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Spencer v. Wolfenbarger

March 29, 2010

GRAYLIN SPENCER, #359410, PETITIONER,
v.
HUGH WOLFENBARGER, RESPONDENT.



The opinion of the court was delivered by: Honorable Marianne O. Battani United States District Court

Honorable Marianne O. Battani

Magistrate Judge R. Steven Whalen

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

Petitioner, Graylin Spencer, is a state inmate currently incarcerated at Chippewa Correctional Facility in Kincheloe, Michigan. Petitioner was convicted after his nolo contendere plea in Wayne County Circuit Court, of second-degree murder, Mich. Comp. Laws §750.317*fn1 . Petitioner was sentenced to fourteen to twenty-five years' imprisonment.

Petitioner has filed a pro se petition for writ of habeas corpus under 28 U.S.C. §2254. For the reasons that follow, the Court will deny the petition.

I. BACKGROUND

Petitioner's conviction arises from a serious car accident wherein Petitioner's two-year old child was a passenger and was killed. On December 11, 2004, at approximately 5:30 p.m., Petitioner was operating a vehicle in the City of Detroit in a 35 mile per hour zone. In the vehicle with Petitioner was his two-year old son, who was unrestrained in the back seat at the time of the accident, the child's mother and another young child who was three years old. Petitioner was traveling 65 to 70 miles per hour and was intoxicated with a blood alcohol level of .237 and was assaulting the childrens' mother while driving. Petitioner collided with a tow truck that was parked on northbound Lahser Road. As a result of the accident the two-year old child suffered from blunt cranial cerebral hemorrhage and died. The other passengers were transported to the hospital and treated.

On the date set for trial, May 5, 2005, Petitioner entered into a no-contest plea agreement. On August 8, 2005, Petitioner sought to withdraw his plea. A hearing was held and Petitioner's motion was denied. Petitioner filed a delayed application for leave to appeal with the Michigan Court of Appeals and raised the following claim: "[t]he trial judge court abused its discretion by not allowing the defendant to withdraw his guilty plea prior to sentencing." The Michigan Court of Appeals denied relief. People v. Spencer, No: 267254 (Mich. Ct. App. Jan. 26, 2006). Petitioner subsequently filed an application for leave to appeal with the Michigan Supreme Court raising the same claim and relief was likewise denied. People v. Spencer, 475 Mich. 887; 715 NW2d 899 (2006)(table).

Petitioner now files a petition for writ of habeas corpus under 28 U.S.C. §2254 raising the same claim.*fn2

II. STANDARD

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) governs this court's habeas corpus review of state court decisions. Petitioner is entitled to the writ of habeas corpus if he can show that the state court's adjudication of his claim on the merits:

(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 at the State court proceedings.

28 U.S.C. § 2254(d).

A state court's decision 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." Williams v. Taylor, 529 U.S. 362, 412-413 (2000). A state court's decision is an "unreasonable application of" clearly established federal law "if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413.

"[A]n unreasonable application of federal law is different from an incorrect application of federal law." Id. at 410 (emphasis in original). "[A] federal habeas court making the 'unreasonable application' inquiry should ask whether the state court's application of clearly established federal law is objectively unreasonable." Id. at 409. "Furthermore, state findings of fact are presumed to be correct unless the defendant can rebut the presumption by clear and convincing evidence." Baze v. Parker, 371 F.2d 310, 318 (6th Cir. 2004) (citing 28 U.S.C. §2254(e)(1)).

III. DISCUSSION

A. No-Contest Plea

Petitioner argues that the trial court abused its discretion when it denied his motion to withdraw his nolo contendere plea. As an initial matter, the Court observes that Petitioner has no federal constitutional right or absolute right under state law to withdraw his guilty plea. See Adams v. Burt, 471 F. Supp. 2d 835, 843 (E.D. Mich. 2007) (internal citations omitted). Therefore, unless the plea violated a clearly-established constitutional right, whether to allow the withdrawal of a criminal defendant's guilty plea is discretionary with the state trial court. See Hoffman v. Jones, 159 F. Supp. 2d 648, 655 (E.D. Mich. 2001).

A guilty or no-contest plea constitutes a waiver of several constitutional rights. Boykin v. Alabama, 395 U.S. 238, 243 (1969). Therefore, the plea must be a voluntary, knowing, and intelligent act, which is "done with sufficient awareness of the relevant circumstances and likely consequences." Brady v. United States, 397 U.S. 742, 748 (1970). "[F]or a plea to be voluntary and intelligent a defendant must be apprised of the direct consequences of entering the plea," Riggins v. McMackin, 935 F.2d 790, 795 (6th Cir. 1991) (citing Brady, 397 U.S. at 755), including "the maximum sentence that could be imposed," King v. Dutton, 17 F.3d 151, 154 (6th Cir. 1994) (citing Hart v. Marion Corr. Inst., 927 F.2d 256, 259 (6th Cir. 1991)).

The rule that a plea must be intelligently made to be valid does not require that a plea be vulnerable to later attack if the defendant did not correctly assess every relevant factor entering into his decision. A defendant is not entitled to withdraw his plea merely because he discovers long after the plea has been accepted that his calculus misapprehended the ...


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