United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS
CORPUS AND DENYING CERTIFICATE OF APPEALABILITY
SEAN F. COX, U.S. District Judge
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.
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.
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).
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
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).
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
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 ...