Opinion
Case No. 01-10066-BC
July 5, 2002
OPINION AND ORDER OF DENYING PETITION FOR WRIT OF HABEAS CORPUS
The petitioner, Timothy Todd Tripp, has filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his guilty-plea-based conviction for first-degree criminal sexual conduct. The respondent, Barbara Bock, has responded with a motion to dismiss the petition for failure to exhaust state remedies. For reasons explained below, the Court has considered the merits of the petitioner's claims, and finds that he has not established that his conviction is contrary to the Constitution or laws of the United States. The Court will therefore deny the petition with prejudice.
I.
The pleadings allege that on November 12, 1998, Tripp pleaded guilty in the Ogemaw County Circuit Court to one count of first-degree criminal sexual conduct, Mich. Comp. Laws § 750.520b. He admitted at the plea proceeding that he had engaged in sexual intercourse with his fianceé's thirteen-year-old daughter, who lived in the same household.
In return for Tripp's plea, the prosecutor agreed to dismiss four other counts of first- and second-degree criminal sexual conduct and to recommend a sentence within the sentencing guidelines, which the parties estimated would yield a minimum term of twenty to twenty-five years, although the probation department subsequently calculated the minimum guideline term to be eight to twenty years. On December 14, 1998, the trial court sentenced Tripp within the sentencing guidelines to imprisonment for a minimum of twenty years and a maximum of sixty years.
Tripp subsequently moved to withdraw his guilty plea on the ground that the plea was not voluntary and intelligent. He alleged that (1) he was informed by his attorney that he would receive a minimum sentence of three to ten years and that it was too late to withdraw his plea, and (2) he requested, and was denied, a polygraph test at the time of his arrest. On October 7, 1999, the trial court held oral arguments on the petitioner's motion and denied it.
Tripp then applied for leave to appeal in the Michigan Court of Appeals, raising three issues: (1) the trial court erred when it denied his motion to withdraw the plea; (2) the trial court erred when it failed to respond to his objection to alleged misinformation in the pre-sentence report; and (3) the twenty-year minimum sentence was disproportionate to the crime and to the offender. The court of appeals denied leave to appeal "for lack of merit in the grounds presented." People v. Tripp, No. 223387 (Mich.Ct.App. Feb. 8, 2000). Tripp moved for a rehearing, but the court of appeals rejected his motion because it was not filed within twenty-one days of the court's dispositive order, as required by the Michigan Court Rules.
The petitioner alleges that he did not apply for leave to appeal in the Michigan Supreme Court for financial reasons. He signed and dated his habeas petition fled in this Court on February 8, 2001. The grounds for relief are:
I. the trial court abused its discretion when sentencing him in that the sentence violated the principle of proportionality and the Cruel and Unusual Punishment Clause of the Eighth Amendment;
II. the trial court abused its discretion by accepting petitioner's guilty plea and denying his motion to withdraw the plea despite petitioner's claim of ineffective assistance of counsel; and
III. the trial court violated his right to due process when it failed to respond to his objection to the pre-sentence report, which asserted that petitioner sexually abused the complainant on more than one occasion.
The respondent urges the Court to dismiss the petition as a "mixed petition" of exhausted and unexhausted claims, arguing that Tripp did not raise his Eighth Amendment claim or his ineffective-assistance-of-counsel claim in state court.
II.
The doctrine of exhaustion of state remedies requires state prisoners to "fairly present" their claims as federal constitutional issues in the state courts before raising those claims in a federal habeas corpus petition. See 28 U.S.C. § 2254(b)(1)(A) and (c); O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000), cert. denied, 532 U.S. 958, 121 S.Ct. 1487 (2001). The exhaustion requirement is satisfied if a prisoner invokes one complete round of the state's established appellate review process, including a petition for discretionary review to a state supreme court. O'Sullivan, 526 U.S. at 845. A claim is "fairly presented" to the state courts if it "(1) relie[s] upon federal cases employing constitutional analysis; (2) relie[s] upon state cases employing federal constitutional analysis; (3) phras[es] the claim in terms of constitutional law or in terms sufficiently particular to allege a denial of a specific constitutional right; or (4) allege[s] facts well within the mainstream of constitutional law." McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000). "Merely raising an issue as a matter of state law will not satisfy the exhaustion requirement." Stanford v. Parker, 266 F.3d 442 (6th Cir. 2001). The doctrine requires state prisoners in Michigan to raise their habeas claims in the Michigan Court of Appeals and in the Michigan Supreme Court. Dombkowski v. Johnson, 488 F.2d 68, 70 (6th Cir. 1973).
