United States District Court, W.D. Michigan, Southern Division
Honorable Gordon J. Quist, Judge
REPORT AND RECOMMENDATION
PHILLIP J. GREEN, UNITED STATES MAGISTRATE JUDGE
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.
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.
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.
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
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.)
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.,
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.
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.
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.)
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.)
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.
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
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).
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 ...