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Holloway v. Wiley

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

March 10, 2017

JEFFERY BERNARD HOLLOWAY, Plaintiff,
v.
DENNIS M. WILEY et al., Defendants.

          OPINION

          Honorable Janet T. Neff Judge

         This is a civil rights action brought by a state prisoner pursuant to 42 U.S.C. § 1983. The Court has granted Plaintiff leave to proceed in forma pauperis. Under the Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321 (1996), the Court is required to dismiss any prisoner action brought under federal law if the complaint is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant immune from such relief. 28 U.S.C. §§ 1915(e)(2), 1915A; 42 U.S.C. § 1997e(c) . The Court must read Plaintiff's pro se complaint indulgently, see Haines v. Kerner, 404 U.S. 519, 520 (1972), and accept Plaintiff's allegations as true, unless they are clearly irrational or wholly incredible. Denton v. Hernandez, 504 U.S. 25, 33 (1992). Applying these standards, Plaintiff's action will be dismissed for failure to state a claim.

         Factual Allegations

         Plaintiff Jeffery Bernard Holloway presently is incarcerated at the Parnall Correctional Facility. He sues the following Defendants: Berrien County trial court judges Dennis M. Wiley and Gary J. Bruce; defense attorney Rodney C. Fuller; probation officers Randolph C. Coultes and Amber L. Glendening; the Berrien County Sheriff Department; the Berrien County Courthouse; the Berrien County Administration Center; and the Michigan Department of Corrections.

         Plaintiff alleges that he pleaded guilty before Judge Angela Pasula in the Berrien County District Court to embezzlement of more than $1, 000.00 but less than $20, 000.00, under a plea agreement to be sentenced within the guideline range and with a recommendation for restitution of $5, 081.63. On August 20, 2007, he was sentenced to five years' probation.

         On May 6, 2011, Plaintiff appeared before Defendant Bruce to show cause why his probation should not be violated, apparently for failure to make payments on his restitution. Defendant Bruce did not advise Plaintiff of his right to be brought before his original sentencing judge. Plaintiff told Defendant Bruce that he had only been sporadically employed and most of his unemployment payments went toward paying child support, while he resided in homeless shelters. Nevertheless, Plaintiff pleaded guilty to failing to make monthly payments on fines, costs and restitution. Defendant Bruce continued Plaintiff's probation and noted that he already had been sentenced to the maximum probation term. Defendant Bruce advised Plaintiff that he could go to jail and then be released from probation. Otherwise, Plaintiff had three months to find a job and pay the $5, 000.00 owed or face possible imprisonment. Plaintiff was never advised of his right to seek to have the restitution amended, lowered or dismissed. The probation-violation report was completed by Defendants Glendening and Coultes.

         After being laid off from the Radisson Hotel in Kalamazoo in 2009, Plaintiff had reported to probation officers in Detroit, Kalamazoo and Saginaw, as he sought jobs. On November 15, 2011, Plaintiff immediately reported by phone to a probation officer in Wayne County, after having received a letter from Defendant Coultes at his approved Detroit address. The officer advised Plaintiff to turn himself in, because a warrant had issued against him. On November 30, 2011, Plaintiff called Defendant Coultes and explained that he was unable to turn himself in to Berrien County because of his lack of resources and family support. Coultes informed Petitioner that, if he was stopped, he would be arrested. But Coultes indicated that, when Plaintiff came to Berrien County, he would talk to the judge about getting Plaintiff off probation, though he would still be responsible for the restitution.

         Two months later, on February 28, 2012, Plaintiff became employed, and he held the same continuous position for more than three years in Detroit. During that time, Plaintiff paid his child support in accordance with his support order. The bench warrant for not paying child support was dismissed in May 2012.

         Plaintiff called Defendant Coultes on September 28, 2015, in an attempt to resolve the restitution warrant. He was transferred to an unknown officer. Plaintiff asked how much he would need to pay to get the warrant for non-payment dismissed. The officer said that, because Plaintiff had waited four years and had absconded, there was nothing he could do. Plaintiff denied having absconded.

         In December 2015, after being advised by Immigration and Custom Enforcement that Plaintiff was on a cruise ship scheduled to dock on December 10, 2015, Defendants reissued the warrant, and Plaintiff was arrested in Fort Lauderdale, Florida, as he disembarked from the cruise. The new warrant listed the two probation violations from November 2011, together with another violation for failing to report on December 1, 2011. Plaintiff was extradited to Berrien County, Michigan.

         Although Plaintiff maintained that he was guilty only of not paying restitution, his attorney recommended that he plead guilty to all three charges with the recommendation from the probation supervisor of a maximum sentence of six months. Defendant Wiley sentenced Plaintiff on January 20, 2016, to 18 to 60 months' imprisonment.

         Plaintiff sought counsel on appeal, and the State Appellate Defender Office was appointed. Counsel on appeal filed a motion in the Berrien County Circuit Court to vacate the conviction because the court lacked jurisdiction, as the warrant was not issued until four years after the term of probation had expired. In addition, the motion argued that Plaintiff had been unable to pay, but the court had imposed sentence without inquiring into Plaintiff's ability to pay. The motion, filed on July 19, 2016, has not yet been heard or decided.

         Plaintiff contends that his conviction should be vacated and expunged because the trial court lacked jurisdiction to impose a prison sentence. He also argues that he should not have been required to enter a plea and be sentenced in front of a judge who did not impose the term of probation. In addition, he claims that Berrien County, after being notified of his inability to pay, violated the Equal Protection Clause by finding him guilty of a probation violation for failing to pay.

         Plaintiff also contends that he has been sentenced in violation of the Eighth Amendment, because his sentence was ...


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