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Person v. Christiansen

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

June 13, 2019

ADRIAN PERSON, Petitioner,
v.
JOHN CHRISTIANSEN, Respondent.

          OPINION AND ORDER (1) DENYING PETITION FOR WRIT OF HABEAS CORPUS, AND (2) DENYING CERTIFICATE OF APPEALABILITY

          HON. NANCY G. EDMUNDS UNITED STATES DISTRICT JUDGE.

         Adrian Person ("Petitioner") filed this habeas case under 28 U.S.C. § 2254. Petitioner pled no contest in the Eaton Circuit Court to aggravated domestic violence, MICH. COMP. LAWS § 750.81a, witness intimidation, MICH. COMP. LAWS § 750.122, and unlawful use of a motor vehicle. MICH. COMP. LAWS § 750.414. Petitioner was sentenced as a fourth-time habitual felony offender to 3 to 15 years for the witness intimidation and unlawful use of a motor vehicle convictions and 142 days for the domestic violence conviction.[1] The petition raises a single claim: Petitioner was entitled to specific enforcement of the plea agreement or to withdraw his guilty plea when the trial court found that it was no longer bound by its pre-plea sentencing evaluation due to Petitioner's post-plea misconduct. The claim is without merit. The Court will therefore deny the petition, and it will also deny a certificate of appealability.

         I. Background

         The charges against Petitioner arose after he beat and strangled his ex-girlfriend, Kara Winston. Petitioner then took her cell phone and car. Dkt. 10-6, at 27-28. Petitioner was originally charged with assault by strangulation, unlawful driving away of an automobile, and aggravated domestic violence.

         Prior to the preliminary examination Petitioner made over one-hundred phone calls to Winston. He told Winston not to cooperate with law enforcement, to tell police that she was moving out of state, and that she was at fault for the incident. Upon learning of this conduct, the prosecutor added a charge of witness of intimidation, and the court revoked Petitioner's pretrial bond for violating the no-contact provision of Petitioner's bond. The state circuit court later entered a separate protective order prohibiting Petitioner from contacting Winston.

         Petitioner thereafter entered into a plea agreement with the prosecutor to plead guilty to the three offenses outlined above, and in exchange the prosecutor dismissed the assault by strangulation charge and a more serious automobile theft charge. The Michigan Court of Appeals summarized the proceedings in the trial court:

Defendant's plea was made pursuant to an agreement under People v. Cobbs, 443 Mich. 276 (1993). As part of the plea process, the trial court indicated that it was inclined to sentence defendant to probation with eight to ten months in jail. Defendant entered the plea, which was accepted by the court, and defendant was remanded to the county jail.
At sentencing, the prosecutor informed the court that defendant had violated an order entered at arraignment that defendant have no contact with the victim. Specifically, defendant called the victim 139 times from the Eaton County Jail, 120 of which occurred after defendant's plea. The prosecutor argued that the trial court was no longer bound by the Cobbs agreement because of defendant's misconduct by having contact with the victim. Defendant admitted to contact with the victim, stating that he "didn't know no better" and that he had only received a copy of the order two days earlier. When asked if he had heard the judge at arraignment verbally tell him to have no contact with the victim, defendant responded that he was "stressed out" at the time and did not know if the judge had told him of the no-contact requirement. The trial court concluded that, because of defendant's misconduct, the court was no longer bound by the Cobbs agreement and sentenced defendant within guidelines as outlined above.
Defendant moved for either specific performance of the sentence agreement or to be allowed to withdraw his plea. He argued that the "Pretrial Protective Order" expired at trial or, in this case, at the plea and was no longer in effect when he made the phone calls to the victim after his plea. The prosecutor argued that, because the order had no expiration date, it continued into effect until the trial court sentenced defendant to prison and lost jurisdiction over him. The trial court agreed with plaintiff and denied defendant's motion.

People v. Person, 2018 WL 1073193, at *1 (Mich. Ct. App. Feb. 27, 2018).

         Petitioner then filed a delayed application for leave to appeal in the Michigan Court of Appeals. His application raised two claims:

I. Due process requires specific performance and resentencing where defendant pled guilty with a Cobbs agreement and did not commit any misconduct that would nullify the Cobbs.
II. In the alternative, Mr. Person is entitled to withdraw his plea where he did not violate a condition of the plea agreement or commit misconduct and therefore he is entitled to withdraw his plea pursuant to MCR 6.310(B)(2) and where his attorney was ineffective.

         The Michigan Court of Appeals granted leave to appeal, but it affirmed Petitioner's ...


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