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Robinson v. Davids

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

May 21, 2019

MICHAEL ROBINSON, Petitioner,
v.
JOHN DAVIDS, [1] Respondent.

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

          SEAN F. COX, U.S. DISTRICT JUDGE

         Michael Robinson, (“Petitioner”), presently confined at the Ionia Correctional Facility in Ionia, Michigan, filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction for two counts of armed robbery, M.C.L.A. § 750.529, one count of first-degree home invasion, M.C.L.A. § 750.110(a)(2), and one count of felony firearm, M.C.L.A. § 750.227(b). For the reasons that follow, the petition for a writ of habeas corpus is DENIED.

         I. Background

         Petitioner was convicted following the entry of a no contest plea and sentence agreement in the Genesee County Circuit Court.

         The victim, Brian Smith, testified that he answered a knock at the door. Petitioner asked him if his dad was at home. Smith answered, “no.” Petitioner pulled out a gun and forced Smith and his brother into the basement, where their father had three marijuana plants growing for medicinal purposes. Petitioner stole the plants and escaped on foot. A vehicle later picked him up. Petitioner and the driver of the vehicle are members of a Flint street gang called “Dogs for Life.” (T. 8/22/13, pp. 8-10).

         Petitioner pleaded no contest in exchange for the dismissal of an unrelated carrying a concealed weapon charge pending in another case, and a plea and sentence agreement on the four pending charges. (T. 12/3/2013, p. 6). The trial court judge sentenced him to ten to thirty years as follows: “On count two, armed robbery, which carries up to life, I'm gonna sentence you to serve a minimum of a hundred and twenty months, a maximum of three hundred and sixty months. On count three, home invasion in the first degree, which I think by law could be consecutive. I think discretionarily by--by--by the Court. I'm gonna run it concurrent with counts one, two and three and I'm gonna sentence you to serve a minimum of eight years which would be ninety-six months and a maximum of two hundred and forty months. And then of course you have to do two years flat on the felony firearm. That would be consecutive to counts one, two and three.” (T. 1/8/2014, p. 12).

         Petitioner did not file leave to appeal with the Michigan Courts. Petitioner filed a post-conviction motion for relief from judgment with the Genesee County Circuit Court, which was denied. People v. Robinson, No. 13-33612-FC (Genesee County Circuit Court, Oct. 15, 2015). The Michigan Court of Appeals denied petitioner leave to appeal. People v. Robinson, No. 330041 (Mich.Ct. App. Feb. 24, 2016). Petitioner then filed for application for leave to appeal in the Michigan Supreme Court and added the following claim:

V. Due process requires that a plea based conviction be knowingly, intelligently and voluntarily made. To meet these standards, the record must establish an adequate factual basis to support the charge. Where defendant pled no contest and the trial court did not recite its factual findings from a transcript review, the trial court abused its discretion when it denied defendant's request to withdraw his plea before sentencing when defendant asserted that he had not had sufficient time to discuss the matter with counsel.

         The Michigan Supreme Court denied the application for leave to appeal “because the defendant has failed to meet the burden of establishing entitlement to relief under MCR 6.508(D).” People v. Robinson, 500 Mich. 919, 887 N.W.2d 804 (2016).

         Petitioner then filed with this Court a habeas petition containing the following issues:

I. Due process requires that a plea based conviction be knowingly, intelligently, and voluntarily made. To meet these standards, the record must establish an adequate factual basis to support the charge. Where defendant pled no contest with a different attorney tha[n] the one that conducted the preliminary examination and where cross-examination was improperly curtailed on the issue of lawful permission to enter, did trial court err by denying petitioner's motion to vacate his plea?
II. At the time of this sentence, a trial court's scoring decision had to be supported by a preponderance of the evidence with the burden on the prosecution. Where the Presentence Investigation Report acknowledges that OV4 was scored based on an assumption and no record evidence supports serious psychological injury requiring professional treatment, did the trial court err by assessing 10 points[?]
III. At the time of this sentence, a trial court's scoring decision had to be supported by a preponderance of the evidence with the burden on the prosecution. Where the Presentence Investigation Report scored 15 points for offense variable 8 (asportation or captivity) ordering victims to the basement of the dwelling but the object to be stolen was in the basement, did the trial court err by assessing 15 points[?]
IV. At the time of this sentence, a trial court's scoring decision had to be supported by a preponderance of the evidence with the burden on the prosecution. Where the Presentence Investigation Report scored 15 points for Offense Variable 13 (a pattern of three or more crimes against a person) but this was defendant's first adult conviction, did the trial court err by assessing 15 points[?]
V. The Sixth Amendment right to counsel includes a requirement that counsel perform effectively, counsel must, at a minimum, do a reasonable investigation and presented relevant evidence on a defendant's behalf. Where trial counsel failed to pursue acknowledged errors in scoring of the guidelines which led to a higher guideline range tha[n] the evidence could support, did trial counsel provide effective assistance?
VI. Petitioner was deprived of his constitutional right to the effective assistance of counsel where appellate counsel failed to timely file an application for leave to appeal, ...

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