United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER (1) DENYING PETITION FOR WRIT OF
HABEAS CORPUS, (2) DENYING CERTIFICATE OF APPEALABILITY, AND
(3) DENYING PERMISSION TO APPEAL IN FORMA PAUPERIS
CARAM STEEH UNITED STATES DISTRICT JUDGE
a habeas case filed by a Michigan prisoner under 28 U.S.C.
§ 2254. Petitioner Joshua Dewey was convicted after he
pled guilty in the Livingston Circuit Court to assault on a
prison employee, Mich. Comp. Laws § 750.197(c), and
assault with intent to maim, Mich. Comp. Laws § 750.86.
Petitioner was sentenced to concurrent terms of 20 to 40
years' imprisonment. The petition raises two claims: (1)
the trial court erred in failing to allow Petitioner to
withdraw his guilty plea, and (2) the trial court erred in
scoring the sentencing guidelines.
Court finds that petitioner's claims are without merit.
Therefore, the petition will be denied. The Court will also
deny a certificate of appealability, and deny permission to
proceed on appeal in forma pauperis.
incident giving rise to this case occurred on January 21,
2013, at the Woodlawn Correctional Facility where petitioner
was a prisoner. On that date, petitioner threw a chair at a
corrections officer and then dug his thumb into the
officer's eye socket. Petitioner admitted under oath at
the plea hearing that he intended to pop out the
officer's eye or blind him. Dkt. 8-2, at 27. The entire
altercation was recorded by a security video camera. Dkt.
8-3, at 12.
he was charged, the prosecutor moved to admit
petitioner's prior criminal history under Michigan Rule
of Evidence 404(b), which included eight prior felony
convictions for assaulting a prison employee. A hearing was
held on the motion, and after entertaining argument, the
trial court stated that if petitioner's defense was that
he did not intend to maim the officer, then evidence
concerning the prior offenses would be allowed. Dkt. 8-2, at
12-14. A bench conference was then held off the record, and
petitioner's counsel indicated that he had a discussion
with his client, “and my client indicated to me that he
wished to change his plea to a plea of guilty to an offer
that the prosecutor had previously made at this settlement
conference.” Id., at 15. Petitioner confirmed
that this was a correct statement. Id.
counsel then indicated that the offer was for petitioner to
plead guilty to the two charged offenses, and in return the
prosecutor would amend the habitual offender charge to reduce
Petitioner's minimum sentence from 25 years to 20 years.
Id., at 16. Petitioner indicated his understanding.
Id. Defense counsel further stated that under the
sentencing agreement petitioner's maximum term would be
at least 30 years or higher. Id. Again, petitioner
indicated his understanding. Id. Defense counsel
also stated that petitioner's sentence would run
consecutively to time he was already serving, and petitioner
indicated his understanding and his desire to enter into the
plea bargain. Id., at 17.
was then placed under oath. Id., at 19. He indicated
that he was 30 years old and had completed the eighth grade.
Id., He indicated he could read and write.
Id. Petitioner denied that he was under the
influence of alcohol or any controlled substance.
Id. When asked what he was pleading guilty to,
petitioner stated, “I'm pleading guilty to count
one, assault with intent to maim. . . . [and] count two,
assault of prison employee.” Id., at 19-20. He
also acknowledged that he was charged with being a
fourth-time habitual felony offender, and that the maximum
possible sentence was life. Id.
indicated his understanding that his plea of guilty had the
same effect as a conviction after a trial. Id., at
20. He indicated his understanding that his sentence would
run consecutively to his present sentence. Id., at
21. Petitioner indicated his understanding of the nature of
the charges against him, and he expressed satisfaction in his
counsel's representation. Id., at 22.
was then advised of, and agreed to waive, each of his trial
rights. Id., at 22-23. Petitioner also read and
signed a written advice of rights form. Id., at 24.
Petitioner indicated that he was pleading guilty because he
really was guilty. Id. He agreed that it was his own
choice to enter his plea. Id.
testified that on January 21, 2013, when he was a prisoner at
the Woodlawn Correctional Facility he intentionally threw a
plastic chair at a corrections officer, and then when the
officer attempted to place him into custody he “reached
up and put [his] finger into his eye and [he] gouged at his
eye with an intent . . . to blind him or pop an eye . . . to
gouge an eye out.” Id. 24-27. Petitioner
stated that he understood that gouging someone's eye out
would be a maiming or disfiguring injury. Id., at
Court again asked petitioner if he was offering his plea
voluntarily, and petitioner indicated that he was.
Id., at 28-29. Petitioner stated he understood that
by pleading guilty he was giving up any claim that the plea
was the result of promises or threats that were not disclosed
to the Court during the plea hearing. Id., at 29.
Petitioner stated that everything he stated during the plea
hearing was true and accurate. Id., at 30. The Court
then found that petitioner's guilty plea was entered
freely, voluntarily, understandingly, knowingly, and
accurately. Id., at 30-31. Petitioner acknowledged
that he was “not going to be able to withdraw from this
plea as long as the Judge goes along with the sentencing
agreement.” Id., at 34.
sentencing hearing, petitioner indicated his desire to
withdraw his guilty plea. Dkt. 8-3, at 7. He indicated that
he had a history of PTSD from childhood, and that when the
offense occurred he had a flashback of being traumatized by
his father. Id. He indicated that the only reason he
entered his plea was “because I was feeling threatened
by the way the prosecutor was conducting herself, and the
only reason I didn't act out is because I was scared by
how many officers were in the courtroom. Also another reason
I want to withdraw my plea is because at the time of the
alleged offense my psychotropic medicines were being adjusted
and my treating psychiatrist . . . was trying to stabilize me
on my medicine.” Id., at 7-8. Petitioner also
asserted that he was unstable in his thoughts and emotions.
Id., at 8.
asserted that before leaving the facility for the plea
hearing, “the MDOC transportation told me, ‘If
you don't plead guilty, I'll activate the taser
cuff.' . . . I was scared that I might die if she did
this because I never had dealt with one of these in the
past.” Id. The trial court denied the motion,
finding that it presided over the plea hearing, and in the
court's judgment the plea was entered knowingly,
voluntarily, and understandingly. Id., at 8-9. In
scoring the sentencing guidelines, petitioner was scored 50
points over defense counsel's objection for ...