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Fox v. Brewer

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

September 22, 2017

SHAWN BREWER, Respondent.



         This is a habeas case filed by a Michigan prisoner under 28 U.S.C. § 2254. Petitioner Jason Michael Fox was convicted after a jury trial in the Wayne Circuit Court of first-degree home invasion, Mich. Comp. Laws § 750.110a(2), possession of burglary tools, Mich. Comp. Laws § 750.116, larceny in a building, Mich. Comp. Laws § 750.360, and assault, Mich. Comp. Laws § 750.81(1). Petitioner was sentenced to a 10 to 20 year term for the first-degree home invasion conviction and lesser concurrent terms for his other convictions. The petition raises two claims: (1) the trial court erred in denying Petitioner's motion to adjourn trial so that he could conduct plea negotiations, and (2) Petitioner's trial counsel was ineffective for failing to advise Petitioner to accept the prosecutor's plea offer before it was rescinded. The Court finds that Petitioner's claims are without merit. Therefore, the petition will be denied. The Court will also deny a certificate of appealability.

         I. Background

         The charges against Petitioner arose after he broke into the home of Jason Wright at night. Wright was in bed with Petitioner's former girlfriend. Petitioner was wearing a mask and was apprehended by police officers after he charged at them with a baseball bat. Police found Petitioner in possession of his former girlfriend's purse and Wright's car keys.

         The pretrial hearing transcripts indicate that Petitioner's trial counsel hoped to resolve the case by negotiating a plea deal. At the beginning of a May 3, 2012, pretrial hearing held on the admissibility of Petitioner's statement to police, defense counsel indicated his “hope to work this thing out.” Dkt. 5-4, at 5. At an October 16, 2012, pretrial hearing regarding Petitioner's competency, defense counsel again stated, “I think we're going to be in a resolution phase because it's tied in with the idea or with the issue of independent psychiatric evaluation.” Dkt. 5-6, at 2.

         At that same hearing the prosecutor divulged the state of plea negotiations, stating that contrary to defense counsel's representations, it appeared no deal would be reached: “Judge, we have met several times since this case came to this courtroom. Back when I was in the courtroom as the courtroom prosecutor, and recently we met with my supervisor, Mr. Elsey [defense counsel], and I met with my supervisor on this case, Lisa Coyle, after we were here in court last. And it seems [to] me that we are just [at] an impasse. Mr. Elsey wants a misdemeanor with probation, and Mr. Fox's guidelines start at seventy-two months, which that's six years. . .” Id., at 5.The prosecutor stated, “if Mr. Elsey is not willing to consider jail or prison, we can't do anything.” Id., at 6. Defense counsel later stated, “I just want to finish my negotiations.” Id., at 9. The court set a trial date of February 19, 2013. Id., at 10.

         On the first day of trial defense counsel moved to adjourn the case so that he could continue plea negotiations. Dkt. 5-7, at 5. The prosecutor, however, stated that it had rescinded its plea offer and was taking the case to trial: “Last week, we agreed to a home invasion in the first degree plea for the defendant, and we would dismiss the balance of the charges. We believe the guideline range to be within twenty-four to forty months. We withdrew that offer as of this morning, and Mr. Elsey was aware of that.” Id., at 7. Defense counsel indicated that he requested an adjournment because the trial judge had not been available the week prior to trial. Id., The trial court indicated that defense counsel had known that it would not be available the week before trial, and it concluded that there was no point in adjourning the case as the parties “just couldn't come to an agreement.” Id., at 9. The trial court stated, “I'm not going to adjourn the trial to see if you can negotiate something else. They gave you their last offer.” Id., at 9. Defense counsel asked for the trial court to do a sentencing evaluation to aid in negotiations, but court refused the request, stating there was no point because he would not go underneath the guidelines. Id., at 10.

         Petitioner was then convicted of the charged offenses after an eight-day jury trial.

