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Davis v. MacKie

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

January 12, 2018

RICHARD ALLEN DAVIS, Petitioner,
v.
THOMAS MACKIE, Respondent.

          OPINION

          Paul L. Maloney United States District Judge.

         This is a habeas corpus action brought by a state prisoner under 28 U.S.C. § 2254. Promptly after the filing of a petition for habeas corpus, the Court must undertake a preliminary review of the petition to determine whether “it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court.” Rule 4, Rules Governing § 2254 Cases; see 28 U.S.C. § 2243. If so, the petition must be summarily dismissed. Rule 4; see Allen v. Perini, 424 F.2d 134, 141 (6th Cir. 1970) (district court has the duty to “screen out” petitions that lack merit on their face). A dismissal under Rule 4 includes those petitions which raise legally frivolous claims, as well as those containing factual allegations that are palpably incredible or false. Carson v. Burke, 178 F.3d 434, 436-37 (6th Cir. 1999). After undertaking the review required by Rule 4, the Court concludes that the petition must be dismissed because it fails to raise a meritorious federal claim.

         Discussion

         I. Factual allegations

         Petitioner Richard Allen Davis is incarcerated with the Michigan Department of Corrections at Kinross Correctional Facility (KCF) in Kincheloe, Michigan. On January 12, 2015, in the Clinton County Circuit Court, Petitioner entered a plea of nolo contendere to a charge of first-degree criminal sexual conduct, Mich. Comp. Laws § 750.520b(1)(a). (Plea Tr., ECF No. 2-2.) On December 15, 2015, the court imposed a sentence of 10 to 25 years' imprisonment. (J. of Sentence, ECF No. 2-6.)

         Petitioner entered his plea under the terms of an agreement struck with the prosecutor on the date of the plea. In exchange for Petitioner's plea, the prosecutor agreed to dismiss a second count of first-degree criminal sexual conduct and a notice regarding Petitioner's status as a habitual offender-second offense in that case, as well as two other first-degree criminal sexual conduct charges in two other cases pending in Clinton County Circuit Court. (Plea Tr., ECF No. 2-2, PageID.270.) The prosecutor also agreed to recommend, under People v. Killebrew, 330 N.W.2d 834');">330 N.W.2d 834 (Mich. 1982), [1] an initial sentence within “the appropriately run guidelines.” (Id.)

         In Michigan, unless the only punishment prescribed by law for an offense is life imprisonment, the court imposing sentence must fix a minimum term of imprisonment and a maximum term; however, the maximum penalty provided by statute is the maximum term. Mich. Comp. Laws §§ 769.8, 769.9. For some offenses, the maximum penalty is fixed. See, e.g., Mich. Comp. Laws § 750.88 (assault with intent to rob; unarmed-15 years). For other offenses, including the first-degree criminal sexual conduct offense of which Petitioner was convicted, the maximum penalty is life or any term of years. Mich. Comp. Laws § 750.520b(2). Thus, the trial court has discretion to impose a maximum penalty. Mich. Comp. Laws § 769.9(2). In this instance, however, because of Petitioner's age and the age of his victim, the court could not impose a maximum penalty less than 25 years. Mich. Comp. Laws § 750.520b(2)(b).

         The minimum penalty is typically within the discretion of the court as well;[2]however, until recently, [3] with certain limited exceptions, the court could only exercise that discretion within a range provided by Michigan's sentencing guidelines, Mich. Comp. Laws §§ 777.1-777.69. The guidelines call for consideration of variables relating to the defendant's prior criminal record and the offense. Assessment of those variables generates a score with respect to the defendant's prior record and a score with respect to the offense. Using those scores, one can identify the appropriate minimum sentence range on grids provided by statute. Mich. Comp. Laws §§ 777.61-777.69.

         Petitioner's counsel and the prosecutor “ran” the guidelines to facilitate an assessment of the consequences of the plea by Petitioner. (Mot. Hr'g Tr. I, ECF No. 2-3, PageID.288-292.) They concluded that Petitioner's guidelines range would be 6 years, 9 months to 12 years. (Id., PageID.299-300, 315-316.) Petitioner's counsel cautioned Petitioner, however, that the calculation was preliminary and subject to determination by the court. (Id., PageID.299-300, 303, 306, 313-314.)

         Petitioner took the deal. He entered his nolo contendere plea that day.[4] Petitioner acknowledged the terms of the plea during the hearing: he would enter a plea of no contest to Count 1 in file number 14-9287-FH; in exchange for that plea, the prosecutor would dismiss Count 2 in file number 14-9287-FH as well as the habitual offender notice and all charges in the other two cases. (Id., PageID.270-271.) The only agreement regarding sentence was that it would be “Killebrewed” to “the appropriately run guidelines.” (Id.)

