Opinion
Case Number: 02-75115
December 15, 2003
OPINION AND ORDER (1) DENYING PETITION FOR WRIT OF HABEAS CORPUS AND 2 DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY
I. Introduction
Petitioner Lee Levito Fulton has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is currently incarcerated at the Ryan Correctional Facility in Detroit, Michigan. He alleges that he is being unconstitutionally detained. For the reasons set forth below, the Court shall deny the petition.
II. Background
On December 8, 1999, Petitioner pleaded guilty in Kent County Circuit Court to second-degree home invasion and habitual offender, fourth. On January 20, 2000, he was sentenced to fifteen to forty years imprisonment.
On August 29, 2000, Petitioner filed a Motion to Withdraw Guilty Plea and for Resentencing. After conducting a hearing, the trial court denied the motion.
Petitioner filed a delayed application for leave to appeal in the Michigan Court of Appeals, presenting the following claims:
I. The trial court abused its discretion when it denied defendant's post conviction motion to withdraw his plea where the plea was coerced and rendered involuntary when defense counsel asserted that "because he does go to trial" Mr. Fulton could get a longer sentence and when the court sua sponte initiated the issue of sentence length, advising defendant what sentence he might expect, in violation of the prohibitions in Killebrew and Cobbs against judges initiating discussion regarding sentence disposition.
II. Defendant is entitled to an opportunity to withdraw his plea where his plea was coercive and involuntary because it was based upon inaccurate and misleading advice from trial counsel and because trial counsel failed to appear for the preliminary examination and adjourned trial six months for a total delay of approximately eighteen months.
III. Defendant is entitled to resentencing where the judge at sentencing did not articulate specific reasons for imposing the 15 year minimum term of imprisonment and where the judge said that he was not relying on the presentence investigation report and does not bother to read them when imposing sentence.
The Michigan Court of Appeals denied leave to appeal. People v. Fulton, No. 231870 (Mich.Ct.App. Feb. 26, 2001).
Petitioner filed a delayed application for leave to appeal in the Michigan Supreme Court, presenting all of the claims presented to the Michigan Court of Appeals, and the following additional claim:
IV. The trial court violated the principle of proportionality in imposing the 15 to 40 year sentence upon the defendant for home invasion second.
The Michigan Supreme Court denied leave to appeal. People v. Fulton, No. 118930 (Mich. July 30, 2001).
Petitioner then filed a motion for relief from judgment in the trial court, presenting the following claims:
I. Defendant is entitled to relief from judgment of his conviction, because he was denied due process and his conviction is therefore invalid, where he was coerced by the judge into involuntarily pleading guilty and waiving his state and federal constitutional rights, and both counsels should have brought these prejudicial issues to the courts attention.
II. Defendant is entitled to relief from judgment, because he was denied his state and federal constitutional rights to due process of law where trial counsel denied him effective assistance, when counsel failed to explain the nature and the possible defenses that were available to the charge, and where counsel gave defendant inaccurate legal advice regarding the consequences of the plea, rendering his plea involuntary.
III. Defendant was denied his state and federal constitutional rights to due process of law, when he was sentenced as an habitual offender fourth, based upon a prior "plea based" conviction, where defendant was without counsel in that conviction, both counsels should have brought this issue to the court's attention.
IV. Defendant is entitled to relief from judgment, because he was denied his state and federal constitutional right to due process of law, where the court based its sentence on inaccurate information, and where the court violated the concept of proportionality in imposing the 15 to 40 year sentence upon defendant.
The trial court denied the motion for relief from judgment. People v. Fulton, No. 96-6238 (Kent County Circuit Court Jan. 22, 2002).
Petitioner filed applications for leave to appeal the trial court's denial of his motion for relief from judgment in the Michigan Court of Appeals and Michigan Supreme Court. Both state appellate courts denied leave to appeal. People v. Fulton, No. 240191 (Mich.Ct.App. June 6, 2002); People v. Fulton, No. 121778 (Mich. Dec. 4, 2002).
Petitioner then filed the pending petition for a writ of habeas corpus, presenting the following grounds for relief:
I. Petitioner was denied Due Process and his conviction was obtained unlawfully.
II. Petitioner was denied effective assistance of trial and appeal counsel.
III. Petitioner was denied Due Process when his sentence was enhanced with an invalid conviction.
IV. Petitioner was denied Due Process when the sentencing court used inaccurate information and violated the concept of proportionality.III. Analysis A. Standard of Review 28 U.S.C. § 2254(d) imposes the following standard of review for habeas cases:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(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 on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings.28 U.S.C. § 2254(d). Additionally, this Court must presume the correctness of state court factual determinations. 28 U.S.C. § 2254(e)(1).
