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Blain v. Lindsey

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

November 4, 2019

HERBERT MAX BLAIN JR., Petitioner,
v.
KEVIN LINDSEY, Respondent.

          OPINION

          Janet T. Neff 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 Herbert Max Blain, Jr. is incarcerated with the Michigan Department of Corrections at the Muskegon Correctional Facility (MCF) in Muskegon, Muskegon County, Michigan. This is the second petition for habeas corpus relief that Petitioner has filed in this Court. Petitioner's first habeas corpus petition was dismissed without prejudice for failure to exhaust state court remedies on April 2, 2018. Blain v. Nagy, No. 1:18-cv-308 (W.D. Mich.). Petitioner seeks to have the file from No. 1:18-cv-308 considered by this Court in reviewing Petitioner's instant habeas petition (ECF No. 9). The Court grants his motion.

         In the opinion dismissing that action, the Court summarized the facts as follows:

On September 10, 2014, pursuant to a plea agreement under which two other offenses were dismissed, Petitioner pleaded guilty in the Barry County Circuit Court to the ten-year felony of operating a drug laboratory as a fourth-offense felony. The plea agreement was conditioned on Petitioner's eligibility for the “swift and sure” sanctions program, and it included a provision entitling him to withdraw his guilty plea if he was not eligible for the program. (Plea Hr'g Tr. #1, ECF No. 1-1, PageID.88-96.)
On October 22, 2014, after it became apparent that Petitioner was ineligible for the “swift and sure” program, the trial court held a second plea hearing, at which Petitioner withdrew his plea to operating a drug laboratory, but pleaded guilty to the lesser charge of maintaining a drug house, Mich. Comp. Laws § 333.7405(D), as a fourth-offense felony offender, Mich. Comp. Laws § 769.12. (Plea Hr'g Tr. #2, ECF No. 1-1, PageID.100-105.) The second guilty plea was subject to a Killebrew agreement of five months in jail, for which Petitioner would begin earning credit immediately, as his parole hold had been released. The agreement also waived the government's right to charge Petitioner for witness tampering. (Id, PageID.100-101.) In addition, the plea agreement itself, which Petitioner signed, included a notice that, if he failed to follow the requirements of his bond or absconded, the court would not be bound by the terms of the sentencing agreement. (Sentencing Hr'g Tr., ECF No. 1-1, PgeID.110-111.) The sentencing hearing was scheduled for December 3, 2014. (Plea Hr'g Tr. #2, ECF No. 1-1, PageID.105.)
Petitioner, however, failed to appear for sentencing and absconded for nine months. On September 16, 2015, the court held a sentencing hearing. The court held that, because of Petitioner's decision to abscond, the court was not required to impose the negotiated sentence and did not intend to do so. The court denied Petitioner's motion to withdraw his plea, because he had lost the right to do so by absconding and he had not otherwise shown good cause for withdrawing the plea under the court rule. The court sentenced Petitioner above the guidelines range to a prison term of 10 to 15 years. (Sentencing Hr'g Tr., ECF No. 1-1, PageID.108-118.)

(No. 1:18-cv-308, ECF No. 7, PageID.164-165 (footnotes omitted).)

         The Court further noted that in Petitioner's application for leave to appeal in the Michigan Court of Appeals, he raised two claims:

1. THE SENTENCE IMPOSED ON [PETITIONER], WHICH DEPARTED FROM THE APPLICABLE GUIDELINE RANGE, WAS UNREASONABLE, REQUIRING REMAND TO THE TRIAL COURT FOR RESENTENCING PURSUANT TO PEOPLE V LOCKRIDGE, 498 MICH 358 (2015).
2. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING [PETITIONER'S] MOTION TO WITHDRAW GUILTY PLEA PRIOR TO SENTENCING IF THE COURT COULD NOT ABIDE BY THE KILLEBREW SENTENCE AGREEMENT.

(Id., ECF No. 1-1, PageID.28, 32.) Leave to appeal was denied on January 13, 2016, for lack of merit in the grounds presented. (Id., PageID.80.) The Michigan Court of Appeals denied reconsideration on February 22, 2016. (Id., PageID.81.) On May 25, 2016, Petitioner's application for leave to appeal to the Michigan Supreme Court was held in abeyance pending resolution of two cases, apparently raising the same two grounds. (Id., PageID.82.) On October 31, 2017, following resolution of the two cases, the Michigan Supreme Court denied leave to appeal because it was not persuaded that the questions presented should be reviewed by the court. (Id., PageID.83.) The Michigan Supreme Court denied Petitioner's motion for reconsideration on December 27, 2017. (Id., PageID.84.)

         Petitioner filed a motion for relief from judgment in the Barry County Circuit Court on or about January 26, 2018, raising the following five issues:

3. [PETITIONER'S] SENTENCE IS INVALID AS THE TRIAL COURT BASED ITS SENTENCE ON INACCURATE INFORMATION WITHIN THE PSIR.
4. THE MINIMUM SENTENCE IMPOSED, WHICH IS 74-MONTHS MORE THAN THE MAXIMUM MINIMUM SENTENCE GUIDELINE, IS AN UNREASONABLE ABUSE OF DISCRETION AND VIOLATES THE [PETITIONER'S] CONSTITUTIONAL RIGHTS TO DUE PROCESS.
5. THE ELEMENTS FOR MAINTAINING A DRUG HOUSE WERE NOT MET, THEREFORE MAKING THE PLEA INVALID AND SUBJECT TO REMEDY BY THE COURT.
6. THE [PETITIONER] IS ENTITLED TO SPECIFIC PERFORMANCE OF THE PLEA AND SENTENCE AGREEMENT OR AN OPPORTUNITY TO WITHDRAW PLEA WHERE THE COURT FAILED TO KEEP THE KILLE[]BREW AGREEMENT PURSUANT TO SANTOBELLO -V-NEW YORK, 404 U.S. 257.
7. [PETITIONER'S] STATE AND FEDERAL CONSTITUTIONAL RIGHTS WERE VIOLATED WHEN HE WAS COERCED INTO TAKING A PLEA BECAUSE HIS ATTORNEY TOLD HIM THAT IF HE PLE[]D HE WOULD GET AT MOST A 5 MONTH MINIMUM SENTENCE, THAT THE KILLE[]BREW PLEA MEANT THE JUDGE COULD NOT GIVE HIM MORE JAIL TIME. HIS ATTORNEY WAS INEFFECTIVE.

(Id., ECF No. 1-1, PageID.46, 51, 56, 59, 63.) This motion was denied by the trial court on March 5, 2018, because the grounds raised were without merit and/or procedurally barred. (Id., PageID.77-79.)

         Petitioner filed his first application for habeas corpus relief on March 15, 2018, in which he raised the two grounds presented on direct appeal, as well as the five grounds presented in his motion for relief from judgment in the Barry County Circuit Court. (Id. at ECF No. 1.) Therefore, the Court dismissed the petition as “mixed, ” noting that Petitioner had ample time in which to pursue his ...


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