Black v. Bergh

• Decision Date: 27 April 2012
• Docket Number: Civil Action Number: 2:09-cv-14203
• Parties: DANIEL BLACK, Petitioner, v. DAVID BERGH, Respondent.
• Court: U.S. District Court — Eastern District of Michigan

DANIEL BLACK, Petitioner,

v.DAVID BERGH, Respondent.

Civil Action Number: 2:09-cv-14203

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

Dated: April 27, 2012

Honorable Denise Page Hood

OPINION AND ORDER DENYING PETITION FOR A WRIT OF HABEAS

CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY

This is a habeas case filed by a state prisoner pursuant to 28 U.S.C. § 2254. Michigan prisoner Daniel Black is currently incarcerated by the Michigan Department of Corrections at the Newberry Correctional Facility in Newberry, Michigan. He filed this pro se Habeas Petition challenging his 2007 no-contest, guilty-plea convictions of four counts of first-degree criminal sexual conduct (CSC I), two counts of second-degree criminal sexual conduct (CSC II), and four counts of third-degree criminal sexual conduct (CSC III). Petitioner's no-contest plea took place in the Circuit Court in Oakland County, Michigan. He is serving concurrent prison terms of nine to fifteen years for those convictions. In his Habeas Petition, he raises claims concerning his plea and sentencing agreement (claims I and VI), his sentence (claims II, III, and IV), and the effectiveness of trial counsel (claim V). For the reasons stated, the Court denies the Petition. The Court also declines to issue a Certificate of Appealability.

I. BACKGROUND

On August 6, 2007, Petitioner pleaded no-contest pursuant to a Cobbs¹ agreement. The parties stipulated to the use of the police reports in order to establish a factual basis to support the no-contest plea. In the presentence report, under "Agent's Description of the Offense," it indicated that on January 13, 2007, Petitioner's wife filed a complaint with the Michigan State Police that Petitioner had been sexually assaulting their daughter on an ongoing basis, after finding text messages between them and photos on Petitioner's phone. After confronting her daughter, the daughter "broke down" and told her mother about her relationship with Petitioner, her adoptive father. She told her mother that she and Petitioner had sexual relations since she was fourteen-years old.

In accepting Petitioner's no-contest plea, the trial court stated the following with respect to the sentencing guidelines: "My understanding is that the People don't object to a nine year, as long as it's within the guidelines-the bottom of the guidelines, is that correct?" Plea Hr'g Tr. 13 Aug. 6, 2007. The prosecutor agreed. The trial judge then accepted Petitioner's no-contest plea as "understanding and voluntary." Id.

On August 22, 2007, Petitioner appeared before the trial court for sentencing and was sentenced as described. However, prior to receiving his sentence, defense counsel argued that Offense Variable (OV) 10 of the guidelines was misscored at fifteen points, for predatory conduct, when it should have been scored at ten points. The trial court denied counsel's objection. Sentencing Tr. 5 Aug. 22, 2007.

Defense counsel also argued that the scoring of OV 19 at ten points should have been scored at zero. The trial court agreed and changed OV 19 to zero. Sentencing Tr. 6-7 Aug. 22, 2007.

The trial court then sentenced Petitioner accordingly.

Following his sentencing, Petitioner filed a Delayed Application for Leave to Appeal with the Court of Appeals, raising the following claims: (1) the matter should be remanded to the trial court for a determination of the actual terms of the Cobbs agreement; (2) the trial court erred in scoring OV 10; and (3) the presentence report and the sentencing-information report must be corrected to reflect the correct sentencing guideline range. He also filed a supplemental appellate brief, raising the following additional claims: the trial court erred in scoring OV 4, and trial counsel was ineffective for failing to object to the scoring of OV 4. The Court of Appeals denied his Delayed Application. People v. Black, No. 284928 (Mich. Ct. App. May 27, 2008).

