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Richards v. McKee

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

December 6, 2016

KYLE B. RICHARDS, # 641715, Petitioner,
v.
KENNETH McKEE, Respondent.

          REPORT AND RECOMMENDATION

          PHILLIP J. GREEN, UNITED STATES MAGISTRATE JUDGE

         This is a habeas corpus proceeding brought by a state prisoner pursuant to 28 U.S.C. § 2254. Petitioner seeks federal habeas corpus relief from his plea-based conviction and sentence. On June 30, 2011, petitioner, represented by Attorney Emmett Hannick, appeared in Macomb County Circuit Court before Judge James M. Biernat, Jr. and entered his guilty plea pursuant to a plea agreement to the crime of bank robbery. Mich. Comp. Laws § 750.531. In exchange petitioner's guilty plea and agreement to be sentenced as a 4th habitual offender, the prosecutor agreed not to object to petitioner receiving 36 months' imprisonment as the minimum component of his sentence. On August 2, 2011, petitioner was sentenced in accordance with the plea agreement. Petitioner received a sentence of 36 months to 20 years' imprisonment, with credit for time served. (ST, 17-18, PageID.215; Sentence of Commitment, ECF No. 27-10, PageID.255.)

         Petitioner asks this court to overturn his conviction and sentence on the following grounds:

I. Ineffective Assistance of Counsel for not investigating the voluntariness of petitioner's plea and allowing him to plead guilty under duress.
II. Petitioner's 3 to 20 year sentence for bank robbery, 4th habitual offender constitutes cruel and unusual punishment because it is not an individualized sentence.
III. The trial court and trial counsel allowed petitioner to tender his guilty plea without affirming his competence, violating his rights to due process and the effective assistance of counsel.

(Am. Pet., ECF No. 14-1, PageID.73- 80.) Respondent filed his answer to the petition. He argues that the arguments found in Ground I were rejected by Michigan's courts and petitioner has not shown that the decision was “contrary to or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States” or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. §2254(d). Respondent argues that petitioner's Ground II claim that he was deprived of an individualized sentence presents an issue of state law which does not provide a basis for federal habeas corpus relief (28 U.S.C. § 2254(a)), and that his Eighth Amendment challenge to his sentence is plainly meritless. Respondent argues that the claims asserted in Ground III are plainly meritless because petitioner had been evaluated for competency and it had been determined that he was competent.[1]

         District Judge Robert Holmes Bell has referred the matter to me for all purposes, including the issuance of a report and recommendation under 28 U.S.C. § 636(b)(1)(B) and Rule 10 of the Rules Governing Section 2254 Cases in the District Courts. After review of the state-court record, I conclude petitioner has not established grounds for federal habeas corpus relief. I recommend that the petition be denied.

         Standard of Review

         Because petitioner filed his habeas application long after the April 1996 enactment of the Antiterrorism and Effective Death Penalty Act, Pub. L. No. 104-132, 110 Stat. 1214 (AEDPA), the provisions of that law govern the scope of the Court's review. See Penry v. Johnson, 532 U.S. 782, 792 (2001). AEDPA has “drastically changed” the nature of habeas review. Bailey v. Mitchell, 271 F.3d 652, 655 (6th Cir. 2001). AEDPA “dictates a highly deferential standard for evaluating state-court rulings which demands the state court decisions be given the benefit of the doubt.” Bell v. Cone, 543 U.S. 447, 455 (2005) (citations omitted); see Hardy v. Cross, 132 S.Ct. 490, 491 (2011) (per curiam); Felkner v. Jackson, 562 U.S. 594, 597 (2011) (per curiam); Renrico v. Lett, 559 U.S. 766, 773 (2010). “AEDPA requires heightened respect for state court factual and legal determinations.” Lundgren v. Mitchell, 440 F.3d 754, 762 (6th Cir. 2006). Section 2254(e)(1) states: “[A] determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.” “State-court factual findings [] are presumed correct; the petitioner has the burden of rebutting the presumption by clear and convincing evidence.” Davis v. Ayala, 135 S.Ct. 2187, 2199-2200 (2015) (citations and internal quotations omitted).

