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Blount v. McCullick

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

July 17, 2017

NAQUNN BLOUNT, Petitioner,
v.
MARK MCCULLICK, Respondent.

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

          HON. MARK A. GOLDSMITH, Judge

         Petitioner NaQunn Blount filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Dkt. 1), challenging his Macomb County Circuit Court no contest plea convictions for two counts of first-degree criminal sexual conduct, Mich. Comp. Laws § 750.520b (use of a weapon); one count of armed robbery, Mich. Comp. Laws § 750.529; and one count of identity theft, Mich. Comp. Laws § 445.65. Petitioner was sentenced to concurrent 20 to 40 years' imprisonment for the sexual misconduct and robbery convictions, and one to five years' imprisonment for the identity theft conviction.

         The petition raises two claims: (i) Petitioner's no contest plea was not knowing or voluntary where he was not informed that his plea acted to waive antecedent claims of error, and (ii) Petitioner was denied the effective assistance of counsel where his attorney misled him as to the sentencing consequences of his no contest plea. For the reasons stated below, the Court denies the petition, declines to issue a certificate of appealability, but grants permission to proceed on appeal in forma pauperis.

         I. BACKGROUND

         Petitioner's convictions came about after he abducted a woman who was walking along a sidewalk at night. Petitioner forced the victim into an alley, raped her twice at knife-point, and then stole some of her belongings.

         At a pretrial hearing held a few days before trial was scheduled to start, the prosecutor indicated that it was not making any plea offers to Petitioner. The prosecutor informed the court that Petitioner was on probation for armed robbery at the time of the offense, the sentencing guidelines called for a minimum sentence between 14 and 24 years, and the prosecution would be seeking consecutive sentencing if it obtained a conviction. 6/10/2014 Hr'g Tr. at 6-7 (Dkt. 9-10).

         Three days later, Petitioner entered his no contest plea. 6/13/2014 Plea Tr. (Dkt. 9-11). The Court indicated that it understood Petitioner was going to plead no contest to the four charged offenses. Id. at 3. In exchange for the plea, the prosecutor indicated that it would not seek consecutive sentences. Id. at 4.

         Petitioner was place under oath and affirmed that he was pleading no contest to two counts of first-degree criminal sexual conduct, one count of armed robbery, and one count of identity theft. Id. at 6-7. Petitioner indicated that he was 18 years old and graduated from high school. Id. at 7. He denied that he was under the influence of drugs or alcohol. Id. He affirmed that he could read and write. Id. Petitioner acknowledged his understanding of his right to the assistance of counsel, he affirmed that he had discussed the case with his attorney, and he indicated that he was satisfied with the advice he received. Id. at 7-8. Petitioner understood that, by pleading no contest, he was waiving his right to a trial and to all of his trial rights. Id. at 8. Petitioner indicated that he read the advice of rights form, he understood those rights, and he signed the form. Id.

         Petitioner stated that he was pleading no contest to the charges as the result of his own choice to do so. Id. at 8. Petitioner understood that the maximum sentence he could receive as the result of his plea was life imprisonment. Id. at 9. Petitioner understood he would also be required to submit to lifetime electronic monitoring. Id.

         Petitioner denied that he had been promised anything by the court, the prosecutor, or his attorney with respect to any particular sentence in exchange for his plea. Id. at 10. He indicated that he had only been informed by his counsel what the sentencing guidelines were. Id. The prosecutor then explained that the guidelines might be calculated as high as 270-to-450 months for Petitioner's minimum sentence. Id. at 10-11. Petitioner agreed that he was informed of this range. Id.

         Petitioner denied that anyone had tried to force him to enter his plea, or that anyone mistreated him or pressured him. Id. at 11. He denied that anyone had promised him that the court would go easy on him if he entered his plea. Id. Petitioner indicated that he was pleading no contest freely and voluntarily because it was his own choice. Id. Petitioner acknowledged his understanding that if his plea was accepted, then any appeal would be by application for leave to appeal and not as a matter of right. Id. at 11-12. Petitioner understood that a no contest plea would be treated as a guilty plea for sentencing purposes. Id. at 12.

         The prosecutor used a police and lab report to establish the factual basis for the plea:

It indicates that on September 25, 2013, at approximately 2210 hours, defendant walked northbound on Van Dyke from 8 Mile following behind Shannon Cole, the victim, on the west side of the sidewalk on Van Dyke. Defendant forcefully grabbed victim's hair on the back of her head while holding what victim believed was a knife to her throat. Defendant poked the knife into the side of the victim, walked the victim into the alley, slammed and hit the victim's head causing victim to black out. Victim woke up with her pants and underwear at her knees. Defendant walked victim farther down an alley, knocking her to the ground, forced the victim to perform fellatio on him and the defendant placed his penis inside victim's vagina forcing sexual intercourse. The victim was treated at St. John Macomb Hospital and a SANE exam was completed. Defendant confessed to the crime and wrote a statement.
I have a lab number here, SH 133043, from the Northville lab, indicating that this semen that was recovered from the vaginal wall, the swab from the SANE exam of Shannon Cole that they matched the sperm and the DNA type of Naqunn Karriem Blount.
As far as the identity theft and the armed robbery, your Honor, I will be citing from the police report, 1358171. It's the same amount, it's the same night, same day. After this happened, the sexual assault, Shannon, the victim, stated the suspect took her government-issued cell phone, credit card, and a bottle of her medication. While she was being interviewed at the hospital, she checked her credit card account from her phone just shortly after the sexual assault, and she confirmed that two transactions had been completed with the credit card stolen by the suspect. And we also have a receipt from Speedway in Sterling Heights for forty-eight fifty-six where he used her credit card to buy gasoline.

Id. at 12-14.

         Petitioner indicated that he understood he was giving up any claim that the plea was the result of any promises or threats that he did not disclose. Id. at 14. He was also giving up any claim that it was not his choice to enter the plea. Id. Both attorneys denied knowledge of any promises, threats, or inducements for the plea other than what was placed on the record. Id.

         Petitioner indicated that he was on probation at the time of the offense, and that the new conviction might have an adverse effect on his probationary status. Id. at 15. After all of this, the court found that Petitioner's plea was knowing, freely, and voluntarily made. Id.

         At the sentencing hearing, Petitioner initially indicated that he did not want to go forward with his plea, which the court had accepted but held under advisement. 7/24/2014 Sentencing Tr. at 3 (Dkt. 9-12). The trial court was open to granting the request, stating that Petitioner would be given an opportunity to meet with his counsel and, “if you feel you don't have the information and you don't want to go forward and you want to withdraw your plea, I'm going to set it for trial and then we'll all learn whatever it is that you don't think you know. But, I'm done dinging around with this, frankly. We're going to try the case or we're going to resolve it. I have no preference which one you do.” Id. at 4. After about a half-hour recess, defense counsel informed the court that Petitioner decided to proceed with the plea. Id. ...


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