United States District Court, W.D. Michigan, Southern Division
REPORT AND RECOMMENDATION
S. Carmody United States Magistrate Judge
a habeas corpus action brought by a state prisoner under 28
U.S.C. § 2254. Petitioner Sean Michael Veal is
incarcerated with the Michigan Department of Corrections at
the Michigan Reformatory (RMI) in Ionia, Michigan. Following
a half-hour-long bench trial in the Wayne County Circuit
Court, Petitioner was convicted of carjacking, Mich. Comp.
Laws § 750.529a; unlawfully driving away an automobile
(UDAA), Mich. Comp. Laws § 750.413; and possession of a
firearm during the commission of a felony (felony-firearm),
Mich. Comp. Laws § 750.227b. On April 9, 2015, the court
sentenced Petitioner to prison terms of 9 to 20 years for
carjacking and 2 to 5 years for UDAA, both consecutive to a
term of 2 years for felony-firearm.
March 8, 2018, Petitioner filed his habeas corpus petition
which raises six grounds for relief, as follows:
I. Petitioner is entitled to a new trial where trial counsel,
in four instances, failed to impeach the complaining witness.
II. Trial counsel was ineffective for failing to allocute on
behalf of Petitioner at his sentencing hearing.
III. Reversible error occurred when the trial judge heard
evidence that Petitioner was charged in a separate proceeding
with an unrelated offense.
IV. Petitioner was denied his right of allocution before the
sentence was imposed.
V. The sentence was improperly influenced by Petitioner's
failure to admit guilt.
VI. The trial court “retaliated” against
Petitioner for refusing to enter a plea of guilty to an
(Pet., ECF No. 1, PageID.8-15.) Respondent has filed an
answer to the petition (ECF No. 8) stating that the grounds
should be denied because they are without merit or because
habeas review is barred by Petitioner's procedural
default in the state courts. Upon review and applying the
standards of the Antiterrorism and Effective Death Penalty
Act of 1996, Pub. L. 104-132, 110 Stat. 1214 (AEDPA), I find
that the grounds are meritless. Accordingly, I recommend that
the petition be denied.
was charged in two separate criminal cases: the carjacking
case, No. 14-9290-01, and an unrelated armed robbery case,
No. 14-9360-01. Petitioner committed the armed robbery
shortly after the carjacking. The two cases worked their way
through pretrial proceedings together. (Arraignment Tr., ECF
No. 9-3; 12/4/2014 Final Conference Tr., ECF No. 9-4;
12/11/2014 Final Conference Tr., ECF No. 9-5.)
counsel and the prosecutor discussed possible plea offers
that involved both cases. (Id.) The prosecutor's
last offer before the carjacking trial involved resolution of
both cases with a plea of guilty to the carjacking charge.
(12/11/2014 Final Conference Tr., ECF No. 9-5, PageID.132.)
Petitioner rejected that offer; accordingly, the carjacking
case was set for trial.
beginning of the trial, the prosecutor asked the court's
leave to place the plea offer on the record. (Trial Tr., ECF
No. 9-6, PageID.139.) The court acquiesced. (Id.)
The prosecutor prefaced her statement of the offer by saying:
“The defendant has two cases, your Honor, from the same
day.” (Id.) Petitioner's counsel halted
the statement of the offer. (Id.) The court
immediately recognized that, as the trier of fact, it would
not be appropriate to hear about other charges.
(Id.) Nothing further was put on the record with
regard to the offer or the existence or nature of any other
did not make opening arguments. Instead, the prosecutor
simply put on her sole witness. According to the testimony of
Roderick Ford, on September 10, 2014, Ford was driving in the
City of Detroit. (Id., PageID.141-160.) He dropped
his cell phone. He stopped the car to pick it up. As he
retrieved it, two men approached his window. Ford identified
Petitioner as one of the men.
men had guns. Both men pointed their guns at Ford. Petitioner
told Ford to get out of the vehicle. The other man opened
Ford's door and ordered him out of the car. Ford raised
his hands and exited the car. The other man hopped in.
Petitioner went to the other side of the vehicle and pulled
the passenger out. Petitioner hopped in. A third man jumped
into the back seat and the three men drove away in Ford's
days later, Ford identified Petitioner in a photo lineup.
Mr. Ford's fifteen minutes of testimony, the prosecution
testified. (Id., PageID.161-163.) He denied he was
at the location of the carjacking that night. He said he was
at his girlfriend's house.
Petitioner's two-minute testimony, the defense rested.
Counsel gave closing arguments, and the court rendered its
decision, finding Petitioner guilty of carjacking, UDAA, and
felony firearm, on the strength of Ford's testimony. The
court dismissed an additional charge of receiving and
concealing stolen property.
sentencing transcript indicates that the parties expected to
wrap up both cases at that hearing. (Sentencing Tr., ECF No.
9-7.) Both cases were called-the carjacking case for
sentencing and the armed robbery case for a final conference.
(Id.) The plea offer in the armed robbery case was
put on the record: a guilty plea to armed robbery with a
sentence of 4 to 15 years, to run concurrently with the
sentence on the carjacking conviction. (Id.,
PageID.176.) The court had, apparently, already discussed the
carjacking sentence with Petitioner and his counsel off the
record. Petitioner made multiple references to a sentence of
nine years before the court had even begun the sentencing
part of the hearing. (Id., PageID.177.) Petitioner
was concerned that the nine years and the four years would
not run concurrently. (Id.) The court assured
Petitioner that the sentences would run concurrently.
(Id.) The court then went forward with
court proceeded with the plea colloquy, up to the point where
Petitioner was required to acknowledge his involvement in the
armed robbery. Then, Petitioner would not admit he was at the
place where the crime occurred. (Id., PageID.180.)
The court indicated that without such an admission, there
could be no plea. (Id.) Petitioner then acknowledged
he was there. (Id.)
court asked Petitioner what he had done that supported his
guilty plea to armed robbery. (Id.) Petitioner
indicated he had not done anything and that he was just
taking the plea to avoid getting a higher sentence.
(Id.) Thereafter, the court refused to take the plea
and, instead, proceeded with the sentencing on the carjacking
case. (Id., PageID.181.) Petitioner was sentenced as
set forth above. The court scheduled a trial on the armed
robbery case. (Id., PageID.183.)
with the assistance of counsel, directly appealed his
convictions and sentences in the carjacking case. In the
brief Petitioner filed with the assistance of counsel, he
raised habeas issues I and II. (Pet'r's Appeal Br., ECF
No. 9-8, PageID.201.) By pro per Standard 4 brief, Petitioner
also raised his habeas issues III-VI in the Michigan Court of
Appeals. (Pet'r's Std. 4 Br., ECF No. 9-8,
PageID.248-261.) By unpublished opinion issued on April 18,
2017, the court of appeals rejected Petitioner's
challenges and affirmed his convictions and sentences. (Mich.
Ct. App. Op., ECF No. 9-8, PageID.185-189.)
then turned to the Michigan Supreme Court. He filed an
application for leave to appeal raising the same six issues
he raised in the court of appeals. (Pet'r's Appl. for
Leave to Appeal, ECF No. 9-9, PageID.301-321.) The Michigan
Supreme Court denied ...