Berry v. Mintzes

Decision Date21 December 1981
Docket NumberCiv. No. 80-72037.
Citation529 F. Supp. 1067
PartiesThomas BERRY, Jr., Petitioner, v. Barry MINTZES, Warden, Respondent.
CourtU.S. District Court — Western District of Michigan

David M. Lawson, Lawson & Lawson, P.C., Southfield, Mich., for petitioner.

Frank J. Kelley, Atty. Gen., C. Michael Mathis, Asst. Atty. Gen., William L. Cahalan, Wayne Co. Pros. Atty., Andrea L. Solak, Asst. Pros. Atty., Detroit, Mich., for respondent.

OPINION AND ORDER DENYING WRIT OF HABEAS CORPUS

COHN, District Judge.

I.

Before me is a petition for a writ of habeas corpus, 28 U.S.C. § 2254. Petitioner Thomas Berry, Jr. was convicted of first degree murder in the Recorder's Court for the City of Detroit on May 18, 1964 and sentenced to a term of life imprisonment. He has been in the custody of the Michigan Department of Corrections since that time.

A.

Petitioner was arrested and arraigned on a criminal warrant charging first degree murder on October 25, 1963. Three days later counsel was appointed for him. He was arraigned on an information charging first degree murder on December 11, 1963. On May 18, 1964 petitioner and his counsel appeared for trial. Petitioner indicated through his counsel and in a colloquy with the trial judge that he desired to plead guilty to an "open" charge of murder. Pursuant to M.C.L.A. § 750.318, a person charged with murder who desires to plead guilty may plead to an "open" charge of murder, waive his right to a jury trial and have the trial judge conduct an evidentiary hearing to determine whether the conviction will be murder in the first or second degree.1

Petitioner then executed a written waiver of his right to a jury trial and with counsel present tendered a plea of guilty to an open murder charge. The trial judge then conducted an evidentiary hearing during which petitioner, his co-defendant and several witnesses testified. At the conclusion of testimony and argument of counsel, the trial judge found petitioner guilty of first degree (premeditated) murder. He was sentenced to life imprisonment on July 2, 1964; under Michigan law life imprisonment without parole is mandatory for first degree murder. M.C.L.A. §§ 750.316; 791.234.

B.

The petition now before me alleges that petitioner:

1) was denied due process of law because the information contained only an open charge of murder and did not specify degree.
2) was denied due process and his right to trial by jury because the trial judge did not adhere to the requirements of M.C.L.A. § 768.35, governing acceptance of guilty pleas.
3) was denied the right to confront his accusers because the trial judge considered the co-defendant's allegedly improperly obtained confession in determining the degree of murder.
4) was denied due process because the trial judge neither advised him of the nature of the charge against him nor of the consequences of his guilty plea.
5) was denied his right to appeal and to effective assistance of appellate counsel.
C.

The petition was filed in pro per on June 2, 1980. An answer was filed by the Michigan Attorney General on October 31, 1980 asserting the petition was without merit. On March 5, 1981, I appointed counsel to represent petitioner. The following day I ordered a testimonial hearing with petitioner present and directed that the Prosecuting Attorney for Wayne County be invited to join in the defense. The Prosecuting Attorney filed an appearance on March 13, 1981.

A testimonial hearing was held on April 23, 1981 at which petitioner alone testified. Respondent's counsel advised me at that time they had been unable to reach petitioner's trial counsel, the assistant prosecutor or the trial judge at the May 18, 1964 proceeding. Various documents, including the transcript of the plea proceeding, were received in evidence.

Post-hearing briefs were filed by both parties in September 1981 after which I heard argument. At my request respondent has filed an affidavit setting forth petitioner's prior criminal record.

II.
A.

Petitioner's journey through Michigan's criminal justice system and the federal courts has been long and tortuous. I relate the course of events in detail (as I have been able to determine it) because it reveals how many times petitioner has made many of the same arguments he now raises without receiving more than a cryptic response save in one instance.2

