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Berry v. Nagy

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

July 16, 2019

KEVIN BERRY, Petitioner,
NOAH NAGY, Respondent.



         This is a habeas corpus action brought by a state prisoner under 28 U.S.C. § 2254. Promptly after the filing of a petition for habeas corpus, the Court must undertake a preliminary review of the petition to determine whether “it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court.” Rule 4, Rules Governing § 2254 Cases; see 28 U.S.C. § 2243. If so, the petition must be summarily dismissed. Rule 4; see Allen v. Perini, 424 F.2d 134, 141 (6th Cir. 1970) (district court has the duty to “screen out” petitions that lack merit on their face). A dismissal under Rule 4 includes those petitions which raise legally frivolous claims, as well as those containing factual allegations that are palpably incredible or false. Carson v. Burke, 178 F.3d 434, 436-37 (6th Cir. 1999). After undertaking the review required by Rule 4, the Court concludes that the petition must be dismissed because it fails to raise a meritorious federal claim.


         I. Factual allegations

          Petitioner Kevin Berry is incarcerated with the Michigan Department of Corrections at the Lakeland Correctional Facility (LCF) in Coldwater, Michigan. On November 2, 2015, Petitioner pleaded guilty in the Kent County Circuit Court to second-degree murder, in violation of Mich. Comp. Laws § 750.317; unlawful imprisonment, in violation of Mich. Comp. Laws § 750.349b; first-degree home invasion, in violation of Mich. Comp. Laws § 750.110a; armed robbery, in violation of Mich. Comp. Laws § 750.529; and felony firearm, in violation of Mich. Comp. Laws § 750.227b. On November 24, 2015, the court sentenced Petitioner to concurrent prison terms of parolable life for second-degree murder, 6 to 15 years for unlawful imprisonment, 4 to 20 years for first-degree home invasion, and 33 to 99 years for armed robbery. Those concurrent sentences were to be served consecutively to a sentence of 2 years for felony firearm.

         On May 7, 2019, Petitioner filed his habeas corpus petition which raises three grounds for relief, as follows:

I. Petitioner is entitled to withdrawal of plea or resentencing, where his trial counsel was ineffective for failing to object to the upward departure of sentencing guideline range, and for failure to file a motion to withdraw the plea where the trial court provided no reasons for its departure.
II. Petitioner was denied the effective assistance of appellate counsel as guaranteed by the U.S. Const. Am. XIV, Mich. Const. 1963, Art. I, § 20, where attorney failed to raise meritorious claims in post-conviction proceedings, forfeiting Petitioner's constitutional rights.
III. Petitioner is entitled to resentencing for second-degree murder and armed robbery, which departed from the applicable guidelines range, the sentence is unreasonable, and the sentencing transcripts do not reflect any reason for [sentencing guidelines] departure requiring remand to trial court pursuant to Lockridge, 498 Mich. 358 (2015).

(Pet., ECF No. 1, PageID.2-3.)

         Petitioner describes the facts underlying his convictions as follows:

[O]n September 8, 2014, [Petitioner] and several other individuals broke into the home of Brent Luttrell, while armed with loaded guns, entering through a sliding glass door where they smashed out the window. Inside the residence they held some of the home[']s occupants at gunpoint while tying others up. Petitioner testified that one of the men shot Brent Luttrell several times and stabbed him, causing his death. In addition, [Petitioner] testified that he also was armed with a loaded rifle.

(Pet'r's Br., ECF No. 2, PageID.19.) The events described by Petitioner would have supported Petitioner's conviction for felony murder-an offense that carries a mandatory non-parolable life sentence. Mich. Comp. Laws § 750.316. At the time of Petitioner's plea, two of his co-defendants, Isaac Fezzey and Jaman Parish, had already been tried before a jury and convicted of first-degree felony murder for their participation in the events of the evening; the driver, Tyler Rohn, had entered a guilty plea and been sentenced; the prosecutor had convinced the trial court to reject Petitioner's duress defense; and Petitioner had handwritten a 12-page account of his role in the robbery, most likely for the purpose of supporting his duress defense, and provided it to the prosecutor's office. A mandatory non-parolable life sentence was virtually a certainty if Petitioner went before a jury.

         The parties negotiated a plea. The prosecutor agreed to dismiss the first-degree felony murder count and replace it with a second-degree murder charge, thereby eliminating the possibility of a mandatory non-parolable life sentence. In exchange, Petitioner agreed to an effective minimum sentence of 35 years-33 years as the armed robbery minimum consecutive to 2 years for the felony firearm offense.

         Petitioner's present suggestion that his minimum sentence was something that counsel should have challenged is disingenuous. The plea transcript demonstrates the negotiated minimum sentence was integral to the plea agreement. The negotiated minimum was referenced repeatedly by the trial court during the plea proceedings. Petitioner is correct, however, that the 33-year minimum for armed robbery exceeded the highest minimum based on the sentencing guidelines: 19 years, 9 months. (Pet'r's Br., ECF No. 2, PageID.19.) All of Petitioner's other sentences fell within the sentencing guidelines minimum range. (Id.)

         Petitioner, with the assistance of counsel, filed an application for leave to appeal the judgment in the Michigan Court of Appeals. Petitioner does not identify the issues raised in that appeal; however, the issues raised did not include the three issues Petitioner raises in this petition. The Michigan Court of Appeals denied leave to appeal, for lack of merit in ...

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