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Averoff v. Rivard

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

March 27, 2017

CARMELO VIRULICHE AVEROFF, Petitioner,
v.
STEVEN RIVARD, Respondent.

          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

          HON. BERNARD A. FRIEDMAN, JUDGE

         Petitioner 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.

         I. BACKGROUND

         Petitioner 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.

         The 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 years.

         The 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.)

         Prior 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.)

         The Michigan Court of Appeals and Michigan Supreme Court affirmed petitioner's conviction and sentence. People v. Averoff, No. 326487 (Mich. Ct. App. Apr. 29, ...


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