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Flournoy v. Vasbinder

April 6, 2010


The opinion of the court was delivered by: Honorable Paul L. Maloney


Overruling the Petitioner's Objections and Adopting the R&R; Dismissing the 28 U.S.C. § 2254 Petition for Writ of Habeas Corpus;

Entering Judgment in Favor of the Respondent; Declining to Issue a Certificate of Appealability;

Terminating and Closing the Case

Pursuant to 28 U.S.C. § 636 and W.D. MICH. LCIVR 72.2(b), this matter was automatically referred to the Honorable Ellen S. Carmody, United States Magistrate Judge, who issued a Report and Recommendation ("R&R") on Tuesday, March 23, 2010. Plaintiff filed timely objections on Friday, April 2, 2010,*fn1 but the court finds that much of plaintiff's objection is not sufficiently specific and articulated to trigger de novo review of the portions of the R&R which he purports to challenge.*fn2 Because petitioner's objections patently lack merit, the court will not require the warden to file a response. Petitioner Flournoy's objections read as follows:

Petitioner specifically objects to the following aspects of the Magistrate's report and recommendation:

1. Guilty Plea MCR 6.302(A)(B)(C)(E) clearly put conditions in excepting [sic] a plea. The defendant has to have an understanding of the rights he/she are waiving. 395 Mich 96 (1975).... And the only challenges which may be in a collateral attack to a prior guilty plea are the lack of effective assistance of counsel. Hill v. Lockhart 894 F2d 1009 (CA8, 1990)....

2. Clearly the ignorance of trial counsel of [the] relevant defense of self-defense was objectively unreasonable under prevailing professional norms. Magana v. Hofbauer 263 F3d 542 (CA6, 2001).

3. In the State of Michigan Court system, in [the] guilty plea context, the key issue is whether the plea was voluntary and understanding. People v. Prentice Watkins 247 Mich App. 14 (2001), aff'd on other grds 468 Mich 233 (2003).

4. Clearly the trial counsel had a professional obligation to stay updated with cases pending in the appellate courts that may aid his client with the best defense. The trial counselor had access to SADD [?] so People v. Riddle 649 N.W[].2d 30 (Mich 2002) was not something he could not look into. He also could ask the trial court to postpone the trial until the outcome of People v. Riddle Supra. If his client wanted to pursue a self-defense trial defense [sic]. The Petitioner was deprived of this chance of all options being put before him before he decided, so he could not constitutionally understand what civil rights he was waiving.

5. Clearly the federal courts have reco[g]nized the liberty interest of defendants once a state administratively or legislatively put[s] restraints on their decision making. Adams v. Wainwright D.C. Fla. 512 F. Supp[.] 948, 953; Meachum v Fano 427 US 215... (1976). (Please refer to argument 6 on following page.)

6. [T]he Magistrate clearly admits that... the [state] trial court did not ask Petitioner whether his attorney specifically discussed self-defense with Petitioner. (Page 8) of Magistrate's Report. Magistrate then states Petitioner has not submitted any evidence that his attorney, when discussing the defenses available to Petitioner, failed to address the topic of self-defense. However Petitioner submitted an AFFIDAVIT to the Court of APPEALS stateing [sic] that his attorney did not (Affidavit Exhibit 2) please find enclosed.

Magistrate also states (page 8)[:] Petitioner[']s assertion that he "had a self-defense claim" is based upon a misreading of Michigan law. However [the Magistrate] fails to address what the misreading of Michigan law is. Clear[l]y People v Riddle (467 Mich 116) that was Argued April 9, 2002 three months previous to Petitioner pleading guilty states that Petitioner had no duty to retreat while in his house or (Castle.)[.] Clearly it can be seen from Petitioner[']s transcripts that this incident happen[ed] within the confines of his home. There is clearly no misreading of State law on Petitioner's behalf.

7. Magistrate also states on II [?] Factual Basis for Plea on (page 9). That Petitioner asserted that he is entitled to relief because his plea was not supported by [a] sufficient factual basis. Magistrate asserts that there was [a] factual basis for plea. However [the Magistrate] does not acknowledge the fact that the Petitioner stated that he was fearful that the deceaised [sic] would attack him because of an altercation where the deceaised [sic] threatened him earlier. Id. [at] 12-13[.]

This statement in itself takes away the element of second degree murder (absent circumstances of justification, excuse, or mitigation)[)]. The Petitioner stated he was fearful. Id. [at] 12-13[.] He also stated that the deceaised Mr. Doss approached him in his own home and began to walk t[o]w[a]rds him. Id. [at] 14. Only then did petitioner fire his weapon at Mr. Doss. Id. [at] 14. Petitioner also told Mr Doss to leave before shooting Mr. Doss. Id. [at] 16.

Clearly these statements at the plea hearing were not FACTUAL BASIS FOR A SECOND DEGREE MURDER PLEA. Simply because the Petitioner was defending his actions with an excuse and justifying his actions. Clearly the elements of second degree murder are (1) death, (2) caused by an act of the defendant, (3) absent circumstances of justification, excuse, or mitigation, and (4) done with an intent to kill, an intent to inflict great bodily harm, or an intent to create a very high risk of death with knowledge that the act probably would cause of great bodily harm. See [P]eople v. Lulgjuraj, 2001 WL 1480814 at *1 (Mich. Ct. App., Nov. 20, 2001) (citing People v. Bailey, 451 Mich. 657 (1996)). Clearly element (3) is missing from Petitioner[']s plea. Petitioner ...

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