Garrett v. Brewer, Civil No. 2:17-CV-13507

• Decision Date: 27 March 2018
• Docket Number: Civil No. 2:17-CV-13507
• Parties: KIMBERLY JEAN GARRETT, Petitioner, v. SHAWN BREWER, Respondent
• Court: U.S. District Court — Eastern District of Michigan

KIMBERLY JEAN GARRETT, Petitioner, v. SHAWN BREWER, Respondent

Civil No. 2:17-CV-13507

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

March 27, 2018

HONORABLE ARTHUR J. TARNOW UNITED STATES DISTRICT JUDGE

OPINION AND ORDER DENYING THE PETITION FOR WRIT OF HABEAS CORPUS, DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY, AND GRANTING LEAVE TO APPEAL IN FORMA PAUPERIS

Kimberly Jean Garrett, ("Petitioner"), confined at the Huron Valley Women's Complex in Ypsilanti, Michigan, filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging her conviction for second-degree murder, M.C.L.A. § 750.317, and operating a motor vehicle while intoxicated causing death, M.C.L.A. § 257.625(4)(a). For the reasons that follow, the petition for writ of habeas corpus is DENIED.

I. Background

Petitioner pleaded no-contest to the above charges in the Wayne County Circuit Court. In exchange for the plea, the prosecutor agreed to dismiss several other charges against petitioner. The parties also agreed that petitioner would be sentenced to 25 to 50 years in prison. (Tr. 10/16/15, pp. 3-5). Petitioner acknowledged on the record that this was her understanding of the plea and sentence agreement. (Id., p. 5). The prosecutor and defense counsel indicated that petitioner would be pleading no-contest because she had no memory of the incident. (Id., pp. 7-8). Petitioner was advised of the rights that she was giving up by pleading no-contest. (Id., pp. 8-11). In response to the judge's questions, petitioner expressly denied that she had been coerced or threatened into pleading no-contest. Petitioner also acknowledged that by entering her plea, she could not later claim that she had been threatened or coerced into pleading no-contest. (Id., p. 10).

In order to establish a factual basis for the plea, the prosecutor introduced the Westland Police Request for Warrant Investigator's Report, dated June 20, 2015. The report indicated that petitioner had been driving her car at a high rate of speed in a residential neighborhood with "small narrow streets and tightly packed houses." Petitioner swerved off the road into a ditch, striking and killing the victim, an eight year old child. Petitioner swerved back onto the road and left the area at a high rate of speed. A driver of another vehicle followed petitioner until she was arrested shortly thereafter. Petitioner admitted that she was intoxicated while driving. Tests showed petitioner had used heroin, cocaine, oxycodone, and alprazolam prior to driving her vehicle. Petitioner admitted that she should not have been driving because she had a restricted driver's licensedue to her being on probation for a prior Operating While Intoxicated conviction. (Tr. 10/16/15, pp. 11-14).

Petitioner was sentenced to concurrent sentences of 25-50 years on the second-degree murder conviction and 10-15 years on the operating a motor vehicle while intoxicated causing death conviction.

Petitioner, through appellate counsel, filed a motion to withdraw her plea or in the alternative, for re-sentencing. The motion was denied. (Tr. 6/3/16, pp. 10-11, 16).

Petitioner's conviction and sentence was affirmed on appeal. People v. Garrett, No. 333533 (Mich.Ct.App. Oct. 25, 2016); lv. Den. 500 Mich. 984, 893 N.W.2d 616 (2017).

Petitioner seeks a writ of habeas corpus on the following grounds:

I. Defendant's state and federal constitutional rights were violated when she was coerced into taking a plea because her attorney was not acting in her best interest and coached her to take a plea when there were insufficient facts to support the plea and the prosecutor had overcharged.

II. Ms. Garrett is entitled to resentencing where the sentencing guidelines were misscored in violation of the state and federal due process right to sentencing based upon accurate information and defense counsel was ineffective.

