United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING THE PETITION FOR WRIT OF
HABEAS CORPUS, DECLINING TO GRANT A CERTIFICATE OF
APPEALABILITY, AND GRANTING LEAVE TO APPEAL IN FORMA
TERRENCE G. BERG UNITED STATES DISTRICT JUDGE
Desmond Arnez Clark, who is presently incarcerated at the
Chippewa Correctional Facility in Kincheloe, Michigan, has
filed a petition for the writ of habeas corpus under 28
U.S.C. § 2254. In his pro se application, Petitioner
challenges his plea-based convictions for two counts of home
invasion. For the reasons stated below, none of
Petitioner's claims warrant habeas relief. Accordingly,
the petition for writ of habeas corpus is DENIED WITH
2014, Petitioner was charged with several crimes that
occurred in Wayne County, Michigan. In case number 14-3139,
Petitioner was charged with first-degree home invasion,
receiving and concealing stolen property, and larceny in a
building. See Wayne County Register of Actions, No.
14-003139-02-FH (Dkt. 12-1). In case number 14-3140,
Petitioner was charged with second-degree home invasion,
receiving and concealing stolen property, fleeing and
alluding a police officer, and larceny in a building.
See Wayne County Register of Actions, No.
14-003140-02-FH (Dkt. 12-2).
March 9, 2015, Petitioner pleaded guilty in case number
14-3139 to one count of first-degree home invasion,
see Mich. Comp. Laws § 750.110a(2), and in case
number 14-3140, he pleaded guilty to one count of
second-degree home invasion, see Mich. Comp. Laws
§ 750.110a(3). Petitioner admitted at the plea
proceeding that, on March 31, 2014, he entered two houses
without permission in Livonia, Michigan and took
miscellaneous items from the houses. He also admitted that
someone was present in one of the houses at the time he
entered the house and that he took items from both houses
without intending to return them. See 3/9/15 Plea
Tr., pp. 13-18 (Dkt. 12-5, Page ID 305-10).
exchange for Petitioner's guilty plea on the two counts
of home invasion, the prosecution agreed to dismiss the
remaining counts in case numbers 14-3139 and 14-3140 and a
third case charging Petitioner with home invasion.
Additionally, as set forth in the transcript of the plea, the
parties agreed that the sentence for first-degree home
invasion in case number 14-3139 would be six to twenty years
in prison, that the sentence for second-degree home invasion
in case number 14-3140 would be six to fifteen years, and
that the two sentences would run concurrently with each
other. See id., pp. 4-6. Petitioner stated that no
one had promised him anything else or threatened him to
induce him to enter a guilty plea. See id., p. 13.
Petitioner's sentencing on March 23, 2015, Petitioner
requested that the pre-sentence report and the sentencing
guidelines be modified to correct errors. He explained that
the pre-sentence report incorrectly stated that he was
earning $750.00 per hour when he was actually making $7.50
per hour. See 3/23/15 Sentencing Tr., pp. 2-3 (Dkt.
12-6, Page ID 314-15).
the sentencing guidelines, the parties agreed that in both
cases the score for offense variable nine
(“OV-9”) should be zero, not ten points. See
id., pp. 3-7. The change in the total score for the
offense variables resulted in lower sentencing guidelines in
both cases. The revised sentencing guidelines for
first-degree home invasion were reduced from a range of 72 to
120 months to a range of 57 to 95 months. Id., p. 5;
see also Sentencing Information Report (Dkt. 12-8,
page ID 398). For second-degree home invasion, the guidelines
were reduced from a minimum of 72 months to a range of 29 to
57 months. See 3/23/15 Sentencing Tr., pp. 7-8.
to the parties' plea and sentencing agreement, the trial
court sentenced Petitioner to six to twenty years in prison
for first-degree home invasion, with credit for 357 days in
jail. The court then sentenced Petitioner to a minimum
sentence of 57 months (four years, nine months) to a maximum
of fifteen years in prison for second-degree home
invasion. The trial court also assessed fees and
costs, including $400 in attorney fees. See id., p.
applied for leave to appeal in the Michigan Court of Appeals
on grounds that: (1) the change in the scoring of the
sentencing guidelines for first-degree home invasion required
reconsideration of the sentencing agreement or an opportunity
to withdraw the guilty plea; (2) the trial court abused its
discretion by not correcting information in the pre-sentence
report; and (3) the court should have given him an
opportunity to contest enforcement of the assessment for
attorney fees based on his inability to pay the fees. The
Michigan Court of Appeals denied leave to appeal “for
lack of merit in the grounds presented.” See People
v. Clark, No. 329049 (Mich. Ct. App. Sept. 29, 2015).
application for leave to appeal in the Michigan Supreme
Court, Petitioner claimed that: (1) the Michigan Court of
Appeals erroneously denied leave to appeal on the basis that
he agreed to plead guilty to a specific charge in exchange
for a sentence within accurately scored guidelines range; (2)
the Court of Appeals erred when it failed to grant leave to
appeal or a remand to the trial court for an assessment of
his ability to pay fees; (3) trial counsel was ineffective
for failing to object to the incorrectly scored prior-record
variables; and (4) he was entitled to a hearing on the score
for offense variable 16, which was scored on the basis of
judicially found facts. On May 2, 2016, the Michigan Supreme
Court denied leave to appeal because it was not persuaded to
review the questions presented to it. See People v.
Clark, 877 N.W.2d 886 (Mich. 2016).
filed his habeas corpus petition on September 19, 2016. He
argues that: (1) the plea agreement was breached when he was
sentenced six to twenty years for first-degree home invasion,
and the trial court relied on information which he did not
admit and which was not decided by a jury; (2) the trial
court abused its discretion by failing to correct the
erroneous pre-sentence report; and (3) he was entitled to
notice of the enforcement action on attorney fees and an
opportunity to contest the enforcement action.
Jeffrey Woods urges the Court to deny the petition on grounds
that Petitioner's claims lack merit or are not cognizable
on habeas review. Respondent also points out that Petitioner
did not exhaust state remedies for his second claim by
raising that claim in both the Michigan Court of Appeals and
the Michigan Supreme Court.
exhaustion requirement is not jurisdictional, Castille v.
Peoples, 489 U.S. 346, 349 (1989), and the Court may
deny an application for a writ of habeas corpus on the merits
despite the applicant's failure to exhaust available
state remedies. 28 U.S.C. § 2254(b)(2). Here,
Petitioner's unexhausted second claim lacks merit. The
Court, therefore, will proceed to address Petitioner's
claims, rather than dismiss the petition under 28 U.S.C.
§ 2254(b)(1) for failure to exhaust state remedies.
28 U.S.C. § 2254(d) provides that:
An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court
shall not be granted with respect to any claim that was
adjudicated on the merits in State court ...