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Yearby v. Klee

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

May 2, 2017

Derwyn Burnell Yearby, Petitioner,
v.
Paul D. Klee, Respondent.

          David R. Grand Mag. Judge.

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

          JUDITH E. LEVY United States District Judge.

         Michigan prisoner Derwyn Yearby (“Petitioner”) filed this habeas case under 28 U.S.C. § 2254. Petitioner was convicted after he pled guilty in the Genesee County Circuit Court to second-degree murder, Mich. Comp. Laws § 750.317, and possession of a firearm during the commission of a felony, Mich. Comp. Laws § 750.227b. Petitioner was sentenced to a term of twenty-five to forty years for the murder conviction, and a consecutive term of two years for the firearm conviction. The petition raises two claims: (1) that he was deprived of his right to a speedy trial, and (2) that he was deprived of the effective assistance of counsel when his trial attorney failed to preserve his speedy trial claim for appeal. The Court finds that Petitioner's claims are without merit. The petition is denied, a certificate of appealability is denied, and leave to appeal in forma pauperis is granted.

         I. Background

         The Michigan courts denied a merits review of Petitioner's arguments, so this background is drawn from the Rule 5 materials submitted by Respondent. (See Dkt. 7.)

         In the early morning hours of September 12, 2010, Petitioner and two other men broke into a Flint, Michigan home where Latevia Bond, Petitioner's girlfriend, was sleeping with another man, Ashante Washington. Petitioner had sent angry text messages to Bond earlier in the day because he knew she was seeing someone else. Petitioner went into an upstairs bedroom and found Bond and Washington asleep in the same bed. Petitioner shot Washington in the head with a handgun. The men then stole Washington's wallet and car keys. Petitioner fled on foot while the other two men drove away in Washington's car. Bond slept through the incident, and discovered that Washington was dead when she was unable to wake him in the morning. (See Dkt. 7-2, at 4-18.)

         An arrest warrant was not issued for Petitioner until September 13, 2013, after one of Petitioner's accomplices cooperated with the government. (Dkt. 7-4 at 8.) Petitioner was then arraigned in the state district court on October 13, 2013, and a preliminary examination was held on October 24, 2013, at which Bond and a cooperating witness testified. (See Dkt. 7-2.)

         At a pretrial hearing held on December 9, 2013, Petitioner's trial attorney stated his intention to file a motion to dismiss the charges on the grounds that the prosecution violated Michigan's 180-day rule. (Dkt. 7-3.) Under Michigan law, a defendant who is already in the custody of the Michigan Department of Corrections generally must be brought to trial within 180 days of the prosecutor being notified by the Department of Corrections that the prisoner is already in custody on another offense. See Mich. Comp Laws § 780.131(1); Mich. Ct. R. 6.004(D).

         The motion to dismiss was heard on January 13, 2014, and the trial court denied the motion, finding that the prosecutor complied with the state's 180-day rule, given that 180 days had not yet run since the relevant triggering date. (Dkt. 7-4 at 6-11.) At a January 16, 2014 hearing, Petitioner's counsel renewed his motion to dismiss, asserting that he had additional evidence to support his allegation that the 180-day rule was violated, and the trial court again denied the motion. (Dkt. 7-5 at 4-6.)

         On March 4, 2014, the parties entered a plea agreement. (Dkt. 7-6.) Prior to entering the plea, defense counsel once again unsuccessfully moved to dismiss the case based on a violation of the 180-day rule. (Id. at 3-8.)

         The plea agreement was then placed on the record. Petitioner pleaded guilty to second-degree murder and commission of a felony with a firearm. (Id. at 9.) In exchange, the prosecutor agreed to dismiss the charges of first degree murder, armed robbery, home invasion, and carjacking, and to recommend a twenty-five year minimum sentence on the second-degree murder charge. (Id.) Petitioner also agreed to provide truthful testimony against one of his co-defendants, Javon Meeks. (Id. at 9-10.) Petitioner indicated his understanding that by entering the plea, he would be giving up his right to have a trial, and was then specifically advised of, and agreed to waive, each of his trial rights. (Id. at 13-14.) Petitioner then testified to a factual basis for the plea. (Id. at 15-22.)

         The trial court found that Petitioner's testimony supported the charges, and it accepted the guilty plea as being made in an understanding, voluntary, accurate, and knowing manner. (Id. at 28.)

         On April 7, 2014, the date scheduled for sentencing, Petitioner filed an in pro per motion to withdraw his plea based on the alleged violation of the 180-day rule. (Dkt. 7-7 at 4.) Petitioner, addressing the court personally, asserted that he should be entitled to withdraw his plea on the grounds that his trial counsel was ineffective for failing to preserve the 180-day rule issue for appeal, and also renewed the argument on the merits of the alleged 180-day rule violation. (Id. at 5-6.) The trial court denied Petitioner's motion to withdraw his plea, finding that there was “no evidence whatsoever ineffective [sic] assistance of counsel based on the hundred and eighty day rule or anything else, ” and also denied the renewed motion on the merits. (Id. at 7.) The trial court then sentenced Petitioner pursuant to the terms of the plea agreement. (Id. at 24-25.)

         Petitioner filed an application for leave to appeal in the Michigan Court of Appeals, raising the following claims: Petitioner's trial counsel was ineffective for failure to inform him that if he pleaded guilty unconditionally without reserving the right to appeal the court's decision on the 180-day rule and speedy trial issue, it would constitute a plea waiver of these issues, and thus it was error to deny his motion to withdraw his ...


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