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Bush v. Bauman

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

November 16, 2017

HENRY BUSH, Petitioner,
v.
CATHERINE S. BAUMAN, Respondent.

          ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY

          GEORGE CARAM STEEH UNITED STATES DISTRICT JUDGE.

         Petitioner 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.

         I. Background

         Petitioner 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.

         At 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.

         Petitioner 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 (Mich. 2015).

         Petitioner then filed the pending habeas corpus petition. He raises this claim:

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.

         II. Standard of Review

         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; or
(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).

         A 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 ...


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