A decision of a state court is "contrary to" clearly established federal law if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if the state court decides a case differently than the Supreme Court has on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). An "unreasonable application occurs" when "a state-court decision unreasonably applies the law of [the Supreme Court] to the facts of a prisoner's case." Id. at 409. A federal habeas court may not "issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 410-11.
B. Voluntariness of Guilty Plea
Petitioner claims that he is entitled to habeas corpus relief because his guilty plea was involuntary. Petitioner alleges that the trial court judge's participation in plea negotiations was unfairly coercive. He further alleges that his plea was involuntary because his attorney gave him inaccurate and misleading information about the length of the sentence the judge would impose, and because there was an eighteen month delay in scheduling his trial.
The Supreme Court has held that, to be valid, a guilty plea must be voluntarily and intelligently made. Brady v. U.S., 397 U.S. 742. 748-49 (1970). The plea must be made "with sufficient awareness of the relevant circumstances and likely consequences." Id. at 748. The voluntariness of a plea "can be determined only by considering all of the relevant circumstances surrounding it." Id. at 749.
First, Petitioner claims that the trial court improperly participated in plea negotiations. Federal Rule of Criminal Procedure 11(e) establishes standards for plea agreement procedures including prohibiting the court from participating in any discussions between the parties concerning a plea agreement. State courts are not required to follow the procedures set forth in Fed.R.Crim.P. 11. See Jones v. Parke, 734 F.2d 1142, 1148 (6th Cir. 1984); Waddy v. Heer, 383 F.2d 789 (6th Cir. 1967). Thus, this Court examines the trial court's alleged involvement in plea negotiations to determine whether it violates due process concerns or Petitioner's right to a fair trial, not to determine whether the trial court complied with Fed.R.Crim.P. 11. See Frank v. Blackburn, 646 F.2d 873, 882 (5th Cir. 1980).
Having reviewed the transcript of the trial court's acceptance of the guilty plea, this Court finds that the trial court did not violate Petitioner's right to a fair trial or due process by improperly participating in plea negotiations, such that Petitioner's plea was involuntary. The trial court simply informed Petitioner that, if he proceeded to trial and was found guilty, his sentences could be imposed consecutively to sentences already imposed by Osceola County Circuit Court. This statement by the trial court judge was insufficient to render Petitioner's plea involuntary.
Next, Petitioner claims that his guilty plea was involuntary because his trial attorney gave him inaccurate information regarding the sentence the judge would impose if he pleaded guilty. Petitioner maintains that his trial attorney informed him that, if he pleaded guilty to second-degree home invasion, the trial court would dismiss the fourth habitual offender charge and, instead, charge him as a second habitual offender. Petitioner's statements at the plea hearing contradict this claim.
When entering his plea, Petitioner stated that he understood that he was pleading guilty to second-degree home invasion and being a fourth habitual offender. He further stated that no promises had been made to him by the prosecutor.
The Sixth Circuit Court of Appeals has stated that in cases challenging the voluntariness of a plea a petitioner is bound by his in-court statements regarding his understanding of the plea:
If we were to rely on [petitioner's] alleged subjective impression rather than the record, we would be rendering the plea colloquy process meaningless, for any convict who alleges that he believed the plea bargain was different from that outlined in the record could withdraw his plea, despite his own statements during the plea colloquy (which he now argues were untruthful) indicating the opposite. This we will not do, for the plea colloquy process exists in part to prevent petitioners . . . from making the precise claim that is today before us. "[W]here the court has scrupulously followed the required procedure, the defendant is bound by his statements in response to that court's inquiry."Ramos v. Rogers, 170 F.3d 560, 564 (6th Cir. 1999) ( quoting Baker v. United States, 781 F.2d 85, 90 (6th Cir. 1986).
Given that the trial court explained to Petitioner the potential consequences of his guilty plea, and Petitioner's statement that he understood those potential consequences, and that he was not pleading guilty pursuant to any promises made to him, the Court finds that Petitioner has failed to establish that his guilty plea was the involuntary.
Finally, Petitioner claims that his guilty plea was coerced based upon the eighteen month delay in scheduling his trial. Petitioner fails to show how the delay in scheduling his trial rendered his plea involuntary, particularly where Petitioner was already incarcerated pursuant to a twenty to forty year sentence rendered in Osceola County Circuit Court. Thus, under the totality of the circumstances, Petitioner has failed to establish that his guilty plea was not knowingly and voluntarily made.
