Garrison v. Elo
| Decision Date | 20 July 2001 |
| Docket Number | No. CIV.A.00CV73520-DT.,CIV.A.00CV73520-DT. |
| Citation | 156 F.Supp.2d 815 |
| Parties | Michael GARRISON, # 237608, Petitioner, v. Frank ELO, Respondent. |
| Court | U.S. District Court — Eastern District of Michigan |
O'MEARA, District Judge.
Petitioner, Michael Garrison ("Petitioner"), presently confined at the Adrian Temporary Correctional Facility in Adrian, Michigan, has filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 alleging that he is confined in violation of his constitutional rights. In his application, Petitioner challenges his May 9, 1994, conviction by guilty plea of one count of third degree criminal sexual conduct in violation of M.C.L. § 750.520d(1)(a). Under the terms of the agreement, an additional charge of third degree criminal sexual conduct and a supplemental charge of being a second felony habitual offender, M.C.L. § 769.10, were dismissed. Petitioner was sentenced to three and a half to fifteen years imprisonment.
Petitioner pleaded guilty to one count of committing third degree criminal sexual conduct upon a thirteen year old girl. At Petitioner's May 9, 1994, plea proceeding, he admitted engaging in penile-vaginal sexual penetration with the girl. Plea Transcript ("Plea Tr.") at 8. Petitioner was eighteen years old when he and the girl had sexual intercourse. People v. Garrison, Michigan Court of Appeals Docket No. 176302 (May 23, 1995).1
At the plea proceeding, the trial judge first informed Petitioner that he was being charged with criminal sexual conduct in the third degree and that "this is an offense that carries a maximum possible sentence of 15 years in the state's prison, the minimum is discretionary with the court, and there is mandatory AIDS testing." Plea Tr. at 3. The trial judge advised Petitioner that he could plead guilty, not guilty, or stand mute. The trial judge also advised Petitioner not to plead guilty unless he was guilty.
Before Petitioner's guilty plea was accepted, the judge informed him that he had a right to a jury trial or a bench trial and that he had a right to the presumption of innocence concerning all of the charges against him and the right to require the prosecutor to prove him guilty beyond a reasonable doubt. Petitioner was informed that he had the right to be present during any trial, the right to call witnesses on his behalf, and to confront and cross-examine witnesses against him. Petitioner was informed of his right to testify on his behalf and his right not to testify at all. He was informed that, if he chose not to testify, his silence could not be used against him. Petitioner was informed that if he pleaded guilty he would be giving up all of the trial rights of which he had been informed. Petitioner addressed the court and stated that he understood his rights and that he wanted to waive them and plead guilty.
Defense counsel stated on the record that Petitioner was pleading guilty to one count of third degree criminal sexual conduct in exchange for dismissal of an additional third degree criminal sexual conduct charge in another county and dismissal of a habitual offender second felony charge. It was stressed by counsel and the court that this was the complete plea agreement. Petitioner stated on the record that he understood that this was the complete plea agreement.
The trial judge asked Petitioner if anyone had made him any other promises beyond the plea agreement and if anyone had promised him a lenient sentence if he pleaded guilty. Petitioner stated that no other promises had been made to him. Petitioner stated that he was not forced or threatened to plead guilty and that he was pleading guilty freely and voluntarily. Petitioner was asked if he had any questions about what the court had told him and he replied that he did not. The trial judge then elicited the factual basis of the plea. Petitioner then pleaded guilty to one count of second degree criminal sexual conduct. Petitioner was later sentenced to three and a half to fifteen years in prison.
1. Direct appeal
Petitioner appealed his sentence as of right in the Michigan Court of Appeals. Petitioner's appeal contended that his sentence was disproportionate to his crime and his criminal history and circumstances under People v. Milbourn, 435 Mich. 630, 461 N.W.2d 1 (1990). The Michigan Court of Appeals denied Petitioner's appeal, finding that the guideline minimum sentence range was from 36 to 96 months and that Petitioner's 42 month minimum sentence was within the lower end of the guidelines' range and was presumptively proportionate. As Petitioner presented no unusual circumstances to rebut the presumption, his challenge to his sentence was denied. People v. Garrison, Michigan Court of Appeals Docket No. 176302 (May 23, 1995). Petitioner's application for leave to appeal this decision to the Michigan Supreme Court was rejected for filing by that court, because it was received more than 56 days after the decision of the Michigan Court of Appeals. M.C.R. 7.302(C)(3); Affidavit of Corbin R. Davis, dated October 6, 2000.
