United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING THE PETITION FOR WRIT OF
HABEAS CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF
APPEALABILITY OR LEAVE TO APPEAL IN FORMA PAUPERIS
HONORABLE NANCY G. EDMUNDS DISTRICT JUDGE
Joshua Price, (“Petitioner”), confined at the
Bellamy Creek Correctional Facility in Ionia, Michigan, filed
a petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. In his pro se application, petitioner
challenges his conviction for first-degree criminal sexual
conduct, M.C.L.A. 750.520b. For the reasons that follow, the
petition for writ of habeas corpus is DENIED.
pleaded guilty to first-degree criminal conduct, in exchange
for the prosecutor's agreement to dismiss the sentencing
enhancement charging petitioner with being a third felony
habitual offender. The parties also agreed to a sentence of
25-40 years. Petitioner acknowledged that he had signed the
plea form and had discussed the terms of the plea with his
lawyer. Petitioner acknowledged the rights he was waiving by
pleading guilty. Petitioner stated that no one had threatened
or coerced him into pleading guilty. Petitioner made out a
factual basis for his guilty plea. (Tr. 2/5/13, pp. 3-12).
Petitioner was sentencing in accordance with the sentencing
agreement. (Tr. 2/26/13, p. 4).
counsel was appointed to represent petitioner. After meeting
with petitioner in prison, appellate counsel filed a motion
to withdraw as counsel because he could not find any
non-frivolous grounds for appeal. Appellate counsel
determined that petitioner's plea was valid. Appellate
counsel noted that in addition to petitioner's admission
of guilt, DNA evidence indicated that the 12 year old victim
in this case had given birth to a child and that petitioner
was the father. Appellate counsel noted that petitioner had
been sentenced in conformity with the plea agreement. Counsel
indicated that he reviewed the record and met with petitioner
in prison and had advised him that the Michigan Court of
Appeals would not vacate a valid plea and sentence agreement.
Appellate counsel advised petitioner that there would be no
advantage to him setting aside his plea agreement. Appellate
counsel attempted to get petitioner to voluntarily dismiss
his appeal, but petitioner refused.
Wayne County Circuit Court granted the order to vacate the
appointment of appellate counsel. People v. Price,
No. 12-10168 (Wayne Cty. Cir. Ct. May 7, 2013).
then filed a motion for relief from judgment pursuant to
M.C.R. 6.500, et. Seq. Petitioner argued that his
guilty plea must be set aside because he did not receive a
guidelines sentence and that trial counsel had given him bad
advice. The trial judge denied the motion. People v.
Price, No. 12-10168 (Wayne Cty. Cir. Ct. Mar. 4, 2014).
then filed a motion for the appointment of substitute
appellate counsel, which the trial court denied. People
v. Price, No. 12-10168 (Wayne Cty. Cir. Ct. Apr. 4,
2014); reconsideration den. No. 12-10168 (Wayne Cty.
Cir. Ct. Apr. 28, 2014).
then filed an application for leave to appeal, in which he
requested the appointment of replacement appellate counsel.
The Michigan Court of Appeals denied leave to appeal:
The application for leave to appeal is DENIED for lack of
merit in the grounds presented. Defendant is not entitled to
substitute appointed appellate counsel where initially
appointed counsel represented in his motion to withdraw that
no nonfriviolous issues existed for appeal.
People v. Price, No. 321907 (Mich.Ct.App. Oct. 1,
Michigan Supreme Court denied petitioner leave to appeal.
People v. Price, 861 N.W.2d 7 (Mich. 2015).
seeks a writ of habeas corpus on the following ground:
The state courts erred in violation of Halbert v
Michigan, 545 U.S. 605; 125 S.Ct. 2582; 162 L.Ed.2d 552
(2005), when it failed to sua sponte appoint new
appellate counsel to Defendant, who is indigent and seeks
access to first-tier review of his plea-based conviction,