United States District Court, W.D. Michigan, Southern Division
L. Maloney, United States District Judge.
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
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.)
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
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
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.)
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
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.
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.)
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
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.
entered his plea on December 12, 2011, the day scheduled for
trial. Petitioner's fellow kidnappers had entered pleas
of guilty several weeks before.
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.)
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.
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.
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.)
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
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
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.)
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.
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).
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 ...