Opinion
Case No:00-10383-BC
February 5, 2004
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
The petitioner, Lorenzo Whittington, a state prisoner presently confined at the Bellamy Creek Correction Facility in Ionia, Michigan, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petitioner pleaded guilty to assault with intent to murder in the Saginaw County Circuit Court in 1997 and was sentenced to 15 to 30 years imprisonment. In his pleadings, the petitioner claims that he was denied the effective assistance of counsel because his attorney failed to enforce a plea agreement as to sentencing, rendering his plea involuntary. The Court disagrees and will deny the petition.
I.
The petitioner was charged with carjacking, larceny from a motor vehicle, assault with intent to murder, and armed robbery arising from the severe beating and robbery of Matthew Crowe in Saginaw, Michigan in 1996. On March 11, 1997, the petitioner, represented by counsel, pleaded guilty to the assault with intent to murder charge. In exchange, the prosecution dismissed the other charges and agreed to a minimum sentence within the Michigan sentencing guidelines. The following colloquy occurred at the plea hearing:
Mr. Best (prosecutor): The plea that will be taken this morning is that in exchange for defendant pleading guilty to Count III, assault with intent to murder, at time of sentencing, we would move the Court to dismiss Count I, II, and IV.
Mr. Tiderington [defense counsel] and I have run the guidelines for the assault with intent to murder, and I think that we're in agreement at this point that the grid works out at 120 to 300 months on the minimum.
There is no sentence recommendation by the People other than that any sentence would be within the guideline range. And that is the totality of the plea.
We understand that there will be a juvenile hearing as this was an automatic waiver.
Mr. Tiderington: James Tiderington on behalf of Mr. Whittington. That's correct. I've discussed this with him, and he indicates to me he's willing to go forward with this plea.
The Court: The recommendation of the Prosecutor is that the court stay within the guidelines?
Mr. Best: Yes. Mr. Tiderington: Yes.
The Court: Okay. All right.
. . .
The Court: Your attorney's indicated to the court that you're entering a plea of guilty to assault with intent to murder. Are you pleading guilty to that charge?
The Defendant: Yes, sir.
The Court: Have you discussed the plea — have you discussed the matter of this plea with your attorney?
The Defendant: Yes, sir.
The Court: Do you understand the nature of the charge made against you?
The Defendant: Yes, sir.
The Court: Are you freely and voluntarily pleading guilty to that charge?
The Defendant: Yes, sir.
The Court: Do you understand that you're pleading guilty to a felony that carries with it a maximum penalty of life imprisonment or any number of years?
The Defendant: Yes, sir.
. . .
It's my understanding, Mr. Whittington, that the plea agreement that's been worked out between you and your attorney and the Prosecutor's office in this case is as follows:
That upon the Court sentencing you on assault with intent to murder, the prosecutor will dismiss Count I, carjacking; County II, larceny from a motor vehicle; and Count IV, armed robbery.
Further, the prosecutor is recommending to the Court that the Court sentence you within the guidelines. And your attorney and the prosecutor have agreed that the guidelines — the maximum minimum range of the guidelines are 10 to 25 years. And is that also a — in affect [sic], an agreement that he be sentenced as an adult?
Mr. Tiderington: No.
Mr. Best: No.
The Court: No? Okay. In other words
Mr. Tiderington: If he is sentenced as an adult, we would agree that the guidelines are 10 to 25. The prosecutor is recommending that the Court stay within those guidelines.
The Court: All right.
Mr. Best: We would expect, Judge, that we would still have the juvenile/adult sentencing hearing before the Court.
The Court: All right. Is that your understanding of the plea agreement, Mr. Whittington?
The Defendant: Yes, sir.
The Court: Okay. Have I correctly stated the plea agreement, Mr. Tiderington?
Mr. Tiderington: Yes, Your Honor.
The Court: Have I correctly stated the plea agreement, Mr. Best?
Mr. Best: Yes, Judge.
The Court: Other than the agreement that I've just talked about, Mr. Whittington, has anyone promised you anything else in order to get you to plead guilty?
The Defendant: No, sir.
The Court: Has anyone threatened you in any way whatsoever?
The Defendant: No, sir.
The Court: Are you pleading guilty of your own choice?
The Defendant: Yes, sir.
The Court: Counsel, are either of you aware of any promises, threats, or inducements other than those that have already been disclosed to me on the record? Mr. Best?
Mr. Best: There are none, Judge.
The Court: Mr. Tiderington?
Mr. Tiderington: No, Your Honor.
3/11/97 Plea Tr. at 3-11.
At a sentencing hearing on June 24, 1997, the trial court determined that the petitioner should be sentenced as an adult. The court found that the sentencing information report indicated that the sentencing guideline range was 8 to 15 years and reiterated that the petitioner was to be sentenced in accordance with the guidelines as part of his plea agreement. 6/24/97 Sentencing Tr. at 86. The trial court then sentenced the petitioner to 15 to 30 years imprisonment with credit for 199 days served. Id. 91.
