United States District Court, W.D. Michigan, Southern Division
NATHAN K. LUMBARD, Petitioner,
SHIRLEE HARRY, Respondent.
T. Neff, United States District Judge
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.
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.
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.
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.)
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.)
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
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.)
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
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
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.
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.” (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 ...