Kue v. Birkett

• Decision Date: 17 May 2013
• Docket Number: Civil No. 2:10-CV-11925
• Parties: TENG KUE, Petitioner, v. THOMAS BIRKETT, Respondent,
• Court: U.S. District Court — Eastern District of Michigan

TENG KUE, Petitioner,

v.THOMAS BIRKETT, Respondent,

Civil No. 2:10-CV-11925

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

Dated: May 17, 2013

HONORABLE NANCY G. EDMUNDS

UNITED STATES DISTRICT JUDGE

OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND

DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY OR LEAVE TO

APPEAL IN FORMA PAUPERIS

Teng Kue, ("petitioner"), currently residing in Warren, Michigan after having been discharged from his sentence by the Michigan Department of Corrections, seeks the issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2254.¹ In his pro se application, petitioner challenges his conviction for third-degree criminal sexual conduct, M.C.L.A. 750.520d(1)(a). For the reasons stated below, the petition for writ of habeas corpus is DENIED.

I. Background

Petitioner and his co-defendant Toua Kue were both charged with one count of first-degree criminal sexual conduct and four counts of third-degree criminal sexual conduct. Petitioner entered into a plea agreement with the Wayne County Prosecutor, in which he agreed to plead guilty to one count of third-degree criminal sexual conduct, in exchange for dismissal of the remaining charges, including the first-degree criminal sexual conduct charge, which carried a sentence of up to life in prison. The parties also agreed that petitioner would receive a sentence of six to fifteen years in prison. Prior to pleading guilty, petitioner indicated that he was satisfied with the services of his attorney. Petitioner's co-defendant entered into the identical plea agreement on the same date. (Tr. 3/31/04, pp. 5-8). Prior to pleading guilty, the judge advised petitioner of the constitutional rights that he would be waiving by pleading guilty. Petitioner acknowledged that by pleading guilty, he would be giving up his right to later allege that his plea was the result of any threats or promises which had not been placed on the record or that it was not his choice to plead guilty. Petitioner further indicated that no one had threatened, coerced, or pressured him to plead guilty and that he was entering the plea freely and voluntarily, as well as knowingly and intelligently.(Id., pp. 9-13). In making out a factual basis for the plea, petitioner admitted to having sex with his fourteen year old cousin. (Id., pp. 14-15).

Prior to sentencing, petitioner moved to withdraw his guilty plea with new counsel. The trial judge heard the motion to withdraw on April 14, 2004.² Petitioner claimed that his first trial attorney, Cyril Pessina, had pressured petitioner into pleading guilty by warninghim that if petitioner chose to go to trial, this would anger the judge and lead to petitioner being sentenced to 25 years' imprisonment. (Tr. 4/14/04, pp. 4-6). Petitioner further alleged that he felt great pressure to plead guilty by his Hmong community. (Id., p. 10). Petitioner's new attorney admitted that he never received confirmation from Attorney Pessina about the allegation that he had pressured petitioner into pleading guilty. (Id., pp. pp. 5-7, 16-17). The judge denied the motion to withdraw because the unsubstantiated allegations made by petitioner against Attorney Pessina were directly contradicted by petitioner's answers during the plea hearing, in which petitioner denied that he had been pressured, threatened, or coerced into pleading guilty. (Id., pp. 15-19).

On April 23, 2004, petitioner was sentenced to six to fifteen years in prison, in accordance with the sentencing agreement.

Petitioner filed an application for leave to the Michigan Court of Appeals, which was denied. People v. Kue, No. 259062 (Mich. Ct. App January 5, 2005). Petitioner never appealed this denial of leave to appeal to the Michigan Supreme Court.

Petitioner, through counsel, subsequently moved a second time in the trial court to withdraw his guilty plea based on the same allegations that he had raised in his earlier motion to withdraw. Petitioner further claimed in his second motion to withdraw that his plea was coerced because it was a "package deal" which had required both petitioner and his co-defendant to accept the plea agreement in order for each defendant to be able to avail himself of the plea bargain. Petitioner further alleged that his plea was illusory because the minimum sentence he agreed to was much greater than the sentencing guidelines range for first-degree criminal sexual conduct would have been had petitioner been found guilty of this charge after trial.

The trial judge held a hearing on the motion to withdraw on May 20, 2005. After hearing argument from the parties, the trial judge ruled that petitioner had not demonstrated sufficient pressure or coercion to counter petitioner's statements during the plea taking proceeding that he was freely and voluntarily entering into his plea of guilty without pressure, coercion, or threats. The trial judge also denied petitioner's motion for an evidentiary hearing on the ineffective assistance of counsel claim. (Tr. 5/20/05, pp. 38-44).

Petitioner appealed the denial of this motion. Both appellate courts denied petitioner leave to appeal pursuant to M.C.R. 6.508(D). People v. Kue, No. 263246 (Mich. Ct. App. December 6, 2005); lv den. 475 Mich. 885, 715 N.W.2d 882 (2006).

Petitioner, through counsel, subsequently filed a post-conviction motion for relief from judgment, which was denied by the trial court pursuant to M.C.R. 6.508(D)(3). People v. Kue, No. 03-013968-02 (Wayne County Circuit Court, November 25, 2008). The Michigan Court of Appeals subsequently denied petitioner leave to appeal pursuant to M.C.R. 6.508(D). People v. Kue, No. 291918 (Mich.Ct.App. August 27, 2009). The Michigan Supreme Court, however, denied petitioner's application for leave to appeal pursuant to M.C.R. 6.502(G), which prohibits successive motions for relief from judgment in the absence of new evidence or a retroactive change in the law. People v. Kue, 485 Mich. 1125, 779 N.W.2d 802 (2010).

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

I. Petitioner's conviction violates his State and federal constitutional rights because it was coerced by defense counsel and was thus involuntary.

II. Petitioner's State and federal constitutional rights were violated when he was coerced into pleading guilty.

III. Petitioner Kue must be allowed to withdraw his guilty plea because hewas not advised of all of the relevant consequences, rendering his plea illusory, unknowing and involuntary, in violation of federal and State law governing sentencing.

IV. Petitioner's motion for relief from judgment should have been granted and resentencing ultimately ordered because he was deprived of the right to review his presentence report at a reasonable time before sentencing, in violation of federal and State law governing sentencing.

V. The circuit court's failure to assure petitioner the opportunity to review the presentence report in accord with Michigan law prior to sentencing rendered petitioner's right of allocution meaningless and resulted in a fundamentally unfair sentencing that violated due process.

VI. Trial counsel was ineffective for failing to insure that his client had an opportunity to review the presentence report at a reasonable time before the day of sentencing, violating petitioner's Sixth Amendment rights.

VII. Petitioner established entitlement to relief under M.C.R. 6.508 et. seq.

VIII. Petitioner was denied his Sixth and Fourteenth Amendment right to the effective assistance of trial counsel.

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 questionof 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 with the respect due state courts in our federal system." Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). The "AEDPA thus imposes a 'highly deferential standard for evaluating state-court rulings,'and 'demands that state-court decisions be given the benefit of the doubt.'" Renico v. Lett, 130 S. Ct. 1855, 1862 (2010)((quoting Lindh v. Murphy, 521 U.S. 320, 333, n. 7 (1997); Woodford v. Viscotti, 537 U.S. 19, 24 (2002)(per curiam)). "[A] state court's determination 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, 131 S. Ct. 770, 786 (2011)(citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The Supreme Court has emphasized "that even a strong case for...