         If a state court adjudicated the claim, deferential AEDPA standards must be applied. 28 U.S.C. § 2254(d); see Premo v. Moore, 562 U.S. 115, 121 (2011); Waddington v. Sarausad, 555 U.S. 179, 190 (2009); Holder v. Palmer, 588 F.3d 328, 341 (6th Cir. 2009) ((“[A]ny claim that was adjudicated on the merits in State court proceedings' is subject to AEDPA deference.”) (quoting 28 U.S.C. § 2254(d)). AEDPA prevents federal habeas “retrials” and ensures that state court convictions are given effect to the extent possible under law. Bell v. Cone, 535 U.S. 685, 693-94 (2002). It prohibits “using federal habeas corpus review as a vehicle to second-guess the reasonable decisions of state courts.” Parker v. Matthews, 132 S.Ct. 2148, 2149 (2012) (per curiam).

         The AEDPA standard is difficult to meet “because it was meant to be.” Harrington v. Richter, 562 U.S. 86, 102 (2011); see Burt v. Titlow, 134 S.Ct. 10, 16 (2013); Metrish v. Lancaster, 133 S.Ct. 1781, 1786-87 (2013); Cullen v. Pinholster, 563 U.S. 170, 181 (2011). “Section 2254(d) reflects the that habeas corpus is a guard against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error corrections through appeal.” Harrington, 562 U.S. at 102-03 (citation and internal quotation omitted); see Woods v. Donald, 135 S.Ct. 1372, 1376 (2015). Section 2254(d) states that an application for a writ of habeas corpus on behalf of a person who is incarcerated pursuant to a state conviction cannot be granted with respect to any claim that was adjudicated on the merits in state court unless the adjudication “(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based upon an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d); see White v. Wheeler, 136 S.Ct. 456, 460 (2015); White v. Woodall, 134 S.Ct. 1697, 1702 (2014); Davis v. Ayala, 135 S.Ct. at 2198.

         The only definitive source of clearly established federal law for purposes of § 2254(d)(1) is the holdings-not dicta-of Supreme Court decisions. White v. Woodall, 134 S.Ct. at 1702; see Woods v. Donald, 135 S.Ct. at 1377 (“Because none of our cases confront ‘the specific question presented by this case, ' the state court's decision could not be ‘contrary to' any holding from this Court.”). “[W]here the precise contours of a right remain unclear, state courts enjoy broad discretion in their adjudication of a prisoner's claims.” Id. (quotations and internal citations omitted).

         An unreasonable application of the Supreme Court's holding must be “‘objectively unreasonable, ' not merely wrong; even ‘clear error' will not suffice.” White v. Woodall, 134 S.Ct. at 1702 (quoting Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003)). Rather, “[a]s a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” White v. Woodall, 134 S.Ct. at 1702 (quoting Harrington v. Richter, 562 U.S. at 103). “[C]ircuit precedent does not constitute ‘clearly established Federal law, as determined by the Supreme Court, ' ” and “[i]t therefore cannot form the basis for habeas relief under AEDPA.” Hill v. Curtin, 792 F.3d 670, 677 (6th Cir. 2015) (quoting Parker v. Matthews, 132 S.Ct. at 2155); see Glebe v. Frost, 135 S.Ct. 429, 431 (2014) (per curiam) (“As we have repeatedly emphasized, [] circuit precedent does not constitute ‘clearly established Federal law, as determined by the Supreme Court.'”).

         “[A] state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance.” Wood v. Allen, 558 U.S. 290, 301 (2010). Section 2254 (d)(2) requires that this Court accord the state trial court substantial deference. If reasonable minds reviewing the record might disagree about the finding in question, on habeas review that does not suffice to supersede the trial court's determination. Brumfield v. Cain, 135 S.Ct. 2269, 2277 (2015); Burt v. Titlow, 134 S.Ct. at 15.