C. Alleged Ineffective Assistance of Trial and Appellate Counsel
Petitioner next alleges that he is entitled to habeas corpus relief because his trial attorney was ineffective in failing to advise him of the possible defenses available to him and failing to accurately apprise him of the consequences of his plea. Petitioner further alleges that his appellate attorney was ineffective in failing to present an ineffective assistance of counsel claim on direct review.
Respondent claims that Petitioner's ineffective assistance of trial counsel claim is procedurally defaulted. The doctrine of procedural default provides:
In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default, and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.Coleman v. Thompson, 501 U.S. 722, 750 (1991). Such a default may occur if the state prisoner files an untimely appeal,Coleman, 501 U.S. at 750, if he fails to present an issue to a state appellate court at his only opportunity to do so,Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994), or if he fails to comply with a state procedural rule that required him to have done something at trial to preserve his claimed error for appellate review, e.g., to make a contemporaneous objection, or file a motion for a directed verdict. United States v. Frady, 456 U.S. 152, 167-69 (1982); Simpson v. Sparkman, 94 F.3d 199, 202 (6th Cir. 1996). Application of the cause and prejudice test may be excused if a petitioner "presents an extraordinary case whereby a constitutional violation resulted in the conviction of one who is actually innocent."Rust, 17 F.3d at 162; Murray v. Carrier, 477 U.S. 478, 496(1986).
For the doctrine of procedural default to apply, a firmly established state procedural rule applicable to the petitioner's claim must exist, and the petitioner must have failed to comply with that state procedural rule. Warner v. United States, 975 F.2d 1207, 1213-14 (6th Cir. 1992), cert. denied, 507 U.S. 932 (1993). Additionally, the last state court from which the petitioner sought review must have invoked the state procedural rule as a basis for its decision to reject review of the petitioner's federal claim. Coleman, 501 U.S. at 729-30.
The last state court to address Petitioner's ineffective assistance of counsel claim, the Michigan Supreme Court, denied Petitioner leave to appeal because Petitioner, "failed to meet the burden of establishing entitlement to relief under M.C.R. 6.508(D)." People v. Fulton, No. 121778 (Mich. Dec. 4, 2002). The Sixth Circuit Court of Appeals has held that M.C.R. 6.508(D) is a firmly established and regularly followed state ground precluding subsequent federal habeas review absent a showing of cause and prejudice where the rule was in effect at the time of a petitioner's direct appeal. Luberda v. Trippett 211 F.3d 1004, 1007 (6th Cir. 2000), citing Rogers v. Howes, 144 F.3d 990 (6th Cir. 1998). M.C.R. 6.508(D) was enacted in October 1989. Petitioner pleaded guilty on December 8, 1999. Thus, M.C.R. 6.508(D) was a firmly established procedural rule at the time of Petitioner's direct appeal.
The Sixth Circuit Court of Appeals has also held that even a judgment as brief as the one by which the Michigan Supreme Court denied leave to appeal in this case is sufficient to invoke the doctrine of procedural default. Simpson v. Jones, 238 F.3d 399, 408 (6th Cir. 2000). Accordingly, the state court's judgment clearly rested on a procedural bar and the doctrine of procedural default is invoked. This Court may not review Petitioner's ineffective assistance of trial counsel claim unless he has established cause for the default and actual prejudice as a result of the alleged violation of federal law or unless he has demonstrated that failure to consider this claim will result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 750.
In the instant case, Petitioner claims that his appellate attorney's ineffectiveness constitutes "cause." The Supreme Court has held that "cause" under the cause and prejudice standard must be "something external to the petitioner, something that cannot fairly be attributable to him." Coleman, 501 U.S. at 753. The Court further held that "[a]ttorney ignorance or inadvertence is not `cause' because the attorney is the petitioner's agent when acting, or failing to act, in furtherance of the litigation, and the petitioner must bear the risk of attorney error. . . . Attorney error that constitutes ineffective assistance of counsel is cause, however." Id. at 753-54 (internal citations omitted).
In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court established a two-pronged test for determining whether a habeas petitioner has received ineffective assistance of counsel. First, a petitioner must prove that counsel's performance was deficient. This "requires a showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed by the Sixth Amendment."Id. at 687. A petitioner must identify acts that were "outside the wide range of professionally competent assistance." Id. at 689. Second, a petitioner must show that counsel's deficient performance prejudiced petitioner. To satisfy the prejudice prong, a petitioner must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. The Sixth Circuit, applying the Strickland standard, has held that a reviewing court therefore must focus on whether counsel's alleged errors "have undermined the reliability of and confidence in the result."McOueen v. Scroggy, 99 F.3d 1302, 1311 (6th Cir. 1996), cert. denied 520 U.S. 1257(1997).
