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Burch v. MacLaren

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

July 29, 2015

DEREK JAMES BURCH, Petitioner,
v.
DUNCAN MACLAREN, Respondent.

OPINION AND ORDER DENYING THE PETITION FOR WRIT OF HABEAS CORPUS, DENYING THE MOTION FOR THE APPOINTMENT OF COUNSEL, DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY, AND GRANTING LEAVE TO APPEAL IN FORMA PAUPERIS

ARTHUR J. TARNOW, Senior District Judge.

Derek James Burch, ("Petitioner"), presently confined at the Kinross Correctional Facility in Kincheloe, Michigan, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.[1] In his application, filed pro se, petitioner challenges his convictions for three counts of first-degree child abuse, M.C.L.A. 750.136b(2); and being a second felony habitual offender, M.C.L.A. 769.10. For the reasons that follow, the petition for writ of habeas corpus is DENIED.

I. Background

Petitioner was originally charged with three counts of torture and being a fourth felony habitual offender. The charges arose from petitioner imposing years of mental and physical abuse upon his biological daughter, biological son, and a girlfriend's son.

At petitioner's arraignment on the warrant, the magistrate judge set bond in the amount of $500, 000.00. Petitioner was also advised that he was to have no contact with any of the victims. Petitioner indicated that he understood the magistrate's order. (Tr. 5/3/10, p. 8).

On November 2, 2010, petitioner pleaded guilty to three charges of first-degree child abuse and being a second felony habitual offender, in exchange for dismissal of the three torture charges and the fourth habitual offender charge. The parties also agreed that petitioner would receive a sentence of twelve to twenty two and one half years in prison. (Tr. 11/2/10, pp. 3, 7). Prior to pleading guilty, petitioner reviewed an advice of rights form provided by the Montcalm County Circuit Court. The rights form warned petitioner that if he violated "the plea agreement or a court order, including a condition on bond, " petitioner gave up the right to withdraw his plea "if the judge does not follow the Killebrew or Cobbs agreement." (Advice of Rights, 8th Judicial Circuit, Montcalm County, 11/2/10, attached to Defendant's Delayed Application for Leave to Appeal [Dkt. # 8-8]). The form also advised petitioner that he would "be asked to state, orally on the record, " that he had read these rights and that he understood and agreed to waive them. ( Id. ). Petitioner's counsel indicated at the plea hearing that petitioner signed the rights form. (Tr. 11/2/10, pp. 3-4). The judge advised petitioner that by pleading guilty he gave up certain rights, including the rights on the sheet that petitioner had signed and given to the court. The judge specifically asked petitioner if he read and understood the rights on the rights form. Petitioner replied that he had. ( Id., p. 5).

At his sentencing hearing, petitioner's counsel moved to withdraw the plea on the ground that petitioner had been taking medications that may have hampered his ability to understand the plea and based on petitioner's claim that his counsel had given him incorrect advice about Michigan's Truth in Sentencing Law and its applicability to his case. (Tr. 3/17/11, pp. 3-7). As part of her response to the motion, the assistant prosecutor indicated that petitioner had contacted his daughter and possibly his son in an attempt to get them not to testify against petitioner and to "do the right thing." The prosecutor argued that petitioner's actions in contacting the victims amounted to witness tampering or intimidation as well as a violation of his bond condition not to have contact with the victims. ( Id., pp. 10-12). In response to questioning from the trial court, petitioner admitted that he had contacted his son and daughter, both directly and indirectly, between the time of his guilty plea and the sentencing. ( Id., p. 18). In response from questioning by the prosecutor, petitioner initially denied attempting to dissuade the victims from testifying against him, but acknowledged that he asked his mother to speak to a lawyer who could advise his children about exercising their Fifth Amendment rights not to testify. Petitioner admitted that he did not want his two children to come to court and testify against him. Petitioner further admitted that he did tell some of his relatives that he wanted to take his plea back and have his children agree not testify against him. ( Id., pp. 22-24).

The judge denied petitioner's motion to withdraw his guilty plea. ( Id., pp. 24-28).

The assistant prosecutor argued that petitioner's post-plea contact with the victims violated his bond condition and justified the judge to exceed the sentence agreement. ( Id., pp. 32-33). Defense counsel argued that petitioner had never been released on bond and although petitioner was advised to have no contact with the victims, petitioner "was never placed on any type of release that I'm provided with acknowledged (sic) that he couldn't have contact." ( Id., p. 34).

The judge noted that the advice of rights form signed by petitioner at the time of the guilty plea warned that if petitioner violated the plea agreement, or a court order, including a condition of bond, he would give up his right to withraw the guilty plea if the trial court did not follow the sentencing agreement. The judge observed that when the bond was set, "a condition of bond and by that also a court order" precluded petitioner from having contact with the victims and their families. The judge concluded that because petitioner contacted the victims, he violated the terms of the sentence agreement and the judge was no longer obliged to follow the agreement. The judge emphasized that even if petitioner was never released on bond, the court order directed petitioner to have no contact with the victims. ( Id., pp. 34-38). The judge further found that petitioner tried to influence and "continue [his] mental control of..." his children even after his guilty plea. ( Id., p. 39). The judge exceeded the sentencing agreement and sentenced petitioner to fifteen to twenty two and one half years in prison. ( Id. ).

Petitioner's conviction was affirmed on appeal. People v. Burch, No. 309246 (Mich.Ct.App. May 10, 2012); lv. den. 492 Mich. 870, 819 N.W.2d 874 (2012). Petitioner filed a post-conviction motion for relief from judgment, which was denied. People v. Burch, No. 10-13980 (Montcalm County Circuit Court, July 17, 2013). The Michigan appellate courts denied petitioner leave to appeal. People v. Burch, No. 318741 (Mich.Ct.App. January 10, 2014); lv. den. 497 Mich. 853, 852 N.W.2d 169 (2014).

Petitioner seeks a writ of habeas corpus on the following grounds:

I. The petitioner was deprived of his constitutional right to Due Process of law where the trial court judge refused to sentence him based upon the plea bargain and would not allow him to withdraw from the plea.
II. The petitioner was deprived of his right to the effective assistance of counsel because defense counsel failed to advise petitioner of the language contained in the "Rights Form." Any violation of the terms contained in the Rights Form resulted in the vacation of the plea agreement.
III. The petitioner was deprived of his right to the effective assistance of appellate counsel because appellate counsel failed to raise issues on direct appeal regarding trial counsel's ineffectiveness and the plea withdrawal proceedings, which were in violation of petitioner's Constitutional Rights.

I. Standard of Review

28 U.S.C. § 2254(d), as amended by The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), imposes the following ...


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