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Veal v. Skipper

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

March 26, 2019

SEAN MICHAEL VEAL, Petitioner,
v.
GREGORY SKIPPER, Respondent.

          REPORT AND RECOMMENDATION

          Ellen S. Carmody United States Magistrate Judge

         This is 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.

         On 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 unrelated offense.

(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.

         Discussion

         I. Factual allegations

         Petitioner 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.)

         Petitioner's 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.

         At the 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 charges.

         Counsel 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.

         Both 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 car.

         Three days later, Ford identified Petitioner in a photo lineup.

         After Mr. Ford's fifteen minutes of testimony, the prosecution rested.

         Petitioner 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.

         After 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.

         The 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 Petitioner's plea.

         The 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.)

         The 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.[1] (Id., PageID.183.)

         Petitioner, 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.[2] (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.)

         Petitioner 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 ...


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