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Sheard v. Burt

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

June 26, 2018

SHERRY L. BURT, Respondent.



         This is 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 claim.


         I. Factual allegations

         Petitioner 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.[1] 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.

         The 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 § 769.12.

         The 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.

         On May 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)).

         The petition raises three grounds for relief, paraphrased as follows:

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 Amendment.
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.)

         Petitioner, 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.)

         Petitioner has exhausted his state court remedies. He has timely raised his habeas issues in this Court.

         II. AEDPA standard

         This 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).

         The 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).

         A 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 omitted).

         The 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).

         III. An involuntary and unknowing plea based on ...

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