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Parker v. Stewart

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

August 17, 2017

AVANTIS PARKER, Petitioner,
v.
ANTHONY STEWART, Respondent.

          OPINION AND ORDER DENYING PETITIONER'S APPLICATIONS FOR A WRIT OF HABEAS CORPUS, DENYING PETITIONER'S MOTIONS FOR A STAY AND FOR DISCOVERY, AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY

          BERNARD A. FRIEDMAN SENIOR UNITED STATES DISTRICT JUDGE.

         In 2013, petitioner pled guilty to interfering or tampering with a witness and second-degree murder pursuant to a plea and sentencing agreement that called for a sentence of twelve and one half to fifteen years in prison. The trial court sentenced petitioner to ten to fifteen years in prison. The Michigan Court of Appeals reversed the trial court's sentence and remanded the case because the trial court did not inform the prosecution of its intended sentence or give the prosecutor an opportunity to withdraw the plea agreement before imposing the sentence. Now before the Court are petitioner's applications for a writ of habeas corpus [docket entries 1 and 3], his motions to stay the trial court's anticipated proceeding on remand from the Michigan Court of Appeals [docket entries 2 and 4], and his motion for discovery [docket entry 15]. Petitioner contends that the Court of Appeals' decision violates his double-jeopardy and due process rights. For the reasons that follow, the petitions and motions are denied.

         I. Background

         Petitioner currently is incarcerated at the G. Robert Cotton Correctional Facility in Jackson, Michigan. In 2013, he was charged in Washtenaw County, Michigan with (1) open murder, (2) possession of a firearm by a felon, (3) possession of a firearm during the commission of, or attempt to commit, a felony, (4) carrying a concealed weapon, (5) first-degree (premeditated) murder, and (6) interfering or tampering with a witness. The charges arose from the fatal shooting of Brandon Charles in Ypsilanti Township on January 29, 2013. The prosecution's theory was that petitioner aided and abetted two co-defendants by driving them to the location where Charles was shot and killed.

         On September 16, 2013, petitioner pled guilty to count six (interfering or tampering with a witness), Mich. Comp. Laws ' 750.122, and to an added count of second-degree murder, Mich. Comp. Laws ' 750.317. He also pled guilty to being a fourth habitual offender. In return for petitioner's plea and promise to testify for the prosecution in related matters, the prosecution agreed to dismiss the first five counts against petitioner. Additionally, the parties agreed that the sentence would be two concurrent terms of twelve and one half to fifteen years in prison.

         Sentencing was deferred to enable petitioner to satisfy his obligation to testify for the prosecution in other hearings and trials pertaining to Charles' murder. Petitioner proceeded to assist prosecutors in ways not contemplated by the parties at the time of his guilty plea. He was also inadvertently jailed for a brief time with one of the men who was involved in Charles' murder. Consequently, before petitioner's sentencing in 2015, his attorneys prepared a sentencing memorandum in which they explained the impact and extent of petitioner's cooperation with prosecutors and the threats that were directed at petitioner and his family. The memorandum asked the trial court to consider sentencing petitioner to a more lenient sentence than the one contemplated in the parties' plea and sentencing agreement. The defense attorneys provided a copy of their sentencing memorandum to the prosecuting attorney, who edited the memorandum but did not file a written response to it.

         At petitioner's sentencing on February 11, 2015, defense counsel summarized petitioner's cooperation with the prosecution during the period between petitioner's plea hearing and the sentencing date. Defense counsel then asked the trial court to sentence petitioner to less than twelve and ond half to fifteen years in prison. The prosecutor did not object to the factual basis for defense counsel's request. In fact, she stated that she disagreed with little, if anything, that defense counsel had said. However, she asked the trial court to sentence petitioner pursuant to the plea and sentencing agreement. The trial court granted petitioner's request and sentenced petitioner to concurrent terms of ten to fifteen years. As promised, the prosecutor prepared an order dismissing the first five counts against petitioner. The order was filed on February 12, 2015, and on February 20, 2015, the judgment of sentence was entered on the docket.

         On February 26, 2015, a different prosecuting attorney filed a ''Motion to Correct an Invalid Sentence." The trial court held a hearing on the motion and subsequently denied it in a written opinion. See People v. Parker, No. 13-157FC, Op. and Order of the Court Denying Pl.'s Mot. to Correct Invalid Sentence (Washtenaw Cty. Cir. Ct. June 24, 2015) (unpublished). The trial court noted that the prosecutor had not objected to the court's reliance on an unpublished decision to justify imposing a lower sentence and that the prosecutor also did not ask to withdraw from the plea and sentencing agreement. The trial court concluded that its sentence was valid.

