Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Powell v. Burt

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

October 14, 2016

JAMES POWELL, Petitioner,
v.
SHERRY BURT, Respondent.

          MEMORANDUM AND ORDER DENYING THE PETITION FOR WRIT OF HABEAS CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY

          AVERN COHN UNITED STATES DISTRICT JUDGE

         I. Introduction

         This is a habeas case under 28 U.S.C. § 2254. Petitioner, proceeding pro se, challenges his state court convictions, following a guilty plea, of second-degree murder, assault with a dangerous weapon (felonious assault), and felony firearm. He claims that his trial and appellate attorneys were ineffective and that he was sentenced on the basis of inaccurate information. Respondent contends that Petitioner procedurally defaulted some of his claims and that none of his claims merit habeas relief. The Court agrees that Petitioner's claims lack merit. Accordingly, the petition will be denied.

         II. Background

         As gleaned from the plea colloquy, the charges against Petitioner arose from an incident in which Petitioner shot and killed one victim. Two other individuals were present with the murder victim at the time of the shooting. Although Petitioner did not point a gun at or shoot these two other individuals, his use of a gun in their presence put them in fear and formed the basis for Petitioner being charged with two counts of felonious assault.

         Petitioner was charged with two counts of first-degree murder, [1] two counts of felonious assault, one count of being a felon in possession of a firearm, and one count of possessing a firearm during the commission of a felony (felony firearm). Petitioner pleaded guilty to one count of second-degree murder, M.C.L. § 750.317, two counts of felonious assault, M.C.L § 750.82, one count of felon in possession of a firearm, M.C.L § 750.224f, and one count of felony firearm, M.C.L. § 750.227b. In return, the prosecution dismissed the two counts of first-degree murder. The parties also agreed to a sentence of twenty-five to forty years in prison for the murder conviction, two consecutive years in prison for the felony-firearm conviction, and whatever sentence the trial court wanted to impose for the other convictions.

         The trial court sentenced Petitioner in accordance with the plea and sentence agreement. Petitioner received a sentence of twenty-five to forty years for the murder conviction, concurrent sentences of two to five years for the felon-in-possession conviction and two to four years for the felonious assault convictions, and a consecutive term of two years for the felony-firearm conviction.

         Petitioner later moved to withdraw his plea on grounds that his trial attorney was ineffective and that he was actually innocent of the murder and assault charges. The state court's register of actions does not reflect a ruling on the motion.

         Petitioner then moved for leave to appeal, contending that (1) his sentence of twenty-five to forty years was invalid because it was not individualized and (2) he was entitled to be re-sentenced because the trial court enhanced his sentence on the basis of facts that he did not admit and that were not proved to a jury beyond a reasonable doubt. The Michigan Court of Appeals denied leave to appeal for lack of merit in the grounds presented. See People v. Powell. No. 293213 (Mich. Ct. App. Oct. 7, 2009). The Michigan Supreme Court also denied leave to appeal because it was not persuaded to review the issues. See People v. Powell. 785 N.W.2d 148 (2010).

         In 2011, Petitioner filed a habeas petition, claiming that trial court sentenced him on the basis of inaccurate information and on facts that he did not admit and that were not determined by a jury. See Doc. 1. Petitioner also moved to hold his habeas petition in abeyance while he exhausted state remedies for three additional claims. See Doc. 2. The Court granted Petitioner's motion to hold his case in abeyance and then closed the case for administrative purposes. See Doc. 4.

         Petitioner then returned to state court and filed a motion for relief from judgment, contending that: (1) his plea bargain was illusory and the plea was neither voluntary, nor intelligent; (2) the felony-murder statute was unconstitutional; (3) trial counsel failed to raise specific sentencing-scoring errors; and (4) prior-record variable seven was unconstitutional. He later supplemented his motion to add the following arguments: (5) his appellate attorney was "cause" for his failure to raise significant constitutional claims during the first appeal; (6) a person cannot lawfully be charged with, or convicted of, felony murder where the predicate offense is misdemeanor larceny; and (7) his guilty plea was illusory and, but for trial counsel's ineffective assistance, he would not have pleaded guilty. The trial court found no merit in Petitioner's claims and also stated that Petitioner had not shown "good cause" under Michigan Court Rule 6.508(D)(3) for failing to raise his claims on direct appeal and "actual prejudice" from any of the alleged irregularities. See People v. Powell, No. 08-006961-01-FC, Opinion (Wayne Cty. Cir. Ct. June 27, 2012).

         Petitioner appealed the trial court's decision. The Michigan Court of Appeals denied leave to appeal for failure to establish entitlement to relief under Michigan Court Rule 6.508(D). See People v. Powell. No. 314070 (Mich. Ct. App. Sept. 13, 2013). The Michigan Supreme Court denied leave to appeal for the same reason. See People v. Powell. 843 N.W.2d 198 (2014).

         In 2014, Petitioner returned to federal court and filed an amended petition, see Doc. 11, along with a motion to re-open this case, see Doc. 10. The Court granted the motion to reopen. (Doc. 14). The amended petition asserts the following grounds for relief: (1) trial counsel was ineffective for giving Petitioner unreasonable advice regarding the plea offer; (2) the trial court sentenced Petitioner on the basis of inaccurate information; (3) trial counsel was ineffective for failing to object to the sentencing judge's reliance on inaccurate information; and (4) appellate counsel was ineffective for failing to raise claims one through three on direct appeal and, instead, raising frivolous or irrelevant claims and then abandoning those claims. The Court granted Petitioner's motion to re-open this case, see Doc. 14, and on October 2, 2014, the State filed an answer to the habeas petition, see Doc. 16. Finally, on November 3, 2014, Petitioner filed a reply to the State's answer. See Doc. 18.

         III. Standard of Review

         28 U.S.C. § 2254(d) provides:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.