Freeman v. Lafler

• Decision Date: 06 January 2012
• Docket Number: Civil No. 2:09-CV-10518
• Parties: MICHAEL FREEMAN, Petitioner, v. BLAINE LAFLER, Respondent
• Court: U.S. District Court — Eastern District of Michigan

MICHAEL FREEMAN, Petitioner,

v.BLAINE LAFLER, Respondent

Civil No. 2:09-CV-10518

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

Dated: January 6, 2012

Honorable Patrick J. Duggan

OPINION AND ORDER DENYING THE PETITION FOR WRIT OF HABEAS

CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY

OR LEAVE TO APPEAL IN FORMA PAUPERIS

On February 12, 2009, Petitioner Michael Freeman ("Petitioner"), then in the custody of the Michigan Department of Corrections, filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is challenging his 1996 juvenile court adjudication out of the Circuit Court for Alpena County, Michigan, for second-degree criminal sexual conduct in violation of Michigan Compiled Laws § 750.520b; his conviction in the Circuit Court for Antrim County, Michigan, in 2000, for second-degree criminal sexual conduct in violation of Michigan Compiled Laws § 750.520b; and the Michigan Parole Board's prior refusal to release him on parole for the Antrim County conviction.¹ For the reasons stated below, Petitioner's application for a writ of habeas corpus is denied.

I. Background

In 1996, Petitioner was adjudicated as a juvenile delinquent following his plea of guilty in the Alpena County Circuit Court for the offense of second-degree criminal sexual conduct. On November 4, 1997, Petitioner was placed on probation for this offense and was made a ward of the court. Petitioner was discharged from this case on February 4, 1999.

Thereafter, on November 16, 2000, Petitioner pleaded guilty to second-degree criminal sexual conduct in the Antrim County Circuit Court. The trial court sentenced Petitioner to five to fifteen years in prison on December 11, 2000.

The Michigan Parole Board denied Petitioner parole several times following his Antrim County conviction. However, on May 21, 2009, the parole board released Petitioner on parole. According to the Michigan Department of Corrections' Offender Tracking Information System (OTIS), Petitioner was discharged from parole on November 21, 2011.²

Petitioner never filed a direct appeal from his Antrim County conviction, nor did he seek the appointment of appellate counsel. Petitioner did file a motion for transcripts at public expense in the Alpena County Circuit Court, which the court denied on December 27, 2007. People v. Freeman, No. 96-004310-DL (Alpena County Circuit Court, December 27, 2007) (unpublished opinion). Petitioner's appeal of this decision tothe Michigan Court of Appeals was dismissed for lack of jurisdiction, on the ground that an order denying a motion to have transcripts prepared at public expense is not a final order under Michigan Court Rule 7.202(6)(b). People v. Freeman, No. 283350 (Mich. Ct. App. May 8, 2008) (unpublished opinion). Petitioner then filed an application for leave to appeal to the Michigan Supreme Court, in which he challenged his Alpena County juvenile conviction. On September 9, 2008, the Michigan Supreme Court denied petitioner leave to appeal. People v. Freeman, 482 Mich. 976, 754 N.W.2d 884 (2008).

On February 12, 2009, Petitioner filed the pending petition for writ of habeas corpus. In his application, Petitioner asserts the following grounds in support of his request for habeas relief:

I. Petitioner has a right to file a habeas corpus action as he has a liberty interest at the bare minimum to fair and untainted parole hearings. Petitioner should be granted an excuse of the exhaustion doctrine.

II. Petitioner does have a liberty interest in gaining an early release on parole.

III. There is a clear abuse of discretion and power within the Michigan Parole Board which greatly affects [P]etitioner's liberty.

IV. The Michigan Court of Appeals erred in dismissing [P]etitioner's appeal for lack of jurisdiction.

V. The circuit court erred in denying [P]etitioner his transcripts so he can appeal post-conviction relief pursuant to M.C.R. 6.500 et seq.

VI. Since there was no affidavit showing probable cause to issue the arrest warrant against [P]etitioner, though one was required to issue the warrant, [P]etitioner's U.S. Constitution Amend. IV and Mich. Const. 1963, Art. § 11 civil rights against unreasonable search and seizure, and [P]etitioner's U.S. Const. Amend. XIV civil right to equal protection ofthe law was violated when [P]etitioner was arrested.

VII. Where the magistrate used a felony complaint that is conclusory to find probable cause to issue the arrest warrant against [P]etitioner, though barred from doing so, [P]etitioner's U.S. Const. Amend. IV and Mich. Const. 1963 Art. 1 § 11 civil rights against unreasonable search and seizure, and [P]etitioner's U.S. Const. Amend. XIV civil right to equal protection of the law was violated when [P]etitioner was arrested.