The Supreme Court emphasized that, when considering an ineffective assistance of counsel claim, the reviewing court should afford counsel a great deal of deference:
Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. . . . A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.Id. at 689 (internal citations omitted).
In the context of an ineffective assistance of appellate counsel claim, the Supreme Court has held that a petitioner does not have a constitutional right to have appellate counsel raise every non-frivolous issue on appeal. Jones v. Barnes, 463 U.S. 745, 754 (1983). The Court further stated:
For judges to second-guess reasonable professional judgments and impose on appointed counsel a duty to raise every "colorable" claim suggested by a client would disserve the . . . goal of vigorous and effective advocacy. . . . Nothing in the Constitution or our interpretation of that document requires such a standard.Id. at 754. Strategic and tactical choices regarding which issues to pursue on appeal are "properly left to the sound professional judgment of counsel." United States v. Perry, 908 F.2d 56, 59 (6th Cir. 1990).
Petitioner argues that his appellate attorney was ineffective in failing to argue on direct appeal that his trial attorney was ineffective in incorrectly advising him regarding the potential consequences of his guilty plea. The guilty plea transcript reflects that Petitioner was informed of the offenses to which he was pleading guilty and the potential consequences of his guilty plea. He stated that no promises had been made to him. Further, the Court informed Petitioner that while the sentencing guidelines for the second-degree home invasion conviction were 18 to 60 months, the Court explicitly informed Petitioner that the Court was not making any promises to sentence him within the guidelines. Tr. 12/8/99, p. 8. The Court further advised Petitioner that based upon the fourth habitual offender conviction, the guidelines did not apply.Id. Given that the trial court accurately advised Petitioner of the potential consequences of a guilty plea and given Petitioner's failure during the plea colloquy to voice any misunderstanding regarding the potential sentence, the Court finds that Petitioner has not shown that he was misinformed by his trial attorney as to the consequences of his guilty plea.
In addition, Petitioner's conclusory claim that he would not have pleaded guilty had his attorney advised him of the potential defenses available to him is similarly meritless. Petitioner fails to provide any record support for this claim.
Thus, because Petitioner's appellate attorney's failure to present either of the foregoing claims on appeal was not ineffective, Petitioner has not established cause to excuse his procedural default. Petitioner's claims are therefore barred unless he can establish that a constitutional error resulted in a fundamental miscarriage of justice. Schlup v. Delo, 513 U.S. 298 (1995).
The Supreme Court explicitly has tied the miscarriage of justice exception to procedural default to a petitioner's innocence.Schlup, 513 U.S. at 321. Thus, petitioner must assert a constitutional error along with a claim of innocence. "To be credible, such a claim requires petitioner to support his allegations of constitutional error with new reliable evidence — whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence — that was not presented at trial."Id. Petitioner has not supported his allegations of constitutional error with new reliable evidence that was not presented to the trial court. Accordingly, Petitioner's ineffective assistance of counsel claim is procedurally barred.
D. Validity of Prior Conviction
Petitioner argues that the trial court erred in convicting him of being a fourth habitual offender because he had been deprived of counsel for one of the predicate felony convictions. Respondent argues that this claim is also procedurally defaulted. This claim, like the ineffective assistance of counsel claim discussed above, was presented for the first time in Petitioner's motion for relief from judgment. For the same reasons discussed with respect to the ineffective assistance of counsel claim, this claim is procedurally defaulted.
Petitioner alleges that his appellate attorney's failure to present this claim on direct review was ineffective and therefore excuses his procedural default. The Court considers the merits of the underlying claim to assess whether Petitioner's appellate attorney was ineffective in failing to present it on direct appeal. The Kent County Presentence Investigation Report, to which Petitioner did not object at sentencing, reflects that Petitioner had seven prior felony convictions. Other than a conclusory statement, Petitioner provides no support for his claim that one of those prior felony convictions was uncounseled. In addition, even assuming that one of those felony convictions could not be used as a predicate offense for the fourth habitual offender conviction, Petitioner fails to allege that the remaining six felony convictions did not support a fourth habitual offender conviction. Accordingly, Petitioner has failed to show that his appellate attorney was ineffective for failing to present this claim on direct appeal. Furthermore, Petitioner has not supported his allegations of constitutional error with new reliable evidence of his innocence that was not presented to the trial court. Accordingly, this claim is procedurally barred.
