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Calhoun v. Tribley

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

December 12, 2016

IMARI CALHOUN, Petitioner,
v.
LINDA TRIBLEY, Respondent.

          OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND GRANTING IN PART A CERTIFICATE OF APPEALABILITY

          Arthur J. Tarnow, Senior United States District Judge

         Petitioner Imari Calhoun has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. At the time he filed the petition, Petitioner was in the custody of the Michigan Department of Corrections.[1] Petitioner challenges his conviction for assault with intent to do bodily harm less than murder on the grounds that an insufficient factual basis supported the plea, the plea was involuntary, the trial court lacked jurisdiction, he acted in self-defense, and cumulative error denied him his right to due process. Respondent, through the Attorney General's Office, has filed an answer in opposition to the petition arguing that some of the claims are untimely, unexhausted, and/or procedurally defaulted and that all of the claims are meritless. The Court denies the petition and grants in part and denies in part a certificate of appealability.

         I. Background

         Petitioner's conviction arises from the assault of Paul Castonguay in Detroit on December 17, 2006. Castonguay testified at the preliminary examination that, on that date, he was visiting a friend on Rutland Street in Detroit. At approximately 2:30 a.m., Castonguay stepped outside. He was approached by Petitioner, who Castonguay knew lived in the neighborhood. Petitioner asked Castonguay to drive him somewhere, but Castonguay declined. Petitioner continued to pester Castonguay for a ride. Finally, Castonguay asked Petitioner what part of no he did not understand. Castonguay testified that Petitioner then punched him in the face. Castonguay told Petitioner to leave him alone; he did not want to fight. Petitioner held a knife in his hand and lunged at Castonguay. Castonguay attempted to protect himself and the two men fell to the ground. Petitioner stabbed Castonguay three or four times. Castonguay pleaded with Petitioner not to stab him any more. Petitioner lunged at him again. Castonguay was able to flee into the home where he called police. He was transported by ambulance to a hospital where he was treated for multiple stab wounds. Castonguay's injuries were severe. His spleen was removed, and he spent a week in intensive care on a ventilator.

         Petitioner was charged in Wayne County Circuit Court with assault with intent to murder and felonious assault. On April 24, 2008, Petitioner pleaded guilty in Wayne County Circuit Court to assault with intent to do great bodily harm less than murder. In exchange for Petitioner's plea, the prosecutor dismissed a charge of assault with intent to murder, assault with a dangerous weapon and a third habitual offender enhancement. On May 9, 2008, he was sentenced to five to ten years in prison.

         Several months after sentencing, Petitioner filed a motion to withdraw his plea and for a Ginther hearing. The trial court denied the motion and denied a subsequent motion for reconsideration. Petitioner then filed an application for leave to appeal in the Michigan Court of Appeals. He raised a single claim:

This Court must vacate Mr. Calhoun's conviction for assault with intent to do great bodily harm less than murder because there is an insufficient factual basis for the plea.

         The Michigan Court of Appeals denied leave to appeal. People v. Calhoun, No. 299688 (Mich. Ct. App. Sept. 16, 2010).

         Petitioner sought leave to appeal in the Michigan Supreme Court. He raised the claim raised in the Michigan Court of Appeals and two additional claims: (i) his plea was involuntary because counsel was ineffective; and (ii) appellate counsel was ineffective in failing to raise this claim in the Michigan Court of Appeals. The Michigan Supreme Court denied leave to appeal. People v. Calhoun, 488 Mich. 1049 (2011).

         Petitioner then filed this habeas petition. He raised claims regarding the sufficiency of the factual basis for his plea, voluntariness of the plea and ineffective assistance of counsel. Respondent filed a motion to dismiss on the ground that the second claim was not fully exhausted. The Court found the claims raised in the petition were not fully exhausted, but, because dismissal of the petition might jeopardize the timeliness of a future habeas petition, the Court denied the motion to dismiss, and stayed the proceeding. 5/18/12 Order (ECF No. 19).

         Petitioner filed a motion for relief from judgment in the trial court. He raised these claims: (i) ineffective assistance of appellate counsel; and (ii) plea was rendered involuntary by trial counsel's ineffectiveness. The trial court denied relief from judgment. 9/13/12 Opinion (ECF No. 27-3). Petitioner filed an application for leave to appeal in the Michigan Court of Appeals, raising the same claims raised in the trial court motion. The Michigan Court of Appeals denied leave to appeal. People v. Calhoun, No. 313107 (Mich. Ct. App. Aug. 22, 2013) (ECF No. 27-4). The Michigan Supreme Court also denied leave to appeal. People v. Calhoun, 495 Mich. 903 (Mich. Nov. 23, 2013).

         Petitioner then filed a motion to lift the stay in this case and an amended petition. The Court granted the motion and reopened this proceeding. 3/21/14 Order (ECF No. 24). The petition raises these claims:

I. This Court must vacate the Petitioner's conviction for “assault with intent to do great bodily harm, ” because there is an insufficient factual basis for the plea that was rendered.
II. The petitioner was deprived of his constitutional rights of the V, VI, and XIV Amendment of the United States, because of last resort, and distress pleadings in the instant case, when counsel for the petitioner failed to adequately represent him and the case at true crucial stages, and his plea was ...

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