United States District Court, E.D. Michigan, Southern Division
MEMORANDUM AND ORDER DENYING THE PETITION FOR WRIT OF
HABEAS CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF
COHN UNITED STATES DISTRICT JUDGE
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.
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.
was charged with two counts of first-degree murder,
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
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.
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.
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).
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.
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).
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).
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.
Standard of Review
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 ...