         The prosecution appealed the trial court's decision. The Michigan Court of Appeals reversed the sentence and remanded the case to the trial court. See People v. Parker, No. 328323, 2016 WL 6905723 (Mich. Ct. App. Nov. 22, 2016) (unpublished). The Court of Appeals determined that the trial court had erred by failing to alert the prosecution before sentencing petitioner of the sentence that it intended to impose and by failing to give the prosecution an opportunity to withdraw the plea agreement. The Court of Appeals based its decision primarily on People v. Siebert, 450 Mich. 500; 537 N.W.2d 891 (1995), in which the Michigan Supreme Court stated that

a prosecutor, like a defendant, is entitled to learn that the judge does not intend to impose the agreed-upon sentence, to be advised regarding what the sentence would be, and given an opportunity to withdraw from the plea agreement . . . . In a case where the prosecutor has lowered the charges against the defendant B reducing either the number of counts charged or the level of those charges B with the understanding of a certain minimum sentence, the agreement is conditioned upon imposition of the specified sentence. Were a court allowed to maintain its acceptance of the plea over the prosecutor's objection, it would effectively assume the prosecutor's constitutional authority to determine the charge or charges a defendant will face.
Therefore, the trial court's exclusive authority to impose sentence does not allow it to enforce only parts of a bargain. A court may not keep the prosecutor's concession by accepting a guilty plea to reduced charges, and yet impose a lower sentence than the one for which the prosecutor and the defendant bargained. Accepting a plea to a lesser charge over the prosecutor's objection impermissibly invades the constitutional authority of the prosecutor. When a court receives information that in its judgment dictates a lower sentence, it must alert the prosecutor of the sentence it intends to impose and allow the prosecutor to withdraw from the plea.

Id., 450 Mich. at 510-11; 537 N.W.2d at 895-96 (internal citations omitted).

         The Michigan Court of Appeals stated that in petitioner's case ''a sentence in defiance of a sentencing agreement is deemed invalid if the court does not follow the procedure outlined in Siebert.'' Parker, 2016 WL 6905723, at *4. The Court of Appeals concluded that plain error occurred at petitioner's sentencing, that a remand was necessary, and that a ''remand for sentencing in the face of an invalid sentence does not violate double jeopardy principles.'' Id. The Court of Appeals stated that, on remand, petitioner could

elect to ''reaffirm'' his plea agreement, ask the trial court for specific performance of the sentencing agreement, and accept a sentence of 122 to 15 years. See People v. Killebrew, 416 Mich. 189, 209B210; 330 N.W.2d 834 (1982). Alternatively, the prosecution may accede to the sentence imposed, essentially entering into a new sentencing agreement. Should the prosecutor persist, defendant or the trial court may decline to abide by the sentence agreement. The court must then allow the prosecution an opportunity to withdraw the plea agreement. Id. at 510. If the agreement is withdrawn, ''the case may proceed to trial on any charges that had been brought or that could have been brought against the defendant if the plea had not been entered.'' MCR 6.312.

Id. Petitioner appealed to the Michigan Supreme Court. On May 10, 2017, that court denied leave to appeal because it was not persuaded to review the issues. See People v. Parker, 894 N.W.2d 546 (Mich. 2017).

         On June 20, 2017, petitioner commenced the instant action by filing a habeas corpus petition and a motion to stay the state trial court's anticipated proceeding on remand. On June 21, 2017, petitioner filed an amended petition and an amended motion for a stay of the state court proceeding.

         Respondent recently filed an answer to the habeas petition and the amended motion for a stay. He contends that (1) the state appellate court's finding that petitioner's sentence was invalid does not present a cognizable claim on federal habeas review; (2) the state appellate court reasonably rejected petitioner's double jeopardy claim; and (3) the State's appeal was not vindictive, such that it deprived petitioner of due process. Respondent urges the court to deny petitioner's habeas petition and his motion for a stay.

         On August 2, 2017, petitioner filed a motion for discovery and a reply to respondent's answers to his petition and motion for a stay. He contends that respondent misapprehends his claims, argues inapplicable law, and misstates the record.

         II. Preliminary Issues

         Two initial issues must be addressed: the doctrine of ripeness ...


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