McBroom v. Warren

Decision Date31 March 2008
Docket NumberCase No. 04-10224.
Citation542 F.Supp.2d 730
PartiesBruce Armand McBROOM, Petitioner, v. Millicent WARREN, Respondent.
CourtU.S. District Court — Eastern District of Michigan

Kenneth R. Sasse, Federal Defender Office, Flint, MI, for Petitioner.

Brenda E. Turner, William C. Campbell, Michigan Department of Attorney General, Lansing, MI, for Respondent.

OPINION AND ORDER CONDITIONALLY GRANTING PETITION FOR A WRIT OF HABEAS CORPUS

DAVID M. LAWSON, District Judge.

The question presented in the habeas corpus case is whether defense counsel's advice concerning the remedy for a previous attorney's ineffective assistance was itself so erroneous as to render the petitioner's no contest plea unknowing and involuntary. The Court finds that the petitioner's first attorney's performance was constitutionally deficient when he failed to convey a plea offer to the petitioner, and the second attorney's performance was constitutionally deficient when he misinformed the petitioner of the proper remedy for the first attorney's failing. This misinformation resulted in prejudice to the petitioner because he entered a no contest plea based upon it and received a sentence much greater than he would have received if the original (unconveyed) plea bargain were reinstated, which would have been the proper remedy for his first attorney's defective performance. The Court is convinced, therefore, that the petitioner is now in custody in violation of his rights under the Sixth Amendment, and a conditional writ of habeas corpus will issue.

I.

The petitioner, Bruce Armand McBroom, is a state prisoner confined at the Boyer Road Correctional Facility in Carson City, Michigan. In his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 and a supplemental memorandum filed by appointed counsel in this matter, the petitioner challenges his conviction for assault with intent to commit murder, Mich. Comp. Laws § 750.83, and his sentence of eleven years, three months to seventeen years in prison.

The conviction resulted from a no contest plea that followed a jury trial. As noted above, the petitioner contends that bad legal advice resulted in a plea that was not knowing and voluntary. The respondent has filed an answer to the petition claiming that the petition lacks merit.

The petitioner's conviction arises from an incident in which he shot his girlfriend in the neck with a shotgun on July 22, 2001 at their home in Macomb County, Michigan. The case actually proceeded to jury trial in the Macomb County circuit court. However, just before the start of that trial, the following discussion occurred between the Court, assistant prosecutor Steven Kaplan, and defense counsel Cyril Pessina:

THE COURT: Okay. You have tried to settle it and there's no settlement?

MR. KAPLAN: There is nothing offered, your Honor.

MR. PESSINA: There was an offer at one point. I never had a chance to go to the jail to discuss that over with my client.

THE COURT: What was that?

MR. PESSINA: Attempt GBH with a one-year cap.

MR. KAPLAN: We view it differently. I trust my brother counsel implicitly, but I remember a ten-year felony with a one-year cap, but the way I see it the offer is not on the table right now.

THE COURT: I guess that's your choice.

MR. KAPLAN: Thanks, Judge.

THE COURT: No last gasp effort Mr. Kaplan?

MR. KAPLAN: No Judge.

Nov. 20, 2001, Trial Tr. at 3 (emphasis added).

The trial proceeded and the petitioner was convicted of assault with intent to murder. Following his conviction, the petitioner retained new defense counsel, Brian Legghio, who negotiated a plea bargain with the prosecution prior to sentencing. The agreement called for the prosecution to ask the trial court to vacate the jury conviction and allow the petitioner to plead no contest to assault with intent to murder with a sentencing recommendation of eleven years, three months to seventeen years imprisonment. The prosecution also dismissed a third habitual offender charge. In exchange, the petitioner agreed to waive his appellate rights concerning the pre-trial and trial proceedings. The parties indicated that they negotiated this agreement, in part, because prior defense counsel had failed to communicate the more favorable pre-trial plea offer to the petitioner prior to the trial. Defense counsel explained:

MR. LEGGHIO: Your Honor, what has precipitated the issue, your Honor, is that there is clear evidence in the transcripts that a former plea offer, that was much more beneficial to Mr. McBroom, had not been effectively communicated. Now, I realize that the prosecution has taken a position contrary to our own. The defense advances the argument that at a Ginther hearing case law is absolutely on all fours and he would be entitled to a new trial, and entitled to go back to the starting gate. That's why we sat down to negotiate these issues with Mr. Kaplan because even if you were to grant the motion on the Ginther hearing and give us a new trial, Mr. Kaplan is not compelled to reauthorize that plea agreement.

