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Price v. Trieweiler

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

November 3, 2016

ISAIAH JOSHUA PRICE, Petitioner,
v.
TONY TRIERWEILER, Respondent,

          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

         Isaiah 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.

         I. Background

         Petitioner 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).

         Appellate 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.[1]

         The 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).

         Petitioner 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).

         Petitioner 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).

         Petitioner 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, 2014).

         The Michigan Supreme Court denied petitioner leave to appeal. People v. Price, 861 N.W.2d 7 (Mich. 2015).

         Petitioner 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, after ...

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