United States District Court, E.D. Michigan, Southern Division
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND
DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY
CARAM STEEH UNITED STATES DISTRICT JUDGE.
Henry Bush has filed a pro se petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254, challenging
his conviction for possession with intent to deliver between
50 and 450 grams of cocaine. Petitioner, who is presently
incarcerated at the Muskegon Correctional Facility in
Muskegon, Michigan, seeks habeas relief on the ground that he
received ineffective assistance of counsel. For the reasons
set forth, the Court denies the petition.
was charged in Wayne County Circuit Court with possession
with intent to deliver 50 to 450 grams of cocaine and being a
fourth habitual offender. On May 2, 2014, Petitioner pleaded
guilty to the drug charge in exchange for dismissal of the
habitual offender notice and with a sentence agreement of 7
to 20 years. The sentence agreement also provided that the
prosecutor would consider a request that Petitioner should be
sentenced to 5 to 20 years based upon Petitioner's
cooperation between the plea and sentencing.
sentencing, Petitioner moved to withdraw his plea because the
prosecutor declined to recommend a sentence of 5 to 20 years,
having determined Petitioner's cooperation insufficient
to warrant a downward adjustment. The trial court held that
Petitioner knew at the time he entered the plea that he was
not guaranteed a sentence of 5 to 20 years and that the
assessment of Petitioner's degree of cooperation was
entirely within the prosecutor's discretion. Petitioner
was sentenced in accordance with the plea agreement to 7 to
20 years imprisonment.
filed an application for leave to appeal in the Michigan
Court of Appeals raising two claims for relief: (i) the trial
court erred in denying motion to withdraw plea; and (ii)
trial counsel was ineffective in failing to investigate
Petitioner's degree of cooperation with police. The
Michigan Court of Appeals denied leave to appeal for
“lack of merit in the grounds presented.”
People v. Bush, No. 324935 (Mich. Ct. app. Feb. 4,
2015). The Michigan Supreme Court also denied leave to
appeal. People v. Bush, 498 Mich. 873
then filed the pending habeas corpus petition. He raises this
Bush was denied the effective assistance of counsel when his
counsel did not have all the facts necessary to argue for a
reduced sentence at his sentencing.
Standard of Review
of this case is governed by the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”). Under the
AEDPA, a state prisoner is entitled to a writ of habeas
corpus only if he can show that the state court's
adjudication of his claims -
(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States;
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.
28 U.S.C. § 2254(d).
decision of a state court is “contrary to”
clearly established federal law if the state court arrives at
a conclusion opposite to that reached by the Supreme Court on
a question of law or if the state court decides a case
differently than the Supreme Court has on a set of materially
indistinguishable facts. Williams v. Taylor, 529
U.S. 362, 405 (2000). An “unreasonable
application” occurs when “a state court decision
unreasonably applies the law of [the Supreme Court] to the
facts of a prisoner's case.” Id. at 408.
“[A] federal habeas court may not issue the writ simply
because that ...