United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS
CORPUS AND DENYING CERTIFICATE OF APPEALABILITY
Page Hood Chief Judge, United States District Court
Brown is a state inmate incarcerated at the Cooper Street
Correctional Facility in Jackson, Michigan. In 2012,
Petitioner filed a petition for a writ of habeas corpus in
this Court, challenging his convictions for four counts of
uttering and publishing, conspiracy to commit uttering and
publishing, and conducting a criminal enterprise. Petitioner
then sought a stay to allow him to exhaust unexhausted claims
in state court. The Court granted the stay and
administratively closed the matter. After exhausting state
court remedies, Petitioner moved to reopen this proceeding.
The Court reopened the matter and permitted Petitioner to
file an amended petition raising an additional claim.
Respondent has now filed a supplemental answer in opposition
to the petition. For the reasons set forth below, the Court
denies the petition.
convictions arise from Petitioner's involvement in using
checks that were not his and which he was not authorized to
use to purchase goods from various stores. Petitioner and two
friends, Teresa Fisher and McClinnon Smith traveled to
Michigan from Chicago for the purpose of purchasing
merchandise from retailers with these checks. At his plea
hearing, Petitioner admitted to writing a check for $1,
212.18, on June 14, 2009, at a Wal-Mart in Benton Township.
Petitioner said the check had been found by a friend and the
name on the account was Michael Lorrento. Petitioner signed
Lorrento's name on the check. On the same date,
Petitioner went to Lowe's in Benton Township, and wrote
another check on Lorrento's account. This check was for
$1, 035.45. Petitioner presented the check to the cashier
after signing Lorrento's name, but was unable to purchase
the merchandise because Lowe's did not accept the check.
Petitioner and Teresa Fisher then agreed that Fisher would
present a check from the account of Angela Bogdanas to
Lowe's to try to purchase merchandise on Bogdanas'
account. Fisher presented a check in the amount of $1,
026.48, but Lowe's also declined to accept her check. The
trio then went to Meijer's, also in Benton Township, for
the purpose of having Fisher again try to purchase
merchandise with one of Bogdanas' checks. She was
successful this time in purchasing merchandise for $490.13.
The next target was Staples, where Petitioner, using fake ID,
presented himself to the clerk as Michael Lorrento and
purchased $632.48 worth of merchandise.
pleaded guilty in Berrien County Circuit Court to four counts
of uttering and publishing, Mich. Comp. Laws § 750.249,
conspiracy to commit uttering and publishing, Mich. Comp.
Laws § 750.157a, Mich. Comp. Laws § 750.249, and
conducting a criminal enterprise, Mich. Comp. Laws §
750.159i(1). On February 22, 2010, he was sentenced to 2 to
14 years' imprisonment for each uttering and publishing
conviction, 23 months to 5 years for the conspiracy to commit
uttering and publishing conviction, and 10 to 20 years for
the conducting a criminal enterprise conviction.
filed a delayed application for leave to appeal in the
Michigan Court of Appeals, raising these claims: (i) guilty
pleas not supported by the record; (ii) Double Jeopardy
violation; (iii) ineffective assistance of trial counsel; and
(iv) Michigan Court of Appeals abused its discretion in
failing to appoint counsel. The Michigan Court of Appeals
denied leave to appeal. People v. Brown, No. 302656
(Mich. Ct. App. Nov. 3, 2011). The Michigan Supreme Court
denied Petitioner's application for leave to appeal.
People v. Brown, 491 Mich. 908 (Mich. April 23,
filed a motion for relief from judgment in the trial court,
raising these claims: (i) ineffective assistance of trial
counsel; (ii) abusive prosecution; and (iii) guilty plea not
supported by a sufficient factual basis. The trial court
denied the motion. People v. Brown, No. 2009-002727
(Berrien County Cir. Ct. March 23, 2011). Petitioner did not
seek leave to appeal this decision.
then filed a habeas corpus petition in this Court. After the
case was stayed, Petitioner returned to state court and filed
a second motion for relief from judgment, arguing that the
sentencing judge did not have proper jurisdiction over his
case. The trial court denied the motion as an improper
successive motion for relief from judgment. See
4/7/14 Order Denying Successive Motion for Relief from
Judgment (ECF No. 25-3). The Michigan Court of Appeals
dismissed Petitioner's application for leave to appeal
because, under Mich. Ct. R. 6.502(G)(1), no appeal may be
taken from the denial or rejection of a successive motion for
relief from judgment. People v. Brown, No. 322842
(Mich. Ct. App. Sept. 19, 2014) (ECF No. 25-8). Petitioner
did not seek leave to appeal in the Michigan Supreme Court.
See 1/20/15 Affidavit of Larry Royster, Michigan
Supreme Court Clerk (ECF No. 25-9).
habeas petition raises these claims:
I. Petitioner's guilty plea to counts 4, 5, and 7 is not
supported by the record and constitutes a miscarriage of
II. The prosecutor abused his discretion and violated double
jeopardy by adding counts 4, 5, and 7 in this case.
III. Trial counsel was ineffective for failing to object to
(a) improper acceptance of a guilty plea and (b) abuse of
prosecutorial charging discretion; and for failing to
safeguard Petitioner's right to appointment of appellate
IV. The trial court abused its discretion by refusing to
V. Petitioner was denied his due process rights to a fair
trial when he never received a preliminary examination or
arraignment on the criminal conspiracy count and, therefore,
jurisdiction was not conferred on the lower court.
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 ...