Plumaj v. Booker

• Decision Date: 10 October 2014
• Docket Number: Case No. 11–12031.
• Citation: 53 F.Supp.3d 1010
• Parties: Luviq PLUMAJ, Petitioner, v. Raymond BOOKER, Respondent.
• Court: U.S. District Court — Eastern District of Michigan

53 F.Supp.3d 1010

Luviq PLUMAJ, Petitioner
v.
Raymond BOOKER, Respondent.

Case No. 11–12031.

United States District Court, E.D. Michigan, Southern Division.

Signed Oct. 10, 2014.

53 F.Supp.3d 1010

Craig A. Daly, Detroit, MI, for Petitioner.

Laura Moody, Michigan Department of Attorney General, Lansing, MI, for Respondent.

OPINION AND ORDER DENYING MOTION TO AMEND JUDGMENT

DAVID M. LAWSON, District Judge.

Petitioner Luviq Plumaj alleged in his petition for writ of habeas corpus that his convictions for second-degree murder and manslaughter were unconstitutional because he received ineffective assistance of counsel. The deficient performance consisted of incorrect advice about parole eligibility when Plumaj was contemplating a plea offer from the prosecutor. The Court denied the petition on July 21, 2014, 33 F.Supp.3d 897, 2014 WL 3573442 (E.D.Mich.2014), holding that when Plumaj entered his guilty and no contest pleas, there was no clearly established Supreme Court case that recognized that bad advice about the collateral consequences of a conviction—such as parole eligibility—would render a plea involuntary or provide the basis for an ineffective assistance of counsel claim. The Court observed that Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), changed that viewed, but the Court believed that the petitioner's conviction was final before Padilla was decided, and Padilla is not retroactive.

On August 11, 2014, the petitioner filed a motion to amend the judgment, pointing out that Padilla was decided on March 31, 2010, but the Michigan Supreme Court did not deny leave to appeal in the petitioner's direct appeal until June 23, 2010. See People v. Plumaj, 486 Mich. 996, 783 N.W.2d 109 (2010). The petitioner argues that his case does not involve an issue of Padilla's retroactivity. The petitioner is

53 F.Supp.3d 1011

correct that the Court misstated the point. Padilla applies to the petitioner's case. But Padilla does not take the petitioner where he needs to go, as it does not constitute clearly established Supreme Court precedent that erroneous advice from counsel about parole eligibility renders a plea involuntary or supports an ineffective assistance of counsel claim. The Court, therefore, will deny the petition.

As the Court observed in the original opinion, in Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), the Court left open whether erroneous advice to a guilty-pleading defendant about parole eligibility amounts to deficient performance under the two-factor test announced in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Hill, 474 U.S. at 60, 106 S.Ct. 366. (“We find it unnecessary to determine whether there may be circumstances under which erroneous advice by counsel as to parole eligibility may be deemed...