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Smith v. Bauman

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

March 19, 2018

DERRICK LEE SMITH, Petitioner,
v.
CATHERINE S. BAUMAN, Respondent.

         OPINION AND ORDER GRANTING PETITIONER'S REQUEST AND MOTION FOR A DECISION AND FOR COMPLIANCE WITH THE SIXTH CIRCUIT'S ORDER [141, 144], GRANTING THE MOTION FOR PERMISSION TO FILE AN AFFIDAVIT [150], DENYING PETITIONER'S MOTIONS FOR RELEASE ON BOND [148, 156], DENYING PETITIONER'S MOTIONS FOR A WRIT OF HABEAS CORPUS [153, 155], DENYING THE REQUEST FOR A REFERRAL TO THE MAGISTRATE JUDGE [157], DENYING THE MOTION FOR A WRIT OF HABEAS CORPUS BASED ON NEWLY DISCOVERED CLAIMS [133], AND GRANTING A CERTIFICATE OF APPEALABILITY AND LEAVE TO APPEAL IN FORMA PAUPERIS

          JOHN CORBETT O'MEARA, UNITED STATES DISTRICT JUDGE

         This habeas corpus case has come before the Court on remand from the United States Court of Appeals for the Sixth Circuit. The Sixth Circuit has instructed the Court to treat one of Petitioner's post-judgment motions as a motion to amend. Also before the Court are the following motions and requests filed by Petitioner: to make a decision on his motion regarding newly discovered claims (ECF No. 141) and to comply with the Sixth Circuit's remand order (ECF No. 144); to release him on bond (ECF Nos. 148 and 156); to grant permission to file an affidavit (ECF No. 150); to grant the writ of habeas corpus (ECF Nos. 153 and 155); and to order the magistrate judge to prepare a report and recommendation (ECF No. 157). The Court grants Petitioner's motions and requests for permission to file an affidavit and to have the Court issue a decision on his post-judgment motion about newly discovered claims. The Court declines to grant release on bond, to issue the writ of habeas corpus, or to refer this matter to a magistrate judge. Additionally, the Court denies Petitioner's motion to grant habeas relief on the basis of newly discovered claims.

         I. Background

         Petitioner was charged with kidnaping and sexually assaulting two adult sisters in Detroit on January 13, 2008. On October 14, 2008, he pleaded no contest, as charged, to two counts of kidnapping, Mich. Comp. Laws § 750.349, and six counts of criminal sexual conduct in the first degree, Mich. Comp. Laws § 750.520b(1)(c) (sexual penetration during the commission of another felony). There was no plea agreement between the parties, but the trial court agreed to sentence Petitioner at the low end of the sentencing guidelines, which were scored at 270 to 450 months (twenty-two and a half to thirty-seven and a half years).[1] On October 29, 2008, the trial court sentenced Petitioner within the sentencing guidelines to eight concurrent terms of twenty-two and a half to seventy-five years in prison.[2]

         Petitioner appealed his convictions and sentence, but the Michigan Court of Appeals denied leave to appeal “for lack of merit in the grounds presented.” People v. Smith, No. 294843 (Mich. Ct. App. Jan. 4, 2010). On May 25, 2010, the Michigan Supreme Court denied leave to appeal because it was not persuaded to review the issues. People v. Smith, 486 Mich. 929; 781 N.W.2d 818 (2010) (table). Petitioner pursued other post-conviction remedies in state court without success.

         On March 16, 2010, Petitioner filed his habeas corpus petition. (ECF No. 1). Three months later, he requested a stay of the federal proceeding until his direct appeal concluded in state court. (ECF No. 4). The Court granted Petitioner's motion for a stay and closed this case for administrative purposes. (ECF No. 7).

         On April 30, 2012, Petitioner filed an amended petition (ECF No. 20), and on July 19, 2012, the Court re-opened this case (ECF No. 21). The case was stayed and re-opened one more time, and on September 26, 2014, Petitioner filed a second amended petition. (ECF No. 66). Ultimately, Respondent filed an answer to the petition (ECF No. 73), and on March 9, 2016, the Court denied the petition on the merits. (ECF No. 122). The Sixth Circuit Court of Appeals denied Petitioner's subsequent motion for a certificate of appealability. See Smith v. Bauman, No. 16-1545 (6th Cir. Jan. 31, 2017) (ECF No. 138).

         Meanwhile, Petitioner filed a successive motion for relief from judgment in the state trial court. He challenged the scoring of his sentencing guidelines and also alleged that he recently became aware that his sentence included a provision for lifetime electronic monitoring. The trial court denied Petitioner's motion on the basis that Petitioner had failed to allege either newly discovered evidence or a retroactive change in the law. See People v. Smith, No. 08-8639-01-FC (Wayne Cty. Cir. Ct. Aug. 8, 2016) (unpublished). The Michigan Court of Appeals denied leave to appeal because Petitioner had failed to establish that the trial court erred in denying his post-conviction motion. See People v. Smith, No. 335215 (Mich. Ct. App. Feb. 6, 2017). The Michigan Supreme Court denied leave to appeal because Petitioner's motion for relief from judgment was barred by the Michigan court rule governing second or successive motions. See People v. Smith, 501 Mich. 945; 904 N.W.2d 609 (2017).

         Petitioner also filed several post-judgment motions in this Court, including one which he titled “Motion for Leave to File Motion for Granting Writ of Habeas Corpus Based on New Claims . . . Showing the Judgment of Sentence is Illegal . . . .” (ECF No. 133). The Court transferred the motion to the Sixth Circuit Court of Appeals as a second or successive habeas petition pursuant to In re Sims, 111 F.3d 45 (6th Cir. 1997, and Gonzalez v. Crosby, 545 U.S. 524 (2005). (ECF No. 137).

