United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER (1) DENYING RESPONDENT'S MOTION
TO DISMISS [Dkt. 11], (2) DENYING PETITION FOR WRIT OF HABEAS
CORPUS [Dkt. 1], (3) DENYING CERTIFICATE OF APPEALABILITY,
AND (4) DENYING PERMISSION TO APPEAL IN FORMA
D. Borman United States District Judg.
a habeas case filed by a Michigan prisoner under 28 U.S.C.
§ 2254. Petitioner Karey Rose pled guilty in the Oakland
Circuit Court to three counts of armed robbery, Mich. Comp.
Laws § 750.529, one count of first-degree home invasion,
Mich. Comp. Laws § 750.110a, three counts of unlawful
imprisonment, Mich. Comp. Laws § 750.349b, one count of
felon in possession of a weapon, Mich. Comp. Laws §
750.224f, one count of unlawful driving away of an
automobile, Mich. Comp. Laws § 750.413, and eight counts
of possession of a firearm during the commission of a felony
(felony-firearm), Mich. Comp. Laws § 750.227b. As a
result of these convictions, Petitioner was sentenced as a
fourth-time habitual felony offender to a controlling term of
45-to-75 years' imprisonment for the armed robbery
convictions, lesser concurrent terms for the other
convictions, and consecutive two-year terms for the
se petition raises four claims: (1) the trial court erred in
denying Petitioner's motion to withdraw his guilty plea,
(2) Petitioner was denied his right to be present at a
post-conviction hearing, (3) Petitioner's plea was
coerced by an unfulfilled promise of a more lenient sentence,
(4) the trial court committed misconduct by participating in
the plea negotiations.
filed a motion to dismiss the petition on the grounds that
Petitioner's second, third, and fourth claims are
unexhausted because they were not presented to the Michigan
Court of Appeals during his direct appeal. Despite
Petitioner's failure to exhaust his state court remedies
with respect to these claims, the petition will be denied
because all of Petitioner's claims lack merit. The Court
will also deny Petitioner a certificate of appealability and
deny permission to proceed on appeal in forma pauperis.
charges against Petitioner arose after he and another
individual broke into the home of a family on the night of
January 14, 2015. The two men were armed with guns and
wearing masks. They restrained the family members, which
included two young children, and stole items from the home.
The two men drove away in a car belonging to the victims.
Police officers located Petitioner's accomplice, Keith
Singler, by tracking one of the cell phones stolen from the
residence. Singler made statements implicating Petitioner
during police questioning.
pretrial hearing held on May 21, 2015, Petitioner's trial
counsel indicated that the parties had calculated the
sentencing guideline range for the offenses. Dkt. 12-3, at 3.
The trial court then indicated that it had “an
exhaustive discussion with counsel at the bench in connection
with this case.” Id., at 4. The court
indicated that it was making a Cobbs evaluation that
the sentence would not exceed the bottom two-thirds of the
sentencing guideline range. Id. The court also
indicated that Petitioner faced mandatory consecutive
two-year terms for the felony-firearm offenses. Id.,
court indicated that at the time of sentencing it was
possible that it would go below the Cobbs
evaluation, but it did not foresee doing so. Id., at
7. The court stated, “This is obviously a very serious
case. I'm going to want to hear from - Mr. Weiner gave me
a bunch of facts that certainly support a more lenient
sentence from Mr. Rose, the People have given me some facts
to be on the more strict side, and I wanted to be able to
look at the victim's impact statement, his prior history,
how he's done on parole, all those things.”
Id., at 7.
counsel asked Petitioner if he wished to proceed with the
plea, and Petitioner indicated his desire for more time to
consider his options. Id., at 7-8. The court
scheduled a pre-trial hearing for the next week.
Id., at 8.
week later, on May 28, 2015, Petitioner indicated his desire
to enter a guilty plea. Dkt. 12-4, at 3. Petitioner was
placed under oath. Id., at 4. He indicated that he
was twenty-six years old, and that he could read and write.
