Holtgreive v. Curtis, 00-72295-DT.
| Citation | 174 F.Supp.2d 572 |
| Decision Date | 31 October 2001 |
| Docket Number | No. 00-72295-DT.,00-72295-DT. |
| Parties | Timothy HOLTGREIVE, # 247755, Petitioner, v. Bruce CURTIS, Respondent. |
| Court | United States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan) |
Raina I. Korbakis, Michigan Dept. of Atty. General, Lansing, MI, for Bruce Curtis.
Petitioner, Timothy Holtgreive ("Petitioner"), presently confined at the Southern Michigan Correctional Facility in Jackson, Michigan, has filed this pro se application for writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his application, Petitioner attacks his convictions for one count of first degree home invasion, M.C.L. § 750.110a(2), and one count of escape while awaiting trial for a felony. M.C.L. § 750.197(2). Petitioner's convictions were entered pursuant to a counseled plea bargain. In exchange for Petitioner's guilty plea, two counts of felonious assault (or assault with a dangerous weapon) and two counts of felony firearm were dismissed. Additionally, Petitioner's guilty plea included an agreement that he would be sentenced to two to four years on the escape charge and that the prosecution would make no recommendation concerning his sentence for the home invasion charge. Petitioner was sentenced to seven years and six months to twenty years for the home invasion conviction and two to four years for the escape conviction.
Petitioner contends that his convictions and sentences are unconstitutional because the trial judge failed to establish a factual basis for his guilty plea his guilty plea was uninformed, unintelligent, and involuntary; he received ineffective assistance of counsel in the plea-taking process; and his sentence was improperly increased by the trial judge's reliance on unproven contested allegations. For the reasons stated below, the petition for a writ of habeas corpus is DENIED.
On January 5, 1996, Petitioner pleaded guilty to charges of home invasion and escaping from jail while awaiting trial for a felony. Petitioner admitted going to the home of his ex-wife, knocking on the door, pushing his way in after his ex-wife opened the door, and scaring his ex-wife with a pistol. According to Petitioner, the pistol was a BB gun. Petitioner admitted that he did these things to scare his ex-wife. Guilty Plea Transcript ("Plea Tr.") at 15-16. Petitioner also admitted that, after having been in custody awaiting trial on home invasion and other felony charges for almost two months, he pulled the fence up in the jail's exercise yard, crawled underneath it, climbed up the fence and stepped on the roof of the nearby courthouse, with the intent and purpose of escaping from jail.
Petitioner was charged with first degree home invasion, felonious assault, felony firearm, and escape while awaiting trial on felony charges. Petitioner pleaded guilty to the home invasion and escape charges in exchange for dismissal of the felonious assault and felony firearm charges and a promise that he would be sentenced to two to four years on the escape charge.
The trial judge informed Petitioner that he had a right to a jury trial or a bench trial on all of the charged counts. Petitioner was informed that he had a right to the presumption of innocence concerning all of the charges against him and that, if he went to trial, the prosecution would bear the burden of proving his guilt beyond a reasonable doubt. Petitioner was informed that he had the right to appointed counsel, the right to be present during any trial, the right to cross-examine witnesses, and the right to call witnesses on his behalf. 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 trial rights and that he wanted to waive them and plead guilty. Petitioner was also informed that, if he pleaded guilty, he would not have an appeal of right of his plea or sentence, but rather, would be limited to asking the Court of Appeals for permission to appeal which could be denied. Petitioner stated that he understood this also.
Defense counsel stated on the record that Petitioner was pleading guilty to one count of first degree home invasion and one count of escape in exchange for dismissal of the remaining charges and a promise that he would be sentenced to two to four years on the escape charge. The prosecution also agreed not to make a sentence recommendation regarding the home invasion charge.
The trial judged informed Petitioner that the maximum penalty for home invasion was twenty years, the maximum penalty for escaping from jail while awaiting trial for a felony was four years, and that the sentence imposed for escape would not begin until he had fully served any sentence imposed for home invasion. Petitioner stated that he understood that the maximum sentence for home invasion was twenty years, the maximum sentence for escape was four years, to be served consecutively to his home invasion sentence, and the constitutional rights he would be waiving by pleading guilty. Petitioner further stated that he understood the charges which would be dismissed upon his guilty plea and that he would be sentenced to two to four years for escape.