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 may not "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. "[A] state court'sdetermination that a claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision." Harrington v. Richter, 562 U.S. 86, 101 (2011)(citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).

The Michigan Court of Appeals denied petitioner's application for leave to appeal on petitioner's direct appeal in a form order "for lack of merit in the grounds presented." The Michigan Supreme Court subsequently denied the petitioner leave to appeal in a standard form order without any extended discussion. Determining whether a state court's decision resulted from an unreasonable legal or factual conclusion, as would warrant federal habeas relief, does not require that there be an opinion from the state court that explains the state court's reasoning. Harrington, 562 U.S. at 98. "Where a state court's decision is unaccompanied by an explanation, the habeas petitioner's burden still must be met by showing there was no reasonable basis for the state court to deny relief." Id. In fact, when a habeas petitioner has presented a federal claim to a state court and that state court has denied relief, "it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary." Id. at 99. That presumption may be overcome only when there is a reason to think that some other explanation for the state court's decision is more likely. Id. at 99-100.

The AEDPA deferential standard of review applies in this case where the Michigan Court of Appeals rejected petitioner's appeal "for lack of merit in the grounds presented" and the Michigan Supreme Court subsequently denied leave to appeal in a standard form order, because these orders amounted to a decision on the merits. See Werth v. Bell, 692 F. 3d 486, 492-94 (6th Cir. 2012).

III. Discussion

A. Claim # 1. The involuntary plea/ineffective assistance of counsel claim.

Petitioner first contends that she should be permitted to withdraw her no-contest plea. Petitioner claims that she was coerced into pleading by her attorney, that there was insufficient evidence to support the charges filed against her, and that there was no factual basis for her plea.

Petitioner has no federal constitutional right to withdraw her no-contest plea. See Hynes v. Birkett, 526 F. App'x. 515, 521 (6th Cir. 2013). Unless a petitioner's guilty or no-contest plea otherwise violated a clearly-established constitutional right, whether to allow the withdrawal of a habeas petitioner's plea is discretionary with the state trial court. See Shanks v. Wolfenbarger, 387 F. Supp. 2d 740, 748 (E.D. Mich. 2005). Moreover, "[i]t is well-settled that post-sentencing 'buyer's remorse' is not a valid basis" to set aside an otherwise valid guilty or no-contest plea. Meek v. Bergh, 526 F. App'x. 530, 536 (6th Cir. 2013)(internal quotations omitted).

A guilty or no-contest plea that is entered in state court must be voluntarily and intelligently made. See Shanks, 387 F. Supp. 2d at 749; Doyle v. Scutt, 347 F. Supp. 2d 474, 482 (E.D. Mich. 2004)(both citing Boykin v. Alabama, 395 U.S. 238, 242 (1969)). In order for a plea of guilty or no-contest to be voluntarily and intelligently made, the defendant must be aware of the "relevant circumstances and likely consequences" of his or her plea. Hart v. Marion Correctional Institution, 927 F. 2d 256, 257 (6th Cir. 1991). The defendant must also be aware of the maximum sentence that can be imposed for the crime for which he or she is pleading guilty. King v. Dutton, 17 F. 3d 151, 154 (6^th Cir. 1994). When a petitioner brings a federal habeas petition challenging his plea of guilty or no-contest, the state generally satisfies its burden by producing a transcript of the state court proceedings showing that the plea was made voluntarily. Garcia v. Johnson, 991 F. 2d 324, 326 (6^th Cir. 1993). The factual findings of a state court that the guilty plea was properly made are generally accorded a presumption of correctness. Petitioner must overcome a heavy burden if the federal court is to overturn these findings by the state court. Id.

Petitioner's claim that she was coerced into pleading no-contest is defeated by the fact that petitioner stated on the record at the plea hearing that no threats or coercion had been made to get her to plead no-contest and that she was pleading freely and voluntarily. Petitioner's bare claim that she was coerced into pleading no-contest is...