United States District Court, E.D. Michigan, Southern Division
EDWARD D. JOHNSON, #198460, Petitioner,
LLOYD RAPELJE, Respondent.
OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF HABEAS CORPUS AND DECLINING CERTIFICATE OF APPEALABILITY
ROBERT H. CLELAND, District Judge.
Michigan prisoner Edward D. Johnson ("Petitioner") has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner pleaded guilty to assault with intent to rob while armed, Mich. Comp. Laws § 750.89, felon in possession of a firearm, Mich. Comp. Laws § 750.224f, and possession of a firearm during the commission of a felony, Mich. Comp. Laws § 750.227b, in the Genesee County Circuit Court. He was sentenced to 15 to 25 years imprisonment, a concurrent term of two to five years imprisonment, and a consecutive term of two years imprisonment on those convictions in 2009. In his pleadings, he raises claims concerning the validity of his sentence and the effectiveness of counsel at sentencing. Respondent has filed an answer to the petition contending that the claims lack merit. For the reasons that follow, the court will deny the petition and deny a certificate of appealability.
II. FACTS AND PROCEDURAL HISTORY
Petitioner's convictions arise from an incident in Mt. Morris Township on March 17, 2008 in which he and two other men went to the home of the Hale family, while armed, with the intent to rob them. During the incident, the father was assaulted in his bed and the wife and son were duct-taped in the front room. Petitioner claimed that he served as the getaway driver and did not enter the house because he knew the family.
Petitioner was charged with three counts of assault with intent to rob while armed, first-degree home invasion, carrying concealed weapon, felon in possession of a firearm, and felony firearm. On August 18, 2009, he pleaded guilty to one count of assault with intent to rob while armed, felon in possession of a firearm, and felony firearm in exchange for dismissal of the other charges and he was not charged as a habitual offender. There was no sentence agreement. If Petitioner provided information about the third perpetrator, however, the prosecution would not object to a sentence at the low end of the sentencing guideline range. 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 that he was pleading guilty of his own free will. He also provided a factual basis for his plea. The trial court then accepted the plea finding it to be knowing and voluntary.
On September 25, 2009, the trial court sentenced Petitioner to 15 to 25 years imprisonment on the assault conviction, a concurrent term of two to five years imprisonment on the felon in possession conviction, and a consecutive term of two years imprisonment on the felony firearm conviction. At that hearing, defense counsel disputed information in the pre-sentence report which indicated that Petitioner was the "muscle" for the crime rather than the getaway driver, but otherwise had no objections to the report or the scoring of the guidelines. One of the victims, Mrs. Hale, testified that Petitioner destroyed her and her family's lives and that she would never be the same. Petitioner spoke on his own behalf and expressed remorse for his actions. The trial court indicated that it had also received and read letters from Petitioner's family. The trial court acknowledged that the sentencing guidelines were high due to Petitioner's criminal record and noted the serious nature of the offense in imposing Petitioner's sentence.
Following sentencing, Petitioner filed an application for leave to appeal with the Michigan Court of Appeals raising what amounted to the same claims now presented on habeas review, as well as a motion to remand for an evidentiary hearing. The court denied leave to appeal "for lack of merit in the grounds presented" and denied the motion for remand. People v. Johnson, No. 299634 (Mich. Ct. App. Sept. 23, 2010) (unpublished). Petitioner filed an application for leave to appeal with the Michigan Supreme Court, which was denied in a standard order. People v. Johnson, 796 N.W.2d 64 (Mich. 2011).
Petitioner thereafter filed this federal habeas petition. In his pleadings, he raises the following claims:
I. The trial court unlawfully deprived him of his due process, equal protection, and other protected rights under the United States and Michigan Constitutions when it scored 10 points for Offense Variable 4.
II. The trial court unlawfully deprived him of his due process, equal protection, and other protected rights under the United States and Michigan Constitutions when it failed to take into account all mitigating evidence in sentencing him.
III. The trial court unlawfully violated the United States and Michigan Constitutions in sentencing him to a prison term of 180-300 months on the assault with intent to rob while armed conviction and to a prison term of 24-60 months on the felon in possession of a firearm conviction.
Respondent has filed an answer to the petition contending that it should be denied because the claims lack merit. Petitioner has filed a reply to that answer.
III. STANDARD OF REVIEW
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), codified 28 U.S.C. § 2241 et seq., provides the standard of review for federal habeas cases brought by ...