October 25, 1963 Petitioner arrested and arraigned in Recorder's Court on complaint and warrant for first degree murder and remanded to custody. Counsel appointed to represent petitioner on October 29.
November 4, 1963 Petitioner bound over for trial on first degree murder charge after preliminary examination and remanded to custody.
December 11, 1963 Petitioner arraigned on information charging first degree murder, entered plea of not guilty and remanded to custody.
May 18, 19643 Petitioner appeared for trial and executed written waiver of jury trial and entered plea of guilty to open charge of murder. Trial judge took testimony from petitioner, co-defendant and other witnesses. Petitioner convicted of first degree premeditated murder.
July 2, 1964 Petitioner sentenced to life imprisonment (He claims he wrote a letter to the sentencing judge asking how to appeal; letter is not in file before me.)
July 12, 1964 Petitioner wrote letter to sentencing judge asking to appeal as an indigent person. Court forms for indigent appeal and appointment of appellate counsel mailed to petitioner by Recorder's Court on August 14. Forms returned completed by petitioner on November 4.
November 10, 1964 Appellate counsel appointed. Counsel ordered transcript on January 25, 1964.
February 17, 1966 Transcript of plea filed in Recorder's Court and sent to appellate counsel.
June 17, 1966 Appellate counsel filed motion for leave to file motion to vacate judgment of conviction in Recorder's Court alleging failure to comply with M.C.L.A. § 768.35, governing acceptance of guilty pleas in Michigan courts. Wayne County Prosecutor filed answer to motion on July 16.
December 8, 1966 Petitioner's motion denied in short order stating:
"... the Court in reviewing the entire proceedings involved in accepting defendant's plea finds that the record evidences that defendant did plead guilty voluntarily and understandably. Defendant testified in Court that he knew the Court could find him guilty of either first degree or second degree murder or manslaughter and that he understood what he was doing."
April 21, 1967 Appellate counsel filed application for delayed appeal in Michigan Court of Appeals in essence restating his motion to vacate denied in Recorder's Court. Consideration deferred until transcript and file sent from Recorder's Court on August 2.
August 17, 1967 Application for delayed appeal denied in an order stating in its entirety:
"In this cause an application for delayed appeal is filed by defendant and an answer in opposition thereto having been filed, and due consideration thereof having been had by the Court, IT IS ORDERED that the application for delayed appeal be, and the same is hereby DENIED, for lack of meritorious grounds for granting same."
September 23, 1968 Petitioner in pro per4 requested certain portions of the plea transcript and sent check to cover costs. Not clear if sent to him.
October 14, 1968 Petitioner filed motion in Recorder's Court for entire transcript at public expense. After response filed on November 20 by Wayne County Prosecutor, motion denied on December 17. A letter to petitioner from Clerk of the Michigan Court of Appeals dated January 3, 1969 indicates petitioner filed a claim of appeal from the order denying the motion, but that the appeal was dismissed since the order was not a final judgment.
August 28, 1969 Petitioner filed complaint for writ of habeas corpus in Michigan Court of Appeals, claiming ineffective assistance of counsel and deprivation of his right to appeal. Court of Appeals returned complaint advising petitioner to refile in the Michigan Supreme Court. Petitioner refiled in the Michigan Court of Appeals and was informed on September 17, 1969 that his complaint would be treated as an application for delayed appeal. Complete transcript received by Michigan Court of Appeals from Recorder's Court on January 5, 1970.
March 15, 1970 Petitioner filed complaint for superintending control in Michigan Supreme Court seeking an order compelling the Michigan Court of Appeals to treat his complaint for habeas as such rather than as an application for delayed appeal. The complaint was actually filed on February 25, 1970 but was returned to petitioner by the Michigan Supreme Court in the belief he was appealing denial of his habeas petition while it was still pending in the Michigan Court of Appeals. Petitioner then re-filed the complaint. Wayne County Prosecutor filed response on April 6.
May 15, 1970 Michigan Supreme Court denied complaint for superintending control in short order citing M.C.L.A. § 600.4310, which makes persons convicted of a criminal offense ineligible for state habeas relief.
May 26, 1970 Michigan Court of Appeals denied complaint for writ of habeas corpus, which was treated as an application for delayed appeal, with the following order:
"IT IS ORDERED that the application be and same is hereby DENIED for lack of merit in the grounds presented."
June 1, 1970 Petitioner filed an application for a "Walker" hearing (People v. Walker, 374 Mich. 331, 132 N.W.2d 87 (1965)) (hearing to determine voluntariness of confession) in Recorder's Court. Denied as moot in letter dated June 12.
July 14, 1970 Petitioner filed a petition for writ of habeas corpus in this district, which was assigned to then District Judge Damon J. Keith. Petition listed nine assignments of error, including those previously raised in state courts.
September 10, 1970 Judge Keith denied the petition for failure to exhaust state remedies, 28 U.S.C. § 2254(b), since petitioner had never applied to the Michigan Supreme Court for leave to appeal
...

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    • United States
    • U.S. District Court — Eastern District of Michigan
    • October 30, 2014
    ...does not extend to third parties called as witnesses at trial. United States v. Nobles, 422 U.S. 225, 234 (1975); Berry v. Mintzes, 529 F. Supp. 1067, 1075 (E.D. Mich. 1981). While the United States Court of Appeals for the Sixth Circuit has indicated that the use of a witness's coerced tes......
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