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Lumbard v. Harry

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

January 10, 2017

NATHAN K. LUMBARD, Petitioner,
v.
SHIRLEE HARRY, Respondent.

          OPINION

          Janet T. Neff, United States District Judge

         This is a habeas corpus action brought by a state prisoner pursuant to 28 U.S.C. § 2254. Promptly after the filing of a petition for habeas corpus, the Court must undertake a preliminary review of the petition to determine whether “it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court.” Rule 4, Rules Governing § 2254 Cases; see 28 U.S.C. § 2243. If so, the petition must be summarily dismissed. Rule 4; see Allen v. Perini, 424 F.2d 134, 141 (6th Cir. 1970) (district court has the duty to “screen out” petitions that lack merit on their face). A dismissal under Rule 4 includes those petitions which raise legally frivolous claims, as well as those containing factual allegations that are palpably incredible or false. Carson v. Burke, 178 F.3d 434, 436-37 (6th Cir. 1999). After undertaking the review required by Rule 4, the Court will dismiss the petition because Petitioner's claim for relief is procedurally defaulted.

         Factual Allegations

         Petitioner Nathan K. Lumbard is presently incarcerated with the Michigan Department of Corrections at the Earnest C. Brooks Correctional Facility in Muskegon Heights, Michigan. Petitioner is serving a sentence of 5 years, 11 months to 15 years' imprisonment following his guilty plea in the St. Joseph County Circuit Court to a charge of breaking and entering a building with intent to commit a felony, Mich. Comp. Laws § 750.110. Petitioner is serving two additional sentences of 5 years, 11 months to 15 years imposed by the St Joseph County Circuit Court following his plea of nolo contendere to another charge of breaking and entering a building with intent to commit a felony and a charge of second-degree arson, Mich. Comp. Laws § 750.73. Petitioner was sentenced as an habitual offender, Mich. Comp. Laws § 769.10. All of the sentences are being served concurrently with each other.

         As part of the plea bargain, Petitioner secured the trial court's statement that his Michigan sentences would not only be concurrent with each other, but that they would be concurrrent with sentences previously imposed. (Status Hrg. Tr., ECF No. 3-1, PageID.38-39.) Whether or not that statement carried through to Petitioner's plea and sentencing is impossible to determine from Petitioner's filings in this Court because the transcripts of those proceedings have not been provided.

         The prior sentences were imposed by the United States and the State of Indiana. Petitioner came to St. Joseph County from the State of Indiana. In that state, on June 5, 2013, the LaGrange County Circuit Court imposed concurrent sentences of 6 years' imprisonment on two counts of criminal recklessness. (Mot. For Expediting Proceedings, ECF No. 3, PageID.28-29.) Although Petitioner's Indiana sentences were concurrent with each other, the LaGrange County Circuit Court ordered that they be served consecutive to Petitioner's federal sentence and to any possible Michigan sentence(s). (Id.)

         Before Petitioner was prosecuted in Indiana, he had entered a plea of guilty in this Court to a charge of making a false statement in a United States passport application, 18 U.S.C. § 1542, and to a charge of aggravated identity theft, 18 U.S.C. § 1028A(a)(1) and (c)(4). See United States v. Lumbard, 1:10-cr-388 (W.D. Mich. Feb 10, 2012) (Amended Order and Judgment, ECF No. 42.) The Court imposed consecutive 2-year sentences on the two counts for a total term of imprisonment of 4 years. Id. (Sentencing Tr., ECF No. 44.) Plaintiff was sent to F.C.I. Ashland in Kentucky to serve his sentence. See Lumbard v. St. Joseph County Sheriff's Department, No. 1:15-cv-1013 (W.D. Mich.) (Compl., ECF No. 1, PageID.5.)

         After Petitioner was sentenced in February of 2014, he was returned to F.C.I. Ashland. He remained there for several months, but on July 8, 2014, he was transferred to the custody of the Michigan Department of Corrections to serve his Michigan sentences.

