United States District Court, E.D. Michigan, Southern Division
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
JOHN CORBETT O'MEARA UNITED STATES DISTRICT JUDGE.
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.
The Plea, Sentence, Post-Conviction Proceedings, and
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).
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.
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.
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).
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).
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.
The Habeas Petition and Responsive Pleading
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.
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).
Standard of Review
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 §
2254, the Court may not grant a state prisoner's
application for the ...