United States District Court, W.D. Michigan, Southern Division
T. NEFF UNITED STATES DISTRICT JUDGE.
a habeas corpus action brought by a state prisoner under 28
U.S.C. § 2254. Promptly after the filing of a petition
for habeas corpus, the Court must undertake a preliminary
review of the petition to determine whether “it plainly
appears from the face of the petition and any exhibits
annexed to it that the petitioner is not entitled to relief
in the district court.” Rule 4, Rules Governing §
2254 Cases; see 28 U.S.C. § 2243. If so, the
petition must be summarily dismissed. Rule 4; see Allen
v. Perini, 424 F.2d 134, 141 (6th Cir. 1970) (district
court has the duty to “screen out” petitions that
lack merit on their face). A dismissal under Rule 4 includes
those petitions that raise legally frivolous claims, as well
as those that contain factual allegations that are palpably
incredible or false. Carson v. Burke, 178 F.3d 434,
436-37 (6th Cir. 1999). After undertaking the review required
by Rule 4, the Court concludes that it must dismiss the
petition because it fails to raise a meritorious federal
Arthur Lee Sheard is incarcerated with the Michigan
Department of Corrections at the Muskegon Correctional
Facility (MCF) in Muskegon, Michigan. Petitioner pleaded
guilty in the Muskegon County Circuit Court to one count of
unarmed robbery, Mich. Comp. Laws §
750.530. On August 20, 2014, the court sentenced
Petitioner as a habitual offender, fourth offense, Mich.
Comp. Laws § 769.12, to a prison term of 19 to 39 years.
Michigan Court of Appeals described the facts underlying
Petitioner's conviction as follows:
The victim, Barbara Kartes, was unloading her groceries from
her shopping cart into the back of her vehicle, which was
parked in a Meijer parking lot. She left her purse in the
shopping cart. Defendant drove his vehicle up to the
victim's shopping cart and grabbed her purse. The victim
then grabbed her purse, and defendant then accelerated his
vehicle, dragging the victim. Defendant nearly struck a
parked vehicle, and this caused the victim to be thrown into
the side panel of the parked car. The victim suffered from a
fractured skull with bleeding on her brain, concussion,
traumatic brain injury, and a contusion on the back of her
leg. She awoke four days after the robbery in the intensive
care unit with no recollection of what occurred.
(Mich. Ct. App. Op., ECF No. 1-1, PageID.6.) The Muskegon
County prosecutor charged Petitioner with unarmed robbery. As
the prosecutor and Petitioner's counsel negotiated plea
terms, however, the prosecutor threatened to charge
Petitioner with armed robbery, Mich. Comp. Laws §
750.529. If Petitioner were found guilty of armed robbery as
a habitual offender with three prior felonies, including a
prior armed robbery, the statutory minimum sentence would
have been no less than 25 years. Mich. Comp. Laws §
prosecutor apparently used the prospect of a 25-year minimum
sentence as a bargaining chip in the plea negotiation
process. Petitioner eventually agreed to enter a plea of
guilty to a charge of unarmed robbery with a Cobbs
agreement for a 19-year minimum sentence. In People v.
Cobbs, 505 N.W.2d 208');">505 N.W.2d 208 (Mich. 1993), the Michigan Supreme
Court approved the practice of judicial involvement in
sentence bargaining. Id. at 211. In Cobbs
the supreme court authorized state trial court judges to, at
the request of a party, provide a preliminary evaluation of
the sentence that the judge would impose. Id. at
211-212. The parties may then base a plea and sentencing
agreement on that number. Id. If the court decides
to exceed that number at sentencing, the court must permit
the defendant to withdraw his or her plea. Id.
29, 2018, Petitioner filed his habeas corpus petition. Under
Sixth Circuit precedent, this Court deems an application
filed when the prisoner hands it to prison authorities for
mailing to the federal court. Cook v. Stegall, 295
F.3d 517, 521 (6th Cir. 2002). Petitioner signed his
application on May 29, 2018. (Pet., ECF No. 1, PageID.3.) The
Court received the petition on June 12, 2018. I have given
Petitioner the benefit of the earliest possible filing date.
See Brand v. Motley, 526 F.3d 921, 925 (6th Cir.
2008) (holding that the date the prisoner signs the document
is deemed under Sixth Circuit law to be the date of handing
to officials) (citing Goins v. Saunders, 206
Fed.Appx. 497, 498 n.1 (6th Cir. 2006)).
petition raises three grounds for relief, paraphrased as
I. Petitioner is entitled to withdraw his guilty plea when
his decision to enter a plea of guilty was based upon an
illusory threat to elevate an unarmed robbery charge to a
non-existent armed robbery charge.
