Mohn v. Bock
| Decision Date | 05 July 2002 |
| Docket Number | Case No. 01-10151-BC. |
| Citation | 208 F.Supp.2d 796 |
| Parties | James I. MOHN, Petitioner, v. Barbara BOCK, Respondent. |
| Court | U.S. District Court — Eastern District of Michigan |
James Mohn, Kincheloe, MI, pro se.
Brenda E. Turner, Lansing, MI, Janet Van Cleve, Michigan Department of Division, Lansing, MI, for repondent.
The petitioner, James I. Mohn, currently in custody at the Straits Correctional Facility in Kincheloe, Michigan pursuant to a state court judgment of conviction, has filed a pro se habeas corpus petition under 28 U.S.C. § 2254. His petition contains two grounds for relief, both based on his Sixth Amendment right to the effective assistance of counsel. The Court finds that the petitioner failed to follow applicable procedural rules in presenting these claims at two different levels: he did not raise these issues on his direct appeal in state court, which the state court apparently concluded was the reason he was not entitled to relief on these grounds in his state motion for collateral review; and he did not timely file an application for leave to appeal from this ruling in the state supreme court, which he may no longer do. Because he cannot overcome these procedural defaults with an adequate showing of prejudice, the Court will dismiss the petition.
I.
On June 9, 1993, a circuit court jury in St. Joseph County, Michigan found the petitioner guilty of armed robbery, Mich. Comp. Laws § 750.529, unlawful driving away an automobile (UDAA), Mich. Comp. Laws § 750.413, and possession of a firearm while committing a felony (felony firearm), Mich. Comp. Laws § 750.227b. The convictions arose from charges that petitioner and a co-defendant robbed the victim at gunpoint and then took the victim's car. Although the robbers wore masks, the victim testified that he knew the defendants and that he suspected they were the men who had robbed him.
Another witness testified that she also knew the defendants and that she overheard them planning the robbery. On the night of the robbery, she saw the petitioner make a mask and pull it over his head. The petitioner then told her to keep her mouth shut.
The petitioner was arrested while driving the victim's car. He made incriminating admissions during a subsequent interrogation by a police officer. He did not testify or present any witnesses at trial.
Following the jury trial, the petitioner pleaded guilty to a supplemental information charging him with being a habitual offender, Mich. Comp. Laws § 769.10. The trial court then sentenced the petitioner to two years in prison for the felony firearm charge, followed by concurrent terms of twelve to thirty years for the armed robbery and four to seven and one-half years for UDAA.
Thereafter, the petitioner raised the following issues on his direct appeal:
I. Whether the Defendant was denied effective assistance of counsel?
A. Whether defense counsel properly waived the preliminary examination.
B. Whether counsel failed to properly and/or fully investigate the case, including failure to contact defense witnesses suggested by Defendant.
C. Whether counsel was ineffective in failing to provide Defendant with copies of statements made by prosecution witnesses and a police report prior to the trial.
D. Whether a statement of a co-defendant was provided to Defendant prior to trial and whether Defendant realized that this statement could not be utilized at trial.
E. Whether defense counsel acted effectively in filing a motion to dismiss for violation of the "180-day rule" just prior to commencement of trial.
F. Whether counsel acted ineffectively in failing to challenge the filing of the supplemental information.
II. Whether the trial court had jurisdiction over the defendant by virtue of the '180-day' rule described in M.S.A. § 28.969(1).
III. Whether the trial court committed reversible error in allowing the admission of certain testimony during the trial prejudicing the defendant?
IV. Whether the trial court committed an abuse of discretion in imposing sentence upon the defendant?
The Michigan Court of Appeals rejected each of these arguments and affirmed the petitioner's convictions in an unpublished per curiam opinion. See People v. Mohn, No. 168123, 1996 WL 33364177 (Mich.Ct. App. May 24, 1996).
The petitioner raised the same issues in an application for leave to appeal in the Michigan Supreme Court. He also asked the supreme court to consider whether defense counsel was ineffective for failing to raise an intoxication defense. The supreme court denied leave to appeal because it was "not persuaded that the questions presented should be reviewed...." People v. Mohn, 564 N.W.2d 41 (Mich.Sup. Ct.1997).
