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Cunningham v. Winn

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

April 5, 2017

RYAN ELLIOTT CUNNINGHAM, Petitioner,
v.
THOMAS WINN, Respondent.

          OPINION & ORDER DENYING THE PETITION FOR A WRIT OF HABEAS CORPUS, DENYING A CERTIFICATE OF APPEALABILITY, & DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

          LINDA V. PARKER, U.S. DISTRICT JUDGE

         I. Introduction

         This is a habeas case brought pursuant to 28 U.S.C. § 2254. In September 2012, Michigan prisoner Ryan Elliott Cunningham (“Petitioner”) pleaded guilty in the Circuit Court for Jackson County, Michigan, to the following: operating/maintaining a meth lab in violation of Mich. Comp. Laws § 333.7401(c)(2)(f); possession of a short-barreled shotgun in violation of Mich. Comp. Laws § 750.224b; unlawful driving away of an automobile in violation of Mich. Comp. Laws § 750.413; felon in possession of a firearm in violation of Mich. Comp. Laws § 750.227f; and, third-degree fleeing and eluding a police officer in violation of Mich. Comp. Laws § 257.602(A)(3)(a). In 2013, the trial court sentenced Petitioner as a third habitual offender under Mich. Comp. Laws § 769.11 to 12 to 40 years imprisonment on the meth lab conviction and concurrent terms of 3 to 10 years imprisonment on each of the other convictions in 2013. In his petition, as amended to proceed only on exhausted issues, Petitioner raises claims concerning the validity of his plea, the effectiveness of counsel, and the scoring of the state sentencing guidelines. For the reasons set forth below, the Court is denying Petitioner's request for habeas relief. The Court also is denying Petitioner a certificate of appealability and leave to proceed in forma pauperis on appeal.

         II. Facts and Procedural History

         Petitioner's convictions arise from the December 23, 2011 police search of a hotel room in Blackman-Leoni Township, Jackson County, Michigan, and Petitioner's flight from the scene in a police car. The hotel room was registered to Petitioner's girlfriend, Alicia Sutherland. The police were looking for Ms. Sutherland as part of a stolen car investigation. Police officers observed the car in the hotel parking lot and obtained Ms. Sutherland's room number from the hotel manager. They knocked on the door, but no one answered. They obtained a key from the hotel manager, but it would not open the door. A hotel maintenance man then accompanied the officers to the room and tried the key as well, but the door would not open.

         The maintenance man then opened a window next to the hotel room's door and pushed back the curtain. They saw Ms. Sutherland standing in the room. The officers asked Ms. Sutherland to open the door and inquired about the car. She indicated that a naked man was in the room. The officers then saw Petitioner in the room. They asked him to open the door, but he refused. The officers threatened to pepper spray him if he did not open the door.

         Petitioner continued to refuse and a police officer then pepper sprayed him. When the officer moved the window curtain back, Petitioner was pointing a black gun at him. The officer yelled “gun” and the police drew their weapons. Petitioner then said the gun was fake, unlocked the door, and both he and Ms. Sutherland laid on the floor. The officers ordered them to crawl out of the room and they complied. The officers handcuffed Petitioner and Ms. Sutherland and conducted a cursory safety check of the room.

         After being handcuffed, Petitioner was put in a police car. He then stole the car and drove away. A high-speed chase ensued. It appears from the record before this Court that Petitioner eventually was apprehended near the Ohio border by police officers and/or a Michigan State Police trooper who had joined the pursuit. The stolen police car was recovered in damaged condition.

         In the meantime, police detectives were summoned to the hotel room. When they arrived, they spoke to Ms. Sutherland and she signed a written consent for a search of the hotel room. During the search, the detectives discovered meth lab equipment and materials, a black pellet gun, and a short-barreled shotgun, which was determined to have been purchased by Petitioner's mother.

         During the pre-trial period, defense counsel moved to suppress the evidence seized during the search and for dismissal of the charges alleging that the police violated Petitioner's constitutional rights. The prosecutor filed a response contending that Petitioner lacked standing to challenge the search. The trial court denied the motion without prejudice.

         According to Petitioner's affidavit, defense counsel then advised him that to proceed with the suppression motion, he would have to sign an affidavit stating that he shared in the expense of the hotel room, which also would be an admission to ownership of the contraband found in the room and he would not prevail. Based upon counsel's advice, Petitioner decided to tender his plea.

         On September 28, 2012, Petitioner pleaded guilty to operating a meth lab, possession of short-barreled shotgun, felon in possession of a firearm, unlawful driving away of an automobile, and fourth-degree fleeing and eluding. Petitioner also admitted to being a third habitual offender and agreed to pay restitution in exchange for the dismissal of possession of related methamphetamine and felony firearm charges and an unrelated inmate weapon possession charge. At the plea hearing, Petitioner acknowledged that he understood the terms of his plea, the maximum sentences he could face, and the rights he was giving up by pleading guilty. Petitioner twice confirmed he was pleading guilty freely and voluntarily. He also signed an advice of rights form and provided a factual basis for his plea.

         On January 10, 2013, the trial court imposed an initial sentence. Petitioner then moved for re-sentencing. On August 15, 2013, the trial court conducted a hearing and re-sentenced Petitioner to 12 to 40 years imprisonment on the meth lab conviction and concurrent terms of 3 to 10 years imprisonment on each of the other convictions with credit for 600 days served.

         Petitioner subsequently moved to withdraw his plea alleging that trial counsel failed to properly litigate the suppression motion and was ineffective in advising him to plead guilty and that the trial court erred in scoring Offense Variable 14 of the state sentencing guidelines. On March 14, 2014, the trial court conducted a hearing and denied the motion. Citing the Strickland standard, the trial court ruled that Petitioner failed to show that but for counsel's advice, he would not have entered his plea and would have insisted on going to trial. The trial court also ruled that even if the scoring of Offense Variable 14 were changed it would not alter the guideline range or require re-sentencing. Petitioner filed a delayed application for leave to appeal with the Michigan Court of Appeals raising the same claims, which was denied “for lack of merit in the grounds presented.” People v. Cunningham, No. 320997 (Mich. Ct. App. July 8, 2014). Petitioner filed an application for leave to appeal with the Michigan Supreme Court, which the Court denied in a standard order. People v. Cunningham, 857 N.W.2d 47 (Mich. 2014).

         Petitioner thereafter filed his federal habeas petition. In his pleadings, as amended to proceed only on exhausted issues, he raises claims concerning the validity of his plea, the effectiveness of counsel, and the scoring of the state sentencing guidelines.

         III. ...


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