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Hubbard v. Rivard

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

July 17, 2017

ROLAND HUBBARD, Petitioner,
v.
STEVEN RIVARD, Respondent.

          OPINION & ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS, DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

          HON. MARK A. GOLDSMITH, Judge

         Petitioner Roland Hubbard, presently confined as the Oaks Correctional Facility in Manistee, Michigan, filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Dkt. 1), challenging the validity of his sentences. Petitioner pled no contest in the Oakland County Circuit Court to carjacking, Mich. Comp. Laws § 750.529a; armed robbery, Mich. Comp. Laws § 750.529; and third-degree fleeing and eluding, Mich. Comp. Laws § 257.602(a)(3). In 2014, Petitioner was sentenced to two concurrent terms of 16 to 40 years' imprisonment for the first two counts, and a concurrent term of two to five years' imprisonment on the third count. In his pleadings, Petitioner raises claims concerning the effectiveness of counsel at sentencing, as well as the imposition of attorneys' fees and restitution at sentencing.

         For the reasons stated below, the Court denies the petition for writ of habeas corpus, declines to issue a certificate of appealability, and denies Petitioner leave to proceed in forma pauperis on appeal.

         I. BACKGROUND

         Petitioner's convictions arise from his and an accomplice's armed carjacking of a custodian in a high school parking lot in Birmingham, Michigan around 5:00 a.m. on November 12, 2013. At the preliminary examination, the victim testified that one of the men shot a gun in the air during the incident, and that they took his phone and drove away in his car.

         Police responded to the incident and observed the stolen car entering a freeway. They attempted to pull over the car, but the car continued at high speed, exited the freeway, and drove through residential streets until it crashed into other vehicles. The driver - who was Petitioner - and the passenger both fled. With the assistance of a K9 unit, the police tracked Petitioner to a house and found him hiding in a closet. The police also recovered a weapon from an area where the passenger had fled. Petitioner was charged with carjacking, armed robbery, third-degree fleeing and eluding, and three counts of felony firearm.

         Petitioner tendered his plea on April 28, 2014. As part of that plea, the prosecutor agreed to dismiss the three felony-firearm charges in exchange for Petitioner's no-contest plea to the other charges. Pursuant to People v. Cobbs, 505 N.W.2d 208 (Mich. 1993), the plea included an agreement that Petitioner's minimum sentence would not exceed the middle of the guideline range, which was estimated to be 16 years' imprisonment. The police report and the preliminary examination testimony provided the factual basis for the plea.

         The trial court conducted a sentence hearing on May 27, 2014. The probation department scored the sentencing guidelines for the minimum sentence on the carjacking conviction at 14 years and three months to 23 years and nine months imprisonment, and the pre-sentence report recommended a sentence of 16 to 40 years' imprisonment. Defense counsel acknowledged that the recommendation was consistent with the plea agreement and asked to court to follow the Cobbs agreement and recommendation.

         Defense counsel further noted the following: (i) Petitioner did not deny his involvement in the crime; (ii) Petitioner did not have any contact with the victim himself; (iii) Petitioner drove the stolen car dangerously, but no one was hurt; (iv) Petitioner is a young man who has had a tough life; and (v) Petitioner has family support and is intelligent enough to better himself in the future. Petitioner also spoke on his own behalf and apologized for his actions. The trial court sentenced Petitioner to concurrent terms of 16 to 40 years' imprisonment on the carjacking and armed robbery convictions, and a concurrent term of two to five years' imprisonment on the fleeing and eluding conviction.

         Following his plea and sentencing, Petitioner filed a delayed application for leave to appeal with the Michigan Court of Appeals, raising several sentencing claims and ineffective assistance of counsel claims, including those presented on habeas review. The court denied leave to appeal “for lack of merit in the grounds presented.” People v. Hubbard, No. 324475 (Mich. Ct. App. Dec. 29, 2014) (Dkt. 9-6). Petitioner then filed an application for leave to appeal with the Michigan Supreme Court, which was denied in a standard order. People v. Hubbard, 864 N.W.2d 572 (Mich. 2015).

         Petitioner thereafter filed his federal habeas petition, raising the following three claims:

i. “Ineffective assistance of [trial] counsel in failing to challenge [the] disproportionate sentence.”
ii. “The trial court violated constitutional law [by] ordering payment of attorney fees and restitution.”
iii. “Trial counsel was ineffective in failing to accurately score [the] sentencing guidelines, and [for failing to] seek[ ] a shorter minimum prison term.” Pet. at 6, 7, 9. Respondent has filed an answer (Dkt. 8), ...

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