United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF HABEAS CORPUS, DENYING A CERTIFICATE OF APPEALABILITY & DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
LINDA V. PARKER, District Judge.
Michigan prisoner Deonte Deshawn Dexter ("Petitioner") has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his state court convictions and sentences. Petitioner pleaded guilty to third-degree fleeing and eluding a police officer, Mich. Comp. Laws § 750.602a(3)(a), resisting and obstructing a police officer, Mich. Comp. Laws § 750.81d(1), felon in possession of a firearm, second offense, Mich. Comp. Laws § 750.224f, and possession of a firearm during the commission of a felony, second offense, Mich. Comp. Laws § 750.227b, in the Saginaw County Circuit Court. He was sentenced, as a third habitual offender, Mich. Comp. Laws § 769.11, to concurrent terms of 6 months to 10 years imprisonment on the fleeing and eluding and felon in possession convictions, a concurrent term of 6 months to 4 years imprisonment on the resisting and obstructing conviction, and a consecutive term of 5 years imprisonment on the felony firearm conviction in 2011.
In his pleadings, Petitioner raises claims concerning the habitual offender notice, the pre-sentence investigation report, his eligibility to serve some of his sentence in the county jail, and the effectiveness of defense counsel relative to those issues. Respondent has filed an answer to the petition contending that the claims lack merit. For the reasons that follow, the Court denies the petition. The Court also denies a certificate of appealability and denies leave to proceed in forma pauperis on appeal.
II. FACTS AND PROCEDURAL HISTORY
Petitioner's convictions arise from his flight from a police officer who was trying to pull him over in Saginaw, Michigan on December 23, 2010. Petitioner led police on a chase during which he threw a gun out of his car. After he stopped his car, Petitioner also ran from the police on foot. At the time of the incident, Petitioner was a felon and not eligible to possess a firearm.
Petitioner pleaded guilty on May 26, 2011. At the plea hearing, the trial court advised Petitioner of the charges and possible penalties, the rights that he would be giving up by pleading guilty, and the terms of the plea agreement. Petitioner confirmed that he understood those matters and was pleading guilty of his own free will. He also provided a factual basis for his plea. The parties also discussed whether Petitioner would be eligible to serve his 6-month minimum sentences in the county jail. The trial court indicated that it would decide the matter at sentencing, after receiving information from corrections officials. The trial court accepted the plea finding it to be knowing and voluntary.
On June 29 and July 6, 2011, the trial court conducted sentencing hearings. At those hearings, the parties resolved sentencing credit issues and it was determined that Petitioner would serve his 6-month minimum sentences in prison. On July 6, 2011, the trial court imposed sentence.
Following his plea and sentencing, Petitioner filed a delayed application for leave to appeal with the Michigan Court of Appeals raising the same claims now presented in his habeas petition. See infra. The court denied leave to appeal "for lack of merit in the grounds presented." People v. Dexter, No. 307737 (Mich. Ct. App. Feb. 16, 2012) (unpublished). Petitioner then filed an application for leave to appeal with the Michigan Supreme Court, which was denied in a standard order. People v. Dexter, 815 N.W.2d 439 (Mich. 2012).
Petitioner thereafter filed his federal habeas petition. He raises the following claims:
I. The prosecutor's office failed to timely and properly serve the habitual offender notice.
II. Dismissed cases should be removed from his pre-sentence investigation report.
III. He should serve his 6-month sentences in the county jail because the trial judge "had no problem with it" until he reviewed the recommendation in the pre-sentence investigation report.
IV. Defense counsel was ineffective for failing to raise challenges relative to the foregoing issues.
As indicated, Respondent contends that these ...