Petitioner objected to the Osceola County Presentence Investigation Report (PSI), which was prepared in connection with a felony conviction in Osceola County Circuit Court for first-degree home invasion. The Osceola County PSI was attached to the Kent County Presentence Investigation Report. Petitioner objected to that report on the grounds that he was innocent of the first-degree home invasion conviction and the PSI listed misdemeanor tickets.
E. Sentencing Claims
Finally, Petitioner claims that he is entitled to habeas corpus relief because the trial court erred in sentencing Petitioner based upon inaccurate information. In addition, Petitioner claims that his sentence is invalid because it violated the concept of proportionality.
A sentence violates due process when "it was carelessly or deliberately pronounced on an extensive and materially false foundation which the prisoner had no opportunity to correct." Draughn v. Jabe, 803 F. Supp. 70, 80 (E.D. Mich. 1992), aff'd, 989 F.2d 499 (6th Cir. 1993), citing Townsend v. Burke, 334 U.S. 736, 741 (1948). A sentence must be set aside where "the defendant can demonstrate that false information formed part of the basis for the sentence. The defendant must show, first, that the information before the sentencing court was false, and, second, that the court relied on the false information in passing sentence." United States v. Stevens, 851 F.2d 140, 143 (6th Cir. 1988),
Petitioner alleges that, during sentencing, the trial judge stated that Petitioner was released on bond and that Petitioner "breaks into houses and steals things." Petition at ¶ 12(D). Petitioner alleges that "this information was inaccurate." Id. Petitioner provides no support for his conclusory claim that this information was false. Such a conclusory allegation is insufficient to establish that Petitioner's conviction was based upon inaccurate information.
Petitioner also claims that his sentence is unconstitutional because it is disproportionate to the offense committed. There exists no constitutional right to strict proportionality in sentencing.Harmelin v. Michigan, 501 U.S. 957 (1997). However, the Eighth Amendment prohibits "extreme sentences that are grossly disproportionate to the crime." Id. at 995. The Sixth Circuit has held that "a sentence within the statutory maximum set by statute generally does not constitute `cruel and unusual punishment."United States v. Organek, 65 F.3d 60, 62-63 (6th Cir. 1995); see also United States v. Williams, 15 F.3d 1356, 1364 (6th Cir. 1994) (holding that, generally, a sentence within statutory limitations does not violate the Eighth Amendment); Hutto v. Davis, 454 U.S. 370, 374 (1982) (holding that "federal courts should be reluctant to review legislatively mandated terms of imprisonment and . . . successful challenges to the proportionality of particular sentences should be exceedingly rare") (internal quotations omitted).
Under Michigan law, the maximum sentence for habitual offender, fourth offense, is life imprisonment. Mich. Comp. Laws § 769.12. Therefore, Petitioner was sentenced within the statutory maximum. Accordingly, given the nature of the offense and the fact that Petitioner was sentenced within the state sentencing guidelines, this Court finds that Petitioner's sentence does not offend the Eighth Amendment and he is therefore not entitled to habeas corpus relief with respect to this claim.
IV. Certificate of Appealability
Finally, the Court addresses whether any of Petitioner's claims warrant the issuance of a certificate of appealability. Before Petitioner may appeal the Court's dispositive decision denying his petition, a certificate of appealability must issue. 28 U.S.C. § 2253(c)(1)(B); Fed.R.App.P. 22(b). The Court must either issue a certificate of appealability indicating which issues satisfy the required showing or provide reasons why such a certificate should not issue. 28 U.S.C. § 2253(c)(3); Fed.R.App.P. 22(b); In re Certificates of Appealability, 106 F.3d 1306, 1307 (6th Cir. 1997).
"When a habeas applicant seeks permission to initiate appellate review of the dismissal of his petition," a federal court should "limit its examination to a threshold inquiry into the underlying merit of his claims." Miller-El v. Cockrell, 123 S.Ct. 1029, 1039 (2003). A certificate of appealability may be issued "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). The substantial showing threshold is satisfied when a petitioner demonstrates "that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel 529 U.S. 473, 484 (2000).
The Court concludes that reasonable jurists would not find the Court's assessment of the foregoing constitutional claims to be debatable or wrong. Accordingly, the Court holds that Petitioner is not entitled to a certificate of appealability with respect to any of his claims.
V. Conclusion
For the foregoing reasons, IT IS ORDERED that the petition for a writ of habeas corpus is DENIED and the matter is DISMISSED WITH PREJUDICE. IT IS FURTHER ORDERED that a certificate of appealability is DENIED.