Petitioner then filed an Application for Leave to Appeal the Court of Appeals' decision with the Michigan Supreme Court, raising the same claims, and adding a claim concerning whether the trial court sufficiently developed a factual record for his no-contest plea. On November 26, 2008, the Supreme Court issued an Order, stating:

On order of the Court, the application for leave to appeal the May 27, 2008 order of the Court of Appeals is considered and, pursuant to MCR 7.302(G)(1), in lieu of granting leave to appeal, we REMAND this case to the Oakland Circuit Court for the correction of the sentencing information report (SIR) to reflect the circuit court's changes made at the sentencing proceeding on August 22, 2007. MCR 6.425(E)(2). The circuit court shall forward a copy of the amended SIR to the Department of Corrections. In all other respects, leave to appeal is DENIED, because we are not persuaded that the remaining questions presented should be reviewed by this Court.

People v. Black, 482 Mich. 1072, 769 N.W.2d 226 (2008) (Marilyn J. Kelly, J., would vacate the judgment of sentence and remand this case to the trial court for resentencing in accordance with the terms of the sentence agreement, under People v. Cobbs, 443 Mich. 276, 505 N.W.2d 208 (1993), to a minimum term at the bottom of the appropriate guidelines range, or, in the alternative, for the defendant to be given the opportunity to withdraw his pleas).

Petitioner neither filed a Motion for Relief from Judgment with the state trial court nor a Petition for a Writ of Certiorari with the Untied States Supreme Court. Rather, he filed this Habeas Petition on October 26, 2009, signed and dated October 21, 2009.

II. STANDARD OF REVIEW

Petitioner's claims are reviewed against the standards established by the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (AEDPA), which provide:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim-

(1) resulted in a decision that was contrary to, or involved anunreasonable 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 proceedings.

28 U.S.C. § 2254(d).

"A state court's decision is 'contrary to' [the United States Supreme Court's] clearly established law if it 'applies a rule that contradicts the governing law set forth in [Supreme Court cases]' or if it 'confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [that] precedent.'" Mitchell v. Esparza, 540 U.S. 12, 15-16, 124 S.Ct. 7, 10 (2003) (per curiam) (quoting Williams v. Taylor, 529 U.S. 362, 405-06, 120 S.Ct. 1495, 1519-20 (2000)). "[T]he 'unreasonable application' prong of [the statute] permits a federal habeas court to 'grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court but unreasonably applies that principle to the facts' of petitioner's case." Wiggins v. Smith, 539 U.S. 510, 520, 123 S.Ct. 2527, 2534-35 (2003) (quoting Williams, 529 U.S. at 413, 120 S.Ct. at 1495). However, "[i]n order for a federal court find a state court's application of [Supreme Court] precedent 'unreasonable,' the state court's decision must have been more than incorrect or erroneous. The state court's application must have been 'objectively unreasonable.'" Wiggins, 539 U.S. at 520-21, 123 S.Ct. at 2535 (citations omitted).

Recently, in Harrington v. Richter, --- U.S. ---, 131 S.Ct. 770, 786-87 (2011), the United States Supreme Court held:

A state court's determination that a claim lacks merit precludes federal habeas relief so long as "fairminded jurists could disagree" on thecorrectness of the state court's decision. Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004). And as this Court has explained, "[E]valuating whether a rule application was unreasonable requires considering the rule's specificity. The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations." Ibid. "[I]t is not an unreasonable application of clearly established Federal law for a state court to decline to apply a specific legal rule that has not been squarely established by this Court." Knowles v. Mirzayance, 556 U.S. ----, ----, 129 S.Ct. 1411, 1413-14, 173 L.Ed.2d 251 (2009) (internal quotation marks omitted).

* * *

Section 2254(d) reflects the view that habeas corpus is a "guard against extreme malfunctions in the state criminal justice systems," not a substitute for ordinary error correction through appeal. Jackson v. Virginia, 443 U.S. 307, 332 n.5, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (Stevens, J., concurring in judgment). As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.

With those standards in mind, the Court proceeds to address Petitioner's claims.

III. DISCUSSION

A. Claim I

In his first habeas claim, Petitioner alleges that this matter should be remanded to the trial court for a determination of the actual terms of the Cobbs plea and sentence agreement. Pursuant to the agreement, Petitioner agreed to plead no-contest "to the bottom of the guidelines of nine years, and with a maximum of fifteen years." Plea Hr'g Tr. 6 Aug. 6, 2007. The Court finds that this claim is not cognizable on federal-habeas review.

Federal-habeas review is limited to deciding whether a conviction violated the...