VIII. When the magistrate used sworn, yet unrecorded, oral testimony to find probable cause to issue the arrest warrant against unreasonable search and seizure, [P]etitioner's U.S. Const. Amend. XIV civil right to equal protection of the law was violated when [P]etitioner was arrested.

IX. When the magistrate used additional facts to find probable cause to issue the arrest warrant against [P]etitioner that were not incorporated into an affidavit, presented under oath, or recorded, though barred from doing so, [P]etitioner's U.S. Const. Amend. IV and Mich. Const. 1963 Art. 1 § 11 civil rights against unreasonable search and seizure, and [P]etitioner's U.S. Const. Amend. XIV civil right to equal protection of the law was violated when [P]etitioner was arrested.

X. The Court of Appeals erred in not appointing counsel, and relief required in Halbert v. Michigan.

XI. Petitioner was denied due process and his sentence is therefore invalid where his sentence was based on materially inaccurate information prejudicial to [P]etitioner and [P]etitioner's counsel failed to object.

Respondent filed an answer to the petition on December 7, 2009. Subsequent to the filing of his petition, Petitioner filed a post-conviction motion for relief from judgment in the Antrim County Circuit Court on July 30, 2009, which the trial court denied on October 8, 2009. People v. Freeman, 00-3422 (Antrim County Circuit Court, October 8, 2009) (unpublished opinion). Petitioner did not appeal this decision.

II. Petitioner's 1996 Alpena County Juvenile Conviction

Several of Petitioner's claims challenge his 1996 juvenile conviction for second-degree criminal sexual conduct in Alpena County. Respondent argues that Petitioner is not entitled to habeas relief from this conviction because he was no longer "in custody" with respect to this conviction when he filed his present petition. Because Petitioner was discharged from this conviction in 1999, this Court agrees.

28 U.S.C. §§ 2241(c)(3) and 2254(a) require that a habeas petitioner be "in custody" under the conviction or sentence under attack at the time that a habeas petition is filed in the federal court. Maleng v. Cook, 490 U.S. 488, 490-91, 109 S. Ct. 1923, 1925 (1989). A habeas petitioner is no longer "in custody" for purposes of a conviction once the sentence imposed on that conviction has fully expired, even if that conviction is being used to enhance a subsequent sentence. Id. at 492-93, 109 S. Ct. at 1926; see also Lackawanna Cnty. Dist. Attorney v. Coss, 532 U.S. 394, 403-04, 121 S. Ct. 1567, 1574 (2001).

In Lackawanna, the Supreme Court recognized an exception to this general rule for challenges to an enhanced sentenced based on a prior conviction where there was a failure to appoint counsel for the petitioner in violation of the Sixth Amendment. See id. at 404, 121 S. Ct. at 1574. The Supreme Court noted that the "'failure to appoint counsel for an indigent [is] a unique constitutional defect . . . ris[ing] to the level of a jurisdictional defect,' which therefore warrants special treatment among alleged constitutional violations." Id. (quoting Custis v. United States, 511 U.S. 485, 496, 114 S.Ct. 1732 (1994)). This exception, however, does not apply in the present case.³

Petitioner does not allege that the Alpena County Circuit Court failed to appoint counsel to represent him in his juvenile case. Although Petitioner claims that his trial counsel was ineffective, this is not akin to the trial court's failure to appoint counsel to represent him. See Daniels v. United States, 532 U.S. 374, 121 S. Ct. 1578 (2001); see also Tatarinov v. Superior Court of California, No. 07cv2033, 2008 WL 7985604, at *6-7, (S.D. Cal. July 10, 2008). Therefore, because Petitioner was not "in custody" with respect to his Alpena County conviction when he filed his application for federal habeas corpus relief, relief from this conviction under § 2254 is unavailable.⁴

III. Petitioner's 2000 Antrim County Conviction

Petitioner also challenges his conviction for second-degree criminal sexual conduct in the Antrim County Circuit Court in 2000. Respondent argues in his answer tothe petition that Petitioner's challenges to this conviction are time-barred pursuant to the applicable statute of limitations.

Under the Antiterrorism and Effective Death Penalty Act (AEDPA), a one (1) year statute of limitations applies to an application for writ of habeas corpus by a person in custody pursuant to a judgment of a state court. 28 U.S.C. § 2244(d). The limitation period runs from the latest of:

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;

(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;

(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

(D) the date on which the factual predicate of the claim or

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