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Wilson v. Birkett

United States District Court, E.D. Michigan, Northern Division

February 25, 2015

CHRISTOPHER WILSON, Petitioner,
v.
THOMAS M. BIRKETT, Respondent.

OPINION AND ORDER DENYING THE PETITION FOR WRIT OF HABEAS CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY OR LEAVE TO APPEAL IN FORMA PAUPERIS

THOMAS L. LUDINGTON, District Judge.

Petitioner, Christopher Wilson, confined at the Michigan Reformatory in Ionia, Michigan, filed a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner pleaded guilty in the Livingston County Circuit Court to one count of armed robbery, Mich. Comp. Laws § 750.529, and one count of attempted unarmed robbery, § 750.530. Petitioner was sentenced to concurrent sentences of fourteen to twenty-five years as a fourth habitual offender. Petitioner alleges that he was deprived of effective assistance of counsel at the time of the plea; that his plea was not knowing, intelligent, or voluntary; that trial counsel negotiated a plea agreement that did not satisfy the "armed" element for armed robbery; that he was denied effective assistance of counsel at the time of sentencing where counsel failed to properly address the "armed" robbery element and presented incomplete and inaccurate information to the sentencing judge; and that his sentence was unconstitutional because it was based upon inaccurate and incomplete information. Respondent has filed an answer to the petition asserting that the claims are meritless and/or unexhausted. Petitioner filed a reply brief indicating that he wishes to delete his unexhausted claims. Petitioner's request to delete his unexhausted claims will be granted. Petitioner's exhausted claims will be denied on the merits.

I.

Petitioner's conviction arises from a robbery at a bar. At the preliminary exam, Rose Field testified about-and demonstrated-that Petitioner had his left hand in his pocket pointing what she thought was a gun at her. January 1, 2008 Transcript, pp. 16-18. Another witness, John Paul Albertson, testified that just before he hit the floor, he saw Petitioner's hand move in the direction of his belt buckle, stating that "there's only one reason why [Albertson] could think of it [moving in that direction] and [it is because] you have a weapon, you have a gun." Id. at 49.

Petitioner was charged with one count of unarmed robbery and one count of attempted unarmed robbery, January 1, 2008 Felony Information at 1, which the prosecutor later amended to one count of armed robbery and one count of attempted armed robbery. January 14, 2008 Am. Felony Compl. at 1. After Petitioner was bound over for trial on the two amended counts, January 16, 2008 Transcript, pp. 63-64, the prosecutor then again amended the charges to one count of armed robbery and one count of attempted unarmed robbery. March 17, 2008 Transcript, pp. 4-5. Petitioner faced two sentences of life in prison as a fourth habitual offender for the attempted unarmed robbery and armed robbery charges. Id. at 6.

On March 17, 2008, Petitioner entered a guilty plea to attempted unarmed robbery and armed robbery pursuant to a Cobbs agreement[1] which placed a 14-year ceiling on Petitioner's minimum prison term. Id. at 6-15. Petitioner was then sentenced on May 5, 2008, as a fourth habitual offender, to concurrent terms of 14 to 25 years in prison. May 5, 2008 Transcript, p. 11.

Following his conviction, Petitioner filed a motion seeking a Ginther hearing, which was held on April 23, 2010.[2] After hearing testimony, the trial court denied Petitioner's claims of ineffective assistance of counsel; determined that Petitioner's plea was freely, voluntarily, and understandingly made, April 23, 2010 Transcript, pp. 115-19; and then entered an order denying Petitioner's motions for resentencing and to withdraw his plea. Livingston Cir. Ct. April 23, 2010 Order.

Petitioner's conviction was affirmed on appeal. People v. Wilson, No. 298113 (Mich. Ct. App. Oct. 4, 2010); lv. den. 795 N.W.2d 130 (Mich. 2011) (unpublished table decision). Petitioner now seeks habeas relief on the following grounds:

I. Petitioner was deprived of the effective assistance of counsel at the time of the plea, and Petitioner's plea was neither knowing, intelligent, nor voluntary, where defense counsel negotiated a plea and sentence agreement to an armed robbery offense where substantial evidence was available to defense counsel that Petitioner's conduct at the time of the offense did not satisfy the "armed" element for armed robbery, and where Petitioner had informed counsel prior to the plea that he had not been armed, and had not pretended to be armed, at the time of the offense.
II. Petitioner was deprived of the effective assistance of counsel at the time of sentence where counsel litigated Petitioner's sentence based upon an erroneous presumption that Petitioner's conduct at the time of the offense did not satisfy the "armed" element for armed robbery, and where defense counsel presented incomplete and inaccurate information to the sentence judge.
III. Petitioner's sentence was unconstitutional because it was based upon inaccurate and incomplete information.

II.

The provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996), which govern this case, "circumscribe[d]" the standard of review federal courts must apply when considering applications for a writ of habeas corpus raising constitutional claims. See Wiggins v. Smith, 539 U.S. 510, 520 (2003).

As amended, 28 U.S.C. § 2254(d) permits a federal court to issue the writ only if the state court decision on a federal issue "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court, " or it amounted to "an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(1) & (2); Franklin v. Francis, 144 F.3d 429, 433 (6th Cir. 1998). Mere error by the state court will not justify issuance of the writ; rather, the state court's application of federal law "must have been objectively unreasonable." Wiggins, 539 U.S. at 520-21 (quoting Williams v. Taylor, 529 U.S. 362, 409 (2000) (internal quotation marks omitted)). Additionally, this Court must presume the correctness of state court factual determinations. 28 U.S.C. § 2254(e)(1) ("In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct."); see also West v. Seabold, 73 F.3d 81, 84 (6th Cir. 1996)(stating that "[t]he court gives complete deference to state court findings of historical fact unless they are clearly erroneous").

The Supreme Court has explained the proper application of the "contrary to" clause as follows:

A state-court decision will certainly be contrary to [the Supreme Court's] clearly established precedent if the state court applies a rule that contradicts the governing law set forth in our cases.
...
A state-court decision will also be contrary to this Court's clearly established precedent if the state court confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless ...

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