Hann v. Caruso

• Decision Date: 02 July 2012
• Docket Number: Case Number 2:10-CV-10797
• Parties: GARY S. HANN, Petitioner, v. PATRICIA L. CARUSO, Respondent.
• Court: U.S. District Court — Eastern District of Michigan

GARY S. HANN, Petitioner,

v.PATRICIA L. CARUSO, Respondent.

Case Number 2:10-CV-10797

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

Dated: July 2, 2012

Honorable Nancy G. Edmunds

OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF HABEAS

CORPUS, DENYING A CERTIFICATE OF APPEALABILITY, AND DENYING

PERMISSION TO PROCEED ON APPEAL IN FORMA PAUPERIS

This matter is before the Court on Petitioner Gary S. Hann's petition for a writ of habeas corpus filed under 28 U.S.C. § 2254. On September 20, 2002, Petitioner pled no contest in the Oakland Circuit Court to attempting to commit child sexually abusive activity, MICH. COMP. LAWS § 740.145c(2), and using a computer or the Internet to attempt to commit child sexually abusive activity. MICH. COMP. LAWS § 750.145d(1)(a). Petitioner was sentenced to concurrent terms of 2-to-20 years. He discharged from parole on February 27, 2010, a day after he filed the instant action. The petition, along with Petitioner's prolix supplemental pleadings and exhibits, enumerate thirteen claims divided into numerous subclaims. The Court finds that all of Petitioner's claims are without merit. Therefore, the petition will be denied. The Court will also deny Petitioner a certificate of appealability and deny permission to proceed on appeal informa pauperis.

I. Facts and Procedural History

This case arose after Petitioner engaged in a series of internet chats, instant messages, and e-mails with an undercover detective from the Oakland County Sheriff'sDepartment who posed as a 14-year-old boy. During these communications, Petitioner arranged to meet with the undercover officer for purposes of engaging in sexual activity.

The proceedings in the trial court were straightforward and brief. At a hearing held on September 20, 2002, the court indicated that Petitioner was requesting to plead no contest as charged with the understanding that the court would not impose a minimum sentence exceeding thirty months.

Petitioner was placed under oath. He indicated he was satisfied with the advice of his attorney. He stated he understood that he was pleading no contest to child sexual abusive activity and communicating with another on the internet to commit a crime, and that the maximum sentence he faced was twenty years in prison.

The court explained to Petitioner that if it decided that a minimum sentence exceeding 30 months was required, Petitioner would be allowed to withdraw the plea. Petitioner indicated his understanding, and acknowledged that there was no agreement to reduce or dismiss any of the charges.

The court informed Petitioner of the trial rights he was waiving by entering his plea, including: the right to counsel, the right to a jury or a bench trial, the presumption of innocence, the beyond-a-reasonable-doubt standard, the right to confront prosecution witnesses and present his own witnesses, and the right to testify or remain silent without it being held against him. Petitioner acknowledged his understanding and that he would be waiving these rights by entering his plea.

Petitioner denied that anyone threatened him to obtain the plea, and agreed that it was his own choice to do so. The court referred to the police report as containing a factual basis for the plea, and the attorneys stipulated that it contained facts sufficient to supportthe plea. The court found that the plea was understanding, accurate, and voluntary.

At the sentencing hearing, defense counsel indicated that he and Petitioner had reviewed the presentence information report. Defense counsel indicated that the report was accurate but should be amended to note that Petitioner quit NAMBLA (North American Man/Boy Love Association) in 1996. Defense counsel then successfully argued for a reduction in the scoring of the sentencing guidelines, lowering the minimum sentence range from 30-to-50 months to 24-to-40 months.

Petitioner then addressed the court. He did not express any desire to withdraw from the plea, but rather he indicated his sorrow for his actions and acknowledged his responsibility for the crime.

The prosecutor asked for the court to impose the 30 month minimum sentence in light of the agreement, but the court instead imposed a sentence of 24 months-to-20 years in light of the recalculated guidelines.

Following these straight-forward proceedings in the trial court, Petitioner's state appellate court proceedings became complicated and protracted. Eventually, Petitioner was left to represent himself on appeal, and this led to the Court granting Petitioner habeas relief conditioned on the state providing him with a new direct appeal. See Hann v. Harry, 2008 U.S. Dist. LEXIS 41483 (E.D. Mich. May 27, 2008).

