United States District Court, E.D. Michigan, Southern Division
OPINION & ORDER DENYING THE PETITION FOR A WRIT
OF HABEAS CORPUS, DENYING A CERTIFICATE OF APPEALABILITY,
& DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON
V. PARKER, U.S. DISTRICT JUDGE
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.
Facts and Procedural History
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.
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.
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.
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
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.
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.
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.
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.
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.
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).
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