Morse v. Trippett
| Decision Date | 19 June 2000 |
| Docket Number | No. 98-73323.,98-73323. |
| Parties | Drew Timothy MORSE, Petitioner, v. David TRIPPETT, Respondent. |
| Court | U.S. District Court — Eastern District of Michigan |
Andrew Wise, Federal defenders Office, Detroit, MI, for Petitioner.
William C. Campbell, Michigan Dept. of Attorney General, Habeas Corpus Div., Lansing, MI, for Respondent.
I. Introduction...................................................365
II. Facts..........................................................365
III. Procedural History ............................................365
IV. Standard of Review ............................................399
V. Ineffective Assistance of Counsel .............................400
A. Procedural Default .........................................400
B. Ineffective Assistance of Trial Counsel ....................402
C. Ineffective Assistance of Appellate Counsel ................409
D. Actual Absence of Counsel ..................................410
VI. Voluntariness of Guilty Plea .................................411
VII. Double Jeopardy Claim ........................................412
VIII. Motion for Bond ..............................................412
IX. Conclusion ...................................................413
Plaintiff Drew Timothy Morse, a state prisoner currently paroled, having recently been incarcerated at the Mound Correctional Facility in Detroit, Michigan, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging that he was incarcerated in violation of his constitutional rights. Because the Court determines that Petitioner had ineffective assistance of counsel and the absence of counsel during his guilty plea proceedings and on direct appeal, the Court grants Mr. Morse's petition for habeas relief.
On February 24, 1990, at approximately 1:45 a.m., Petitioner was stopped while he was driving his car because the vehicle's tail lights were not working. After stopping Petitioner, the police discovered that he was driving with a suspended license. Police arrested Petitioner. A police officer then conducted a standard inventory search of the vehicle. He found two plastic bags containing cocaine, marijuana, and drug paraphernalia in the center console between the front two seats.
On May 22, 1990, Petitioner pleaded guilty to one count of possession with intent to deliver over 50 grams of cocaine in Genesee County Circuit Court pursuant to a plea agreement whereby the prosecutor agreed to nolle prosequi a supplemental information charging Petitioner as a habitual offender, fourth. When he entered the plea, Petitioner was represented by Attorney David A. Nelson.
Prior to sentencing, Petitioner, through newly-retained Attorney Harry S. Sherwin, filed a motion to withdraw guilty plea, claiming that Petitioner thought he was pleading guilty to possession of less than 50 grams of cocaine. The trial court conducted a hearing on the motion to withdraw guilty plea at which Petitioner testified. Following the hearing, the court denied Petitioner's motion, finding that the plea had been knowingly and voluntarily entered. Petitioner was sentenced to ten to twenty years imprisonment.
Petitioner, through appointed counsel Lawrence R. Greene, appealed his sentence in the Michigan Court of Appeals, presenting the following issue:
I. The trial court violated the standards specified in People v. Coles, 417 Mich. 523, 339 N.W.2d 440 (1983) when sentencing the [Petitioner] in this matter.
Petitioner, through Attorney Greene, filed a motion for leave to file a supplemental brief in the Michigan Court of Appeals on May 21, 1991 so that Petitioner could submit a proportionality argument that reflected the Michigan Supreme Court's decision in People v. Milbourn, 435 Mich. 630, 461 N.W.2d 1 (1990). The motion for leave to file a supplemental brief was denied. People v. Morse, No. 131309 (June 28, 1991).
On August 29, 1991, Petitioner, through Attorney Greene, filed in the Michigan Court of Appeals a motion to remand to the trial court to conduct an evidentiary hearing pursuant to People v. Ginther, 390 Mich. 436, 212 N.W.2d 922 (1973), on Petitioner's claim that he received ineffective assistance of trial counsel. Petitioner claimed that Attorney Nelson induced him to plead guilty by promising that he would receive probation or a term of one to five years imprisonment. The Michigan Court of Appeals denied Petitioner's motion to remand without prejudice to Petitioner's right to raise the issues on appropriate motion in the trial court. People v. Morse, No. 131309 (Oct. 4, 1991).
On September 23, 1991, Petitioner's counsel, Lawrence R. Greene, filed a Motion to be Relieved as Counsel in the Genesee County Circuit Court on grounds that are not apparent from the record before the Court. The motion was granted on October 21, 1991. There is no evidence that replacement counsel was ever appointed or that Petitioner concurred in Greene's removal as counsel.