Petitioner stated he had not been threatened or promised anything not reflected in the record. Petitioner stated that he was asking the Court to accept his guilty plea. The trial judge then accepted Petitioner's guilty plea, finding that it was offered freely, voluntarily, and knowingly.
On February 5, 1996, Petitioner was sentenced to seven and a half to twenty years for home invasion and a consecutive two to four years for escape. At Petitioner's sentencing hearing, Petitioner testified that he threatened his ex-wife and a woman named Gerri Lynn Pecnik with a BB pistol after forcibly entering his ex-wife's cabin. Larry Pecnik, Gerri Lynn Pecnik's brother-in-law, testified that Petitioner had shown him a 9 mm handgun on three occasions. Larry Pecnik testified that the BB pistol in the courtroom was not the gun Petitioner had shown him. Larry Pecnik testified that he could have put his pinkie finger in the barrel hole of the 9 mm, but that the barrel hole of the BB gun was much smaller. Larry Pecnik did not testify that he was present at the home invasion of Petitioner's ex-wife's cabin. Petitioner denied having shown Larry Pecnik a 9 mm handgun and denied having threatened his ex-wife and Ms. Pecnik with a 9 mm gun.
Petitioner's ex-wife, Jean Marie Hobig, testified that Petitioner had a short temper and had begun punching walls, slamming doors breaking them off hinges, threatening her dogs, and driving cars dangerously before the home invasion. Petitioner invaded her home and threatened her and Gerri Pecnik after driving about four and a half hours to get there. Ms. Hobig stated that, Sentencing Transcript ("Sentencing Tr.") at 58. Ms. Hobig further testified that unless Petitioner could be made to understand that he is responsible for his actions, she feared that her life would be in jeopardy upon his release.
Ms. Pecnik testified that the night of the home invasion was the scariest night of her life. She further testified that she saw Petitioner pull a clip out of his pocket and then pulled bullets out. Petitioner then turned his back and loaded the gun before brandishing it at his ex-wife and her. Ms. Pecnik further testified that the "hole" in the gun Petitioner had the night of the home invasion was "a lot bigger" than the "hole" in the BB gun in court. Sentencing Tr. at 59.
The court found that Sentencing Tr. at 63. On the basis of these findings and Petitioner's guilty plea, Petitioner was sentenced to seven and a half to twenty years for home invasion and a consecutive two to four years for escape.1
Petitioner sought leave to appeal his convictions and sentences to the Michigan Court of Appeals raising the following claims:
I. Resentencing is required where the court considered contested allegations in determining sentence without proof by a preponderance of the evidence of the truth of those allegations, in violation of due process of law.
II. The consecutive sentence of seven and one-half year minimum term of imprisonment for first degree home invasion, either standing alone or considered in the aggregate with the consecutive minimum term of two years for escape from jail, is an abuse of discretion and disproportionate to the offense committed and this offender.
The Michigan Court of Appeals denied Petitioner's delayed application for leave to appeal for lack of merit in the grounds presented. People v. Holtgreive, Michigan Court of Appeals Docket No. 200950 (June 9, 1997). The Michigan Supreme Court denied Petitioner's delayed application for leave to appeal raising the same claims, because the court was not persuaded that the questions presented should be reviewed. People v. Holtgreive, Michigan Supreme Court Docket No. 110174 (May 28, 1991).
In February of 1998, Petitioner filed a motion to correct the presentence report with the trial court. The motion was denied in an opinion and order dated August 25, 1998. The trial court denied Petitioner's motion for reconsideration on September 17, 1998. Petitioner's delayed application for leave to...
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...is no federal constitutional requirement that a factual basis be established to support a guilty plea." Holtgreive v. Curtis, 174 F.Supp.2d 572, 581 (E.D. Mich. Oct. 31, 2001).No federal constitutional issue is raised by the failure of a [ ] trial court to comply with state law or court rul......
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