         Apparently, when Petitioner was transferred to the Michigan Department of Corrections, he realized that the inconsistency between what the Indiana court said about whether his sentences were concurrent and consecutive and what the Michigan court said about whether his sentences were concurrent or consecutive might operate to his detriment. Petitioner describes his understanding of the Michigan plea deal in his memorandum supporting the petition: “It was [Petitioner's] understanding that while serving his sentences in either federal or Indiana prisons he would also be serving his Michigan sentence.” (Mem., ECF No. 2, PageID.24.) By virtue of Petitioner's Michigan plea agreement, Michigan would accept the time he served in the federal or Indiana prison, but it was not clear whether the federal bureau of prisons would count the time he served in a Michigan correctional facility and it was expressly stated that the Indiana Department of Corrections would not count the time he served in a Michigan correctional facility. Petitioner states the problem as follows: “By Michigan making [Petitioner] serve his sentence in Michigan first he must serve additional time in Indiana because Indiana has no agreement to run their sentence concurrent with Michigan.” (Id., PageID.24-25.)

         Contending that, under these circumstances, the state had failed to fulfill its promises made in plea bargaining, Petitioner attempted to withdraw his plea. Petitioner's appointed appellate counsel filed the motion to withdraw the plea, but counsel withdrew from representing Petitioner at the hearing because counsel thought it inadvisable to put Petitioner into his original pretrial position. (Mem., ECF No. 2, PageID.18.) The trial court appointed new appellate counsel. (Id.) That counsel withdrew at the second scheduled hearing on the motion to withdraw guilty plea for the same reason. (Id.) Petitioner sought appointment of new counsel, but the trial court denied his motion and the trial court never ruled on the motion to withdraw Petitioner's plea. (Id.)

         Petitioner proceeded pro se on appeal. More than eighteen months after his sentencing, he filed a delayed application for leave to appeal raising the “unfulfilled promise” issue. (Id., PageID.18-19.) At that time, because the trial court never ruled on the motion to withdraw plea, the only issue Petitioner could timely appeal was the July 14, 2015, trial court order denying Petitioner the appointment of new appellate counsel.[1]

         The Michigan Court of Appeals dismissed the appeal:

The Court orders the delayed application for leave to appeal is DISMISSED for lack of jurisdiction because the issue raised in the delayed application does not arise from the order appealed. People v. Anderson, 531 N.W.2d 780 ([Mich. Ct. App.] 1995).

People v. Lumbard, No. 329178 (Mich. Ct. App. Oct. 19, 2015) (parallel citation omitted). Petitioner applied for leave to appeal in the Michigan Supreme Court. That court denied leave on May 2, 2016. People v. Lumbard, 877 N.W.2d (Mich. 2016). Petitioner did not petition for certiorari in the United States Supreme Court.

         After Petitioner filed his application for leave to appeal in the Michigan Supreme Court, but before that court denied his application, Petitioner filed a motion for relief from judgment in the trial court under Mich. Ct. R. 6.500 et. seq., raising the same issue he raised in the Michigan appellate courts. By order entered January 13, 2016, the trial court denied relief for two reasons. First, the trial court denied relief because the issue was still before the Michigan Supreme Court for review. People v. Lumbard, Nos. 13-18683-FH, 13-18686 (St. Joseph Cty. Cir. Ct., Jan. 13, 2016) (App. B, ECF No. 3-2, PageID.44-45.) Second, the trial court denied relief because “[t]he Court made it clear that [Petitioner] would not get credit for time served on the Indiana charges.”[2] (Id.) Petitioner did not apply for leave to appeal the trial court's denial of his motion for relief from judgment to either Michigan appellate court. Instead, on December 9, 2016, Petitioner filed his petition in this Court raising the same single issue he raised in the state courts:

Appellant's plea which was induced by an unfulfilled promise to run the sentence concurrent with [his] federal and Indiana sentences renders the plea involuntary in violation of Appellant's due ...

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