DelaGarza v. Winn
| Decision Date | 30 November 2021 |
| Docket Number | 19-12585 |
| Parties | ANTHONY A. DELAGARZA, Petitioner, v. THOMAS WINN, Respondent. |
| Court | U.S. District Court — Eastern District of Michigan |
Anthony A. DelaGarza, (“Petitioner”), incarcerated at the Saginaw Correctional Facility in Freeland, Michigan, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C § 2254, challenging his conviction for second-degree murder, Mich. Comp. Laws § 750.317, and conspiracy to commit second-degree murder, Mich. Comp. Laws § 750.157a.
For the reasons that follow, the petition for a writ of habeas corpus is DENIED WITH PREJUDICE.
Petitioner was originally charged with open murder, conspiracy to commit open murder, and lying to a police officer. Under Michigan law, it is proper to charge a defendant with the crime of open murder. Such a charge gives a circuit court jurisdiction to try a defendant on first and second-degree murder charges. See Taylor v. Withrow, 288 F.3d 846, 849 (6th Cir. 2002); see also Williams v Jones, 231 F.Supp.2d 586, 589 (E.D. Mich. 2002) (citing Mich. Comp. Laws § 750.316, 750.318; People v. McKinney, 65 Mich.App. 131, 135, 237 N.W.2d 215, 218 (1975)).
On August 4, 2014, petitioner pleaded guilty in the Ottawa County Circuit Court. The prosecutor placed on the record that petitioner would be pleading guilty to second-degree murder on the open murder count, thereby avoiding the possibility of a first-degree murder conviction after trial. The prosecutor also indicated that petitioner would be pleading guilty to the conspiracy to commit first-degree murder count but he would be sentenced under the same sentencing guidelines range as the one scored for the second-degree murder charge. The prosecutor agreed to drop the lying to police officers charge. The prosecutor also indicated that there was no sentencing agreement between the parties. The plea agreement called for petitioner to cooperate with the authorities with respect to the cases involving the co-defendants in the murder case in which he was charged. The prosecutor indicated that if petitioner failed to cooperate, the original open murder charge which would permit a first-degree murder conviction after a trial would be reinstated. (ECF No. 9-4, PageID.134-37). Defense counsel acknowledged this was the entire agreement. (Id. at PageID.137).
Petitioner was advised by the judge that he was pleading guilty to second-degree murder and “conspiracy to commit homicide, open murder.” Petitioner was advised of the trial rights that he was waiving by pleading guilty, including his right to claim that the plea was the result of any promises not placed on the record. Petitioner acknowledged that he was relinquishing these rights by pleading guilty. (ECF No. 9-4, PageID.138-39).
Petitioner made out a factual basis to the crime by admitting that he murdered Jose Patricio Hernandez by hitting him upside the head with a ball joint remover tool. Petitioner said he murdered Hernandez after discussions with co-defendant Maryann Castorena “to go with her that night and kill Patricio.” Although petitioner denied intending to kill Mr. Hernandez, he admitted that he intended to assault him. During this assault, Mr. Hernandez was hit in the head and died as a result. Petitioner admitted that he assaulted Mr. Hernandez after Ms. Castorena requested that petitioner murder the victim. Petitioner said that Ms. Castorena planned to get some money as a result of the murder and planned on sharing the money with petitioner. (ECF No. 9-4, PageID.139-41). Petitioner admitted to reading the written plea agreement entered into between the parties, which had been placed on the record, and acknowledged that this was the entire plea agreement. Petitioner indicated that other than the plea agreement, there were no other promises made to get him to plead guilty. (Id. at PageID.141-42).
Petitioner was sentenced to concurrent sentences of twenty to forty years on the second-degree murder and conspiracy to commit second-degree murder convictions. (ECF No. 9-5, PageID.156). Petitioner subsequently moved to withdraw his guilty plea in the trial court. On August 28, 2015, the Court conducted an evidentiary hearing on petitioner's claim.
