United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DENYING CERTIFICATE OF APPEALABILITY
GERSHWIN DRAIN, District Judge.
On August 1, 2013, Petitioner Deandre Witherspoon ("Witherspoon" or "Petitioner") filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254. Witherspoon is a state prisoner in the custody of the Michigan Department of Corrections pursuant to plea-based convictions for two counts of second-degree murder, one count of armed robbery, and felony firearm. He argues that his convictions were obtained in violation of his constitutional rights because: the trial court erred in denying his motion to withdraw plea, trial counsel was ineffective, the trial court failed to place Petitioner under oath before accepting plea, and the state knowingly withheld exculpatory evidence. Respondent argues that the claims are procedurally defaulted, waived by his guilty plea, and/or meritless. The Court denies the petition.
I. Background and Procedural History
Petitioner's convictions arise from a robbery and murder that took place in Detroit on February 23, 2007. The robbery resulted in the murder of two children; one child died from a gunshot wound to the back of the head and the other child from three gunshot wounds to the head. Petitioner was charged with two counts of first-degree murder and several other charges.
On October 29, 2007, Petitioner pleaded guilty to two counts of second-degree murder, one count of armed robbery, and felony firearm. In exchange for this plea, the prosecutor dismissed two counts of first-degree murder as well as all other remaining charges. The prosecutor also agreed to a prison sentence of 20 to 40 years for the murder convictions, and 20 to 30 years for the armed robbery conviction, to be served concurrently; Petitioner will serve two consecutive years of imprisonment for the felony firearm conviction.
On November 12, 2007, the date scheduled for sentencing, Petitioner's attorney made an oral motion to withdraw the plea. The trial court heard the motion on December 17, 2007, and subsequently denied the motion. On May 21, 2008, the trial court sentenced Petitioner in accordance with the plea agreement.
Petitioner filed a delayed application for leave to appeal in the Michigan Court of Appeals, arguing that the trial court erred in denying his motion to withdraw the plea. The Michigan Court of Appeals denied the application "for lack of merit in the grounds presented." People v. Witherspoon, No. 292216 (Mich. Ct. App. July 1, 2009). Petitioner sought leave to appeal in the Michigan Supreme Court. The Michigan Supreme Court denied leave to appeal, People v. Witherspoon, 488 Mich. 852 (Mich. 2010), and denied Petitioner's motion for reconsideration. People v. Witherspoon, 488 Mich. 997 (Mich. 2010).
In October 2011, Petitioner filed a motion for relief from judgment in the trial court raising these claims: (i) ineffective assistance of trial counsel; (ii) ineffective assistance of appellate counsel; (iii) involuntary plea; and (iv) newly discovered evidence warranting a new trial. The trial court denied the motion. Opinion and Order Denying Defendant's Motion for Relief from Judgment, People v. Witherspoon, No. 07-009823-02 (Jan. 27, 2012). The Michigan Court of Appeals and the Michigan Supreme Court denied Petitioner's subsequent applications for leave to appeal. People v. Witherspoon, No. 310420 (Mich. Ct. App. Nov. 8, 2012); People v. Witherspoon, 494 Mich. 868 (Mich. 2013).
Petitioner then filed the pending habeas petition. He raises the following four claims:
I. The trial court erred in denying the motion to withdraw plea.
II. Petitioner was denied his Sixth Amendment [right to the effective assistance of counsel], when David Cripps along with the prosecutor, intimidated and pressured him into accepting a plea with his lawyer "Gabi Silver" [even though] he maintained his innocence. Consequently, the judge violated Petitioner's Fourteenth Amendment right to due process and equal protection when accepting the plea without placing the defendant under oath.
III. Trial counsel was constitutionally ineffective for failing to investigate critical witnesses before trial, failed to meet with his client to discuss possible defenses, failed to subject the State's case to any meaningful adversarial testing, inter alia.
IV. Based upon newly discovered evidence of the State knowingly withholding discoverable evidence which impoverished the court and may very well exonerate Defendant depriving him of his constitutional right to a fair trial confrontation, proper defense, and the effective assistance of both trial and appellate counsel in direct violation of Defendant's Fourth, Sixth, and Fourteenth Amendment rights to the U.S. and State Constitution, Petitioner is entitled to a trial.
Petition for Writ of Habeas ...