         The Sixth Circuit ruled that the Court erred when it transferred Petitioner's motion to the Sixth Circuit as a second or successive petition. The Sixth Circuit stated that, because Petitioner his motion before the time to appeal the denial of his habeas petition expired, the motion was not a second or successive habeas petition. The Sixth Circuit stated that the Court should have ruled on the merits of Petitioner's motion as a motion to amend. Accordingly, the Sixth Circuit vacated this Court's order transferring Petitioner's motion to the Sixth Circuit and remanded the case to this Court for consideration of the motion on its merits. See In re Derrick Lee Smith, No. 16-1616 (6th Cir. Apr. 10, 2017) (ECF No. 139).

         On remand, this Court ordered Respondent to file a response to Petitioner's motion to amend. (ECF No. 145). Respondent filed a supplemental answer to the petition (ECF No. 146) in which she argues that Petitioner's claims are procedurally defaulted and barred by the one-year statute of limitations. Petitioner filed a reply and the pending motions.

         The Court now proceeds to address Petitioner's new claims, as set forth in his motion to grant the writ of habeas corpus on the basis of newly discovered claims. The Court has determined that the claims do not warrant habeas relief. Accordingly, in the interest of efficiency, the Court goes directly to the merits of Petitioner's claims, rather than analyzing whether the claims are procedurally defaulted or barred by the statute of limitations.[3]

         II. Analysis

         Petitioner seeks to have the Court consider two new claims. His first claim alleges that his sentence is invalid and that he should be permitted to withdraw his plea because the trial court failed to inform him that he would be sentenced to lifetime electronic monitoring if he pleaded no contest. Petitioner's second claim alleges that his sentence is illegal because the trial court miscalculated the sentencing guidelines.

         As noted above, the Sixth Circuit has ordered the Court to treat Petitioner's motion as a motion to amend his habeas petition. Federal Rule of Civil Procedure 15 permits parties to file amended and supplemental pleadings, but

“[w]hen a party seeks to amend a complaint after an adverse judgment, it . . . must shoulder a heavier burden [than if the party sought to amend a complaint beforehand]. Instead of meeting only the modest requirements of Rule 15, the claimant must meet the requirements for reopening a case established by Rules 59 or 60.” Leisure Caviar, LLC v. U.S. Fish & Wildlife Serv., 616 F.3d 612, 616 (6th Cir. 2010) . . . .

Clark v. United States, 764 F.3d 653, 661 (6th Cir. 2014).

         Federal Rule of Civil Procedure 59(e) permits a party to move to alter or amend a judgment within twenty-eight days after entry of the judgment. The Court entered its opinion and judgment denying Petitioner's habeas petition on March 9, 2016, and on June 1, 2016, Petitioner filed his motion regarding the new issues. Petitioner's motion is untimely under Rule 59(e) because he filed it more than twenty-eight days after entry of the Court's judgment on the docket.

         Under Federal Rule of Civil Procedure 60(b), a party may move for relief from a final judgment for several specific reasons, including “newly discovered evidence, ” and for “any other reason that justifies relief.” Fed.R.Civ.P. 60(b)(2) and (6). “A motion under Rule 60(b) must be made within a reasonable time - and for reasons (1), (2), and (3) no more than a year after the entry of the judgment . . . .” Fed.R.Civ.P. 60(c)(1). Petitioner filed his motion within a reasonable time and less than a year after this Court's judgment. Thus, his Rule 60(b) motion is timely.

         Nevertheless, even assuming that Petitioner's claims are newly discovered under Rule 60(b)(2), relief from judgment under Rule 60(b)(6) “is available only in ‘extraordinary circumstances.' ” Tharpe v. Sellers, 138 S.Ct. 545, 546 (2018) (quoting Gonzalez, 545 U.S. at 536. The Court concludes for the reasons given below that this is not an extraordinary case requiring relief from judgment.

         A. Lifetime Electronic Monitoring

         Petitioner alleges that his no-contest plea was involuntary and unknowing because the trial court failed to notify him that his sentence would include lifetime electronic monitoring.[4]For the same reason, Petitioner argues that his sentence violates the Due Process Clause of the Fourteenth Amendment and constitutes cruel and unusual punishment under the Eighth Amendment.

         1. Legal Framework

         Petitioner has no absolute right to withdraw his no-contest plea. Shanks v. Wolfenbarger, 387 F.Supp.2d 740, 748 (E.D. Mich. 2005). But because a guilty or no-contest plea is a waiver of constitutional rights, it must be a voluntary, knowing, and intelligent act, “done with sufficient awareness of the relevant circumstances and likely consequences.” Brady v. United States, 397 U.S. 742, 748 (1970). “The defendant need only be aware of the direct consequences of the plea, however; the trial court is under no constitutional obligation to inform the defendant of all the possible collateral consequences of the plea.” King v. Dutton, 17 F.3d 151, 153 (6th Cir. 1994) (citing Brown v. Perini, 718 F.2d 784, 788-89 (6th Cir. 1983)).

         “There is some disagreement among the courts over how to distinguish between direct and collateral consequences.” Padilla v. Kentucky, 559 U.S. 356, 364 n.8 (2010). The Michigan Supreme Court, however, has held that “mandatory lifetime electronic monitoring is part of the sentence itself” and, therefore, “it is a direct consequence of a guilty or no-contest plea to a charge of [first-degree criminal sexual conduct] . . . when the defendant is sentenced to ...


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