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Reynolds v. Rewerts

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

July 17, 2019

REGAN ADAM REYNOLDS, Petitioner,
v.
RANDEE REWERTS, Respondent.

          OPINION

          Paul L. Maloney, United States District Judge.

         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.

         Discussion

         I. Factual allegations

         Petitioner Regan Adam Reynolds is incarcerated with the Michigan Department of Corrections at the Carson City Correctional Facility (DRF) in Carson City, Michigan. On December 12, 2011, Petitioner pleaded guilty in the Kent County Circuit Court to kidnapping and conspiracy to commit kidnapping, in violation of Mich. Comp. Laws § 750.349, and first-degree home invasion, in violation of Mich. Comp. Laws § 750.110a. On January 5, 2012, the court sentenced Petitioner as a habitual offender-second offense, Mich. Comp. Laws § 769.10, to concurrent prison terms of 20 to 60 years for kidnapping and conspiracy to commit kidnapping, followed by a consecutive term of 10 to 30 years for first-degree home invasion. (Jan. 5, 2010 J. of Sentence, ECF No. 2-1, PageID.185.) The trial court resentenced Petitioner on March 6, 2014, to the same sentence. (Sentencing Tr. II, ECF No. 2-1, PageID.245-246.) Following a resentencing hearing on May 12, 2016, the trial court resentenced Petitioner, and again the court imposed the same sentence. (May 12, 2016 J. of Sentence, ECF No. 2-3, PageID.409.)

         On May 8, 2019, Petitioner filed his habeas corpus petition raising 13 grounds for relief, as follows:

I. The trial court erred in denying Petitioner's motion to withdraw his guilty plea where Petitioner's convictions were not supported by facts sufficient to find guilt on any of the crimes [of which he was] convicted.
II. The trial court erred in denying Petitioner's motion to withdraw his guilty plea where Petitioner plea was illusory, under faulty advice, without effective assistance of counsel, without understanding, and where it was breached by the prosecution.
III. Petitioner was denied his right to have effective assistance of counsel where counsel failed to object to several issues that he should have.
IV. Petitioner was denied his right to have effective assistance of counsel where counsel failed to do an independent investigation of the facts of the case or relevant statutes or case law.
V. The prosecutor violated the plea agreement by asking for consecutive sentences and by withholding a medical bill until the day of sentencing therefore also violating Brady.
VI. The trial court erred in imposing restitution and court costs as they were not part of the plea agreement.
VII. The Petitioner was illegally arrested for questioning and his statement to the Grandville Police should have been suppressed.
VIII. The trial judge should be disqualified because he is personally biased against the Petitioner and he used personal knowledge of disputed facts against the Petitioner.
IX. The trial judge should be disqualified because he failed to follow the ruling of the Michigan Court of Appeals when Petitioner was resentenced.
X. Petitioner is entitled to resentencing where the statutory sentencing guidelines were misscored which affected the statutory sentencing guideline range.
XI. Petitioner was denied his right to have effective assistance of counsel where appellate counsel failed to investigate meritorious issues and abandoned the Petitioner.
XII. Petitioner was denied his right to file a Standard 4 Supplemental brief in the Michigan Court of Appeals.
XIII. Petitioner is actually innocent of all the crimes of which he was convicted.

(Pet'r's Mem. of Law, ECF No. 2, PageID.41-42.)

         Petitioner has submitted exhibits with his memorandum of law that include virtually all of the significant documents in the state court record. The exhibits are voluminous in part because, since Petitioner was initially sentenced on January 5, 2012, he has filed four separate applications for leave to appeal in the Michigan Court of Appeals and three separate applications for leave to appeal in the Michigan Supreme Court. The volume is also enhanced by Petitioner's practice of routinely filing pro per briefs to supplement the appellate submissions of his appointed counsel.

         Despite filing more than a ream of state court briefs, Petitioner omitted the only “Statement of Facts”-the statement from his first appellate counsel's application for leave to appeal-that addressed the facts at issue in his prosecution. The factual statements in all subsequent briefing relate only to the procedural history or sentencing issues that are generally unrelated to the actual crimes of which he was convicted.