Petitioner testified that he did not commit the offense and was told by trial counsel what to say at the plea hearing. Petitioner claimed that trial counsel erroneously told him that people saw petitioner at the scene of the crime, a video showed petitioner getting into the car with the co-defendant, that the victim's blood was found on the clothing that petitioner gave to the police, that the Global Positioning System (G.P.S.) on petitioner's phone placed him at the scene, and that petitioner's DNA was in the car driven by the co-defendant. Petitioner also claimed that his attorney told him that he was looking at a sentence of 7 ½ to 12 years if he cooperated with the prosecution and the conspiracy conviction would not have an effect on his sentencing guidelines. (ECF No. 9-8, PageID.181-189, 242). Although petitioner admitted that the written plea agreement contained no sentencing agreement, petitioner claimed that he did not have a chance to read the written agreement, although he admitted to signing it. (Id. at PageID.197-199). Although petitioner conceded that he stated that there was no sentencing agreement at the time of the plea, he claimed that there was an off-the-record agreement. (Id. at PageID.200-201). Petitioner further stated that he only made certain statements at the plea hearing after his attorney told him what to say, including his statement that there had been no off the record promises. (Id. at PageID.202-204).
Petitioner's trial attorney John Moritz testified. Moritz denied telling petitioner that his DNA was found in the car, that the victim's blood was found on his clothing, or that the G.P.S. placed petitioner at the scene of the crime. Counsel advised petitioner to plead guilty based on the significant circumstantial evidence which implicated him in the murder, including a statement from his co-conspirator, a “murder note” that had petitioner's fingerprint on it, a statement from petitioner's brother indicating that petitioner wanted a gun and was going to commit a crime, an attempted false alibi, and a jailhouse confession that contained details of the crime not known to the general public. Counsel also explained that he never told petitioner that he would receive 7½ to 12 years in prison. Counsel said that he merely discussed the guidelines with his client and never discussed a specific sentence. (ECF 9-8, PageID.267-76).
After holding an evidentiary hearing, the trial court denied the motion to withdraw the plea. The judge found defense counsel's testimony to be “clear, direct, unequivocal and confident.” The judge found petitioner's testimony at the hearing to be “inconsistent, illogical, and in contradiction of his repeated prior sworn testimony to the contrary.” (ECF No. 9-8, PageID.312-13). The judge ruled that he did not find petitioner's testimony to be “factually accurate” or “that the statements he claims his lawyer made were, in fact, made.” (Id. at PageID.313). The judge found that petitioner had not been denied the effective assistance of counsel.
Petitioner filed a motion for reconsideration, which raised a new argument claiming that his plea should be vacated because the crime that formed the basis for one of his convictions, conspiracy to commit second-degree murder, is a nonexistent offense. After ordering briefing on the claim, the judge denied the motion. People v. Delagarza, No. 14-38444-FC (Ottawa Cty. Cir. Ct., Dec. 23, 2015) (ECF No. 9-11, PageID.320). Petitioner's conviction was affirmed on appeal. People v. Delagarza, No. 329372 (Mich. Ct. App. Nov. 18, 2015) (); lv. den. 499 Mich. 956, 880 N.W.2d 227 (2016) (Markham, J., joined by Viviano and Bernstein, JJ., dissenting); reconsideration den. 500 Mich. 870, 885 N.W.2d 245 (2016).
Petitioner filed a post-conviction motion for relief from judgment which was denied. People v. Delagarza, No. 14-38444-FC (Ottawa Cty. Cir. Ct., Jan. 25, 2017) (ECF No. 9-13, PageID.356-62). The Michigan appellate courts denied petitioner leave to appeal. People v. Delagarza, No. 338391 (Mich. Ct. App. Oct. 27, 2017); lv den. 503 Mich. 872, 917 N.W.2d 640 (2018).
Petitioner seeks a writ of habeas corpus on the following grounds:
Title 28 U.S.C. § 2254(d), as amended by The Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA), imposes the following standard of review for habeas cases:
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