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Thomas v. McCullick

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

April 22, 2019

TERRANCE L. THOMAS, Petitioner,
v.
MARK MCCULLICK, Respondent.

          ORDER DENYING THE PETITION FOR A WRIT OF HABEAS CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY OR LEAVE TO APPEAL IN FORMA PAUPERIS

          THOMAS L. LUDINGTON UNITED STATES DISTRICT JUDGE.

         On June 15, 2018, Petitioner Terrance L. Thomas, presently confined at the St. Louis Correctional Facility in St. Louis, Michigan, filed a pro se application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. ECF No. 1. Petitioner pled no contest in the Oakland County Circuit Court to the offenses of assault with intent to murder, Mich. Comp Laws § 750.83, felonious assault, Mich. Comp Laws § 750.82, carrying a dangerous weapon with unlawful intent, Mich. Comp Laws § 750.226, and possession of marijuana, Mich. Comp Laws § 333.7403(2)(D). Petitioner contends that his no contest plea was not entered knowingly, intelligently, and voluntarily. Respondent filed an answer to the petition on January 2, 2019, ECF No. 7. Petitioner replied on February 15. ECF No. 10.

         I.

         According to the preliminary examination transcript, Petitioner attacked a man at a bus stop, stabbing him multiple times in the shoulder and rib cage and slicing his face open. An onlooker intervened and suffered a cut to his hand during the intervention. (T. 3/4/2015, pp. 4-20).

         Petitioner entered a no contest plea to assault with intent to murder, felonious assault, carrying a dangerous weapon with unlawful intent, and possession of marijuana. As part of the plea agreement, the prosecutor dismissed the “super” habitual offender charge, which carried a mandatory minimum of twenty-five years, in exchange for agreeing to charge Petitioner under the regular habitual offender statute.[1] The judge entered into a Cobbs agreement with the parties to sentence Petitioner to a minimum sentence of fifteen-years.[2] (T. 2/16/2016, pp. 4-6), ECF No. 8-2.

         At sentencing, Petitioner moved to withdraw his plea, requesting to be sentenced at the bottom of the sentencing guidelines, rather than the fifteen-year minimum referenced in the Cobbs agreement. (T. 3/14/2016, pp.14, 19), ECF No. 8-4. The trial court judge denied Petitioner's motion finding that there was no basis to withdraw the plea because it was based on a Cobbs Agreement, which the Court followed when imposing sentence. (Id. at 20).

         Petitioner's conviction and sentence were affirmed on appeal. People v. Thomas, No. 334776 (Mich. Ct. App. Feb. 16, 2017); lv. den. 500 Mich. 1062 898 N.W.2d 587 (2017). Thomas subsequently filed an application for leave to appeal in the Michigan Supreme Court which raised the same claim as in the Michigan Court of Appeals. On July 25, 2017, the Michigan Supreme Court denied the application because it was not persuaded that the questions presented should be reviewed by the Court. People v. Thomas, 898 N.W.2d 587 (Mich. 2017) (unpublished table decision).

         Petitioner then had ninety days from July 25, 2017 to file a petition for writ of certiorari with the United States Supreme Court, which he did not do. Nor did he file any post judgment motions before the state court. Thus, his conviction became final on October 23, 2017 (the 90thday following the denial of leave to appeal), when the time period for seeking certiorari expired. Bronaugh, 235 F.3d at 283 (one-year statute of limitations does not begin to run until the time for filing a petition for a writ of certiorari for direct review in the United States Supreme Court has expired). He timely filed his petition on June 15, 2018, presenting one claim for relief: “The guilty plea is invalid because it was not knowing and voluntary, in violation of defendant's state and federal constitutional rights, U.S. Const., AMS V, VI; Const. 1963, ART 1, §§ 17, 20.”

         II.

         The provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996), which govern this case, “circumscribe[d]” the standard of review federal courts must apply when considering applications for a writ of habeas corpus raising constitutional claims. See Wiggins v. Smith, 539 U.S. 510, 520 (2003).

         As amended, 28 U.S.C. § 2254(d) permits a federal court to issue the writ only if the state court decision on a federal issue “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court, ” or it amounted to “an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1) & (2); Franklin v. Francis, 144 F.3d 429, 433 (6th Cir. 1998). Mere error by the state court will not justify issuance of the writ; rather, the state court's application of federal law “must have been objectively unreasonable.” Wiggins, 539 U.S. at 520- 21 (quoting Williams v. Taylor, 529 U.S. 362, 409 (2000)(internal quotes omitted)). Additionally, this Court must presume the correctness of state court factual determinations. 28 U.S.C. § 2254(e)(1)(“In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct.”); see also West v. Seabold, 73 F.3d 81, 84 (6th Cir. 1996)(stating that “[t]he court gives complete deference to state court findings of historical fact unless they are clearly erroneous”).

         The Supreme Court has explained the proper application of the “contrary to” clause as follows:

A state-court decision will certainly be contrary to [the Supreme Court's] clearly established precedent if the state court applies a rule that contradicts the governing law set forth in our cases....
A state-court decision will also be contrary to this Court's clearly established precedent if the state court confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives ...

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