         Factual information regarding Petitioner's crimes appears in his plea transcript and the sentencing transcripts for Petitioner and his fellow kidnappers. Those sources disclose that Petitioner and two other individuals planned to kidnap and restrain Petitioner's ex-mother-in-law with the intent to hold her for ransom. (Pet'r's Plea Tr., ECF No. 2-1, PageID.108.; Pet'r's Sentencing Tr. I, ECF No. 2-1, PageID.118.) The two other individuals went into the victim's home with a knife, removed her, and communicated the ransom demand to her husband. (Pet'r's Plea Tr., ECF No. 2-1, PageID.108; Pet'r's Sentencing Tr. I, ECF No. 2-1, PageID.117.) Petitioner did not go inside the home. (Pet'r's Plea Tr., ECF No. 2-1, PageID.108.) Other than his role in planning the crime, he only drove a vehicle. (Pet'r's Plea Tr., ECF No. 2-1, PageID.109.)

         Petitioner's co-conspirators duct-taped the victim's hands and feet, put her in her own car and then took her to a cornfield. (Pet'r's Sentencing Tr. I, ECF No. 2-1, PageID.121.) In the cornfield, they attempted to duct tape her to a telephone pole. (Id.) The sentencing judge reported, however, that Petitioner's colleagues did not have enough duct tape. (Id., PageID.130.) A kidnapper told the victim not to leave and then left to get more duct tape. (Id.) After the victim was left alone, however, despite the threat to kill her if she moved, the victim escaped. (Id.)

         Petitioner has also supplied the Grandville Police Department's probable cause affidavit. (ECF No. 2-2, PageID.401-402.) The affidavit reveals that Petitioner's colleagues were “remorseful and regretful.” (Id.) They turned themselves into the Grandville Police and confessed. They identified Petitioner as the third participant. Petitioner was taken into custody by way of a felony traffic stop. He was interviewed at the police station. He confessed.

         Petitioner entered his plea on December 12, 2011, the day scheduled for trial. Petitioner's fellow kidnappers had entered pleas of guilty several weeks before.

         Petitioner's plea agreement is memorialized in the plea hearing transcript and then repeated in the trial court's order remanding Petitioner to the Kent County Jail. (Plea Hr'g Tr., ECF No. 2-1, PageID.103-111; Kent Cty. Cir. Ct. Order, ECF No. 2-1, PageID.101.) The prosecutor reported the terms of the plea agreement as follows:

Your Honor, upon a successful plea and sentence to counts one, two and three and as a second felony offender, the Prosecutor's office would dismiss count four, which is a charge of conspiracy to commit home invasion. We are also recommending that the defendant be sentenced within the applicable Sentencing Guidelines. And in calculating those Guidelines, we've agreed, counsel and I, that offense variable seven be scored as zero points. Just so everyone's on the same page here, the way counsel and I score the Guidelines, it would require the Court to impose a term of years sentence as his Guidelines would not include the possibility for a life sentence. So, it'd be a term-of-years sentence. It should also be understood that the sentences for counts one and two, kidnapping and conspiracy to kidnap could potentially be consecutive to count three, home invasion, but whether those run concurrently or consecutively would be up to Your Honor's discretion.

(Plea Hr'g Tr., ECF No. 2-1, PageID.107.) Petitioner and his counsel agreed that the prosecutor's report captured the complete agreement between the parties. (Id.) Petitioner testified that no promises were made to him other than as reported by the prosecutor. (Id.) Petitioner's counsel concurred. (Id., PageID.109.) The court's order of remand simply echoed the agreement reported on the record: “Pros. to dismiss home invasion consp, and recommends sent. w/in guidelines. parties agree that OV 7 be scored at zero and that sentence would be term of years, not mandatory life. Consecutive sent. to be at court's discretion.” (Kent Cty. Cir. Ct. Order, ECF No. 2-1, PageID.101.)

         Although there is no mention of the calculated guidelines in the plea transcript, at Petitioner's sentencing, the trial judge acknowledged that the court and counsel had discussed a calculated minimum sentence guideline range of 171 to 356 months in connection with the plea discussions. (Sentencing Tr. I, ECF No. 2-1, PageID.128.) The scoring at Petitioner's first sentencing hearing yielded a much higher range: 225 to 468 months. (Id.) With respect to the kidnapping convictions, the range was determined based on a prior record variable (PRV) score of 110 and an offense variable (OV) score of 90. (Id., PageID.120.) Even though the actual scoring yielded a higher minimum range than the initial estimate, the court informed Petitioner and both counsel that he intended to sentence using the minimum guideline range discussed during the course of the plea. (Id., PageID.128.)

         At Petitioner's sentencing hearing, Petitioner attempted to withdraw his plea, claiming that his counsel had rendered ineffective assistance. (Id., PageID.124.) The trial court denied relief. (Id., PageID.125-127.) The Court proceeded to sentence Petitioner as described above. The 20-year minimum on Petitioner's kidnapping convictions fell within the actual calculated minimum sentence guideline range as well as the estimate.

