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Rose v. Bauman

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

January 24, 2018

KAREY ROSE, Petitioner,
v.
CATHERINE BAUMAN, Respondent.

          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 PAUPERIS

          Paul D. Borman United States District Judg.

         This is 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 felony-firearm convictions.

         The pro 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.

         Respondent 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.

         I. Background

         The 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.

         At a 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[1] 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., at 5.

         The 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.

         Defense 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.

         One 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.

         The 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.

         The 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.

         The 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. Id.

         Petitioner 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 18-19.

         The 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.

         At the 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.

         On 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.

         Petitioner's appellate counsel then filed a delayed application for leave to appeal in the Michigan Court of Appeals, raising the following claims:

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 ...

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