Opinion
CASE NO. 03-CV-70783-DT
September 26, 2003
OPINION AND ORDER DENYING HABEAS CORPUS PETITION
This is a habeas case under 28 U.S.C. § 2254. Petitioner Robert A. Nival, a state prisoner serving a ten to fifteen year sentence for violation of probation, claims he is incarcerated in violation of his constitutional rights. Specifically, he claims that his trial counsel was ineffective and the trial court gave him inaccurate advice which both resulted in him not receiving an appeal of right following his probation revocation. For the reasons stated below, the petition will be denied for lack of merit.
I. Background
On July 23, 1996, Petitioner pleaded "no contest" in Macomb County Circuit Court to unarmed robbery, MICH. COMP. LAWS 750.530. The trial court sentenced Petitioner to four years of probation with the first year to be served in the county jail. On or about October 22, 1997, Petitioner was charged with possessing thirty-seven rocks of crack cocaine. The trial court conducted a probation revocation hearing, and on December 15, 1997, found Petitioner guilty of violating the conditions of probation. The trial court then revoked its order of probation and sentenced Petitioner to imprisonment for ten to fifteen years. The trial court informed Petitioner that any appeal from the sentence would have to be by application for leave to appeal in the Michigan Court of Appeals.
The disposition of the cocaine charge is not known.
Petitioner's appellate attorney subsequently filed an application for leave to appeal in the Michigan Court of Appeals. The sole ground for relief alleged that the sentence was disproportionate under People v. Milbourn, 435 Mich. 630 (1990). The court of appeals denied leave to appeal "for lack of merit in the ground presented." People v. Nival, No. 211145 (Mich.Ct.App. Oct. 2, 1998). On July 8, 1999, the Michigan Supreme Court denied Petitioner's subsequent application for leave to appeal because it was not persuaded that it should review Petitioner's claim. See People v. Nival, 460 Mich. 871 (1998).
Justice Robert P. Young., Jr., did not participate in the decision, and Justices Michael F. Cavanagh and Marilyn Kelly voted to remand the case to the Michigan Court of Appeals as on leave granted.
Petitioner raised his habeas claims and an additional claim concerning his sentence in a post-conviction motion for relief from judgment. The trial court held a hearing and denied Petitioner's motion on the grounds that appeal by leave was the standard practice at the time and that actual prejudice did not result from the denial of an appeal of right. Petitioner appealed the trial court's decision, but the Michigan Court of Appeals once again denied leave to appeal "for lack of merit in the grounds presented." People v. Nival, No. 239796 (Mich.Ct.App. Apr. 17, 2002). On February 4, 2003, the Michigan Supreme Court denied leave to appeal because Petitioner had "failed to meet the burden of establishing entitlement to relief under [Michigan Court Rule 6.508(D)]." People v. Nival, ___ Mich. ___; 656 N.W.2d 533 (2003).
Petitioner then filed the instant habeas petition. He claims that (1) his appellate attorney forfeited his appeal of right, (2) the trial court deprived him of an appeal of right by misinforming him that any appeal was by application for leave to appeal, and (3) his trial attorney failed to protect his appeal of right by objecting to the trial court's comment that any appeal would have to be by leave of the appellate court.
II. Discussion A. Standard of Review
All three habeas claims focus on Petitioner's loss of an appeal of right from the sentence of imprisonment that followed revocation of probation. The Michigan Court of Appeals found no merit in the claims. Petitioner is entitled to habeas relief only if he can show that the state court's adjudication of his claims on the merits —
Respondent has not alleged that Petitioner procedurally defaulted his claims, as suggested by the Michigan Supreme Court's decision citing Michigan Court Rule 6.508(D), and the Court is not required to raise the issue sua sponte. Trest v. Cain, 522 U.S. 87, 89 (1997).
(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 proceeding.28 U.S.C. § 2254(d). Simply stated, under § 2254(d), a habeas petitioner must show that the state court's decision "was either contrary to, or an unreasonable application of, [the Supreme] Court's clearly established precedents, or was based upon an unreasonable determination of the facts." Price v. Vincent, ___ U.S. ___, ___, 123 S.Ct. 1848, 1852-53 (2003).
Where, as here, the state appellate court did not identify controlling Supreme Court precedent or explain its reasoning, the result of the state court's decision controls, and the "contrary to" rather than the "unreasonable application" prong of § 2254(d)(1) governs. Bugh v. Mitchell, 329 F.3d 496, 507-08 (6th cir.), petition for cert. filed(U.S. Aug. 11, 2003) (No. 03-5908). "Under the `contrary to' clause, a federal habeas court may grant the writ 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, 412-13 (2000).
B. Assistance of Counsel
Petitioner asserts that his trial attorney should have protected his appeal of right by objecting to the trial court's comment that any appeal would be by leave to the Michigan Court of Appeals. He claims that his appellate attorney should have taken an appeal of right rather than an appeal by leave of court.
