Alvarez v. Straub
| Citation | 64 F.Supp.2d 686 |
| Decision Date | 30 August 1999 |
| Docket Number | No. 97-CV-71822-DT.,97-CV-71822-DT. |
| Parties | Luis M. ALVAREZ, Petitioner, v. Dennis STRAUB, Respondent. |
| Court | U.S. District Court — Eastern District of Michigan |
Luis M. Alvarez, Lapeer, Michigan, plaintiff pro se.
Vincent J. Leone, Lansing, Michigan, for defendant.
ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION, DISMISSING CLAIM III OF PLAINTIFF'S HABEAS CORPUS PETITION, AND ORDERING RESPONDENT TO FILE AN ANSWER TO PLAINTIFF'S PETITION WITH RESPECT TO REMAINING CLAIMS
This matter having come before the Court on the February 5, 1999 Report and Recommendation of United States Magistrate Paul J. Komives recommending that the Court dismiss Claim III of Plaintiff's petition for a writ of habeas corpus on procedural default grounds and order Respondent to file an Answer on the merits of the petition with respect to the remaining claims;1 and Petitioner having timely filed Objections to the Magistrate's Report and Recommendation; and the Court having reviewed the Magistrate Judge's Report and Recommendation, Petitioner's Objections thereto, and the Court's file of this action and having concluded that, for the reasons stated in the Report and Recommendation, Claim III of Plaintiff's petition for habeas corpus relief should be dismissed; and the Court being otherwise fully advised in the premises,
IT IS HEREBY ORDERED that the Magistrate Judge's Report and Recommendation of February 5, 1999 be, and hereby is, adopted by this Court.
IT IS FURTHER ORDERED that, for the reasons set forth in the Magistrate Judge's Report and Recommendation, Claim III of Plaintiff's petition for habeas corpus relief be, and hereby is DISMISSED.
IT IS FURTHER ORDERED that within 30 days of the date of this Order, Respondent shall file with the Court and serve upon Petitioner an Answer addressing the merits of Petitioner's remaining claims (Claims I and II and all subparts thereto).
SO ORDERED.
REPORT AND RECOMMENDATION
Table of Contents
I. RECOMMENDATION ...............................................................689
II. REPORT .......................................................................689
A. Procedural History ......................................................689
B. Procedural Default Generally ............................................692
C. Possible Bases for Finding Default ......................................692
1. Appellate Courts' Denials of Leave to Appeal ........................693
2. Trial Court's Ruling on Petitioner's First Motion ...................693
3. Trial Court's Ruling on Petitioner's Second and Third Motions........694
D. Whether Petitioner Has Defaulted Any of His Claims .......................694
E. Whether Claim III May Be Considered on the Merits ........................696
1. Cause and Prejudice .................................................696
2. Fundamental Miscarriage of Justice ..................................699
F. Conclusion ...............................................................700
III. NOTICE TO PARTIES REGARDING OBJECTIONS ......................................700
The Court should construe defendant's answer to petitioner's application for the writ of habeas corpus as a motion to dismiss or for summary judgment on the basis that petitioner's claims are barred by his procedural default. If so construed, the Court should then conclude that petitioner has procedurally defaulted as to his Claim III but has not procedurally defaulted as to other claims. Accordingly, the Court should dismiss Claim III but order respondent to file an answer addressing the merits of petitioner's remaining claims.
A. Procedural History
1. Petitioner Luis M. Alvarez is a state prisoner, currently confined at the G. Robert Cotton Correctional Facility in Jackson, Michigan.
2. On April 23, 1984, petitioner was convicted of possession of 225 to 650 grams of cocaine, MICH.COMP.LAWS § 333.7403(2)(a)(ii), pursuant to his conditional guilty plea in the Oakland Count Circuit Court. Petitioner was sentenced to a term of 20 to 30 years imprisonment.
3. Petitioner appealed as of right to the Michigan Court of Appeals, raising four claims: (1) insufficiency of the search warrant; (2) untimely review in the circuit court by the prosecution of the district court's notation of dismissal; (3) violation of petitioner's right to a speedy trial; and (4) police officers' promises of leniency precluded incarceration. Pursuant to this conditional guilty plea, petitioner remained free on bond pending his appeal. On May 30, 1985, the court of appeals found no merit in any of these claims and affirmed petitioner's conviction and sentence. See People v. Alvarez, No. 79007 (per curiam) ().
4. Petitioner sought leave to appeal these issues to the Michigan Supreme Court. The Supreme Court denied the application in a standard order. See People v. Alvarez, No. 76903 (Mich. Dec. 17, 1985) ().
5. Following the Supreme Court's denial of his application for leave to appeal, petitioner's bond was revoked and he was ordered to commence serving his sentence on December 24, 1985. Petitioner fled, however, and remained at large until his arrest in September 1990 in Florida, where he was living under an assumed name. Petitioner commenced serving his sentence on October 1, 1990.