         The prosecutor read the charge and the maximum punishments: “life or any term of years in the Department of Corrections and mandatory AIDS/STD testing and sexual offender registration.” (Id., PageID.271.) Petitioner acknowledged the charge and the maximum punishments. (Id.) The court informed Petitioner that it would consider everything in Petitioner's history, good and bad alike, in looking for a fair sentence within the maximums. (Id., PageID.272.) Petitioner acknowledged that there were no threats and no promises that induced him to give up the rights he was yielding by entering his plea. (Id., 273-274.) The court specifically informed Petitioner that the court had not agreed on any particular sentence with anyone. (Id., PageID.275.)

         Before the initially scheduled sentencing hearing, Petitioner and his counsel learned that the calculated guidelines far exceeded the estimate calculated by Petitioner's counsel and the prosecutor. The minimum range jumped to 14 years, 3 months to 23 years, 9 months. (Mot. Hr'g Tr., ECF No. 2-3, PageID.309.) The principal reason for the change was the inclusion of a 1989 conviction for assault with intent to commit criminal sexual penetration conviction in Petitioner's prior record. (Id.) The prosecutor and defense counsel were aware of the conviction when they calculated the guidelines; but, it was sufficiently old that they believed it would not be counted under the guidelines. They did not know, and Petitioner did not tell them, that Petitioner had an intervening 1995 misdemeanor conviction for driving on a suspended license that served as a bridge to permit the inclusion of the 1989 conviction.

         Petitioner moved to withdraw his plea. The court heard testimony from Petitioner's counsel, who had withdrawn by that time; Petitioner's girlfriend, who had sat in on the plea discussion; and Petitioner. Petitioner has attached the transcripts of the hearings on the motion to withdraw as Exhibits 3 and 4 to his petition. (Mot. Hr'g Tr. I & Mot. Hr'g Tr. II, ECF Nos. 2-3 and 2-4.)

         Petitioner contended his plea was rendered involuntary by the gross discrepancy between the sentence that he contemplated when entering his plea and the sentence as calculated for sentencing. Petitioner's argument is premised on his claim that he misunderstood the plea in two significant respects. First, Petitioner believed that the range of 6 years, 9 months to 12 years was an established part of the agreement. Second, Petitioner believed that 6 years, 9 months was the minimum sentence and 12 years was the maximum sentence. According to Petitioner, he entered a plea expecting that he might get out of prison perhaps as soon as 6 years, 9 months, but that he certainly would get out after no longer than 12 years. Thus, Petitioner's expectations were frustrated not only at the minimum end of his sentence which jumped from 6 years, 9 months to perhaps as long as 23 years, 9 months, but also at the maximum end which jumped from 12 years to perhaps as long as life imprisonment.

         On November 23, 2015, the trial court judge entered an opinion and order denying Petitioner's motion to withdraw his plea. (Op. & Ord., ECF No. 2-5.) Essentially, the court found Petitioner's claimed misunderstandings incredible. (Id., PageID.432) (“In short, the testimony of Ms. Johnson and Mr. Davis relating to their conversations with [Petitioner's counsel] before the plea was offered is not accepted as an accurate rendition of those exchanges.”).

         Although Petitioner's exposure was significantly greater than he expected, his actual sentence was not. The trial court sentenced Petitioner on December 15, 2015, to 10 to 25 years. (J. of Sentence, ECF No. 2-6.) The maximum sentence imposed was the lowest possible sentence the court could impose given the statutory mandate. Mich. Comp. Laws § 750.520b(2)(b). The minimum sentence represented a discretionary downward departure from the range provided by the guidelines.

         Nonetheless, Petitioner sought leave to appeal in the Michigan Court of Appeals and then the Michigan Supreme Court. Those courts denied leave on June 6, 2016, and December 28, 2016, respectively. (Mich. Ct. App. Ord., ECF No. 2-7; Mich. Ord., ECF No. 2-8.)

         On December 19, 2017, Petitioner filed his habeas corpus petition raising the same two grounds for relief he had raised in the state appellate courts:

I. The Michigan trial court unreasonably applied clearly established federal law, where it concluded that Petitioner's plea was knowingly and understandingly made where the court analyzed what Petitioner was told but completely failed to consider Petitioner's subjective misunderstanding (which caused him to enter his plea unknowing of ...

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