Following sentencing, the petitioner filed a delayed application for leave to appeal in the Michigan Court of Appeals asserting that trial counsel was ineffective for failing to secure a sentence in accordance with the plea agreement and that his plea was thus rendered involuntary. The court of appeals denied the application "for lack of merit in the grounds presented." People v. Whittington, No. 212826 (Mich.Ct.App. June 9, 1999) (unpublished opinion). The petitioner then filed a delayed application for leave to appeal in the Michigan Supreme Court raising the same issues, which was denied because the Court was "not persuaded that the questions presented should be reviewed." People v. Whittington, 461 Mich. 944, 606 N.W.2d 656 (Dec. 28, 1999).
The petitioner filed the present petition for a writ of habeas corpus (dated October 6, 2000) on November 27, 2000 raising the same claims presented to the Michigan appellate courts. The respondent filed an answer to the petition on May 14, 2001 asserting that it should be denied for lack of merit.
II.
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). This standard applies to habeas petitions challenging guilty-plea-based convictions. See McAdoo v. Elo, 346 F.3d 159, 165-66 (6th Cir. 2003) (internal citations omitted) (observing that "[t]rial court errors in state [guilty plea] procedure and/or evidentiary law do not rise to the level of federal constitutional claims warranting relief in a habeas action unless the error renders the proceeding so fundamentally unfair as to deprive the petitioner of due process under the Fourteenth Amendment").
The review standard was established by the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (AEDPA). This Act "circumscribe[d]" the standard of review federal courts must apply when considering applications for a writ of habeas corpus raising the question of effective assistance of counsel, as well as other constitutional claims. See Wiggins v. Smith, 123 S.Ct. 2527, 2534 (2003). The AEDPA applies to all habeas petitions filed after the effective date of the Act, April 24, 1996. Lindh v. Murphy, 521 U.S. 320, 336 (1997). Because the petitioner's application was filed after that date, the provisions of the AEDPA, including the amended standard of review, apply to this case.
The petitioner contends that his attorney was ineffective for failing to ensure that he was sentenced in accordance with the plea agreement. The petitioner presented his ineffective assistance of counsel claim in his applications for leave to appeal in both the Michigan Court of Appeals and Michigan Supreme Court. Both state courts denied leave to appeal in one sentence orders that did not address the merits of the claims. Where a state court declines to address the merits of a properly raised issue, this Court conducts an independent review of the issue. See Harris v. Stovall, 212 F.3d 940, 943 (6th Cir. 2000) (holding that where a state court, although deciding a claim, does not offer some explanation of its decision, a federal court must conduct an independent review of the state court's decision).
Ineffective assistance of counsel claims
are guided by the now familiar two-element test set forth by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). First, a petitioner must prove that counsel's performance was deficient, which "requires showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687. The Court explained that to establish deficient performance, a petitioner must identify acts that were "outside the wide range of professionally competent assistance." Id. at 690. Second, a petitioner must show that counsel's deficient performance prejudiced the petitioner. A petitioner may establish prejudice by "showing that counsel's errors were so serious as to deprive the defendant of a fair trial." Id. at 687. The Supreme Court has applied this test to evaluate the performance of attorneys representing guilty-pleading defendants, with special attention to the second element:
The second, or "prejudice," requirement . . . focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process. In other words, in order to satisfy the "prejudice" requirement, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 59 (1985).Smith v. United States, 348 F.3d 545, 551 (6th Cir. 2003).
In this case, the petitioner's claim that trial counsel failed to enforce the sentencing limitation in the plea agreement is contradicted by the record. Michigan uses an indeterminate sentencing scheme for custodial sentences in which the sentencing court sets a minimum term of imprisonment that may by as long as two-thirds of the statutory maximum sentence. See Mich. Comp. Laws § 769.34(2)(b); People v. Babcock, 469 Mich. 247, 255 n. 7, 666 N.W.2d 231, 237 n. 7 (2003) (citing People v. Tanner, 387 Mich. 683, 690, 199 N.W.2d 202 (1972)). If the statutory maximum sentence is life in prison, then the sentencing court has discretion to set the maximum term as well. Babcock, 469 Mich. at 256 n. 7, 666 N.W.2d at 237 n. 7. The Michigan parole board has the discretion to release a prisoner after he has served his minimum sentence. Mich. Comp. Laws § 791.233(1); Hopkins v. Michigan Parole Bd., 237 Mich. App. 629, 646, 604 N.W.2d 686, 695 (1999).
