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Clark v. Woods

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

June 19, 2018

DESMOND ARNEZ CLARK, Petitioner,
v.
JEFFREY WOODS, Respondent.

          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 PAUPERIS

          TERRENCE G. BERG UNITED STATES DISTRICT JUDGE

         Petitioner 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 PREJUDICE.

         I. BACKGROUND

         In 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).

         On 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).

         In 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.

         At 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).

         As for 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.[1] 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.

         Pursuant 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.[2] The trial court also assessed fees and costs, including $400 in attorney fees. See id., p. 13.

         Petitioner 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).

         In an 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).

         Petitioner 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.

         Respondent 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.

         The 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.

         II. LEGAL STANDARD

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 ...

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