Thereafter, the state court appointed Petitioner new appellate counsel to pursue an appeal in accordance with the writ. On September 25, 2008, appellate counsel filed a delayed application for leave to appeal in the Michigan Court of Appeals, raising the following claims:

I. By federal court order, this application must be accepted as timely due toprevious deprivations of Mr. Hann's constitutional right to appellate counsel as discussed in Halbert v Michigan. The federal court has determined that Mr. Hann is entitled to direct review of his plea-based conviction. Further the law of the case doctrine does not bar Mr. Hann from relitigating claims that were imperfectly raised in his previous, uncounseled appeal.

II. Under this court's published opinion in People v. Hill, Gary Hann is entitled to plea withdrawal because the trial court failed to state a proper reason for finding that his plea of nolo contendre was appropriate.

III. Gary Hann's convictions are based on an erroneous interpretation of ambiguous language within the child sexual activity statute, Mich. Comp. Laws § 750.145c. Because this language is ambiguous, it is necessary to resort to other interpretative aids, which establish that that the legislature did not intend to criminalize Mr. Hann's conduct.

IV. The child sexually abusive statute is unconstitutionally vague and overbroad as applied to Gary Hann because it confers unlimited discretion onto law enforcement officials and because it imposes criminal liability upon those who arrange for otherwise legal sexual activity.

Appellate counsel also filed a motion to remand, asserting that the second, third, and fourth claims raised in the application for leave to appeal should be decided by the trial court in the first instance. Petitioner attempted to file a pro se supplemental brief, raising what now form Petitioner's fifth through thirteenth claims. The Michigan Court of Appeals rejected the pleading because Petitioner was represented by counsel.

The Michigan Court of Appeals denied Petitioner's delayed application for leave to appeal "for lack of merit in the grounds presented." People v. Hann, No. 286812 (Mich. Ct. App. September 5, 2008). It also denied Petitioner's motion for remand.

Petitioner, through appellate counsel, then filed an application for leave to appeal in the Michigan Supreme Court. The application raised the same four claims raised in the state court of appeals. Petitioner filed addition pro se pleadings which were accepted bythe Michigan Supreme Court.¹

The Michigan Supreme Court denied the application and the requests for miscellaneous relief by Petitioner in a standard order. People v. Hann, No. 137913 (Mich. Sup. Ct. August 6, 2009).

Petitioner then filed the instant application for a writ of habeas corpus, raising thirteen claims with multiple sub-parts, summarized as follows:

I. The Michigan Court of Appeals erred in denying Petitioner's motion to remand.

II. Petitioner is entitled to withdraw his plea because the trial court failed to state a reason why a plea of no contest was appropriate instead of a plea of guilty.

III. Petitioner's conviction is based on an erroneous interpretation of the child sexually abusive activity statute.

IV. The child sexually abusive activity statute is unconstitutionally vague and overbroad.

V. There was an insufficient factual basis supporting Petitioner's plea.

VI. Petitioner is factually innocent.

VII. Petitioner's convictions violate the Fourteenth Amendment because:

A. There is no evidence of his guilt.

B. His actions did not violate any properly interpreted Michigan law.

C. Exculpatory evidence was withheld by the prosecution.

VIII. The trial court never obtained subject matter jurisdiction to try Petitioner.

IX. Petitioner's convictions are erroneous because:

A. The complaint did not adequately inform him of all the elements of the charges.

B. Petitioner was charged with three crimes in a single count.

C. Petitioner was not appraised of the nature of the charges.

D. Petitioner's counsel and the trial court did not understand the essential elements of the two charges.

X. Petitioner's convictions are erroneous because:

A. The plea was involuntary, unknowing, and unintelligent because the trial court relied on hearsay.

B. The plea agreement was violated.

C. The prosecutor committed misconduct at the plea hearing.

D. The prosecutor committed other acts of misconduct.

XI. Petitioner's convictions are erroneous because:

A. Petitioner was denied the effective assistance of counsel.

1. Counsel failed to require proper arraignment in the circuit court.

2. Counsel failed to ensure the trial court had personal jurisdiction.

3. Counsel failed to require a bill of particulars.

4. Counsel failed to conduct an adequate investigation.

5. Counsel failed to raise defense under Thousand.

6. Counsel failed to explain essential elements of crimes to Petitioner.

7. Counsel strongly encouraged innocent Petitioner to plead.

8. Counsel failed to reveal a $2,500 reduction inducement for participating in plea.

9. Counsel failed to memorialize the plea agreement.

10. Counsel gave a false reason for the no contest plea.

11. Counsel failed to ensure that Petitioner consented to the plea agreement on the record.

12. Counsel failed to require the trial court to give an adequate

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