The Supreme Court has formulated a two-pronged test for evaluating claims of ineffective assistance of counsel. A petitioner must show that counsel's performance was deficient and that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984).
1. Counsel's Performance
The first prong of the Strickland test requires showing "that counsel's representation fell below an objective standard of reasonableness." Id. at 688. Petitioner must demonstrate that his attorneys "made errors so serious that [they were] not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687.
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. . . .Id. at 689 (citations omitted).
The context for Petitioner's claims begins with a Michigan Supreme Court decision from 1974. The Michigan Supreme Court held in People v. Pickett, 391 Mich. 305, 308 (1974), that there is an appeal of right after the imposition of a penalty for violating the terms of probation.
In 1994, the Michigan Constitution was amended to provide that defendants who plead guilty or "no contest" may appeal only by seeking leave to appeal. Their right to an appeal of right was extinguished. Confusion about the type of appeal available to defendants following revocation of probation arose from this amendment to the Michigan Constitution. Attorneys apparently interpreted the amendment to mean that probationers who had pleaded guilty or "no contest" to the original underlying crime were not entitled to an appeal of right from a violation of probation.
In 1998, the Michigan Court Rule on probation revocation was revised to read in pertinent part as follows:
(H) Review.
1) In a case involving a sentence of incarceration under subrule (G), the court must advise the probationer on the record, immediately after imposing sentence, that
(a) the probationer has a right to appeal, if the conviction occurred at a contested hearing, or
(b) the probationer is entitled to file an application for leave to appeal, if the conviction was the result of a plea of guilty. 2) In a case that involves a sentence other than incarceration under subrule (G), the court must advise the probationer on the record, immediately after imposing sentence, that the probationer is entitled to file an application for leave.
Mich. Ct. R. 6.455(H) (effective January 1, 1999).
In 2001, the Michigan Supreme Court has interpreted the word "conviction" in subsections (H)(1)(a) and (1)(b) to mean "conviction for `probation revocation.'" See People v. Kaczmarek, 464 Mich. 478, 485; 628 N.W.2d 484, 488 (2001). Under this interpretation of the law, Petitioner was entitled to an appeal of right from his sentence often to fifteen years in prison, because he was convicted of violating probation at a contested hearing. Mich. Ct. R. 6.455(H)(1)(a).
Kaczmarek, however, was decided in 2001, long after Petitioner was sentenced for violating probation. Thus, the question of whether probationers retained an appeal of right from a prison sentence imposed after revocation of probation, was unsettled at the time of Petitioner's sentencing. The trial court and defense counsel apparently believed that, because Petitioner pleaded "no contest" to the underlying felony (unarmed robbery), he was not entitled to an appeal of right after he was sentenced for violating the conditions of probation. This was a logical assumption in light of the 1994 amendment to the Michigan Constitution and the fact that "violation of probation is not a crime, and a ruling that probation has been violated is not a new conviction." Kaczmarek, 464 Mich, at 482 (citing People v. Johnson, 191 Mich. App. 222, 226-27 (1991); People v. Burks, 220 Mich. App. 253, 256 (1996)). "Instead, revocation of probation simply clears the way for a re-sentencing on the original offense." Id., 464 Mich, at 483; 628 N.W.2d at 487 (citing MICH. COMP. LAWS § 771.4).
The Court therefore concludes that trial counsel's failure to object to the trial court's comment about the type of appeal available to Petitioner and appellate counsel's failure to appeal as a matter of right did not amount to deficient representation. The attorneys' conduct was reasonable given the state of the law and the circumstances at the time of the alleged errors.
2. Prejudice
The prejudice prong of the Strickland test requires showing "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." Strickland, 466 U.S. at 694.
In determining whether Petitioner's trial and appellate attorneys' representation prejudiced Petitioner, the Court has reviewed the record and the state courts' rulings. The trial court offered the following reasons for the sentence it imposed after revoking Petitioner's probation:
I think I indicated to you [Petitioner] when you came up for sentencing initially in this cause that you didn't want to violate probation. I gave you a tremendous break in my mind at the time of the original sentence. That guideline range was up to 36 months on the minimum sentence. I decided to give you a crack at probation because of your age and your obvious intelligence. It is clear you are a bright person who has the opportunity to succeed if you want to succeed, and even though I was outraged by the predatory nature of the original offense, where you are part of a group that attacks a single individual kid and rips him off for his property, that there was still hope for you outside of the prison system, and I arrived at that conclusion even though your behavior in custody and your behavior in court was equally outrageous. You had, obviously, no respect for anybody in a position of authority, no desire to conform your conduct to the rules, and yet I hoped that somehow, by being given the benefit of the doubt and given a break, given a chance to conform your conduct, that things would work out for your, that you wouldn't bully people any longer, that you wouldn't be out dealing drugs, that you wouldn't be acting out in a completely anti-social way, and there obviously was hope that was misplaced in the case because you are not ready at this point in you[r] life, apparently, to want to live a productive life and a clean life, and a life that conforms with the rules. So the Court really — not that I think you are beyond hope, but I think it is now time to pay the piper, if you will, as I promised you would in the event you didn't follow the orders that were given to you in the original probation sentence.
