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Leonard v. Ebbert

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

March 1, 2018

MAURICE LEONARD, #42080-039, Petitioner,
v.
DANIEL J. EBBERT and BILL SCHUETTE, Respondents.

         OPINION AND ORDER GRANTING THE STATE'S MOTION TO DISMISS [9], DENYING PETITIONER'S MOTION TO GRANT HIS PETITION [11], DISMISSING THE HABEAS CORPUS PETITION [1], DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITTY, AND GRANTING LEAVE TO APPEAL IN FORMA PAUPERIS

          PAUL D. BORMAN UNITED STATES DISTRICT JUDGE.

         Petitioner Maurice Leonard has filed a pro se petition for the writ of habeas corpus under 28 U.S.C. § 2254 and a motion to grant his petition. The State has moved to dismiss the petition on the ground that Petitioner failed to comply with the applicable one-year statute of limitations. The Court agrees that the habeas petition is untimely. The Court also finds that Petitioner's underlying grounds for relief lack merit. Accordingly, the State's motion to dismiss the petition (ECF No. 9) is granted, Petitioner's motion to grant the petition (ECF No. 11) is denied, and the habeas petition (ECF No. 1) is dismissed with prejudice.

         I. Background

         In 2007, Petitioner was charged with state and federal crimes involving a special agent employed by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). The Government summarized the facts leading to the charges as follows:

On October 16, 2007, ATF S/A Joe Nether and Task Force Officer Talbert, acting in an undercover capacity, met with defendant Leonard at 18**9 Bentler [in Detroit, Michigan], for the purpose of purchasing narcotics. Defendant Leonard directed S/A Nether, who was equipped with an electronic recording device, to Plymouth and Greenfield streets to complete the narcotics transaction. S/A Nether gave defendant Leonard $750 of prerecorded government funds . . . which defendant Leonard exchanged with co-defendant McKinney for crack cocaine. Defendant Leonard gave the crack cocaine to S/A Nether. Defendant Leonard lured S/A Nether back to and inside the Bentler address under the ruse of having additional narcotics for purchase, to wit: marijuana, and to weigh the recently purchased crack cocaine.
Upon following defendant Leonard inside the premises, a black male later identified as Derrick Carpenter placed a gun to the back of S/A Nether's head and ordered him onto the ground. S/A Nether immediately struggled with the gunman for control of the gun. During the struggle, defendant Leonard and Williams kicked and punched the agent in an effort to prevent him from gaining control of Carpenter's gun. The agent continuously screamed for help during this encounter until supporting officers forced entry into the location. The three assailants fled the location and Carpenter was killed by a responding agent when he did not drop his weapon which was leveled at an officer. Leonard and Williams were apprehended outside the premises. The agent sustained bruises, contusions, and dental damage.

United States v. Leonard, No. 2:07-cr-20545-AJT-MKM-2 (E.D. Mich. July 22, 2008) (Government's Sentencing Memorandum, pp. 1-2, ECF No. 24).

         A. The Federal Case

         On April 1, 2008, Petitioner pleaded guilty in the federal case to the following crimes: distribution of more than five grams of crack cocaine, 21 U.S.C. § 841(a); aiding and abetting the distribution of more than five grams of crack cocaine, 18 U.S.C. § 2 and 21 U.S.C. § 841(a); aiding and abetting the assault of a federal agent, 18 U.S.C. §§ 2 and 111(b); and aiding and abetting the use of a firearm during and in relation to a crime of violence, 18 U.S.C. §§ 2 and 924(c). On July 23, 2008, another judge in this District sentenced Petitioner to three concurrent terms of ten years in prison for the cocaine and assault convictions and a consecutive term of seven years for the firearm conviction. See United States v. Leonard, No. 2-07-cv-20545-AJT-MKM-2 (E.D. Mich. July 23, 2008).

         B. The State Case

         This case concerns Petitioner's state convictions. On April 2, 2008, Petitioner pleaded guilty in Wayne County Circuit Court to: assault with intent to rob while armed, Mich. Comp. Laws § 750.89; assault with intent to commit murder, Mich. Comp. Laws § 750.83; delivery of less than 50 grams of cocaine, Mich. Comp. Laws § 333.7401(2)(a)(iv); conspiracy to commit armed robbery, Mich. Comp. Laws § 750.157a; felon in possession of a firearm, Mich. Comp. Laws § 750.224f; resisting and obstructing a police officer, Mich. Comp. Laws § 750.479; and possession of a firearm during the commission of a felony, Mich. Comp. Laws § 750.227b.[1] Petitioner pleaded guilty with the understanding that he would be sentenced in the state case after he was sentenced in the federal case, that his state and federal sentences would run concurrently with each other, and that he would serve his state sentence in federal prison. See Plea Tr., pp. 3-4, 6-7 (ECF No. 10-3); Sentence Tr., p. 23 (ECF No. 10-4).

         On August 6, 2008, the state trial court sentenced Petitioner to two years in prison for the felony-firearm conviction, followed by concurrent prison terms of thirty to sixty years for the two assault convictions, five to twenty years for the cocaine conviction, two to five years for the conspiracy and felon-in-possession convictions, and one to four years for the resisting-and-obstructing conviction. The court ordered all the state sentences to run concurrently with Petitioner's federal sentence. The court also stated that Petitioner could serve the first seventeen years of his state sentence in federal prison. See Sentence Tr., pp. 29-31 (ECF No. 10-4).

