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Moore v. Bell

March 31, 2010

JEURVIS LYNELL MOORE, PETITIONER,
v.
THOMAS BELL, RESPONDENT.



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

OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

Michigan prisoner Jeurvis Lynell Moore, currently incarcerated at Lakeland Correctional Facility in Coldwater, Michigan, has filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Moore pleaded guilty to armed robbery in the Wayne County, Michigan circuit court and was sentenced to fifteen to thirty years in prison. He alleges that his conviction and sentence are unconstitutional because his guilty plea was coerced by the trial judge, his trial counsel was constitutionally ineffective, the presentence report was inaccurate, the trial court failed to establish a factual basis that supports his conviction, his plea agreement was illusory, and his sentence was based on facts that were not determined beyond a reasonable doubt by a jury or admitted by him. The respondent filed a response to the petition asserting that the claims lack merit. The Court agrees and will deny the petition.

I.

On July 28, 2003, the petitioner appeared with counsel before the trial court for a pretrial hearing on charges of robbery, assault, and being an habitual offender. The state prosecutor offered to dismiss the assault and habitual offender charges in exchange for the petitioner's guilty plea to armed robbery. As the petitioner was considering the plea offer, the trial court held a bench conference with the petitioner and the attorneys. The colloquy apparently was not recorded, but the petitioner recalls the following statement from the trial judge:

Mr. Moore, if you were to go to trial there is the possibility that you could win, if that were to happen you would not be facing time, but if you go to trial and lose, I could give you life in prison with the 4th degree enhancement notice, but I would probably not give you life. If you were to take responsibility for your actions, but I would be inclined to sentence you within the middle of your guidelines, which would still be 30 years.

Br. in Support of Pet. at ¶ 3(a).

Thereafter, the petitioner agreed to plead guilty to armed robbery in exchange for the prosecutor's agreement to dismiss the following charges: assault with intent to commit murder, felonious assault, and being a fourth habitual offender. He signed a written plea agreement that contained a list of the rights he was waiving by pleading guilty, and a promise that his sentence would not exceed a minimum of fifteen years in prison and a maximum of thirty years. The plea hearing transcript opens with the following statement from the trial court:

THE COURT: * * * Now, arm[ed] robbery, technically, Mr. Moore, is life in prison. We had an opportunity to discuss this matter at sidebar.

I want to put that on the record. Not only did I talk with you personally, but I talked with your attorney, Mr. Cooper and Ms. Korkis the Prosecutor.

There was originally some discussion about the fact that if you win, it could be zero, but you might have still parole hold issues.

If you lose, it could be life in prison, especially under habitual four.

The prosecutor also ha[d] some discussion[s] about the guidelines, whether those were 14 years. Whether those were 18 years.

It [sic] was also a discussion of a 15 to 30 year sentence agreement, is that right, Mr. Moore[?]

DEFENDANT MOORE: Yes, sir.

Plea Hr'g Tr. at 3-4 (July 28, 2003).

Thereafter, the trial court engaged in a guilty plea colloquy that was unremarkable, except, perhaps, for the statement advising the petitioner of the exact sentence he would receive if he accepted the plea offer and entered a guilty plea. The court stated:

THE COURT:... And, having now had the opportunity to discuss this with Counsel a little bit further in private, you've made a decision in this particular matter that you wish to ple[a]d, is that to a 15 to 30 year sentence agreement, with a dismissal of counts 2 and 3 and a dismissal of the enhancement notice; is that correct?

DEFENDANT MOORE: Yes, sir.

THE COURT: And Mr. Cooper has gone through each one of these rights with you? In fact, you checked off those as you were going right down or Mr. Cooper checked them off as he discussed them with you; correct?

DEFENDANT MOORE: Yes, sir.

THE COURT: Okay.

And this is the plea bargain form that he checked that you read, reviewed, and signed after reading your rights; correct?

DEFENDANT MOORE: Yes, sir.

Id. at 4-5. The court then recited the catalog of procedural rights to which the petitioner was entitled, all of which was contained on the preprinted form the petitioner signed. Thereafter, the court made a statement about the intended sentence, and the colloquy continued:

THE COURT: Mr. Moore, you understand that arm[ed] robbery is a pretentiously a life offense, but by pleading, you'll be sentence[d] to a sentence agreement of 15 to 30 years, you understand that?

DEFENDANT MOORE: Yes, sir.

THE COURT: Okay.

How do you wish to plea to the charge of arm[ed] robbery?

DEFENDANT MOORE: Guilty, sir.

THE COURT: You understand that if I accept your plea, you will not have a trial.

You'll give up the rights you would've had at that trial.

DEFENDANT MOORE: Yes, sir.

THE COURT: Is anybody forcing you to plea?

DEFENDANT MOORE: No, sir.

THE COURT: Pleading freely and ...


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