United States District Court, E.D. Michigan, Southern Division
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 , 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 , DENYING THE
MOTION FOR A WRIT OF HABEAS CORPUS BASED ON NEWLY DISCOVERED
CLAIMS , AND GRANTING A CERTIFICATE OF APPEALABILITY AND
LEAVE TO APPEAL IN FORMA PAUPERIS
CORBETT O'MEARA, UNITED STATES DISTRICT JUDGE
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.
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). 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.
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
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).
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).
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
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).
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).
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
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.
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
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.
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.
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.
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
Lifetime Electronic Monitoring
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.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.
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)).
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 ...