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Glover v. Palmer

March 29, 2010

SANDY RUSSELL GLOVER, PETITIONER,
v.
CARMEN PALMER, RESPONDENT.



The opinion of the court was delivered by: Patrick J. Duggan United States District Judge

Honorable Patrick J. Duggan

OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DENYING CERTIFICATE OF APPEALABILITY

Petitioner Sandy Glover ("Petitioner"), a Michigan Department of Corrections' inmate currently incarcerated at the Gus Harrison Correctional Facility in Adrian, Michigan, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his August 31, 2000 conviction following a jury trial in the Circuit Court for Livingston County, Michigan. The jury convicted Petitioner of assault with intent to do great bodily harm less than murder in violation of Michigan Compiled Laws Section 750.84 and malicious destruction of personal property greater than $200.00 in violation of Michigan Compiled Laws Section 750.377a(1)(c)(i).*fn1 On October 27, 2000, the trial court sentenced Petitioner as a second habitual offender under Michigan Compiled Laws Section 769.10 to a term of imprisonment of six to fifteen years for the assault conviction and ninety days for the malicious destruction of property conviction. For the reasons set forth below, the Court denies the petition.

Background

Petitioner's convictions arose from his assault upon Kerrie Wensko, who at the time was his estranged wife.*fn2 Both Petitioner and Ms. Wensko testified at trial, each providing a different version of events. Ms. Wensko testified that Petitioner attacked and raped her. Petitioner testified that he and Ms. Wensko got into an argument, each physically attacked the other, they eventually stopped fighting and engaged in consensual sex, and that Ms. Wensko left his house the next morning. Petitioner did admit to slamming his fist into Ms. Wensko's car, causing the rear passenger window to shatter. The jury apparently believed Ms. Wensko's version of the events (except regarding the alleged rape) and convicted Petitioner of assault with intent to cause great bodily injury less than murder and malicious destruction of property valued at more than $200.

Petitioner filed a delayed application for leave to appeal in the Michigan Court of Appeals, raising the following claims:

I. The trial court erred where it sustained the prosecutor's objection to the testimony of complainant's conversation with defense counsel where complainant had specifically stated to counsel that a charged offense had not occurred.

II. Defendant must be resentenced where the lower court erroneously scored 50 points for terrorism under OV7.

III. The trial judge improperly assessed a fifteen-point score on offense variable 8, "victim was carried away or held captive."

IV. The trial court erred in improperly calculating the credit for time served as to count 1 as 314 days, vice 322 despite defendant's specific objection.

In an order issued on January 22, 2002, the Michigan Court of Appeals remanded the matter for resentencing to reflect credit for 321 days of time served but denied the application for delayed appeal "[i]n all other respects . . . for lack of merit in the grounds presented." People v. Glover,No. 237551 (Mich. Ct. App. Jan. 22, 2002) (unpublished opinion).

Petitioner then filed a delayed application for leave to appeal in the Michigan Supreme Court in which he raised the first three claims that he raised in the Court of Appeals. On October 29, 2002, the Michigan Supreme Court denied Petitioner's application because the Court was "not persuaded that the questions presented should be reviewed by [the] Court." People v. Glover, 467 Mich. 891, 653 N.W.2d 410 (2002).

Petitioner subsequently filed a motion for relief from judgment in the trial court raising the following issues: (I) that his arrest violated the Fourth Amendment; (II) that his trial counsel had a conflict of interest; (III) that Petitioner was denied the effective assistance of counsel on appeal due to counsel's failure to initiate Plaintiff's appeal in a timely manner; (IV) that the prosecutor committed misconduct; and (V) Petitioner's sentence was improperly enhanced. In an opinion and order dated December 29, 2004, the trial court denied the motion. The court held that Petitioner's arrest was not unconstitutional and that he failed to demonstrate that his sentence was improperly enhanced. The court rejected Petitioner's remaining claims because he "failed to establish ineffective assistance of counsel, or good cause why these issues were not raised on direct appeal." (Doc. 11-24.)

Petitioner filed an application for leave to appeal with the Michigan Court of Appeals and then an application for leave to appeal in the Michigan Supreme Court, in which he raised the same claims. Both courts denied Petitioner's application, holding that he "failed to meet the burden of establishing entitlement to relief under [Michigan Court Rule] 6.508(D)." People v. Glover, No. 264945 (Mich. Ct. App. March 23, 2006) (unpublished opinion); People v. Glover, 722 N.W.2d 828 (2006).

On February 26, 2007, Petitioner, through counsel, filed the pending petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his petition, Petitioner asserts the following grounds for relief:

I. Appellate counsel was constitutionally ineffective in that he failed to initiate Petitioner's appeal in a timely manner, thus ...


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