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Robinson v. Burt

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

June 30, 2017

JOHN ROBINSON, Petitioner,
v.
SHERRY BURT, Respondent.

          OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS [1], DENYING CERTIFICATE OF APPEALABILITY, AND DENYING PERMISSION TO FILE APPEAL IN FORMA PAUPERIS

          STEPHEN J. MURPHY, III United States District Judge.

         Petitioner John Robinson, a Michigan prisoner, seeks habeas relief under 28 U.S.C. § 2254. After he pleaded no contest in the Oakland Circuit Court, Robinson was convicted of five counts of armed robbery, Mich. Comp. Laws § 750.529, five counts of commission of a felony with a firearm, Mich. Comp. Laws § 750.227B, and carrying a concealed weapon, Mich. Comp. Laws § 750.227. He was sentenced to concurrent terms of 6 to 50 years for each of the armed-robbery convictions, consecutive 2-year terms for the firearm convictions, and 9 months to 5 years for the concealed-weapon conviction. The petition raises a single claim: Robinson's plea was involuntary because his trial counsel and the trial court misled him into believing that he could appeal the denial of pretrial motions following his plea. The Court finds that Robinson's claim is without merit. Therefore, the petition will be denied. The Court will also deny Robinson a certificate of appealability and deny him leave to appeal in forma pauperis.

         BACKGROUND

         Robinson's convictions arose from a July 29, 2014 robbery at a Southfield, Michigan hotel. Three of the victims identified Robinson as one of the assailants. John Culliver testified at the preliminary examination that on the night of the robbery he was at the Hawthorn Suites Hotel in Southfield with several other people. Sometime around midnight, two men entered the hotel room armed with handguns. Culliver identified Robinson as one of the two men. Robinson announced that it was a stick-up, and he directed the occupants to give them everything they had. Culliver and the other people in the hotel room gave their possessions to Robinson and his accomplice. Robinson then struck Culliver on the back of the head with the butt of his handgun. The two men left, and someone called 9-1-1. Kejuantaw Matthews testified that he was also in the hotel room. He identified Robinson and co-defendant Kalvin Hall as the two robbers. Stevie Harrell similarly testified to the facts surrounding the robbery, and he also identified Robinson as one of the assailants.

         Southfield Police Sergeant Thomas Langewicz testified that on the night of the robbery, he was conducting a stake-out to investigate recent armed robberies that occurred at local hotels. He identified two men in the parking lot of the Hawthorn Suites Hotel as possible suspects based on prior descriptions of the robbers. When the two men exited the parking lot in a vehicle at a high rate of speed, Langewicz pulled his patrol car next to the suspect vehicle. When the vehicle started to accelerate through a red light, Langewicz rammed it to prevent a high-speed pursuit. Hall was in the driver's seat, and Robinson was in the front passenger seat. Handguns were subsequently found under their seats.

         Based on this evidence, Robinson was bound over to the state circuit court for trial on eleven felony counts. Robinson filed a pro se motion to suppress evidence, claiming that he was the driver, and that the traffic stop violated his Fourth Amendment rights. Defense counsel indicated that he could not support the motion because the police report indicated Robinson was a passenger, and immediately prior to the stop there had been a police dispatch regarding the armed robbery at the hotel. The trial court denied the motion, finding that Langewicz's observations at the hotel parking lot, in combination with the police dispatch information, constituted reasonable suspicion to justify stopping the car.

         Robinson subsequently filed a motion to dismiss the case because video evidence from one of the patrol cars had not been preserved. The trial court denied the motion to dismiss, but indicated that the failure to record video would be a subject for cross examination at trial, and that it would consider an adverse-inference jury instruction.

         Robinson pleaded no contest to the charged offenses, and in exchange the prosecutor agreed to a 6-year minimum sentence for the armed robbery convictions plus a consecutive 2 years for the firearm charges. The sentencing guidelines called for a sentence range of 9 to 15 years. ECF 8-5, PgID 164.

         Robinson was placed under oath. Id. at 166. He testified that he was 19 years old, and that he could read and write. Id. He indicated he was satisfied with the advice his attorney gave him. Id. Robinson acknowledged that he was pleading no contest to five counts of armed robbery, five counts of possession of a firearm during commission of a felony, and carrying a concealed weapon. Id. at 167. He indicated his understanding that he could receive up to life in prison. Id. Robinson understood that the plea agreement called for a 6-year minimum sentence for the armed robbery convictions plus 2 years for the firearm offenses. Id. He indicated his desire to accept the agreement. Id.

         Robinson was then informed of, and agreed to waive, each of his trial rights. Id. at 167-68. Robinson understood that he was giving up any claim that his plea was the result of any promises or threats that were not disclosed at the plea hearing, and that it was his own choice to plead guilty. Id. at 168. He understood that any appeal would be by application for leave to appeal and not by right. Id. at 168-69. Robinson denied that anyone had threatened him to get him to plead, and that it was his own choice to do so. Id. at 169. The Court found that Robinson's no-contest plea was entered understandingly, voluntarily, and accurately. Id. at 170.

         At the sentencing hearing, defense counsel informed the court that Robinson wished to make his plea conditional, to preserve his pretrial motions for appeal. ECF 8-6, at 174. The prosecutor indicated that the plea had not been conditional. Id. The trial court stated that the plea was not conditional, and there was no basis for withdrawing the plea. Id. Robinson then personally addressed the court: "I took this no contest plea under the persuasion that I could appeal the things that I put on record . . . but taking a no contest plea . . waives no jurisdiction or defects. It waives jurisdictional defects and things that I put on a motion." Id. at 175. The trial court informed Robinson that he could appeal. Id. The court then sentenced Robinson based on the terms of the plea agreement as indicated above.

         Robinson filed a delayed application for leave to appeal with the Michigan Court of Appeals, raising the following claim:

I. Due process requires plea withdrawal where the trial court and defense counsel misled defendant to believe he could further appeal the rulings of the suppression and due process motions following an unconditional guilty plea.

         Robinson also filed a motion for peremptory reversal. The Michigan Court of Appeals denied Robinson's delayed application "for lack of merit in the grounds presented, " and denied his motion for peremptory reversal. ECF 8-7, People v. Robinson, No. 331239 (Mich. Ct. App. April 11, 2016). Robinson then filed an application for leave to appeal in the Michigan Supreme Court, raising the same claim. The Michigan Supreme Court denied the application because it was not ...


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