United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER 1) DENYING THE PETITION FOR WRIT OF HABEAS CORPUS
AFTER REMAND, 2) GRANTING A CERTIFICATE OF APPEALABILITY, 3) AND DENYING
PETITIONER'S PENDING MOTIONS FOR BOND, ORAL ARGUMENT, AND IMMEDIATE
CONSIDERATION [DKT. NOS. 30, 31, AND 32]
ARTHUR J. TARNOW, Senior District Judge.
Alexander Aceval, ("Petitioner"), filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petition challenges his June 7, 2006, Wayne Circuit Court guilty plea conviction of possession with intent to deliver 1, 000 or more grams of cocaine. MICH. COMP. LAWS § 333.7401(2)(a)(i). Petitioner was sentenced under the terms of his plea bargain to 10-to-15 years imprisonment. The Court granted the petition on the grounds that Petitioner was denied his counsel of choice and that his re-prosecution after a mistrial was prohibited by the Double Jeopardy Clause of the Fifth Amendment due to pervasive prosecutorial and judicial misconduct at his first trial. See ECF No. 15.
Respondent appealed, and the Sixth Circuit reversed. Aceval v. Maclaren, 2014 U.S.App. LEXIS 18325 (6th Cir. Mich. 2014). The Court found that the Michigan Courts had not unreasonably applied clearly established Supreme Court law with respect to Petitioner's denial of counsel of choice and double jeopardy claims. The Court remanded the case for consideration of Petitioner's claim that his re-prosecution was barred under Due Process Clause of the Fourteenth Amendment, an alternative theory for relief that Petitioner presented to the state courts during his direct appeal.
Briefly, and as the Sixth Circuit noted, at Petitioner's first trial "the prosecutor and judge knowingly allowed witnesses to lie in an effort to conceal the identity of a confidential informant involved in Aceval's arrest." Id. p. 1. This resulted in a sham proceeding that would never have been upheld if it had resulted in a conviction. As it happens, however, the jury hung, and Petitioner thereafter pled guilty as indicated above.
Following sentencing, Petitioner filed a delayed application for leave to appeal in the Michigan Court of Appeals, raising the following claims:
I. The Double Jeopardy Clauses of the State and Federal Constitutions Precluded the Prosecutor From Retrying Defendant Where an Intentional Prosecutorial and Judicial Criminal Misconduct Conspiracy of a Degree Unprecedented in Michigan Or Federal Judicial History Sought Unfair Conviction of Defendant.
II. Denial of Sixth Amendment Right to Counsel Invalidates Defendant's Plea-based Second Trial Conviction.
III. Ineffective Assistance of Counsel Rendered Defendant's Guilty Plea Illusory, Involuntary and Otherwise Invalid.
IV. The Numerous Due Process Violations, Individually or Collectively, Irreparably Denied Defendant-[A]ppellant His Right to a Fair trial and Any Possibility of Prevailing in Any Subsequent Trial.
V. Fraudulent Criminal Processes Were Insufficient to Afford Jurisdiction over Defendant[-]Appellant.
The Michigan Court of Appeals denied Petitioner's delayed application "for lack of merit in the grounds presented." People v. Aceval, No. 279017 (Mich. Ct. App. October 5, 2007).
Petitioner subsequently filed an application for leave to appeal in the Michigan Supreme Court. The court remanded the case to the Court of Appeals to consider "whether the defendant was denied the right to counsel of his choice under United States v. Gonzales-Lopez, 548 U.S. 140 (2006), " and to consider "whether the prosecution's acquiescence in the presentation of perjured testimony amounts to misconduct that deprived ...