United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER (1) DENYING PETITION FOR WRIT OF
HABEAS CORPUS, AND (2)DENYING CERTIFICATE OF
CARAM STEEH, UNITED STATES DISTRICT JUDGE.
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it was rescinded.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
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.
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.
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.
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
was then convicted of the charged offenses after an eight-day
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.
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.
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.
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 ...