Glenn v. Bergh, CASE NO. 2:14-CV-11908

• Decision Date: 12 January 2015
• Docket Number: CASE NO. 2:14-CV-11908
• Parties: MARVIN LEON GLENN, Petitioner, v. DAVE BERGH, Respondent
• Court: U.S. District Court — Eastern District of Michigan

MARVIN LEON GLENN, Petitioner, v. DAVE BERGH, Respondent

CASE NO. 2:14-CV-11908

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

January 12, 2015

HONORABLE SEAN F. COX UNITED STATES DISTRICT JUDGE

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

Marvin Leon Glenn, ("Petitioner"), presently incarcerated at the Thumb Correctional Facility in Lapeer, Michigan, filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, in which he challenges his convictions for assault with intent to rob while unarmed, Mich. Comp. Laws, § 750.88, resisting and obstructing a police officer, Mich. Comp. Laws, § 750.81d (1), and being a fourth felony habitual offender, Mich. Comp. Laws, § 769.12. For the reasons stated below, the petition for writ of habeas corpus is DENIED WITH PREJUDICE.

I. Background

Petitioner was originally charged with assault with intent to rob while armed, two counts of resisting and obstructing a police officer, and being a fourth felony habitual offender. This Court recites verbatim the relevant facts regarding petitioner's convictionfrom the Oakland County Circuit Court opinion denying petitioner's pre-trial motion to suppress the identification, which are presumed correct on habeas review pursuant to 28 U.S.C. § 2254(e)(1). See e.g., Wagner v. Smith, 581 F.3d 410, 413 (6^th Cir. 2009):

On April 11, 2008, two black men entered the Red Lobster in Madison Heights. One of the men, wearing dark clothing and a fake goatee, indicated he left his credit card in the restaurant the previous night with the name "Patrick Carl Jones" on it. When the employee, Bill Stanley, went into the office, the man followed and then pushed him into the office. A second suspect, wearing a wig with dread locks and a hat, then forced his way into the office yelling "Where is the money, give us all the money!" and then reached in his waistband for what witnesses thought was a gun. Another witness was in the office at the time and also observed both of the suspects. Bill Stanley began to yell "Call 911!" and pulled the fire alarm. At that time, both men ran out the front door.

At that time, Devonte McClung was coming into work when he saw two black males running from the front door, one wearing a fake beard and the other wearing a wig. Both of the men ran toward a black Escalade parked on a side street.

Officer Cacicedo from the Madison Heights Police Department was dispatched to the scene and obtained witness statements. After police action, both of the defendants were returned to the scene within one hour of the attempted robbery.

Ms. Brzezinski and Mr. McClung positively identified both of the suspects. Ms. Brzezinski also indicated that "the two men that Madison Heights police brought to our back parking was positively identified as the two men that came into the restaurant and attempted to rob me (Red Lobster)." She indicated that Jones was the one with the fake goatee and Glenn was the individual who came into office with the dread locks. Mr. McClung also identified Glenn as the individual with the wig and Jones as the person with the fake beard.

People v. Glenn, No. 08-220446-FH, * 1-2 (Oakland County Circuit Court, August 8, 2008).

Petitioner originally planned on going to trial. Prior to trial, Petitioner's counsel requested the trial judge to instruct the jurors on attempted armed robbery or attempted unarmed robbery as a necessarily lesser included offense of assault with intent to rob while armed. The judge denied the request. (Tr. 8/28/08, pp. 8-9). Petitioner then agreed to plead guilty to the lesser included offense of assault with intent to rob while unarmed, two counts of resisting and obstructing a police officer, and being a fourth felony habitual offender. In exchange for the plea, the prosecutor agreed to dismiss the original assault with intent to rob while armed charge. (Id., pp. 9-12). Petitioner specifically acknowledged that he was unaware of any agreements other than the one placed on the record by the prosecutor. (Id., p. 12). Petitioner was advised of the rights that he would waive by pleading guilty. (Id., pp. 12-15). Petitioner admitted that on the date of the offense, he assaulted the victims with force and violence and with the intent to commit a robbery. Petitioner further admitted to resisting and obstructing two police officers. Petitioner lastly admitted to being a fourth felony habitual offender. (Id., pp. 15-17). The prosecutor and defense counsel both indicated on the record that there were no promises that had been made to petitioner other than those that had been placed on the record. (Id., p. 17).

On the date of sentencing, Petitioner moved to withdraw his guilty plea, on the ground that he had found caselaw indicating that he was entitled to an instruction on the lesser offense of attempted robbery. The judge denied the request. (Tr. 9/23/2008, pp. 3-4). The judge sentenced Petitioner to fifteen to forty years in prison on the assault with intent to rob while unarmed charge as a fourth habitual offender and five to fifteen years in prison on theresisting and obstructing charges as a fourth habitual offender. (Id., p. 18).

Petitioner, through appellate counsel, moved to withdraw his guilty plea on the ground that he had been coerced into pleading guilty after the judge had erroneously rejected his request that the jury be instructed on the lesser offenses of attempted armed robbery or attempted unarmed robbery. (Tr. 6/10/09, p. 4). Petitioner himself addressed the court and argued that he should have been entitled to an instruction on the lesser offenses of attempted armed and unarmed robbery. Although acknowledging that his co-defendant had assaulted one of the victims by pushing him, Petitioner argued that this was not the type of assault contemplated under the assault with intent to rob while armed statute. Petitioner essentially argued that the assault with intent to rob while armed statute requires an aggravated assault with an injury to the victim. (Id., pp. 8-12, 15-17). The trial judge indicated that she would issue a written ruling. (Id., pp. 17-18). The judge subsequently denied the motion to withdraw the plea, on the ground that attempted robbery is not a necessarily lesser included offense of assault with intent to rob while armed but only a cognate lesser offense. People v. Glenn, No. 08-220446-FH, * 1-2 (Oakland County Circuit Court, June 24, 2009).

Petitioner, through newly appointed appellate counsel, filed an application for leave to appeal on the following grounds:

I. The trial court erred by denying Glenn's motion to withdraw his guilty plea on the basis that the plea was involuntary and/or coercive.

II. The trial court erred in the scoring of certain offense variables.

Petitioner's conviction was affirmed on appeal. People v. Glenn, No. 295678(Mich.Ct. App. Feb. 2, 2010); lv. den. 486 Mich. 1048, 783 N.W.2d 374 (2010).

Petitioner then filed a post-conviction motion for relief from judgment with the trial court. While the motion was pending, Petitioner filed a petition for writ of habeas corpus, which was dismissed without prejudice on the ground that Petitioner had yet to exhaust his claims in the state courts. Glenn v. Rapelje, No. 2:11-CV-12759, 2011 WL 5039881 (E.D. Mich. Oct. 24, 2011). The trial court denied Petitioner's motion for relief from judgment. People v. Glenn, No. 08-220446-FH (Oakland County Circuit Court, Sep. 24, 2012). The Michigan appellate courts denied Petitioner leave to appeal. People v. Glenn, No. No. 315120 (Mich.Ct. App. Sep. 24, 2013); lv. den. 495 Mich. 949, 843 N.W.2d 542 (2014).

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

I. Ineffective assistance of counsel prevented Glenn from entering a knowing and voluntary plea, where his decision to plead guilty was induced by his trial counsel's faulty legal advice.

II. Glenn was denied the effective assistance of appellate counsel when she failed to pursue on direct appeal an obvious, clearly stronger claim that Glenn's trial counsel prevented him from entering a knowing and voluntary plea because of an inadequate investigation of the law and faulty legal advice which prejudiced Glenn's appeal.

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 unlessthe 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.

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