2. Postconviction proceedings
Petitioner subsequently moved for postconviction relief in the trial court, seeking appointment of counsel, an evidentiary hearing, and contending that his guilty plea was involuntary and unknowing and resulted from ineffective assistance of counsel. Petitioner asserted that (1) his guilty plea was unknowing an involuntary because it was induced by ineffective assistance of trial counsel through (a) counsel's admonition that Petitioner might be sentenced to life in prison if he refused to plead guilty and (b) counsel's promise that Petitioner would serve no more than three years in prison if he pleaded guilty and (2) the failure of both counsel and the trial court to inform Petitioner that he could not receive a sentence of probation. The trial court appointed counsel and held an evidentiary hearing on the matter.
Petitioner's father, Larry Garrison, testified that he heard Petitioner's trial counsel, Laurence Long, say at a meeting attended by Petitioner and other family members, that if Petitioner pleaded not guilty and lost at both trials, he could receive a very long prison sentence, possibly life.2 Petitioner's father also testified that trial counsel indicated that Petitioner would serve two or three years in prison if he pleaded guilty. Petitioner's father indicated that counsel may have been making an estimate when he said this. Evidentiary Hearing Tr. ("EH Tr.") at 9-10. Petitioner's father further testified that trial counsel told Petitioner that any sentence he received would be served in prison. Id. at 14.
Petitioner's grandmother, Margaret Pelcher, testified that she also attended the family legal meeting and heard trial counsel state that, if he pleaded guilty, Petitioner would serve three years in prison.
Petitioner's mother, Linda Hall, heard attorney Long say that if Petitioner pleaded guilty he would receive two or three years, but if he went to trial and lost, he would get life in prison. Linda Hall further testified that she understood attorney Long to mean that Petitioner would serve no longer than two or three years in prison based on good behavior.
Petitioner testified at the evidentiary hearing. Petitioner testified that attorney Long told him that, if he pleaded guilty the maximum sentence he would receive would be three years, but if he pleaded not guilty, he would get life in prison if he lost. Id. 22-23 Petitioner testified that if he "knew anything about [being sentenced to] 15 years, I never would have pleaded guilty." Id. at 34.
Petitioner admitted on cross-examination that the trial judge informed him before accepting his guilty plea that the maximum sentence for third degree criminal sexual conduct was 15 years. Id. at 35. Petitioner also admitted recalling being told at arraignment that, if sentenced as a second felony habitual offender, his maximum sentence would be one-and-a-half times the maximum sentence for a first offense. However, he nonetheless asserted that he believed that he would be sentenced to life imprisonment if he pleaded not guilty and was convicted. The trial judge asked Petitioner if he understood that, if his guilty plea was set aside, the original charges would be reinstated, and if convicted on both charges in both counties, he could be sentenced consecutively and as a habitual offender on both charges. Petitioner replied that he knew this.
Petitioner's trial counsel Laurence Long testified. Attorney Long testified that he told Petitioner if he was convicted on both third degree criminal sexual conduct charges, and got in trouble again resulting in an additional felony charge, his next conviction would be his fourth felony, for which he could be sentenced to life in prison. He added that, regarding a sentence Petitioner might receive for the first criminal sexual conduct in the third degree charge, Id. at 59, 62.
The trial judge issued an opinion denying Petitioner's challenge to his guilty plea on the merits. The trial judge found that "in all likelihood" trial counsel "probably did" tell Petitioner that, if he did not take the plea, he could be sentenced to life in prison. Opinion at 6. However, the trial court concluded that Petitioner did not rely upon any such statement by his attorney, because he was told at the time of his plea that the maximum sentence that h...
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