Tripp raised his second claim regarding his guilty plea and his third claim regarding his objection to the pre-sentence report as federal constitutional issues in the Michigan Court of Appeals. He raised his first claim regarding his sentence in the Michigan Court of Appeals, but only as a state law claim. Moreover, Tripp did not raise any of his claims in the Michigan Supreme Court. He has not satisfied the exhaustion requirement because he did not raise his claims as federal constitutional issues at all levels of state court review.
Failure to exhaust bars review, however, only when the state still provides a remedy to exhaust. Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994). The petitioner here no longer has an effective state remedy to exhaust. He cannot present his claim in the Michigan Supreme Court because the fifty-six day deadline for appealing the court of appeals decision has expired. See M.C.R. 7.302(C)(3).
Tripp could attempt to begin the appellate process anew by filing a motion for relief from judgment in the trial court and appealing any unfavorable result. See Mich. Ct. R. 6.502, 6.509(A). However, the Michigan Court of Appeals has already ruled that te petitioner's claims lack merit, and he is not asserting a retroactive change in the law. Thus, Tripp is barred from pursuing an otherwise available state court remedy, Mich. Ct. R. 6.508(D)(2), and his claims must be deemed exhausted. Gray v. Netherland, 518 U.S. 152, 161 (1996); see also Lott v. Coyle, 261 F.3d 594 (6th Cir. 2001) (stating that "a district court may deny the petition upon a finding that the petitioner has no available remedy in state court and to dismiss the petition would amount to nothing more than a futility"). The Court may review a petitioner's procedurally defaulted claims on the merits only if he shows (1) cause for not raising the claims at all levels of state court review and resulting prejudice, or (2) that he is actually innocent of the crimes for which he was convicted. Gray, 518 U.S. at 162; Hannah v. Conley, 49 F.3d 1193, 1195-96, 1196 n. 3 (6th Cir. 1995) (citing Coleman v. Thompson, 501 U.S. 722, 750-51 (1991), and Murray v. Carrier, 477 U.S. 478, 496 (1986)); Stanford, 266 F.3d at 451.
To establish "cause," a petitioner would have to show that some objective factor external to the defense impeded his efforts. Murray v. Carrier, 477 U.S. 478, 488 (1986). Objective impediments may include an unavailable claim, some interference by officials, and ineffective assistance of counsel. Id. Here, Tripp alleges that he did not appeal to the Michigan Supreme Court because he lacked the necessary funds. Because his financial status is not an objective impediment external to his defense, as defined by the Supreme Court, he has not established "cause" for the failure to raise his claims in the state supreme court. The Court need not determine if the petitioner was prejudiced by the alleged violations of federal law because he has not shown "cause." Smith v. Murray, 477 U.S. 527, 533 (1986).
A habeas petitioner may overcome a procedurally defaulted claim, even in the absence of "cause and prejudice," upon a showing of new and reliable evidence of actual innocence. Lott, 261 F.3d at 620 (citing Schlup v. Delo, 513 U.S. 298, 314-15 (1995), and Herrerra v. Collins, 506 U.S. 390, 417 (1993)); Stanford, 266 F.3d at 452. "`Actual innocence' means factual innocence, not mere legal insufficiency." Bousley v. United States, 523 U.S. 614, 623 (1998).
Tripp has pleaded guilty, and he does not profess to be innocent of the crime for which he was convicted. Accordingly, the "actual innocence" exception does not apply here. Thus, Tripp's claims are procedurally defaulted, and the Court is not required to adjudicate their merits. However, the Court finds that in the interest of judicial economy, and to avoid a further burden on the state courts if the petitioner were to return there to attempt to start the process anew, this Court will address Tripp's claims on their merits.
III.
The standard on habeas review of a petitioner's substantive claims is whether the state court's decision was contrary to, or an unreasonable application of clearly established Supreme Court precedent, or an unreasonable determination of the facts. 28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362, 412-13 (2000) (O'Connor, J., concurring). The Court will examine each of the three claims of constitutional violation, as presented by the petition, in turn.
A.
Tripp first alleges that his sentence was disproportionate to the offense and to the offender and that it violated the Cruel and Unusual Punishment Clause of the Eighth Amendment. A plurality of the Supreme Court, however, has held that the Eighth Amendment contains no requirement of strict proportionality between the crime and sentence. Harmelin v. Michigan, 501 U.S. 957, 965 (1991). The Cruel and Unusual Punishment Clause of the Eighth Amendment forbids only extreme sentences that are grossly disproportionate to the crime. Id. at 1001 (Kennedy, J., concurring); United States v. Hopper, 941 F.2d 419, 422 (6th Cir. 1991).
