The opinion of the court was delivered by: Thomas L. Ludington United States District Judge
Honorable Thomas L. Ludington
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS, DENYING CERTIFICATE OF APPEALABILITY, AND DENYING PERMISSION TO PROCEED IN FORMA PAUPERIS ON APPEAL
Petitioner Thomas Lee Collins, a state inmate currently*fn1 incarcerated at the Chippewa Correctional Facility in Ypsilanti, Michigan, filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. A jury in Lake County Circuit Court convicted Petitioner of armed robbery, Mich. Comp. Laws § 750.529. The state trial court sentenced the petitioner to thirteen years and eight months to thirty years imprisonment. Petitioner alleges that he is entitled to habeas relief because his waiver of his right to counsel was involuntary, he was denied his right to counsel of choice and the trial court improperly departed from the minimum sentence established under the sentencing guidelines. Respondent has filed an answer asserting that Petitioner is not entitled to habeas relief because his claims are either procedurally defaulted, non-cognizable, or without merit. Because Petitioner's claims lack merit, the Court will deny the petition.
Petitioner represented himself with the aid of standby counsel during a two-day trial; a jury convicted him of armed robbery, which carries a statutory maximum sentence of life in prison. Mich. Comp. Laws § 750.529. The sentencing guideline range for Petitioner was four years three months to seven years one month. The trial court sentenced Petitioner on July 11, 2001 to eighteen years nine months to thirty years in prison. Petitioner filed a motion for a new trial or resentencing, arguing that his waiver of his right to counsel was unknowing and unintelligent. On January 17, 2002, the trial court found that Petitioner knowingly and voluntarily waived his right to counsel but that he was entitled to resentencing because of a miscalculation in offense variables. The court resentenced Petitioner on February 2, 2002 to thirteen years eight months to thirty years in prison.
Petitioner filed a direct appeal arguing that his waiver of counsel was unknowing and that the trial court clearly erred in departing upward from the minimum sentence under the sentencing guidelines. After setting forth the constitutional requirements for a knowing and voluntary waiver of the right to counsel and after reviewing the record, the Michigan Court of Appeals rejected the first claim:
We are satisfied that the trial court adequately apprised defendant of the risks of self-representation [and substantially complied with state waiver procedures]. . . . In view of defendant's conduct and his statements to the court, we are satisfied that defendant's waiver of his right to counsel and decision to represent himself was knowingly, intelligently, and voluntarily made.
People v. Collins, Nos. 235552 & 239913, 2002 WL 31950753, *2-4 (Mich. Ct. App. Dec. 10, 2002).
The court also rejected Petitioner's sentencing challenge which was based purely on the state law claim that the court lacked "substantial and compelling reasons" under Mich. Comp. Laws §769.34(3) to depart from the sentencing guidelines.
We conclude that the factors supporting the departure from the guidelines are objective and verifiable, and that the trial court did not clearly err in finding that such factors exist in this case. During trial, defendant revealed that he had been involved in criminal activity for which he had never been caught . . . . With respect to the trial court's characterization of defendant as a "major" drug dealer, the record evidence supports the court's finding . . . . Although defendant denied that his escort service involved prostitution, the evidence suggests otherwise . . . . On the basis of the record before us, the trial court did not clearly err in finding substantial and compelling reasons to depart from the guidelines. We find no abuse of discretion in defendant's sentence.
The Michigan Supreme Court denied Petitioner's application for leave to appeal. People v. Collins, 688 N.W.2d 503 (Mich. 2004).
Petitioner subsequently filed a post-conviction motion with the state trial court. The motion raised the same claims raised in his earlier direct appeal and the state trial court denied the motion pursuant to M.C.R. 6.508(D)(2), which prohibits relief on grounds that were previously decided against a defendant. Petitioner filed an application for leave to appeal the trial court decision, which the Michigan Court of Appeals denied as untimely on April 21, 2006. Petitioner next filed a motion for reconsideration of that decision in light of United States v. Booker, 543 U.S. 220 (2005), which he argued involved a retroactive change in the existing law and merited reconsideration of the earlier appellate decision. The Michigan Court of Appeals denied the motion for reconsideration, concluding that Booker did not involve any change in law but only in the ...