Frazier v. Bell

• Decision Date: 31 October 2013
• Docket Number: CASE NO. 2:11-CV-10893
• Parties: ALVIN FRAZIER, Petitioner, v. THOMAS BELL, Respondent.
• Court: U.S. District Court — Eastern District of Michigan

ALVIN FRAZIER, Petitioner, v. THOMAS BELL, Respondent.

CASE NO. 2:11-CV-10893

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

Dated: October 31, 2013

HONORABLE DENISE PAGE HOOD

UNITED STATES DISTRICT JUDGE

OPINION AND ORDER

REOPENING THE PETITION FOR WRIT OF HABEAS

CORPUS ON THE COURT'S ACTIVE DOCKET,

DENYING THE PETITION FOR WRIT OF HABEAS CORPUS,

DISMISSING HABEAS CORPUS ACTION AND

GRANTING CERTIFICATE OF APPEALABILITY

AND LEAVE TO APPEAL IN FORMA PAUPERIS

Alvin Frazier, ("Petitioner"), confined at the Chippewa Correctional Facility in Kincheloe, Michigan, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, in which he challenged his conviction for second-degree murder, M.C.L.A. 750.317, and possession of a firearm in the commission of a felony [felony-firearm], M.C.L.A. 750.227b. This Court held the petition for writ of habeas corpus in abeyance to permit petitioner to return to the state courts to exhaust additional claims. Petitioner has now asked that the petition be reopened on the Court's active docket so that the claims in his original petition can be adjudicated. For the reasons that follow, the Court will reopen the caseon the Court's active docket. The Court will also deny the petition for writ of habeas corpus.

I. Background

Petitioner was originally charged with open murder ¹ and felony-firearm. On May 13, 2008, petitioner pleaded nolo contendere to second-degree murder and felony-firearm, in exchange for an agreement from the prosecutor that petitioner would receive 15-30 years on the second-degree murder charge. The trial court advised petitioner of the right to a trial that he was foregoing by pleading nolo contendere. (Tr. 5/13/08, pp. 3-5). The trial court judge also gave petitioner the following incorrect advice concerning petitioner's appellate rights:

Understand also that by pleading you're giving up any right you have to have court-appointed counsel assist you at public expense on any application for leave to appeal or other post-conviction remedies unless your sentence were to exceed sentencing guidelines, or your plea was a conditional plea, or the prosecutor sought leave to appeal, or the Court of Appeals or Supreme Court granted you leave to appeal.

Under any of those circumstances you'd still be eligible for Court-appointed counsel at public expense provided you came under one of those four exceptions and also qualified under terms of indigence.

(Id., pp. 5-6).

The parties stipulated to the use of the preliminary examination transcript to establish a factual basis for the plea. (Id., p. 9).

Petitioner subsequently filed a motion to withdraw his plea, which was denied on the day of sentencing. (Tr. 7/16/08, pp. 3-4). Petitioner was sentenced to fifteen to thirty years in prison on the second-degree murder conviction and received a consecutive two year prison sentence on the felony-firearm conviction. (Id., pp. 8-9).

After he was sentenced, but not until about January 14, 2009, petitioner requested the appointment of appellate counsel. The trial court denied petitioner's request because it was not filed within forty-two days of sentencing, but again incorrectly stated:

This matter is presently before the Court on Defendant's request for Court-appointed appellate counsel. The Defendant plead no[-]contest to Homicide-Murder 2nd, Weapons-Felony Firearm, and acknowledged his HOA [habitual offender] 2nd Status on May 13, 2008.

At the above-mentioned hearing the Defendant was advised of the rights that he was waiving and was asked if he wished to give up those rights. The Court advised the Defendant that by pleading guilty he was giving up any rights he had to have court-appointed counsel assist on filing any application for leave to appeal or other post-conviction remedies unless; 1) the sentence were to exceed sentencing guidelines, or 2) the plea was a conditional plea, or 3) the prosecutor sought leave to appeal, or 4) the Court of Appeals or Supreme Court granted leave to appeal. The Court then advised the Defendant he would still be eligible for court-appointed counsel provided he came under one of the above-mentioned exceptions and also qualified under terms of indigence.

