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Pena v. Winn

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

April 19, 2018

NICHOLAS PENA, Petitioner,
v.
THOMAS WINN, Respondent.

          OPINION AND ORDER (1) DENYING RESPONDENT'S MOTION FOR SUMMARY JUDGMENT [Dkt. 10], (2) DENYING PETITION FOR WRIT OF HABEAS CORPUS, AND (3) DENYING CERTIFICATE OF APPEALABILITY AND PERMISSION TO APPEAL IN FORMA PAUPERIS

          John Corbett O'Meara, United States District Judge

         Nicholas Pena, (“Petitioner”), a Michigan Department of Corrections prisoner, filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petition challenges Petitioner's Lenawee Circuit Court guilty plea conviction for delivery of less than 50 grams of cocaine, Mich. Comp. Laws § 333.7401(2)(a)(iv), one count of resisting a police officer, Mich. Comp. Laws § 750.81, and one count of maintaining a drug house. Mich. Comp. Laws § 333.7405(1)(d). Petitioner was sentenced to a controlling term of 134 to 480 months.

         This matter is before the Court on Respondent's motion to dismiss the petition on the grounds that it was filed after expiration of the statute of limitations. [Dkt. 10]. Instead of filing a response to the motion, Petitioner chose to file a “request for respondent to show cause why it should not be held in contempt for failure to respond.” [Dkt. 12]. It was appropriate for Respondent to file a motion to dismiss. See Advisory Committee Notes to Rule 5(a) of the Rules Governing Section 2254 Cases in the United States District Courts. Nevertheless, because it can be more readily discerned that Petitioner's substantive claims lack merit, the Court will deny the petition on that basis. The Court will also deny Petitioner a certificate of appealability and deny permission to proceed on appeal in forma pauperis.

         I. Background

         Petitioner plead guilty to the above-described offenses on October 24, 2012, pursuant to a plea agreement. Dkt. 11-5. The prosecutor put the terms of the plea agreement on the record. He indicated that Petitioner was pleading guilty to the charged offenses, and in exchange the prosecutor would not seek sentencing enhancements for Petitioner's habitual felony offender status or on account of the fact that the offenses occurred in a school zone. Id., at 2-3. The prosecutor also agreed to dismiss two other criminal complaints. Id., at 3-4. Defense counsel indicated that the terms of the agreement were accurately stated. Id., at 4. Petitioner was then questioned by the trial court, and he indicated his agreement to the terms of the plea deal. Id., at 5. Petitioner denied that there were any other agreements or promises that were not made part of the record. Id., at 9. The court informed Petitioner of all the trial rights he would be waiving by entering his plea, and Petitioner agreed to each one. Id. The court found that Petitioner's guilty plea was entered understandingly, voluntarily, and accurately. Id., at 14. Petitioner was sentenced on January 11, 2013, to the controlling term indicated above.

         In February of 2013, Petitioner was appointed an appellate attorney. See Dkt. 11-2. On April 29, 2013, counsel wrote a letter informing Petitioner that he had “had an opportunity to thoroughly review both your plea and sentencing transcripts and found nothing upon which to base an appeal.” Dkt. 10, App'x B. The letter also advised Petitioner that a successful withdrawal of the plea could end up causing more harm than good because “it would allow the court to reinstate all of the dismissed charges and supplements, and habitual offender enhancements.” Id. Counsel bluntly informed Petitioner, “You can't win, ” and provided him with forms to sign so that counsel could withdraw before filing an appeal. Id. Petitioner returned the form unsigned. Id.

         Nevertheless, on June 10, 2013, appellate counsel moved to withdraw, informing the trial court that he found no basis to appeal, that he informed Petitioner of this, but that Petitioner had not consented. Id., App'x D. On August 12, 2013, the trial court granted the motion to withdraw “since there appears to be no reasonable basis for an appeal, and, given the inaction of the Defendant.” Id., App'x E.

         On July 27, 2014, Petitioner filed a motion for relief from judgment in the trial court, raising claims of ineffective assistance of appellate counsel, breach of the plea agreement, and improper sentencing. Dkt. 11-7. The trial court denied this motion on May 22, 2015. Dkt. 11-9.

         Petitioner then filed a delayed application for leave to appeal in the Michigan Court of Appeals. On October 12, 2016, the Michigan Court of Appeals denied the delayed application “because defendant has failed to establish that the trial court erred in denying his motion for relief from judgment.” Dkt. 11-10. Petitioner then applied for leave to appeal to the Michigan Supreme Court. On May 31, 2017, the Michigan Supreme Court denied Petitioner's application for leave to appeal by standard order. People v. Pena, 895 N.W.2d 522 (Mich. 2017) (Table).

         Petitioner filed an undated and unsigned habeas petition that was filed with the Court on July 27, 2017.

         II. Standard of Review

         28 U.S.C. § 2254(d)(1) curtails a federal court's review of constitutional claims raised by a state prisoner in a habeas action if the claims were adjudicated on the merits by the state courts. Relief is barred under this section unless the state court adjudication was “contrary to” or resulted in an “unreasonable application of” clearly established Supreme Court law.

         “A state court's decision is ‘contrary to' . . . clearly established law if it ‘applies a rule that contradicts the governing law set forth in [Supreme Court cases]' or if it ‘confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [this] precedent.'” Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003) (per curiam), quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000).

         “[T]he ‘unreasonable application' prong of the statute permits a federal habeas court to ‘grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court but unreasonably applies that principle to the facts' of petitioner's ...


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