         Petitioner did not pursue a direct appeal from his convictions and sentences, and on August 6, 2009, the one-year deadline for filing an appeal expired. See Mich. Ct. Rule. 7.205(G)(3).[2] On April 9, 2013, Petitioner, through counsel, filed a motion for relief from judgment in the state trial court. See Mot. for Relief from J. (ECF No. 10-6). He claimed that he was entitled to withdraw his guilty plea because his trial attorney pressured or misled him into pleading guilty. According to Petitioner, his attorney told him that, if he pleaded guilty, he would be sentenced at the low end of the sentencing guidelines, which the attorney calculated at fourteen years, three months.

         Petitioner also asserted that he was entitled to post-conviction relief under Michigan Court Rule 6.508(D)[3] because no court had ruled on his claims, and he was precluded from raising the claims on direct appeal due to the expiration of the deadline for filing an appeal. Counsel for Petitioner explained in the motion that, although he was appointed to represent Petitioner in 2009, he was unable to communicate with Petitioner until years later, when he discovered that Petitioner was being held in a federal institution in West Virginia. Counsel further stated that, although he subsequently attempted to maintain contact with Petitioner, he was unable to do so because Petitioner was transferred to other federal facilities.

         The state trial court denied Petitioner's motion after concluding that there was no merit in Petitioner's assertions regarding the withdrawal and voluntariness of his guilty plea, and that no miscarriage of justice occurred with regard to Petitioner's plea. The court also stated that Petitioner had failed to establish “cause and prejudice” under Michigan Court Rule 6.508(D)(3). See People v. Leonard, No. 07-24234-01-FC (Wayne Cty Cir. Ct. Oct. 25, 2013) (ECF No. 10-7).[4] Petitioner appealed the trial court's decision through counsel, but the Michigan Court of Appeals denied leave to appeal because Petitioner had failed to carry his burden of establishing entitlement to relief under Rule 6.508(D). See People v. Leonard, No. 319114 (Mich. Ct. App. Jan. 15, 2014).

         Petitioner raised the same two claims and two new issues[5] in a pro se application for leave to appeal in the Michigan Supreme Court. In lieu of granting leave to appeal, the state supreme court remanded Petitioner's case to the Michigan Court of Appeals for consideration of Petitioner's appellate application under the standard applicable to direct appeals. The supreme court stated that Petitioner had been deprived of his direct appeal by appellate counsel's ineffective assistance, namely, counsel's failure to locate the correctional facility where Petitioner was incarcerated. The supreme court did not retain jurisdiction. See People v. Leonard, 497 Mich. 852 (2014).

         On remand, the Michigan Court of Appeals denied Petitioner's application for leave to appeal “for lack of merit in the grounds presented.” See People v. Leonard, No. 319114 (Mich. Ct. App. Nov. 4, 2014). Petitioner did not appeal that decision to the Michigan Supreme Court. See Resp't Mot. to Dismiss Pet. for Writ of Habeas Corpus, Ex. A (ECF No. 9).

         C. The Habeas Petitions

         On October 5, 2015, Petitioner challenged his state convictions in a federal habeas corpus petition. He claimed that his trial attorney was ineffective for advising him to plead guilty because his state sentence would be comparable to his federal sentence of seventeen years.

         The State argued in a responsive pleading filed on April 28, 2016, that Petitioner had procedurally defaulted his claim by failing to seek full appellate review of his claim in the Michigan Supreme Court following the remand to the Michigan Court of Appeals.

         On June 9, 2016, Petitioner moved to voluntarily dismiss his habeas petition without prejudice. He did not give a reason for his motion, nor explain what he intended to do next. On approximately the same date, however, Petitioner submitted an application for leave to appeal in the Michigan Supreme Court. On June 14, 2016, the Michigan Supreme Court returned his pleading unfiled because it was untimely, as it was received more than fifty-six days after the lower state court's decision from November 2014. See Resp't Mot. to Dismiss Pet. for Writ of Habeas Corpus, Ex. B (ECF No. 9).

         On August 17, 2016, this Court granted Petitioner's motion to voluntarily dismiss his first habeas petition without prejudice. In the same order, the Court informed Petitioner that, if he wished to seek federal habeas relief after exhausting his state-court remedies, he should file a new habeas petition. See Leonard v. Schuette, No. 15-13627 (E.D. Mich. Aug. 17, 2016).

         Petitioner did not pursue any additional state-court remedies after this Court dismissed his first habeas petition, and on November 20, 2016, he commenced this action. He claims as grounds for relief that (1) he was denied effective assistance of trial counsel, (2) his convictions were obtained in violation of the protection against double jeopardy, (3) he was denied his right of appeal, and (4) his convictions were obtained by a guilty plea which was unlawfully induced or involuntarily made. As noted above, the State filed a motion to dismiss the petition on the basis that the petition was not filed within the applicable statute of limitation. Petitioner replied to the State's motion by filing a motion urging the Court to proceed with his case and to grant his petition.

         II. Analysis

         A. The Statute of Limitations

         The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) established a one-year period of limitations for state prisoners to file their federal habeas corpus petitions. Wall v. Kholi, 562 U.S. 545, 550 (2011) (citing 28 U.S.C. § 2244(d)(1)); Holbrook v. Curtin, 833 F.3d 612, 615 (6th Cir. 2016) (citing § 2244(d)(1)), cert. denied sub nom. Woods v. Holbrook, 137 S.Ct. 1436 (2017). The limitations period runs from the latest of the following four dates:

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the ...

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