II. Petitioner was denied the effective assistance of counsel
during the plea taking process in violation of the Sixth
III. Petitioner is entitled to resentencing because the trial
court imposed a sentence based on incorrectly scored
sentencing guidelines and other misinformation.
(Pet., ECF No. 1, PageID.2.)
with the assistance of his appointed appellate counsel,
presented these issues to the Michigan Court of Appeals on
leave granted. By opinion dated November 15, 2016, the
Michigan Court of Appeals affirmed Petitioner's
conviction and sentence. (Mich. Ct. App. Op., ECF No. 1-1,
PageID.6-9.) Petitioner then sought leave to appeal in the
Michigan Supreme Court raising the same issues. That court
denied leave by order entered May 2, 2017. (Mich. Ord., ECF
No. 1-1, PageID.10.)
has exhausted his state court remedies. He has timely raised
his habeas issues in this Court.
action is governed by the Antiterrorism and Effective Death
Penalty Act of 1996, Pub. L. 104-132, 110 Stat. 1214 (AEDPA).
The AEDPA “prevents federal habeas
‘retrials'” and ensures that the federal
courts give effect to state court convictions to the extent
possible under the law. Bell v. Cone, 535 U.S. 685,
693-94 (2002). An application for writ of habeas corpus on
behalf of a person who is incarcerated pursuant to a state
conviction cannot be granted with respect to any claim that
was adjudicated on the merits in state court unless the
adjudication: “(1) resulted in a decision that was
contrary to, or involved an unreasonable application of,
clearly established federal law as determined by the Supreme
Court of the United States; or (2) resulted in a decision
that was based upon an unreasonable determination of the
facts in light of the evidence presented in the state court
proceeding.” 28 U.S.C. § 2254(d). This standard is
“intentionally difficult to meet.” Woods v.
Donald, 575 U.S. __, 135 S.Ct. 1372, 1376 (2015)
(internal quotation omitted).
AEDPA limits the source of law to cases decided by the United
States Supreme Court. 28 U.S.C. § 2254(d). This Court
may consider only the holdings, and not the dicta, of the
Supreme Court. Williams v. Taylor, 529 U.S. 362, 412
(2000); Bailey v. Mitchell, 271 F.3d 652, 655 (6th
Cir. 2001). In determining whether federal law is clearly
established, the Court may not consider the decisions of
lower federal courts. Williams, 529 U.S. at 381-382;
Miller v. Straub, 299 F.3d 570, 578-79 (6th Cir.
2002). Moreover, “clearly established Federal
law” does not include decisions of the Supreme Court
announced after the last adjudication of the merits in state
court. Greene v. Fisher, 565 U.S. 34 (2011). Thus,
the inquiry is limited to an examination of the legal
landscape as it would have appeared to the Michigan state
courts in light of Supreme Court precedent at the time of the
state-court adjudication on the merits. Miller v.
Stovall, 742 F.3d 642, 644 (6th Cir. 2014) (citing
Greene, 565 U.S. at 38).
federal habeas court may issue the writ under the
“contrary to” clause if the state court applies a
rule different from the governing law set forth in the
Supreme Court's cases, or if it decides a case
differently than the Supreme Court has done on a set of
materially indistinguishable facts. Bell, 535 U.S.
at 694 (citing Williams, 529 U.S. at 405-06).
“To satisfy this high bar, a habeas petitioner is
required to ‘show that the state court's ruling on
the claim being presented in federal court was so lacking in
justification that there was an error well understood and
comprehended in existing law beyond any possibility for
fairminded disagreement.'” Woods, 135
S.Ct. at 1376 (quoting Harrington v. Richter, 562
U.S. 86, 103 (2011)). In other words, “[w]here the
precise contours of the right remain unclear, state courts
enjoy broad discretion in their adjudication of a
prisoner's claims.” White v. Woodall, 572
U.S.___, 134 S.Ct. 1697, 1705 (2014) (internal quotations
AEDPA requires heightened respect for state factual findings.
Herbert v. Billy, 160 F.3d 1131, 1134 (6th Cir.
1998). This Court must presume that a determination of a
factual issue by the state court is correct, and the
petitioner has the burden of rebutting the presumption by
clear and convincing evidence. 28 U.S.C. § 2254(e)(1);
Lancaster v. Adams, 324 F.3d 423, 429 (6th Cir.
2003); Bailey, 271 F.3d at 656. This Court accords
the presumption of correctness to findings of state appellate
courts, as well as the trial court. See Sumner v.
Mata, 449 U.S. 539, 546 (1981); Smith v. Jago,
888 F.2d 399, 407 n.4 (6th Cir. 1989).
An involuntary and unknowing plea based on ...