The maximum sentence for first-degree criminal sexual conduct is life imprisonment. See Mich. Comp. Laws § 750.520b(2). Tripp was thirty-six years old at sentencing. His minimum sentence of twenty years fell within the sentencing guidelines range, and "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 (6th Cir. 1995) (quoted with approval in Austin v. Jackson, 213 F.3d 298, 302 (6th Cir. 2000)).
Moreover, Tripp's offense involved having sexual intercourse with a thirteen-year-old young woman, who claimed at sentencing that her life became "a living hell" as a result of the petitioner's conduct. The Court concludes, therefore, that Tripp's minimum sentence was not grossly disproportionate, nor cruel and unusual punishment. The state appellate court's conclusion that petitioner's claim lacked merit was not contrary to, or an unreasonable application of, clearly established Supreme Court precedent, 28 U.S.C. § 2254(d)(1), and the petitioner is not entitled to the writ of habeas corpus on the basis of his first claim.
B.
Tripp alleges next that the trial court abused its discretion by accepting his guilty plea and denying his motion to withdraw the plea. According to Tripp, his plea was not voluntary and intelligent because his attorney advised him he would receive a minimum sentence of three to ten years and that he could not withdraw his plea. Tripp also alleges that his plea was involuntary because he was denied his right to take a polygraph test.
A trial court's abuse of discretion generally is not a basis for habeas corpus relief. See Sinistaj v. Burt, 66 F.3d 804, 808 (6th Cir. 1995) (finding no authority for the proposition that, when a state court abuses its discretion in denying a defendant's motion to withdraw a waiver of jury trial, the result violates the United States Constitution). Moreover, the Supreme Court has stated that
[a] plea is valid if it is entered voluntarily and intelligently as determined under the totality of the circumstances. Brady v. United States, 397 U.S. 742, 749, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). The constitution requires the circumstances to reflect that the defendant was informed of all the direct consequences of his plea. Id. A plea may be involuntary if the defendant does not understand the nature of the constitutional rights he is waiving, or unintelligent if the defendant does not understand the charges against him. Henderson v. Morgan, 426 U.S. 637, 645 n. 13, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976).United States v. Ormsby, 252 F.3d 844, 849 (6th Cir. 2001). Furthermore, there is no federal constitutional right, or absolute right under state law, to withdraw a plea. United States ex rel. Scott v. Mancusi, 429 F.2d 104, 109 (2nd Cir. 1970); Freeman v. Muncy, 748 F. Supp. 423, 429 (E.D. Va. 1990); People v. Bencheck, 360 Mich. 430, 432, 104 N.W.2d 191-92 (1960); People v. Harris, 224 Mich. App. 130, 131, 568 N.W.2d 149 (1997). The decision to permit a defendant to withdraw his plea invokes the trial court's discretion. Scott, 429 F.2d at 109.
As noted earlier, Tripp was thirty-six years old at the plea proceeding. He alleged that his attorney had explained to him the charges against him, the rights he possessed, his options, and the ramifications of his plea. He claimed to understand the plea bargain, the choices available to him, and the rights that he was waiving. He also stated that he was satisfied with his attorney's advice and services. Tripp assured the trial court that no promises had been made to him except what was stated in the plea agreement. See Plea Tr. at 5-15. These "[s]olemn declarations in open court carry a strong presumption of verity." Blackledge v. Allison, 431 U.S. 63, 74 (1977).
Furthermore, the trial court explained to the petitioner that the maximum possible sentence was life imprisonment and that the plea agreement called for a sentence within the guidelines, which the parties had estimated would be twenty or twenty-five years. Both the prosecutor and defense counsel stated that they were not aware of any promises, threats, or inducements other than those stated on the record. See Plea Tr. at 8-9, 15.
Thus, Tripp was informed of the charges against him and the direct consequences of his plea. He claimed to understand the constitutional rights he was waiving. He lodged no complaints with the trial court at his sentencing when given an opportunity to address the court. See Sentencing Tr. at 7-8.
Although there was no evidentiary hearing on the petitioner's allegations about his trial attorney, the prosecutor noted at oral arguments on the petitioner's motion to withdraw the plea that defense counsel had considered the plea bargain "a tremendous triumph." Trial counsel apparently considered it a "triumph" to have negotiated a plea in which the petitioner was required to plead guilty to only one of five counts of first- and second-degree criminal sexual conduct and he was expected to be sentenced within the guidelines. See Tr. of Motion to Withdraw Plea, at 4.
