United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING (1) THE PETITION FOR WRIT
OF HABEAS CORPUS; (2) A CERTIFICATE OF APPEALABILITY; AND (3)
LEAVE TO APPEAL IN FORMA PAUPERIS
HONORABLE TERRENCE G. BERG UNITED STATES DISTRICT JUDGE
Lakieth Davis, (“petitioner”), confined at the
Michigan Reformatory in Ionia, Michigan, seeks the issuance
of a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Petitioner challenges his conviction for first-degree
criminal sexual conduct, Mich. Comp. Laws §
750.520b(1)(a). For the reasons stated below, the application
for a writ of habeas corpus is DENIED WITH PREJUDICE.
was charged with two counts of first-degree criminal sexual
conduct based on allegations he had sexually penetrated a
child under the age of thirteen.
pleaded guilty to one count of first-degree criminal sexual
conduct, in exchange for dismissal of the second count. The
prosecutor placed the terms of the agreement on the record:
MS. GLENN [the prosecutor]: The People agree to dismiss Count
II, in exchange for a guilty plea to Count I. We agree to a
guidelines sentence. This is a mandatory minimum of
twenty-five years. There are no other conditions or
agreements in this matter.
THE COURT: Have you computed the guidelines yet?
MS. GLENN: Your Honor, I have them from Pretrial Services
preliminarily at 135 months, to 225 months. I did look over
them, and they appear to be correct.
THE COURT: There has to be a minimum of twenty-five years?
MS. GLENN: That's correct, Your Honor.
(Tr. 8/4/11, 2-3).
judge then asked petitioner if he understood he was being
charged with first-degree criminal sexual conduct, that the
charge carried a maximum life sentence, and “[t]here is
a mandatory minimum of twenty-five years, along with
electronic monitoring, and you'll do that as well.”
Petitioner replied, “Yes.” (Id., pp.
4-5). Petitioner affirmed that the prosecutor accurately
stated the terms of the plea agreement and that there were no
other terms of the agreement that had not been disclosed on
the record. (Id., p. 4).
sentencing, the following exchange took place:
MR. SIMMONS [defense counsel]: We've reviewed the
probation report. It's factually correct, Your Honor.
There isn't much discretion available in this matter.
THE COURT: There's an agreement by the People for a
MR. SIMMONS: Your Honor, except the guidelines are not
applicable in this case.
THE COURT: It's a minimum twenty-five years.
MR. SIMMONS: That's correct, Judge.
(Tr. 8/19/11, p. 2).
trial court then sentenced petitioner to 30 to 50 years'
imprisonment. (Id., p. 4).
first appellate counsel, Arthur Landau, filed a motion to
withdraw the plea, on the ground that the judge and the
prosecutor agreed to a minimum sentence of 25 years, which
the judge exceeded when sentencing petitioner to 30 to 50
years in prison. (Tr. 1/13/12, pp. 3-7). The judge ordered an
evidentiary hearing on the claim. (Id., pp. 8-11).
evidentiary hearing was conducted on February 24, 2012.
Petitioner testified that he was told that the minimum
sentence was going to be twenty-five years in prison and was
never advised that he could receive a minimum sentence that
was greater than that. Petitioner recalled the prosecutor
stating at the plea hearing that “we agree to a
guidelines sentence, this is a mandatory minimum of
twenty-five years.” (Tr. 2/24/12, pp. 4-6). Petitioner
claimed that his plea was induced by representations that he
would receive a twenty-five year minimum sentence. Petitioner
testified that if he had been told that the minimum sentence
was going to be greater than twenty-five years, he would not
have pleaded guilty. (Id., pp. 9-10).
counsel argued that petitioner should be permitted to
withdraw his plea, because it was induced by a promise that
he would receive a twenty-five year minimum sentence.
(Id., pp. 27, 29-30). The ...