On November 13, 1997, the petitioner filed a motion for relief from judgment, raising the following issues:
B. allowed him to plead guilty as a habitual offender, and
C. failed to convey the prosecutor's offer of a plea agreement;
II. Whether defendant was denied effective assistance of appellate counsel because appellate counsel failed to raise the issue of effective assistance of trial counsel with the Court of Appeals concerning counsel's failure to offer a defense of intoxication;
III. Whether the trial court erred in accepting defendant's guilty plea to the supplemental information when it failed to advise defendant that the sentencing guidelines would not apply (except in an advisory capacity) at sentence; and
IV. Whether Michigan Court Rule 6.508(D) is unconstitutional because its standards are impossible to satisfy.
The trial court denied relief on claims I.B., II, III, and IV, but took claims I.A. and I.C. under advisement pending an answer from the prosecuting attorney or an evidentiary hearing.
Following receipt of the prosecutor's answer to the petitioner's motion, the trial court entered a supplemental opinion in which it denied relief on Claims I.A. and I.C. The petitioner then moved for reconsideration of the ruling on Claim I.C, and the trial court granted the motion and ordered an evidentiary hearing, which was held on February 16, 1999. On March 2, 1999, the trial court denied relief on Claim I.C. after finding no merit to the petitioner's allegation that his attorney failed to inform him of plea offers, and it entered its final order on the petitioner's motion for relief from judgment.
Thereafter, the petitioner sought leave to appeal from the trial court's decision, raising the following arguments in his application filed in the Michigan Court of Appeals:
I. Mr. Mohn was deprived of his constitutional rights, where trial and appellate counsel rendered ineffective assistance of counsel.
A. Defense counsel failed to relay a substantial plea offer to Mr. Mohn.
B. Defense counsel failed to file a motion to exclude or object to the use of Mr. Mohn's illegal statements.
C. Appellate counsel was ineffective for failing to argue defense counsel made several prejudicial errors at trial.
The court of appeals denied leave to appeal on the ground that the petitioner had "failed to meet the burden of establishing entitlement to relief under MCR 6.508(D)." People v. Mohn, No. 225323 (Mich.Ct.App. Aug. 21, 2000).
The petitioner then made the following arguments in an application for leave to appeal in the Michigan Supreme Court:
I. Mr. Mohn was deprived of his constitutional rights under the Sixth Amendment because his attorney failed to advise him of a plea agreement.
II. Defense counsel failed to file a motion to exclude or object to the use of Mr. Mohn's illegal statement.
On October 23, 2000, the clerk of the supreme court informed petitioner that his pleading had not been filed and would not be presented to the court because it was filed more than fifty-six days after the lower court's decision; the application was filed one day late.
The petitioner signed and dated his habeas petition on March 28, 2001. His grounds for relief are that his trial attorney failed to (1) convey a plea offer to him and (2) object to the admission of the petitioner's statement to the police. The respondent maintains that the petitioner's claims are barred by his failure to raise them in his appeal of right and by his failure to raise them in the Michigan Supreme Court on collateral review of his convictions.
II.
A.
Although the petitioner has not fully exhausted his state court remedies for the issues raised in his habeas petition, for reasons more fully explained below, the exhaustion requirement of 28 U.S.C. § 2254(b)(1)(A) and (c) does not bar review of the claims here because the petitioner no longer has state remedies available to him. The doctrine of exhaustion of state remedies requires state prisoners to present their claims to the state courts before raising them in a federal habeas corpus petition. See id.; O'Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999). The exhaustion requirement is satisfied if a prisoner invokes one complete round of the state's established appellate review process, including a petition for discretionary review to a state supreme court. Id. Thus, state prisoners in Michigan must present their claims to the Michigan Court of Appeals and the Michigan Supreme Court before presenting them in a federal habeas corpus petition. Dombkowski v. Johnson, 488 F.2d 68, 70 (6th Cir.1973).
As noted above, the petitioner's application for leave to appeal the denial of his state collateral challenge was rejected by the clerk of the state supreme court as untimely, and therefore the petitioner has not satisfied the exhaustion requirement by raising his claims at all levels of state court review. He raised an ineffective-assistance-of-counsel claim on direct review of his conviction, but the underlying grounds were...
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