On November 1, 1991, the Michigan Court of Appeals issued an Opinion affirming Petitioner's conviction and sentence. People v. Morse, No. 131309 (Mich.Ct.App. Nov. 1, 1991).
Petitioner attempted to file a delayed application for leave to appeal in the Michigan Supreme Court. His application was rejected by the Michigan Supreme Court on April 6, 1994 as untimely.
On January 21, 1992, Petitioner filed a motion for relief from judgment and motion for a hearing pursuant to People v. Ginther, 390 Mich. 436, 212 N.W.2d 922 (1973) in the trial court claiming: (i) that his plea was coerced by the filing of a false charge of habitual offender, fourth when he only had two prior felony convictions, (ii) ineffective assistance of counsel; and (iii) that his sentence was disproportionate and based upon inaccurate information. The trial court denied Petitioner's motion. People v. Morse, No. 90-42746 (Genesee Cty. Circuit Ct. Feb. 27, 1992).
On August 14, 1992, Petitioner filed a Request for Appointment of New Appellate Counsel or Counsel to File for Post Conviction Relief in the trial court. Petitioner claimed that he was denied his right to effective assistance of counsel because his appointed appellate counsel, Attorney Greene, had been admonished by the Attorney Grievance Commission for failing adequately to research the case law governing his claim of disproportionate sentence prior to filing Petitioner's appeal in the Michigan Court of Appeals. The trial court denied Petitioner's motion, holding that the Attorney Grievance Commission's letter admonishing Attorney Greene failed to establish that Petitioner received ineffective assistance of counsel. People v. Morse, No. 90-42746-FH (Genesee Cty. Circuit Ct. Aug. 28, 1992).
Petitioner filed a second motion for relief from judgment on February 8, 1993, presenting the following claims: (1) promise-induced guilty plea; (2) sentence violated People v. Milbourn, 435 Mich. 630, 461 N.W.2d 1 (1990); (3) guilty plea was not entered knowingly, intelligently and voluntarily; (4) the court abused its discretion in denying motion to withdraw guilty plea; (5) constitutional deprivation of effective assistance of trial counsel Nelson and Sherwin, and appeal counsel Greene; (6) cause and prejudice prongs of Strickland v. Washington and M.C.R. 6.508(D)(3)(a); and (7) Petitioner entitled to an evidentiary hearing on ineffective assistance of counsel claim and on claim of cause and prejudice.
In an Opinion dated March 29, 1994, the trial court denied Petitioner's motion for relief from judgment pursuant to M.C.R. 6.504(B)(2). People v. Morse, No. 90-42746-FH (Genesee Cty. Circuit Ct. March 29, 1994). Petitioner did not appeal this decision.
On April 25, 1995, Petitioner filed another motion for relief from judgment, presenting the following issue:
I. [Petitioner's] 5th, 8th, and 14th Amendments [rights] were violated by punishment of forfeiture and conviction and sentence for single offense and incident.
Following oral argument on the motion at which the prosecutor appeared, the trial court denied Petitioner's motion. Hearing Tr., 10/2/95, p. 6. Petitioner filed a motion for reconsideration of the court's order denying his motion for relief from judgment, which was also denied. People v. Morse, No. 90-42746-FH (Genesee Cty. Circuit Ct. Nov. 8, 1995).
On March 7, 1996, Petitioner filed a delayed application for leave to appeal in the Michigan Court of Appeals for the trial court's November 8, 1995 Order, presenting the following claims:
I. [Petitioner] is entitled to have his conviction and sentence dismissed and vacated because the[y] were obtained in violation of his constitutional protection against double jeopardy as guaranteed by USCA Amend 5 and 14, where he was punished first in a forfeiture proceeding and then again by being convicted and sentenced for the same conduct in a criminal proceeding.
II. [Petitioner] was denied his Sixth Amendment right to effective counsel when he was induced to plead guilty to an illusionary [sic] plea agreement wherein he was threatened with being tried as a habitual offender fourth offense which carried a maximum of life imprisonment where in fact [Petitioner] had only two prior convictions, thus rendering his plea both unintelligent and illusionary [sic], as a direct result of the inaccurate advice of counsel.
III. [Petitioner] was denied Sixth Amendment right to effective assistance of counsel when trial counsel failed to seek suppression of evidence obtained during pretextual traffic stop in violation of USCA Amend 4 and 6 and due process of law USCA Amend 14.
IV. [Petitioner] was denied effective assistance of counsel at sentencing and on appeal, where counsels failed to fully present to the trial and appeal court the factors for fair...
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