The Defendant indicated that he wished to give up the above referenced rights. Moreover, the Defendant acknowledged that he was waiving his rights freely and voluntarily. Since the Defendant specifically waived his right to have a court-appointed attorney assist in filing an Application for Leave to Appeal, his Petition is denied.

THEREFORE, IT IS HEREBY ORDERED that Defendant's Petition for Court-Appointed Appellate Counsel is DENIED.

People v. Frazier, No. 07-029462-FC (Saginaw Cnty. Cir. Ct. Jan. 26, 2009).

Petitioner then filed an application for leave to appeal with the Michigan Court of Appeals, which was denied. People v. Frazier, No. 292085 (Mich. Ct. App. July 1, 2009)(Stephens, J. would grant leave to appeal).

Petitioner then filed an Application for Leave to Appeal with the Michigan Supreme Court. On January 22, 2010, the Michigan Supreme Court denied leave, stating:

On order of the Court, the application for leave to appeal the July 1, 2009 order of the Court of Appeals is considered and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. We note that the trial court orally gave the defendant certain warnings at his plea hearing. He advised defendant that by pleading no[-] contest to the charges against him, he waived his right to court-appointed counsel unless his sentence exceeded the sentencing guidelines, his plea was conditional, the prosecutor sought leave to appeal, or the Court of Appeals or this Court granted his application for leave to appeal. That instruction was legally erroneous. Halbert v. Michigan, 545 U.S. 605, 125 S.Ct. 2582, 162 L.Ed.2d 552 (2005); MCR 6.425(F)(2).

However, the trial court's error was harmless, because defendant received an advice-of-rights form at sentencing informing him of his right to appointed counsel under all circumstances, regardless of whether his conviction was plea-based or trial-based. MCR 6.425(F)(3). Therefore, defendant was not prejudiced by the trial court's erroneous oral instructions. Under MCR 6.425(F)(2)(c), defendant was required to request counsel within 42 days. Because defendant did not request that appellate counsel be appointed until seven months later, his request was properly denied.

Although the error was harmless in this case, trial judges should takecare to advise defendants in plea proceedings of their continuing right to court-appointed counsel if they cannot afford counsel.

People v. Frazier, 485 Mich. 1044, 776 N.W.2d 904 (2010)(unpublished table decision).

The Michigan Supreme Court subsequently denied petitioner's motion for reconsideration. People v. Frazier, 485 Mich. 1131, 779 N.W.2d 506 (2010) (unpublished table decision).

Petitioner originally filed his petition for writ of habeas corpus on March 7, 2011. On August 11, 2011, respondent filed an answer to the petition for writ of habeas corpus, urging this Court to deny the petition on the merits. On August 19, 2011, petitioner filed a request to hold the petition in abeyance so that he could return to the state courts to exhaust additional claims that were not contained in his current habeas petition. On March 22, 2013, this Court held the petition in abeyance and administratively closed the case. Frazier v. Bell, No. 2:11-CV-10893, 2013 WL 1192308 (E.D. Mich. March 22, 2013).

On August 22, 2013, petitioner filed a letter with this Court requesting that his case be reopened. Petitioner claims that he was unable to successfully complete his state post-conviction remedies and asks this Court to adjudicate the claims raised in his original habeas petition. Petitioner seeks habeas relief on the following claims:

I. The trial court erred in violation of Defendant's Fourteenth Amendment rigths to due process and equal protection, when the court failed to appoint[] appellate counsel for Defendant, who is indigent andseeks access to first-tier review of his plea-based conviction pursuant to Halbert v Michigan, 125 S. Ct. 2582 (2005)

II. Defendant should be allowed to withdraw his nolo contendere plea where he is innocent of the charges.

II. Standard of Review

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:

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 an unreasonable 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 proceeding.

A decision of a state court is "contrary to" clearly established federal law if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if the state court decides a case differently than the Supreme Court has on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). An "unreasonable application" occurs when "a state court decision unreasonably applies the law of [the Supreme Court] to the facts of a prisoner's case." Id. at 409. A federal habeas court maynot "issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Id. at 410-11.

The Supreme Court has explained that "[A] federal court's collateral review of a state-court decision must be consistent with the respect due state courts...