         Proposed Findings of Fact

         A. District Court Proceedings

         On January 19, 2011, petitioner received a preliminary examination in the 39th District Court (Macomb County) on the bank robbery charge. (PE, ECF No. 27-2; see also Felony Information, ECF No. 27-12, PageID.466.) Petitioner was represented by Attorney Steven Kaplan. At the hearing, Ms. Anna Marie Christine Ambuster testified that on January 6, 2011, she was a teller/closing manager at the TCF Bank on Fifteen Mile in Fraser, Michigan. She indicated that petitioner entered the bank. When he came up to Ambuster's teller station he put a note in front of her which directed her to “put the money on the table.” She testified that she knew it was a robbery and she did not know whether petitioner had a weapon. She began handing over the bank's money. She handed over the stacks of fifty, twenty, ten and five dollar bills, but Petitioner said don't worry about it when she reached for the remaining one dollar bills. Petitioner never provided his name or provided an account number. Petitioner took the money, put it into a Meijer plastic bag, and walked out of the bank with the money. Petitioner was bound over for trial in Macomb County Circuit Court on the bank robbery charge. (ECF No. 27-12, PageID.468.)

         B. Circuit Court Proceedings

         On February 7, 2011, petitioner was served notice of an enhanced sentence based on his three prior felony convictions. (ECF 27-12, PageID.464; see also ECF No. 27-4, PageID.202.) Petitioner's attorney Steven Kaplan filed a notice of insanity defense. (ECF No. 27-3, PageID.200.) The court entered orders in February and April 2011, directing that petitioner receive psychiatric evaluation related to petitioner's claim of insanity and to determine whether he was competent to stand trial. (Id. at PageID.200-201.)

         On April 1, 2011, Attorney Daniel Garon filed a motion on petitioner's behalf asking to have the bank robbery charge quashed on the ground that Petitioner did not put any person in fear. (ECF No. 27-12, PageID.452-457.) Counsel argued that Petitioner did not hurt or threaten to hurt anyone. He did not brandish a weapon and the victim indicated she had not reason to believe that Defendant had a weapon. On June 7, 2011, Circuit Court Judge James M. Biernat, Jr., denied petitioner's motion to quash the felony information. (ECF No. 27-4, PageID.202-204.) Judge Biernat noted that “Anna Marie Christine Ambuster testified a bank customer who she identified as the defendant, passed her a note at the teller window that said to ‘Put the money on the table.'” She described herself as being nervous because she knew it was a robbery and she did not know if defendant had a weapon. Ambuster said defendant did not provide her with an account number; she handed money to defendant.” (ECF No. 27-4, PageID.203.) Judge Biernat found that “[d]efendant's note establishes by probable cause that he had the intent to steal money from the bank. Ambuster's testimony also establishes defendant's actions placed her in fear and that, as a result, she gave money to the defendant.” Accordingly, there had been no error in binding over petitioner for trial. (Id. at PageID.203-04.)

         On June 30, 2011, petitioner appeared before Judge Biernat for the purpose of entering a guilty plea. (Plea Transcript (PT), ECF No. 27-5.) Petitioner was represented by Attorney Emmet Hannick. Petitioner signed the Advice of Rights Form acknowledging the rights that he was giving up by agreeing to plead guilty. (ECF No. 27-6, PageID.210.) Petitioner agreed to plead guilty pursuant to a Cobbs plea agreement.[2] He agreed to plead guilty to the bank robbery charge and that he would be sentenced as a 4th habitual offender. The prosecutor did not recommend a 36 month minimum sentence, but agreed that the prosecution would not object to petitioner receiving 36 months as a minimum sentence. Petitioner's attorney stated on the record that the prosecutor's description of the plea agreement was fair and accurate. He stated: “I have spoken with my client relative to the offer of the plea of guilty, and it's my understanding that he will -- He's aware of what he's doing today and that he wishes us to proceed with the plea agreement.” (PT, 3-5, ECF No. 27-5, PageID. 206.) Petitioner was placed under oath. He expressed understanding that under the plea agreement he would have the benefit that his minimum sentence would be 36 months rather than 142 months:

THE COURT: All right. The plea agreement, as I understand it, is you're going to plead guilty to Count One, which is bank robbery; is that correct?
THE DEFENDANT: Correct.
THE COURT: And the habitual 4th notice. There has been an agreement between your attorney and myself that the bottom of the guidelines comes to about 36 months, and that I will agree to sentence you at the bottom end of 36 months. Do you understand that?
THE DEFENDANT: Yes, I understand that.
THE COURT: The guidelines with the habitual 4 is ...

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