(Tr. Dec. 15, 1997, at 11-12).
The trial court subsequently sentenced Petitioner to a term often to fifteen years in prison. The court was entitled to exercise its discretion when sentencing Petitioner as a probation violator, see MICH. COMP. LAWS § 771.4, and the actual sentence imposed was legal under state law. The minimum sentence was no more than two-thirds of the maximum sentence, as required by People v. Tanner, 387 Mich. 683, 690 (1972), and the maximum sentence was permissible under the statute for unarmed robbery, MICH. COMP. LAWS § 75O.53O.
The unarmed robbery statute controls because, following revocation of probation, the trial court may "sentence the probationer in the same manner and to the same penalty as the court might have done if the probation order had never been made." MICH. COMP. LAWS § 771.4.
Petitioner's appellate attorney appealed the sentence by filing an application for leave to appeal in which he explained why he was seeking leave to appeal, as opposed to filing a claim of appeal. Neither the prosecutor, nor the Michigan Court of Appeals, addressed the type of appeal available to Petitioner, and the Michigan Supreme Court was not persuaded to consider the issue.
Moreover, presentation of Petitioner's claim was not hindered by the fact that it was made in an application for leave to appeal rather than in a brief accompanying a claim of appeal. Appellate counsel filed a twelve-page brief, arguing that the sentence was disproportionate under Milbourn. The Michigan Court of Appeals considered Petitioner's claim on leave to appeal and determined that the claim lacked merit.
Petitioner then filed a motion for relief from judgment on grounds that his sentence was disproportionate and unconstitutional and that his trial counsel and the trial court erred in failing to instruct him that his appeal from his probation violation was by right. The trial court held a hearing on the motion and issued a detailed order explaining that Petitioner was not prejudiced because his ten to fifteen year sentence was not disproportionate under the circumstances. Again the Michigan Court of Appeals considered Petitioner's claims on leave to appeal and denied them for lack of merit.
Petitioner filed the motion for relief from judgment pro se. The trial court then appointed counsel for Petitioner, who later moved to withdraw because Petitioner wished to have his own brief submitted to the court rather than the brief prepared by counsel. The trial court granted counsel's request and proceeded to rule on the motion for relief from judgment based on Petitioner's pro se brief.
Although the Michigan Court of Appeals denied Petitioner's claim following his conviction and following his motion for relief from judgment in a conclusionary fashion, it must be presumed that the court of appeals gave reasoned consideration to Petitioner's claims. A denial of leave to appeal "for lack of merit" is a decision on the merits. People v. Hayden, 125 Mich. App. 650, 662-63 (1983) (Kelly, J., concurring); Attorney General ex rel Dept. of Treasury v. Great Lakes Real Estate Investment Trust, 77 Mich. App. 1, 3 (1977). Therefore, Petitioner has not shown that the result of the proceeding would have been different if he had presented his claim as a matter of right.
In sum, Petitioner has failed to demonstrate that his attorneys' representation was deficient and that the allegedly deficient performance prejudiced him. Consequently, the state court's conclusion that Petitioner's ineffectiveness claims lacked merit did not result in a decision that was contrary to Strickland.
C. The Trial Court's Advice
Petitioner's second claim alleges that the trial court deprived him of an appeal by right when the court misinformed him that any appeal was by application and not by right. Because "there is no constitutional right to appeal," Martinez v. Court of Appeal of California, Fourth Appellate Dist., 528 U.S. 152, 165 (2000) (Scalia, J., concurring), the trial court's advice did not result in the denial of a federal constitutional right. Of course, "[e]ven if a State has no constitutional obligation to grant criminal defendants a right to appeal, when it does establish appellate courts, the procedures employed by those courts must satisfy the Due Process Clause." Ohio Adult Parole Auth. v. Woodard, 532 U.S. 272, 292 (1998) (Stevens, J., concurring in part and dissenting in part) (citing Evitts v. Lucey, 469 U.S. 387, 396 (1985)).
No due process violation occurred here because Petitioner was afforded an opportunity to challenge his sentence in a direct appeal to the Michigan Court of Appeals and to the Michigan Supreme Court. And, as previously explained, the Michigan Court of Appeals rendered a decision on the merits of Petitioner's sentencing claim. The trial court's suggestion that there was no appeal of right could not have adversely affected the quality or content of Petitioner's appeal, because even an appeal of right would have been limited in scope to issues arising from the re-sentencing or some flaw in the revocation proceedings. Kaczmarek, 464 Mich, at 485; 628 N.W.2d at 488.
III. Conclusion
The state court's determination on collateral review that Petitioner's habeas claims lacked merit did not result in a decision that was contrary to any Supreme Court decision. Accordingly, the petition for a writ of habeas corpus is DENIED and this case is DISMISSED.