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Livingston v. Campbell

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

December 6, 2017

HAROLD STEVEN ANTHONY LIVINGSTON, Petitioner,
v.
SHERMAN CAMPBELL, Respondent.

          OPINION AND ORDER DENYING THE PETITION FOR WRIT OF HABEAS CORPUS, DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY, AND GRANTING LEAVE TO APPEAL IN FORMA PAUPERIS

          HON. JOHN CORBETT O'MEARA UNITED STATES DISTRICT JUDGE.

         Petitioner Harold Steven Anthony Livingston, a state prisoner confined at the Central Michigan Correctional Facility in St. Louis, Michigan, seeks a writ of habeas corpus under 28 U.S.C. § 2254. Petitioner challenges his plea-based convictions and sentence of seven to twenty years for two counts of bank robbery. He argues that his guilty plea was not voluntary or knowing, his trial attorney was ineffective, and his sentence was based on inaccurate information. The State urges the Court to deny the petition on grounds that Petitioner's claims are unexhausted, not cognizable on habeas review, or meritless. Having reviewed the pleadings and state-court record, the Court concludes that Petitioner's claims lack merit and do not warrant habeas relief. Accordingly, the petition will be denied.

         I. Background

         A. The Plea, Sentence, Post-Conviction Proceedings, and Appeal

         Petitioner was charged in five separate cases with armed robbery or bank robbery. On March 3, 2014, he pleaded guilty in Wayne County Circuit Court to two counts of bank robbery. In return, the prosecution promised to dismiss the other counts charging Petitioner with armed robbery or bank robbery, and the parties agreed to a sentence of seven to twenty years in prison. 3/3/14 Pretrial Hr'g Tr., p. 4 (Dkt. 8-4).

         On March 27, 2014, the date set for sentencing, Petitioner's trial attorney asked the trial court to postpone the sentencing because Petitioner was thinking of withdrawing his guilty plea and the attorney thought that an additional visit with Petitioner might be helpful. The trial court denied the request, stating that it had heard no basis for allowing Petitioner to withdraw his plea. 3/27/14 Pretrial Hr'g Tr., pp. 3-6 (Dkt. 8-5). Petitioner then informed the trial court that his attorneys had advised him that his sentence would be two to five years in prison for the bank robbery and that he could expect a sentence of twenty years for each count if he did not plead guilty. Id., p. 9. Petitioner stated that he was taking psychiatric medication and that he had not understood what was happening at the time. Id. He also indicated that he was under duress when he signed the plea agreement and that he had merely meant to ask for leniency. He said that he did not have the discovery package and that he did not understand what the charges were. Id.

         Although Petitioner also denied being informed of a plea offer on January 3, 2014, the trial court stated that it had a record of the previous offers in the case and that the offer on January 3, 2014, called for a guilty plea to two counts of armed robbery, dismissal of all the other cases, and a sentence of eight to twenty years in prison. Id., pp. 9-11. Petitioner then admitted that he had rejected the offer because he had wanted to plead guilty to bank robbery, not armed robbery. Id., p. 11. When the trial court stated that it intended to proceed with the sentencing, Petitioner apologized to the court, the banks, and the tellers for what he had done, and he explained that his drug problem was the reason he had committed the robberies. Id., p. 12. The court then sentenced Petitioner, pursuant to the plea and sentencing agreement, to two concurrent terms of seven to twenty years in prison. The court also dismissed the other three cases against Petitioner. Id., pp. at 13-14.

         Petitioner later attempted to re-negotiate his sentence of seven to twenty years on the basis that he was taking psychotropic medication when the plea was taken and that he did not understand the plea agreement. The prosecution refused to re-negotiate the parties' agreement, and the trial court denied Petitioner's request for relief. 7/17/14 Mot. Hr'g, Tr., pp.3-5 (Dkt. 8-6).

         Petitioner subsequently filed a motion to correct the sentence or to re-score the sentencing guidelines. The trial court denied Petitioner's motion on grounds that the motion was untimely, the sentence was correct, and the court had no jurisdiction to correct a valid sentence. 10/31/14 Mot. Hr'g Tr., pp. 3-7 (Dkt. 8-7).

         Petitioner appealed his convictions on the basis that the trial court had abused its discretion when it denied his motion to correct the sentence and to withdraw his guilty plea. The Michigan Court of Appeals denied leave to appeal “for lack of merit in the grounds presented.” See People v. Livingston, No. 324743 (Mich. Ct. App. Jan. 5, 2015). Petitioner raised the same issue in the Michigan Supreme Court, which denied leave to appeal on June 30, 2015, because it was not persuaded to review the issue presented to it. See People v. Livingston, 864 N.W.2d 577 (Mich. 2015).

         B. The Habeas Petition and Responsive Pleading

         On August 31, 2015, Petitioner filed his habeas corpus petition. He argues that: (1) his plea was not a voluntary and knowing act because he was under the influence of psychotropic medication at the time; (2) trial counsel was ineffective for exposing him to a harsher sentence by suggesting an increase in the score for two offense variables of the sentencing guidelines; (3) trial counsel was ineffective for allowing him to enter a guilty plea while he was under the influence of psychotropic medication; and (4) the trial court sentenced him on the basis of inaccurate information.

         The State argues in its answer to the petition that Petitioner did not exhaust state remedies for his first claim regarding the voluntariness of his guilty plea or his third claim regarding trial counsel's decision to allow Petitioner to plead guilty. The doctrine of exhaustion of state remedies requires habeas petitioners to fairly present the factual and legal basis for each of their claims to the state court of appeals and to the state supreme court before raising the claims in a federal habeas petition. See 28 U.S.C. § 2254(b)(1); Wagner v. Smith, 581 F.3d 410, 414-15 (6th Cir. 2009). The exhaustion rule, however, is not a jurisdictional requirement, Castille v. Peoples, 489 U.S. 346, 349 (1989), and Petitioner's claims are plainly meritless. Accordingly, the Court will proceed to address Petitioner's claims rather than to dismiss the petition for Petitioner's alleged failure to exhaust state remedies for all his claims. See Hickey v. Hoffner, __ F. App'x __, __, No. 16-1186, 2017 WL 2829523, at *4 (6th Cir. June 30, 2017) (stating that, if the petitioner's unexhausted claims were plainly meritless, the Court of Appeals would affirm the district court's decision denying them as such).

         II. Standard of Review

         “The statutory authority of federal courts to issue habeas corpus relief for persons in state custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).” Harrington v. Richter, 562 U.S. 86, 97 (2011). Pursuant to ยง 2254, the Court may not grant a state prisoner's application for the ...


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