March 26, 2002, Plea Tr. at 6-7 (emphasis added).

The prosecutor's view was slightly different:

He's been convicted but the question is could he then challenge his conviction based on some legal issue. My offer is that he will plead — he will admit the crime now and he will be sentenced. The bottom line for him is the sentence. He wants a lower sentence, and he's receiving it because of our grace and his having a good lawyer. Or he can have nothing as far as I'm concerned. He's been convicted by a jury.

...

[W]e do not share in his view that he would gain a reversal on appeal, but that's what makes horse races.

Id. at 5, 11-12. The trial court praised the defense counsel for doing "really good" and "pull[ing] a rabbit out of a hat," id. at 7, 13, vacated the jury conviction, accepted the no contest plea negotiated by the parties, and sentenced the petitioner in accordance with the plea agreement to a term of eleven years, three months to seventeen years imprisonment.

The petitioner subsequently moved to withdraw his no contest plea claiming that it was not knowing and voluntary due to the ineffective assistance of defense counsel. The petitioner asserted that defense counsel erred in advising him to accept the no contest plea with the sentencing recommendation of eleven years, three months to seventeen years imprisonment because counsel was under the mistaken belief that the petitioner was not entitled to receive the original plea offer of a ten-year felony with a one-year cap, which original defense counsel had failed to convey to the petitioner.

The state trial court denied the petitioner's motion via a written order. The court found that the motion was untimely, as it was required to be filed within twenty-one days of the sentence, but it addressed the merits nonetheless. The court also concluded that because the defendant "waived his right to challenge pre-trial issues" such as the initial plea offer by pleading no contest, the court found no grounds to vacate the plea. The court did not pass on the issue of ineffective assistance of counsel. The defendant filed an appeal from this ruling in the Michigan Court of Appeals on the following grounds:

JUDGE MILLER ERRED IN DENYING THE MOTION FOR PLEA WITHDRAWAL WHERE IT IS UNCONTESTED THAT THE PROSECUTION OFFERED A PLEA BARGAIN AND DEFENSE COUNSEL FAILED TO CONVEY THAT BARGAIN TO MR. MCBROOM.

JUDGE MILLER ERRED IN DENYING THE MOTION FOR PLEA

WITHDRAWAL WHERE IT IS UNCONTESTED THAT SUBSTITUTE COUNSEL GAVE INCORRECT LEGAL ADVICE TO MR. MCBROOM BY STATING ON THE RECORD THAT THE PROSECUTION WAS NOT OBLIGATED TO EXTEND AN ORIGINAL PLEA OFFER THAT ORIGINAL DEFENSE COUNSEL ADMITTED HE NEVER CONVEYED TO MR. MCBROOM.

The Michigan Court of Appeals denied leave to appeal for lack of merit in the grounds presented. People v. McBroom, No. 248855 (Mich.App. July 18, 2003) (unpublished). The Michigan Supreme Court denied leave to appeal. People v. McBroom, 469 Mich. 987, 673 N.W.2d 760 (2003) (table).

The petitioner's habeas application was filed on August 25, 2004. He seeks habeas relief asserting the following claims:

I. The lower court erred in denying the motion for plea withdrawal where it is uncontested that the prosecution offered a plea bargain and defense counsel failed to convey that bargain to petitioner.

II. The lower court erred in denying the motion for plea withdrawal where it is uncontested that substitute counsel gave incorrect legal advice to petitioner by stating on the record that the prosecution was not obligated to extend an original plea offer that original defense counsel admitted he never conveyed to petitioner.

The respondent concedes that the petitioner presented "essentially these same claims" to the Michigan courts. Nevertheless, the respondent opposes the petition, contending that the petitioner's claims lack merit and do not warrant habeas relief.

II.

The provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996), which govern this case, "circumscribe[d]" the standard of review federal courts must apply when considering applications for a writ of habeas corpus raising constitutional claims, including claims of ineffective assistance of counsel. See Wiggins v. Smith, 539 U.S. 510, 520, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). As amended, 28 U.S.C. § 2254(d) 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...

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