Id. Petitioner indicated his satisfaction with his
counsel's advice. Id. Petitioner stated that he
had two years of college. Id., at 5.
court read the twenty-one felony counts and the maximum
penalties for each charge. Id., at 5-8. Petitioner
was informed that his two-year felony-firearm sentences would
be served consecutively with his other sentences and that the
court had discretion to impose consecutive sentences for the
other charges a well. Id., at 8-9. Petitioner
indicated his understanding. Id., at 9.
court again explained its Cobbs evaluation that any
term of incarceration would not exceed the bottom two-thirds
of the guideline range, and it again explained that no
promises were being made with respect to whether the
sentences would be concurrent or consecutive. Id.,
at 9-10. Petitioner indicated his understanding.
Id., at 10.
court then informed Petitioner of all of the trial and
appellate rights he would be waiving by entering a guilty
plea. Id., at 10-12. Petitioner indicated his
understanding. Id. Petitioner then affirmed his
understanding that by pleading guilty he would be giving up
any claim that the plea was the result of promises or threats
that were not disclosed to the court. Id., at 11.
Petitioner denied that anyone had threatened him or placed
pressure on his to make him plea guilty. Id., at 12.
Petitioner indicated that he was not promised anything that
was not disclosed on the record. Id. Petitioner
stated that it was his own choice to plead guilty.
then testified that the offense occurred in West Bloomfield
in Oakland County on January 14, 2015. Id., at
11-13. Petitioner testified that he entered a home with
another individual for the purpose of committing a larceny.
Id., at 13. Petitioner entered the home through an
open door located in the garage, and he was armed with a
pistol. Id., at 14. Petitioner took computers,
electronics, jewelry, a cell phone, and a wallet from the
home. Id., at 15. Petitioner and his accomplice
restrained the five family members while they were in the
home. Id., at 16-17. Petitioner admitted that he had
at least four prior felony convictions. Id., at
attorneys acknowledged that there was no plea agreement, but
there was a representation by the Court pursuant to
Cobbs as to Petitioner's possible sentence.
Id., at 20. The attorneys stated that they were not
aware of any promises, threats or other inducements other
than those placed on the record to induce Petitioner's
plea. Id. The court found that Petitioner's
guilty plea was understanding, voluntary, and accurate.
Id., at 21.
sentencing hearing Petitioner voiced concern after he was
informed that he would be required to register as a sex
offender. Dkt. 12-5, at 10. The trial court explained that it
was a required term for his conviction of restraining a minor
child. Id., at 11-12. The court sentenced Petitioner
under the terms of the Cobbs evaluation to 45-to-75
years' imprisonment for the armed robbery convictions,
lesser concurrent terms for the other convictions, and
consecutive two-year terms for the felony-firearm
convictions. Id., at 28.
March 23, 2016, through appointed appellate counsel,
Petitioner moved to withdraw his guilty plea. Counsel argued
that Petitioner was never informed by his trial counsel or by
the court that he would be required to register as a sex
offender as a result of his pleading guilty to two counts of
restraining a child, and therefore he should be allowed to
withdraw his guilty plea with respect to all of the charges.
Dkt. 12-6, at 3. The prosecutor argued that the remedy should
be to allow Petitioner to withdraw his plea only with respect
to the two offenses at issue. Id., at 10. The court
accepted the prosecutor's argument, and it set aside the
two counts requiring sex offender registration and the two
corresponding felony-firearm counts. Id., at 11-12.
The court found that Petitioner's guilty plea with
respect to the other counts was otherwise valid. Id.
appellate counsel then filed a delayed application for leave
to appeal in the Michigan Court of Appeals, raising the
I. Mr. Rose's attorney failed to advise him that if he
pleaded guilty to unlawful imprisonment, he would be required
to register as a sex offender, therefore his plea was not a
knowing and “understanding” plea. Mr. Rose's
attorney failed to render effective assistance of counsel by
failing to advise him that if he pleaded ...