         At the sentencing hearing, among other things, Petitioner's counsel suggested that a lenient sentence was warranted because the prosecutor did not “accept the recommendation of its own attorneys, Mr. Bill Heaphy, and others, as to a further [plea] negotiation.” Dkt. 5-15, at 45. The prosecutor responded by describing defense counsel's efforts at securing a plea deal during the week before trial, and that Petitioner had been asking for “a misdemeanor. No one in my office was wiling to give him misdemeanor.” Id., at 51. The prosecutor indicated that she was authorized only “to offer a home invasion first degree.” Id.

         After sentencing, Petitioner filed a motion for new trial, asserting among other claims that the trial court erred in denying the motion to adjourn and that defense counsel was ineffective in handling the plea negotiations. See Dkt. 5-16. Trial counsel argued the motion and he recounted his efforts at going up the chain of command in the prosecutor's office to obtain a plea deal in light of Petitioner's mental illness. Id., at 6-7. He stated that finally on the morning of trial Petitioner was willing to accept the plea offer with a minimum sentence of two years, and he was looking for a “one day extension” of the prosecutor's offer, but it had been rescinded. Id., at 7-8.

         The trial court stated that it had properly denied the adjournment request because the prosecutor was no longer open to a plea agreement, and therefore there was no basis for prolonging plea negotiations. Id., at 8-11. Trial counsel then argued that he was therefore ineffective for failing to finalize a plea bargain prior to trial. Id., at 11. He claimed that there was an acceptance of a deal of the deal on the date of trial, and that an adjournment would have facilitated a guilty plea. Id., at 11-12. The trial court responded that an adjournment would not have resulted in a plea: “There's no proof that that would have happened. You have advanced nothing in the record that that would have happened. . . . There was no offer at the time of trial. . . . You can't create something that didn't exist.” Id., at 12-13.

         At a subsequent hearing, the trial court placed further facts regarding pretrial plea negotiations on the record when it denied Petitioner's motion for new trial:

The Defendant had ample time to accept that offer prior to February 15, 2013, a week before the trial, the higher ranks of supervisory chain in the Prosecutor's Office had deferred the settlement offer decision to attorney Lisa Coyle -- March 19, 2013, transcript page 51.
On February 11, 2013, Miss Coyle offered to accept a guilty plea from the Defendant as to one Count of home invasion. The Defendant's desire was for a misdemeanor charge, so the offer was not accepted. The Defendant was advised that any plea would not be accepted on the day of trial -- March 19, 2013, transcript at page 51. Later that week the Defendant indicated he was interested in accepting the offer. Because the trial judge was not available, the Prosecutor offered to take the file to Judge Craig Strong who was Judge Boykin's alternate to accept a plea.
Defense Counsel requested that the file be taken instead to Chief Judge Timothy Kenny. In front of Judge Kenny, Defendant chose to request an adjournment of the trial rather than accept the plea, as he indicated he would. Transcript of March 19, 2013, page 52.
The adjournment was denied, and the Defendant was told again that no plea would be accepted on the date of trial. Transcript dated March 19, 2013, at page 52.
The Defendant through his counsel continued to try to negotiate a plea offer to a misdemeanor, diversion, or probation. That offer never came and, as promised, on the date of trial all offers were rescinded.
Even during argument on May the 23rd, 2013, it was acknowledged by Defense Counsel on the record that as of the date of trial there was no plea offer in existence.
The Defendant's Counsel did not accept the plea offer and chose to seek a better offer either through the Prosecutor or by requesting a Cobb's evaluation from the trial court on the date of trial. The fault for not accepting a plea offer is with the Defendant, not the Prosecution, or the Court.
The Defendant's motion filed on the date of trial indicated that he was seeking more time, not to accept the Prosecutor offer but to request a Cobb's evaluation from the trial judge. Rather than accept the sentence agreement of a guideline sentence, the Defendant hoped that the trial judge would agree to a sentence below the guideline. Transcript of February 19, 2013, page 9.
The trial judge on the record indicated that no such evaluation would be made. Continuously, the Defendant always sought a more favorable deal as he was free to do. It was within the prerogative of the Prosecution not to divert from the original offer.
There was no denial by the Prosecutor for the Defendant to accept the plea offer it had made. The offer was made well in advance of trial. The Defendant chose not to accept it, and took chances on the ...

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