of 43 years 9 months to 66 years 8 months. The petitioner moved to withdraw his guilty plea or for re-sentencing, but the trial court denied his motion after holding a hearing on November 29, 2004. The Michigan Court of Appeals denied the petitioner's application for leave to appeal "for lack of merit in the grounds presented," People v. Nelson, No. 259873 (Mich. Ct. App. Apr. 20, 2005), and on November 29, 2005, the Michigan Supreme Court denied leave to appeal because it was not persuaded to review the issues. See People v. Nelson, 474 Mich. 936, 706 N.W.2d 22 (2005). Reconsideration was denied on February 27, 2006. See People v. Nelson, 474 Mich. 1066, 711 N.W.2d 302 (2006).

The petitioner signed and dated his habeas corpus petition on November 29, 2006. He alleges that he is in custody in violation of the Constitution and laws of the United States because of the following errors:

1. The petitioner's no contest plea was not voluntary because it was induced by his attorney's false promise of a sentence of 22-1/2 to 37-1/2 years in prison;

2. Trial counsel was ineffective by failing to object to improper guideline scoring, not investigating possible defenses and interviewing witnesses, failing to discuss strategy and defenses with the petitioner, refusing to let the petitioner testify if he went to trial, failing to raise the defense of duress, and failing to request a mental competency examination;

3. The sentencing guidelines were scored incorrectly, the sentence was disproportional, and the sentencing facts were not proven beyond a reasonable doubt;

4. The petitioner was ordered to pay the full amount of the restitution;

5. The petitioner's rights were compromised by several pretrial irregularities, such as his interrogation without counsel present, improper witness manipulation during the co-defendant's trial; the co-defendants' testimony at the preliminary examination was inconsistent and not credible; two additional firearms counts were added on the day of trial, and the co-defendants' statements were not disclosed until the morning of trial.

The respondent urges the Court to deny the habeas petition on the grounds that the petitioner's allegations of error were waived by his no-contest plea, are not cognizable on habeas corpus review, or lack merit. The petitioner replies that his issues are cognizable and were not waived by his plea, the state court's decision was contrary to clearly established Supreme Court law, and each claim has merit.


The provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996), which govern this case, "circumscribe[d]" the standard of review federal courts must apply when considering applications for a writ of habeas corpus raising constitutional claims, including claims of ineffective assistance of counsel. See Wiggins v. Smith, 539 U.S. 510, 520 (2003).

As amended, 28 U.S.C. § 2254(d) permits a federal court to issue the great writ only if the state court decision on a federal issue "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court," or it amounted to "an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(1)&(2); Franklin v. Francis, 144 F.3d 429, 433 (6th Cir. 1998). Mere error by the state court will not justify issuance of the writ; rather, the state court's application of federal law "must have been objectively unreasonable." Wiggins, 539 U.S. at 520-21 (quoting Williams v. Taylor, 529 U.S. 362, 409 (2000) ( internal quotes omitted)). 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 West v. Seabold, 73 F.3d 81, 84 (6th Cir. 1996) (stating that "[t]he court gives complete deference to state court findings of historical fact unless they are clearly erroneous").

The 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, 529 U.S. at 405-06.

The Supreme Court has held that a federal court should analyze a claim for habeas corpus relief under the "unreasonable application" clause of § 2254(d)(1) "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 409-11; see also Knowles v. Mirzayance, __ U.S. __, __, 129 S.Ct. 1411, 1419 (2009) (noting that the Supreme "Court has held on numerous occasions that it is not '"'an unreasonable application of clearly established Federal law'"' for a state court to decline to apply a specific legal rule that has not been squarely established by this Court") (quoting Wright v. Van Patten, 552 U.S. 120, 125-26 (2008) (per curiam)); Murphy v. Ohio, 551 F.3d 485, 493-94 (6th Cir. 2009); Eady v. Morgan, 515 F.3d 587, 594-95 (6th Cir. 2008); Davis v. Coyle, 475 F.3d 761, 766-67 (6th Cir. 2007); King v. Bobby, 433 F.3d 483, 489 (6th Cir. 2006); Rockwell v. Yukins, 341 F.3d 507, 512 (6th Cir. 2003) (en banc).


The petitioner's first claim attacks his convictions on the grounds that his no contest plea was involuntary and the proceedings were plagued with error. The petitioner alleges that his plea was not voluntary and knowing because it was based on his attorney's promise that all the charges would be dropped if he pleaded no contest to second-degree murder and that he would be sentenced within the sentencing guidelines range, which was 22 years 6 months to 37 years 6 months. The petitioner also claims that he was pressured into pleading no contest by his ...

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