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Gant v. Winn

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

April 28, 2017

MACEO GANT, Petitioner,
v.
THOMAS WINN, Respondent.

          OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS, A CERTIFICATE OF APPEALABILITY, AND PERMISSION TO APPEAL IN FORMA PAUPERIS

          BERNARD A. FRIEDMAN SENIOR UNITED STATES DISTRICT JUDGE.

         Michigan prisoner Maceo Gant has filed this habeas petition under 28 U.S.C. § 2254 [docket entry 1]. Petitioner was convicted after he pled no contest in the Kent Circuit Court to one count of first-degree criminal sexual conduct, Mich. Comp. Laws § 750.520b, and one count of second-degree criminal conduct. Mich. Comp. Laws § 750.520c. Petitioner was sentenced to life imprisonment for the first-degree conviction and nine and a half to fifteen years for the second-degree conviction. The petition raises two claims: petitioner's trial counsel was ineffective for failing to (1) challenge the charges or seek a lesser sentence based petitioner's mental illness, and (2) raise claim (1) on direct appeal.

         I. BACKGROUND

         Petitioner allegedly sexually molested his young step-daughter over a period of years. This came to light when the victim's mother discovered petitioner engaging in a sex act with the victim. Petitioner was initially charged with three counts of first-degree criminal sexual conduct, one count of second-degree criminal sexual conduct, and being a fourth-time habitual felony offender.

         At a plea hearing held in August 2012, the prosecutor put the terms of the plea bargain on the record. In exchange for petitioner entering a guilty plea to one count of first-degree criminal sexual conduct and one count of second-degree criminal sexual conduct, the prosecutor agreed to dismiss the two other counts of first-degree criminal sexual conduct and the fourth-time habitual felony offender charge, and to recommend a minimum sentence within the calculated sentencing guideline range of 225 months to 375 months or life imprisonment. Petitioner testified under oath that he understood the first-degree charge and that it carried a maximum penalty of life imprisonment. He also acknowledged the second-degree charge and that it carried a maximum sentence of 15 years.

         Petitioner was then informed of, and agreed to waive, each of his trial rights. Petitioner indicated that he read and understood the waiver of rights form that he signed. The court further advised petitioner that by accepting the plea agreement, he waived any future claim of having been forced to plea. Petitioner indicated that he understood. Petitioner and defense counsel acknowledged that the plea agreement had been correctly stated by the prosecutor.

         Petitioner denied that anyone had promised him anything in addition to the terms of the agreement. Petitioner stated his desire to plead no contest to the two charges, denied that anybody had threatened him in any way to cause him to enter his plea, and confirmed that entering his no contest plea was his choice alone.

         Defense counsel referred to the police report for a factual basis for the plea. He stated that between October 2004 and April 2012, petitioner engaged in criminal sexual penetration with a child who was under 13 years of age. Petitioner was the victim's step-father. The trial court accepted Petitioner's plea and understanding, voluntary, and accurate. Both attorneys stated that they were not aware of any promises, threats, or inducements other than what was placed on the record. Defense counsel stated: “I did advise my client of our discussions at sidebar and the plea negotiations with regards to this case. He's been fully aware - he's been made fully aware of the plea negotiations that have been placed on the record and my efforts with those.”

         At the subsequent sentencing hearing, the victim's therapist read a letter from the victim into the record. The victim stated that petitioner began sexually molesting her at age five. She stated, “It was painful, and I was really scared. I tried to tell him ‘no.' I tried to make him stop, but I couldn't. If I told him to stop, he kept doing it anyway.” Rule 5 Materials Exhibit 3 p. 7. She explained how she became suicidal, and the abuse only stopped when her mother discovered petitioner molesting her.

         Petitioner's counsel stated that petitioner wished to withdraw his plea because he understood that he would be pleading to a count of third-degree criminal sexual conduct and fourth-degree criminal sexual conduct. Counsel then indicated that he had informed petitioner that if his plea was withdrawn, he would face trial on the original charges. Counsel asked petitioner how he wished to proceed, and petitioner indicated that he wished to go forward with sentencing. Petitioner indicated that he read the presentencing report, and that its contents were accurate, but declined to make any allocution. The trial court then sentenced petitioner under the terms of the plea agreement.

         Petitioner obtained appellate counsel who filed a motion for resentencing and for an evidentiary hearing. Counsel raised a number of sentencing guideline claims. To resolve one of petitioner's challenges, the court accepted testimony from the victim's mother as to injuries suffered by the victim; she testified:

He had threatened her, threatened to kill her. Told her that he would kill her brother and sister. Told her he would kill me. He would injure, you know, anyone real bad, you know, close, that she loved if she tells anyone. Told her that I wasn't gonna love her anymore, I was gonna give her away. He told her a whole lot of horrible things, what prevented her from tellin' me.

Id. at Exhibit 4 p. 19. The court rejected each of petitioner's sentencing guideline challenges, and denied his motion for resentencing.

         Petitioner then filed an application for leave to appeal in the Michigan Court of ...


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