         Thereafter, Petitioner's case followed a tortuous procedural path. He sought leave to appeal in the Michigan Court of Appeals raising several of his habeas issues. The court of appeals denied leave for lack of merit in the grounds presented. Petitioner then sought leave in the Michigan Supreme Court. That court denied leave as to all issues except a sentence guideline variable scoring issue. (Mich. Order, ECF No. 2-1, PageID.235.) The supreme court concluded that the trial court had erred in scoring OV 12, regarding contemporaneous criminal acts, and OV 13, regarding a continuing pattern of criminal behavior. (Id.) The trial court scored both OVs as if Petitioner's conspiracy conviction were a crime against a person. Just a few days after Petitioner was sentenced, however, the Michigan Supreme Court had stated that conspiracy convictions are not crimes against a person even if the crime at the heart of the conspiracy would be properly categorized as a crime against a person. See People v. Pearson, 807 N.W.2d 45 (Mich. 2012). Based on that issue, the supreme court vacated Petitioner's sentences and remanded to the trial court for resentencing. (Mich. Order, ECF No. 2-1, PageID.235.)

         The trial court adjusted the scoring as directed by the supreme court. (Sentencing Tr. II, ECF No. 2-1, PageID.239-240.) The change dropped Petitioner's offense variable score from 90 to 61, moving his guidelines minimum sentence range from 225 to 468 months to 171 to 356 months. The recalculated range matched the estimated range upon which the parties had relied during plea discussions and, accordingly, upon which the trial court had founded its sentence in the first instance. Not surprisingly, the court sentenced Petitioner to the same terms of incarceration. During the hearing, Petitioner moved to withdraw his plea. The court denied relief.

         Petitioner again sought leave to appeal in the Michigan Court of Appeals. That court denied leave because the issues raised were meritless with respect to all but two issues: a sentence guideline variable scoring issue, this time on the PRV side of the guidelines table, and the impact of the “law of the case” doctrine. (Mich. Ct. App. Order, ECF No. 2-1, PageID.324.) After briefing, the court of appeals vacated Petitioner's sentence again. (Mich. Ct. App. Op., ECF No. 2-1, PageID.336-341.) The court of appeals concluded that three of Petitioner's prior felonies should have been scored as low severity rather than high severity. (Id.) That altered Petitioner's PRV score from 110 to 60 and led to a change in his guidelines minimum sentence range on the kidnapping convictions from 171 to 356 months to 135 to 281 months. The appellate court remanded for resentencing.

         The trial court adjusted the scoring once again. (Sentencing III Tr., ECF No. 2-1, PageID.343-351.) Petitioner again moved to withdraw his plea, a motion that the court denied. The court then, for the third time, resentenced Petitioner to the same sentence. The trial court acknowledged the impact of the intervening decision in People v. Lockridge, which rendered the Michigan sentencing guidelines advisory rather than mandatory. (Id., PageID.250-251.) Petitioner sought leave to appeal in the Michigan Court of Appeals. That Court denied leave for lack of merit in the grounds presented. (Mich. Ct. App. Order, ECF No. 2-3, PageID.493.) Petitioner then sought leave to appeal in the Michigan Supreme Court. That court also denied leave. (Mich. Order, ECF No. 2-3, PageID.527.)

         Petitioner then returned to the trial court and raised, by way of a motion for relief from judgment, the thirteen issues he raises in his habeas petition. Petitioner claimed that he had raised all thirteen issues in the Michigan Court of Appeals and the Michigan Supreme Court during his previous appeals, but that the appellate courts had not ruled on them. (Pet'r's Br., ECF No. 2-3, PageID.585.) The trial court disagreed, noting that the Michigan Court of Appeals had denied leave for lack of merit in the grounds presented each time. (Kent Cty. Cir. Ct. Order 5, ECF No. 2-3, PageID.591-592.) Accordingly, the trial court reasoned, relief from judgment was barred by Mich. Ct. R. 6.508(D)(2) because Petitioner had failed to demonstrate a retroactive change in the law as required by the rule. (Id.) Petitioner sought leave to appeal that denial in both Michigan appellate courts. Both courts denied leave. (Mich. Ct. App. Order, ECF No. 2-3, PageID.657; Mich. Order, ECF No. 2-2, PageID.399.) Petitioner then filed the instant petition.

         IL 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. Lopez v. Smith,574 U.S. 1, 4 (2014); Marshall v Rodgers,569 U.S. 58, 64 (2013); Parker v Matthews,567 U.S. 37, 48-49 (2012); 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 ...


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