6. Shortly after he began serving his sentence, petitioner filed a motion for relief from judgment pursuant to MICH.CT.R. 6.500-.509. Petitioner raised several claims of ineffective assistance of counsel, as well as claims that the trial court improperly participated in the plea bargaining process, that his presentence report was stale, and that he did not have an opportunity to review the presentence report. The trial court denied the motion, concluding that petitioner had failed to establish good cause for failing to raise the issues sooner pursuant to MICH.CT.R. 6.508(D)(3). See Mot. Hr'g Tr., dated 10/22/91, at 34-35.
7. On December 8, 1992, petitioner filed a second motion for relief from judgment pursuant to MICH.CT.R. 6.500-.509. In this second motion, petitioner reasserted the claims raised in his first motion, and requested resentencing based on an amendment to the statute under which he was convicted. In an amended motion, petitioner added a claim that trial counsel was ineffective by allowing him to plead guilty to an offense carrying a mandatory prison term. The trial court denied the motion, concluding that there was no basis to reconsider the claims raised in petitioner's previous motion and that petitioner had failed to raise a substantial and compelling reason for resentencing. See People v. Alvarez, No. 81-48855 FY (Oakland County (Mich.) Cir.Ct. Apr. 21, 1993) (order).
8. In a single notice of appeal, petitioner sought leave to appeal the denial of his two postconviction motions in the Michigan Court of Appeals. The court of appeals denied petitioner's application in a standard order, concluding that he "failed to meet the burden of establishing entitlement to relief under MCR 6.508(D)." People v. Alvarez, No. 163795 (Mich.Ct.App. Aug. 26, 1993).
9. Petitioner sought leave to appeal in the Michigan Supreme Court. The Supreme Court denied leave to appeal in a standard order, concluding as did the court of appeals that petitioner "failed to meet the burden of establishing entitlement to relief under MCR 6.508(D)." People v. Alvarez, 445 Mich. 913, 519 N.W.2d 893 (1994).
10. On July 17, 1995, petitioner filed a third motion for new trial in the trial court. In this motion, petitioner raised the following claims: (1) the mandatory minimum sentence constituted cruel and unusual punishment, is disproportionate, and violates his rights to due process and equal protection; (2) his plea was involuntary and resulted from ineffective assistance of counsel; (3) the trial court improperly participated in the plea bargaining process; and (4) the trial court improperly relied upon the stale presentence report. The trial court denied petitioner's motion. See Video Mot. Hr'g Tr., dated 11/13/95, at 10-11; People v. Alvarez, No. 81-48855 FH (Oakland County (Mich.) Cir.Ct. Nov. 13 1995) (order denying defendant's motion for relief from judgment).
11. Both the court of appeals and the supreme court denied petitioner's applications for leave to appeal, concluding that petitioner "failed to meet the burden of establishing entitlement to relief under MCR 6.508(D)." People v. Alvarez, 454 Mich. 882, 562 N.W.2d 201 (1997); People v. Alvarez, No. 191473 (Mich.Ct.App. June 14, 1996).
12. Petitioner filed the instant petition for habeas corpus on April 23, 1997. He raises the following grounds for issuance of the writ of habeas corpus:
I. THE TRIAL COURT'S FAILURE TO COMPORT WITH MCR 6.508(E) AND ISSUE FINDINGS OF FACT AND CONCLUSIONS OF LAW IS A DUE PROCESS VIOLATION REQUIRING THIS COURT TO EXAMINE DE NOVO THE ARGUMENTS PRESENTED.
II. GOOD CAUSE FOR NOT CHALLENGING ON DIRECT APPEAL THE VOLUNTARINESS OF THE PLEA AND THE VALIDITY OF THE SENTENCE IS MET WHERE TRIAL COUNSEL ALSO ACTS AS DIRECT APPELLATE COUNSEL.
A. THE PETITIONER'S PLEA MUST BE VACATED AS IT WAS MADE INVOLUNTARY BY THE TRIAL COURT'S COERCION OF THE PLEA THROUGH THE COURT'S PRE-PLEA ULTIMATUM OF GRANTING AN APPEAL BOND ONLY IF PETITIONER PLEADED GUILTY AS CHARGED BUT NOT IF HE ELECTED TRIAL, THIS FORM OF JUDICIAL PARTICIPATION CONTRAVENES Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) AND U.S. CONST. AMS VI, XIV.
B. WAS COUNSEL'S ADVICE TO PETITIONER THAT THE TRIAL COURT WOULD ONLY GRANT THE PETITIONER AN APPEAL BOND IF THE PETITIONER PLEADED GUILTY AS CHARGED BUT NOT IF HE ELECTED TRIAL...
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