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Lee v. Trierweiler

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

May 29, 2019

Samuel Earl Lee, Petitioner,
v.
Tony Trierweiler, Respondent.

          Honorable Gordon J. Quist, Judge

          REPORT AND RECOMMENDATION

          PHILLIP J. GREEN, UNITED STATES MAGISTRATE JUDGE

         This is a habeas corpus action brought by a state prisoner under 28 U.S.C. § 2254. Petitioner Samuel Earl Lee is incarcerated with the Michigan Department of Corrections at the Bellamy Creek Correctional Facility in Ionia, Michigan. Petitioner pleaded nolo contendere in the Kent County Circuit Court to assault with intent to commit murder (AWIM), in violation of Mich. Comp. Laws § 750.83, assault with intent to do great bodily harm (AGBH), in violation of Mich. Comp. Laws § 750.84, possessing a firearm when committing a felony (felony-firearm), in violation of Mich. Comp. Laws § 750.227b, and to his status as a habitual offender-fourth offense, as described in Mich. Comp. Laws § 769.12. On January 20, 2017, the court sentenced Petitioner to a prison term of eleven years, two months to sixteen years, eight months for AWIM, concurrent to a prison term of eleven years, two months to fifteen years for AGBH, both concurrent terms to be served consecutively to a two-year sentence for felony-firearm.

         On June 28, 2018, Petitioner timely filed his habeas corpus petition raising two grounds for relief, as follows:

I. Lee’s involuntary plea and invalid sentence were the direct result of trial counsel’s deficient performance. The state court’s decision is contrary to clearly established law and is objectively unreasonable.
II. Lee was denied due process and fundamental fairness when he was not permitted to be present at the plea withdrawal hearing. His presence was critical to the outcome, and the state court’s decision is contrary to clearly established law and is objectively unreasonable.

(Pet., ECF No. 1, PageID.5, 7.) Respondent has filed an answer to the petition (ECF No. 9) stating that the grounds should be denied because they are meritless. 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 without merit. Accordingly, I recommend that the petition be denied.

         Discussion

         I. Factual allegations[1]

         During the early morning hours of January 21, 2016, Petitioner returned to the home he shared with his fiancé (Leslie Daniels), her sister (Dimona Daniels), and their children. Petitioner and Leslie Daniels discussed her desire to break up with him. She then left the room and went upstairs to rouse her children. While upstairs, Leslie Daniels heard her sister screaming. Leslie Daniels tried to run down the stairs to investigate. On the way down, Petitioner fired a handgun at her, hitting her twice.

         Dimona Daniels had screamed because Petitioner had first fired shots in her direction while she was in the bathroom downstairs. When she finally left the bathroom, she found her sister bleeding on the living room floor and Petitioner bleeding in the hallway. Petitioner had shot himself in an apparent suicide attempt.

         The prosecutor charged Petitioner with two counts of AWIM and felony-firearm. (Kent Cty. Cir. Ct. Docket Sheet, ECF No. 10-1, PageID.106.) On the day scheduled for trial, however, Petitioner agreed to enter a plea of nolo contendere to one charge of AWIM, a new charge of AGBH, and to his status of a habitual offender-fourth offense. (Plea Hr’g Tr., ECF No. 10-4, PageID.156-159.) In exchange, the other AWIM charge would be dismissed and the parties and the court agreed to impose sentence on Petitioner for the AWIM and AGBH convictions from a minimum range of 34 to 134 months. (Id.) That sentence range was derived from the grid for AGBH. (Id., PageID.156.) It represented a substantially lower range than would have followed from scoring the guidelines on the AWIM conviction-225 to 750 months. (Sentencing Tr. I, ECF No. 10-5, PageID.189.) Although the agreed-upon minimum range-34 months to 134 months-was derived from the “D” grid, the agreement was the specific number range, not the grid, a particular cell, or any particular number within a cell. (Plea Tr., ECF No. 10-4, PageID.159.)

         The court was willing to accept a nolo contendere plea, rather than a guilty plea, because: (1) Petitioner represented that he was intoxicated and was unable, for that reason, to provide a factual basis for his plea; or (2) potential civil liability. (Id., PageID.159-160.) Petitioner indicated that he did not contest the AGBH charge, the AWIM charge, the felony-firearm charge, or the habitual offender-fourth offense enhancement. (Id., PageID.164-165.)

         The court initially sentenced Petitioner on January 18, 2017, to 134 months to life on the AWIM and AGBH charges, and a consecutive two-year sentence on the felony-firearm charge. (Sentencing Tr. I, ECF No. 10-5.) Two days later, the court resentenced Petitioner to 134 to 200 months for AWIM, and 134 months to 180 months for AGBH, both consecutive to the two-year felony-firearm sentence. (Sentencing Tr. II, ECF No. 10-6.)

         Petitioner, with the assistance of appointed appellate counsel, moved to withdraw his plea a few months later. (Mot. Hr’g Tr., ECF No. 10-7.) Petitioner based his motion on the court’s failure to hold a hearing to support entry of the nolo contendere plea. (Id.) Petitioner’s counsel argued that it was improper for the prosecutor to simply present his statement of the evidence in the case (see Plea Tr., ECF No. 10-4, PageID.165-166); the court should have held a hearing instead.

         Petitioner was not present for the motion hearing. (Mot. Hr’g Tr., ECF No. 10-7, PageID.206.) At the beginning of the hearing, Petitioner’s counsel specifically waived Petitioner’s presence at the hearing. (Id.) The trial court denied Petitioner’s motion to withdraw his plea. (Id., PageID.213-214.)

         Petitioner filed an application for leave to appeal his convictions and sentences in the Michigan Court of Appeals. The brief he filed with the assistance of counsel raised the same issue he raised in the motion to withdraw his plea: the trial court should have held a hearing to establish a factual basis to support the nolo contendere plea. (Appl. for Leave to Appeal, ECF No. 10-8, PageID.221.) In Petitioner’s supplemental pro per brief in the court of appeals he raised the same issues he raises in this habeas petition. (Pet’r’s Supp. Pro Per Br., ECF No. 10-8, PageID.346-347.) By order dated November 17, 2017, the Michigan Court of Appeals denied leave to appeal “for lack of merit in the grounds presented.” (Mich. Ct. App. Order, ECF No. 10-8, PageID.217.)

         Petitioner then filed a pro per application for leave to appeal in the Michigan Supreme Court raising the same issues he raised in the Michigan Court of Appeals. (Appl. for Leave to Appeal, ECF No. 10-9, PageID.442-444.) The Michigan Supreme Court denied leave by order entered May 1, 2018, because the court was “not persuaded that the questions presented should be reviewed . . . .” (Mich. Order, ECF No. 10-9, PageID.439.) This petition followed.

         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 state court convictions are given effect 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 381-82; 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, 37-38 (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 ...


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