Michigan also has adopted sentencing guidelines to limit the discretion of sentencing courts. However, it is well established under Michigan law that the sentencing-guideline range only applies to a defendant's minimum sentence. See Administrative Order No. 1984-1, 418 Mich. xxiv; People v. Ridley, 142 Mich. App. 129, 133-34, 369 N.W.2d 274 (1985). The result of properly scored sentencing guidelines in a given case is a range of months within which a sentencing court may set the minimum sentence. The top end of that range is the "maximum-minimum" sentence. To complete a criminal sentence under the indeterminate sentence law, the court also must establish a maximum term, which, as noted earlier, is set automatically by statute or established by the sentencing judge's unrestricted discretion.
The sentencing limitation in the plea agreement in this case was that the petitioner would be sentenced in accordance with the sentencing guidelines. At the plea hearing, the parties believed that the sentencing guidelines range would establish a minimum sentence of between 15 and 25 years, with 25 years being the "maximum minimum." This fact was placed on the record several times and acknowledged by the petitioner, defense counsel, the prosecution, and the trial court. At the sentencing hearing, the court determined that the sentencing guidelines actually yielded a minimum sentencing range of 8 to 15 years. The trial court then sentenced the petitioner to a prison term of 15 to 30 years. The minimum sentence of this indeterminate term fell within the range established by the sentencing guidelines.
The petitioner does not assert, nor is there evidence in the record, that he was misled as to the intricacies of the sentencing scheme or that his attorney failed to explain the facts to him. The sentence actually imposed fell within the sentencing guideline range and followed the plea agreement. The record reveals that trial counsel did not fail to "enforce" the plea agreement. Under these circumstances, it cannot be said that trial counsel's performance fell below an objective standard of reasonableness or that counsel made an error "so serious as to cease functioning as counsel under the Sixth Amendment." Strickland, 466 U.S. at 687. The petitioner has not satisfied the performance prong of the Strickland analysis.
Moreover, the petitioner has not established that he would have chosen not to plead guilty and insisted on going to trial but for counsel's conduct. See Smith, 348 F.3d at 551. Given the strong evidence of the petitioner's guilt as set forth in the preliminary examination record and the additional, serious charges of carjacking, armed robbery, and larceny faced by the petitioner, it is unlikely that he would have chosen not to reject a plea agreement and insisted on going to trial. The petitioner's ineffective assistance of counsel claim is thus without merit and does not warrant habeas relief.
B.
The petitioner also contends that his plea was involuntary because the trial court failed to comply with the plea agreement. A guilty plea must be supported by "an affirmative showing that it was intelligent and voluntary." Boykin v. Alabama, 395 U.S. 238, 242 (1969). Such a showing is generally made by the government's production of a transcript of state court proceedings to establish that the plea was made voluntarily. McAdoo, 346 F.3d at 166 (citing Garcia v. Johnson, 991 F.2d 324, 326 (6th Cir. 1993)). The Supreme Court has held that a defendant must have "sufficient awareness of the relevant circumstances and likely consequences" of his plea. Brady v. United States, 397 U.S. 742, 748 (1970). Thus, a guilty plea is voluntary if it is made with full knowledge of its direct consequences, and it will stand unless it is made under duress or as a result of threats, misrepresentations or improper inducements. Id. at 755.
In this case, the trial court record reveals that the petitioner's plea was voluntary, intelligent, and knowingly made. Although the petitioner was only sixteen or seventeen years old with a seventh-grade education at the time of his plea, he was represented by legal counsel and conferred with counsel during the plea process. The trial court advised the petitioner of his trial and appellate rights and the fact that he would be giving up those rights by pleading guilty. The court also informed the petitioner that although he faced a maximum sentence of life imprisonment, the court would sentence him within the sentencing guideline range of 15 to 25 years (later reduced to 8 to 15 years) for the minimum term in accordance with his plea agreement. The parties acknowledged their understanding and acceptance of this sentencing scheme several times. The petitioner indicated that he understood the plea and that he was pleading guilty of his own free will. He also indicated that no promises, other than those outlined in the plea agreement, had been made to him to induce him to plead guilty.
The petitioner does not offer the testimony of defense counsel or any other corroborating evidence to support an assertion that he was misled or confused about the consequences of his plea. The fact that the petitioner was subsequently dissatisfied with his sentence or may have hoped for more lenient treatment does not render his plea unknowing or involuntary. Brady, 397 U.S. at 757. As aptly stated by the United States Court of Appeals for the Sixth Circuit when faced with a challenge to a plea bargain:
If we were to rely on [the 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 . . . 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, 566 (6th Cir. 1999) (quoting Baker v. United States, 781 F.2d 85, 90 (6th Cir. 1986)). Having reviewed the record, the Court is satisfied that the petitioner's guilty plea was knowing, intelligent, and voluntary. The petitioner is not entitled to habeas relief on this claim.
III.
The petitioner's plea was knowing and voluntary, and he enjoyed the benefit of competent counsel. The Court therefore concludes that the petitioner is not being held in custody in violation of the Constitution, laws, or treaties of the United States. See 28 U.S.C. § 2254(a).
Accordingly, it is ORDERED that the petition for a writ of habeas corpus [dkt #3] is DENIED.