United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING THE PETITION FOR WRIT OF
HABEAS CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF
APPEALABILITY OR LEAVE TO APPEAL IN FORMA PAUPERIS
BERNARD A. FRIEDMAN, JUDGE
Carmelo Averoff, confined at the St. Louis Correctional
Facility in St. Louis, Michigan, seeks a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. In his pro
se application, petitioner challenges his conviction and
sentence for armed robbery, Mich. Comp. Laws § 750.529.
For the reasons stated below, the petition for writ of habeas
corpus is denied.
was charged with armed robbery, assault with a dangerous
weapon, and being a fourth felony habitual offender. On the
day of trial, petitioner entered a no-contest plea to the
armed robbery charge. In exchange for the plea, the
prosecutor agreed to dismiss the assault with a dangerous
weapon charge and the supplemental information charging
petitioner with being a fourth felony habitual offender. The
prosecutor also agreed that petitioner's minimum sentence
would be no greater than ten years. Prior to taking the plea,
the judge noted that interpreter Tamara Brubaker was present
for petitioner, swore her in, and asked petitioner, (Tr.
9/2/14 p. 3.):
THE COURT: All right. And sir, do you need an interpreter? I
understand your English is fairly good.
THE DEFENDANT: Yeah. I don't need it though.
THE COURT: You don't need an interpreter?
MR. MILLER [Defense Counsel]: We thought because of some of
the legal issues and things that would be explained, that we
should have an interpreter here.
THE COURT: All right. Well, let---I'm going to do this:
Ms. Brubaker, if you would just stay there. Sir, if you
don't understand anything just ask her.
THE DEFENDANT: Yes.
judge then engaged in a long colloquy with petitioner, who
responded to the judge's questions and comments. The
prosecutor placed the terms of the plea bargain on the record
several times, and petitioner acknowledged that it was an
accurate reflection of the agreement. The prosecutor
indicated that, if convicted of all charges, petitioner's
sentencing guidelines would be 126-420 months. The judge
explained to petitioner that the plea agreement set his
minimum sentence at no more than ten years, but that if he
was convicted after a trial he could receive a minimum
sentence of anywhere between ten and a half to thirty five
judge gave petitioner time to speak with his attorney, after
which petitioner indicated that he wished to plead
no-contest. He was advised several times that the maximum
penalty for the armed robbery charge was life in prison. The
judge again indicated on the record that Ms. Brubaker was
available as an interpreter to translate for petitioner if he
needed this, but petitioner said that he understood the
proceedings. The judge advised petitioner at length of the
rights he relinquished by pleading guilty. Petitioner
responded appropriately to all of the judge's questions
and comments. The judge accepted petitioner's no-contest
plea. (Id. at pp. 4-11.)
to sentencing petitioner moved to withdraw his no-contest
plea. At sentencing, petitioner's counsel indicated that
petitioner wished to withdraw his plea because he did not
understand it and was innocent. (Tr. 9/25/14 p. 3.) The judge
denied the motion, explaining that he had gone over
petitioner's rights with him before accepting his plea
and- given that petitioner had eight prior felony
convictions, one prior misdemeanor conviction, had been
sentenced to jail twice, been on probation three times, and
been to prison three times-he was “very familiar with
the legal system.” (Id. at pp. 4-5.) The judge
sentenced petitioner to 10 to 50 years in prison.
(Id. at pp. 7-8.)
Michigan Court of Appeals and Michigan Supreme Court affirmed
petitioner's conviction and sentence. People v.
Averoff, No. 326487 (Mich. Ct. App. Apr. 29, ...