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Childress v. Palmer

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

February 16, 2017

RUSHAD CHILDRESS, Petitioner,
v.
CARMEN PALMER, Respondent.

          OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DENYING CERTIFICATE OF APPEALABILITY

          HON. SEAN F. COX, U.S. District Judge

         Rushad Childress is a state inmate at the Thumb Correctional Facility in Lapeer, Michigan. In 2012, he filed a petition for a writ of habeas corpus in this Court, challenging his convictions for assault with intent to murder and felony firearm. Petitioner then sought a stay to allow him to exhaust unexhausted claims in state court. The Court granted the stay and administratively closed the matter. After exhausting state court remedies, Petitioner moved to reopen this proceeding. The Court reopened the matter. Respondent has now filed an answer in opposition to the petition. For the reasons set forth below, the Court denies the petition.

         I. Background

         Petitioner was charged in Genesee County Circuit Court as a third habitual offender with assault with intent to commit murder, felon in possession of a firearm, and felony firearm in connection with a shooting at a Family Dollar Store on June 10, 2008. Tony Dillard was shot four times, but survived the shooting. On July 12, 2010, Petitioner pleaded no contest to assault with intent to commit murder and felony firearm, pursuant to a plea agreement whereby the prosecutor dismissed the felon-in-possession charge, agreed not to add a concealed-weapons charge, and not to pursue habitual offender status for sentencing purposes. The agreement also provided for a sentence of no fewer than 13 years' imprisonment for the assault conviction and the statutorily mandated two-year sentence for the felony-firearm conviction. On April 25, 2011, Petitioner was sentenced to 13 to 20 years' imprisonment for the assault conviction and 2 years' imprisonment for the felony firearm conviction.

         Petitioner filed a motion to withdraw his plea, which the trial court denied. Petitioner then filed an application for leave to appeal in the Michigan Court of Appeals. The Michigan Court of Appeals denied leave to appeal. People v. Childress, No. 307058 (Mich. Ct. App. June 25, 2012). Petitioner filed an application for leave to appeal in the Michigan Supreme Court, where leave to appeal was also denied. People v. Childress, 491 Mich. 944 (Mich. June 25, 2012).

         Petitioner then filed this habeas corpus petition, raising these claims:

I. Conflict of interest.
II. Deficient attorney performance.
III. Ineffective assistance of counsel.
IV. Deficient attorney performance at hearing to withdraw plea.

         Respondent filed a motion to dismiss on exhaustion grounds. In response, Petitioner sought a stay of the proceedings to allow him to return to state court and exhaust his remedies there. The Court denied Respondent's motion to dismiss and granted a stay in this matter. (ECF No. 11). Petitioner filed a motion for relief from judgment in the trial court, raising the same claims raised in his habeas petition. The trial court denied the motion. See 11/4/13 Op. & Order Denying Motion for Relief from Judgment (ECF No. 16-3). The Michigan Court of Appeals denied Petitioner's application for leave to appeal from the trial court's decision. See 4/7/14 Order (ECF No. 16-4). The Michigan Supreme Court also denied leave to appeal. People v. Childress, 497 Mich. 951 (Mich. Feb. 3, 2015).

         Petitioner then filed a motion to lift stay in this Court. The Court granted the motion and directed Respondent to file an answer to the petition. Respondent has filed an answer and submitted the relevant state court record. Petitioner filed a reply to the answer.

         II. Standard

         Review of this case is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Under the AEDPA, a state prisoner is entitled to a writ of habeas corpus only if he can ...


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