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Mosley v. Treiweiler

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

October 25, 2016

DWIGHT MOSLEY, Petitioner,
v.
TONY TREIWEILER, Respondent.

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

          GEORGE CARAM STEEH UNITED STATES DISTRICT JUDGE

         Petitioner Dwight Mosley has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his convictions for two counts of second-degree criminal sexual conduct. Petitioner, who is presently incarcerated at the Bellamy Creek Correctional Facility in Ionia, Michigan, seeks habeas relief on the grounds that his plea was involuntary, he received ineffective assistance of counsel, the trial court and prosecutor breached the plea agreement, and the prosecutor withheld exculpatory evidence. For the reasons set forth, the Court denies the petition.

         I. Background

         Petitioner's convictions arise from Petitioner's contact with Derrick Shipman while Petitioner was working as a parole agent at a Michigan Department of Corrections' residential treatment facility. The trial court accepted Shipman's preliminary examination testimony as the factual basis for Petitioner's no-contest plea. Shipman testified that he reported to Petitioner while housed at the Tuscola Residential Reentry Program. Sometime in October or November 2010, Petitioner offered to provide Shipman with contraband (tobacco) if Shipman allowed Petitioner to touch Shipman's penis through his pants. On three to five occasions, Petitioner provided Shipman with tobacco in exchange for Shipman's allowing Petitioner to touch him. On one occasion, Petitioner drove Shipman to obtain his state identification. On the way, they stopped at Petitioner's house, where Petitioner put Shipman's penis in his mouth.

         On October 4, 2011, Petitioner pleaded no contest to two counts of second-degree criminal sexual conduct, pursuant to a plea agreement providing that sentencing would be delayed for a year. If Petitioner did not violate the terms of his delayed sentence, he would be convicted of fourth-degree criminal sexual conduct and no jail time imposed. See 10/4/11 Tr. (ECF No. 11-7). On November 14, 2011, he was sentenced in accordance with the plea agreement. See 11/14/11 Tr. (ECF No. 11-8). Petitioner, however, did not successfully complete the one-year delayed sentence term, and pleaded guilty to eight counts of violating the terms of his delayed sentence. See 2/27/12 Order (ECF No. 11-9). Prior to sentencing, Petitioner filed a motion to withdraw his no contest plea on the ground of actual innocence. The trial court denied the motion and, on March 12, 2012, Petitioner was sentenced to five years, 5 months, 15 days to 15 years' imprisonment for each second-degree criminal sexual conduct conviction.

         Petitioner filed an application for leave to appeal in the Michigan Court of Appeals arguing that the trial court abused its discretion in denying Petitioner's motion to withdraw no contest plea. The Michigan Court of Appeals denied leave to appeal for “lack of merit in the grounds presented.” People v. Mosley, No. 309359 (Mich. Ct. App. May 9, 2012) (ECF No. 11-11). Petitioner filed an application for leave to appeal in the Michigan Supreme Court, raising the same claim. The Michigan Supreme Court denied leave to appeal. People v. Mosley, 492 Mich. 870 (Mich. Sept. 4, 2012).

         Petitioner then filed a motion for relief from judgment in the trial court, raising these claims: (i) ineffective assistance of counsel; (ii) trial court erred in denying motion to withdraw plea; (iii) breach of plea agreement; and (iv) sentence based upon inaccurate information. The trial court denied the motion. See 10/29/13 Op. & Or. Denying Motion for Relief from Judgment (ECF No. 11-15). Petitioner sought leave to appeal the trial court's denial of his motion for relief from judgment in the Michigan Court of Appeals and Michigan Supreme Court. Both state appellate courts denied leave to appeal. People v. Mosley, No. 321537 (Mich. Ct. App. Sept. 19, 2014) (ECF No. 11-18); People v. Mosley, 498 Mich. 852 (Mich. June 30, 2015).

         Petitioner then filed this habeas corpus petition. He raises these claims:

I. Motion to withdraw guilty plea should have been granted because the plea was unknowingly, unintelligently, and involuntarily made due to ineffective assistance of counsel.
II. Ineffective assistance of counsel.
III. Breach of plea agreement by court and prosecutor.
IV. Prosecutor withheld statements from the victim.

         II. Standard of Review

         Review of this case is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Under the AEDPA, a state prisoner is entitled to a writ of habeas corpus only if he can ...


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