At the state court hearing, the prosecutor acknowledged that, when the facts are in dispute, there may be a right to a polygraph examination under state law. He explained, however, that if Tripp denied guilt, he (the prosecutor) could produce a videotape proving that Tripp committed the offense for which he was convicted. See id. at 5-6.
Tripp's guilty plea has all the hallmarks of being voluntary and intelligent. Therefore, the trial court's acceptance of the petitioner's guilty plea and denial of the petitioner's motion to withdraw the plea did not result in decisions that were contrary to federal law, unreasonable applications of clearly established federal law, or unreasonable determinations of the facts. Similarly, the state appellate court's conclusion that Tripp's claim lacked merit did not result in a decision that was contrary to clearly established federal law, an unreasonable application of Supreme Court precedent, or an unreasonable determination of the facts. The petitioner's second claim does not warrant granting the writ of habeas corpus. 28 U.S.C. § 2254(d).
C.
Tripp's final claim is that the trial court violated his right to due process when it failed to respond to his objection to the pre-sentence report, which asserted that Tripp sexually abused the complainant on more than one occasion. The claim that the trial court had a duty under state law to respond to his allegation of inaccuracy in the pre-sentence report is not a basis for granting the writ of habeas corpus. Austin, 213 F.3d at 300 (citing Pulley v. Harris, 465 U.S. 37, 41 (1984)). Federal courts may grant the writ of habeas corpus only if a petitioner "is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3) and 2254(a).
However, Tripp's claim concerning the information relied on by the trial court is cognizable here because he possessed a constitutional right not to be sentenced on the basis of "misinformation of constitutional magnitude." Roberts v. United States, 445 U.S. 552, 556 (1980) (quoting United States v. Tucker, 404 U.S. 443, 447 (1972)); see Townsend v. Burke, 334 U.S. 736, 741 (1948) (stating that reliance on "extensively and materially false" information, which the prisoner had no opportunity to correct, violates due process of law). To prevail on his federal constitutional claim, a petitioner must demonstrate that the disputed information was materially false and that the trial court relied on the information. Collins v. Buchkoe, 493 F.2d 343, 345-46 (6th Cir. 1974).
At the sentencing, the petitioner's attorney raised an objection to an allegation in the pre-sentence report indicating that Tripp had been abusing the complainant since she was eleven years old. According to defense counsel, Tripp maintained that he had engaged in sexual intercourse with the complainant on only one occasion.
The trial court did not resolve the factual dispute immediately. Instead, it permitted the complainant to speak. The complainant then proceeded to explain what her life had been like with petitioner in the home. She stated that "[w]hen [she] hit the age eleven, [her] life was a living hell." Sentencing Tr. at 5. The implication was that Tripp had begun abusing the complainant at the age of eleven.
The petitioner subsequently expressed remorse for his conduct, and he apologized to the complainant. He did not issue any further denials of the allegations. The trial court implicitly resolved the factual dispute in the complainant's favor as follows:
Well, there is very little that I can say, Mr. Tripp, an eleven or a twelve or a thirteen year old shouldn't have to contend with this. And it is just not supposed to happen. And maybe that you have reached the point in your life that you do realize and it will never occur again.
But my part is now to exact punishment on behalf of the community and behalf of the law, and I accept the recommendation. I think that it is appropriate. I think that it is a parolable offense, but you will be looking at the recommendation and the order is twenty years to sixty years with the Michigan Department of Corrections, credit for one hundred sixty-two days served, and that sixty dollars crime victim's rights fee is assessed, that you will be required to register as a sex offender as required by law.Id. at 8.
The petitioner has not shown that the trial court relied on materially false information. Accordingly, the state appellate court's conclusion that the petitioner's claim lacked merit was not contrary to, or an unreasonable application of, clearly established federal law. Nor was it an unreasonable determination of the facts. Tripp has no right to habeas relief on the basis of his final claim.
IV.
The petitioner has failed to raise his claims at all levels of state court review, and he no longer has an effective remedy to exhaust. He has not shown cause for his failure to exhaust state remedies, nor has he demonstrated that a constitutional error probably resulted in the conviction of an innocent person. Accordingly, The petitioner's claims are procedurally defaulted, and the Court is not required to review them on the merits.
However, the Court has determined that it is appropriate to review those claims on the merits, and having done so the Court concludes no constitutional violation occurred in connection with Tripp's conviction and sentence, and the state court decisions were not contrary to, or unreasonable applications of, clearly established federal law. Nor were they unreasonable determinations of the facts.
Accordingly, it is ORDERED that the petition for writ of habeas corpus is DENIED with prejudice. The respondent's motion to dismiss is DENIED as moot.