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Brown v. Rivard

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

October 31, 2016

RUFUS BROWN, Petitioner,
v.
STEVE RIVARD, Respondent.

          OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DENYING CERTIFICATE OF APPEALABILITY

          Denise Page Hood Chief Judge, United States District Court

         Rufus 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.

         I. Background

         Petitioner's 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.

         Petitioner 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.

         Petitioner 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, 2012).

         Petitioner 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.

         Petitioner 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).

         Petitioner's 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 justice.
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 counsel.
IV. The trial court abused its discretion by refusing to appoint counsel.
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.

         II. Standard

         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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