OPINION AND ORDER (1) CONDITIONALLY GRANTING A WRIT OF HABEAS CORPUS ON CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL RELATED TO PLEA BARGAINING PROCESS; (2) DENYING HABEAS RELIEF ON ALL OTHER REMAINING CLAIMS; (3) GRANTING PETITIONER'S SEPARATE MOTION FOR A CERTIFICATE OF APPEALABILITY (ECF No. 400); AND (4) GRANTING A CERTIFICATE OF APPEALABILITY
MATTHEW F. LEITMAN, UNITED STATES DISTRICT JUDGE
Petitioner Omar Rashad Pouncy is a state prisoner in the custody of the Michigan Department of Corrections. On November 12, 2013, Pouncy filed a petition for a writ of habeas corpus in this Court pursuant to 28 U.S.C. § 2254. (See Pet., ECF No. 1; Am. Pet., ECF No. 3; collectively the "Petition.") In the Petition, Pouncy seeks relief from his state court convictions of four counts of armed robbery in violation of Mich. Comp. Laws § 750.529, four counts of carjacking in violation of Mich. Comp. Laws § 750.529a, and two counts of commission of a felony with a firearm in violation of Mich. Comp. Laws § 750.227b.
The Court previously granted the writ on one of Pouncy's claims in which he claimed that he did not voluntarily waive his right to counsel. See Pouncy v. Palmer , 165 F.Supp.3d 615 (E.D. Mich. 2016). Respondent appealed, and the United States Court of Appeals for the Sixth Circuit reversed this Court's ruling and remanded for further proceedings. Pouncy v. Palmer , 846 F.3d 144 (6th Cir. 2017).
Though the Petition originally raised fourteen claims with multiple sub-parts, only five claims remain before the Court. The Court has carefully considered those claims. For the reasons explained below, the Court GRANTS a conditional writ of habeas corpus on Pouncy's claim that he was denied the effective assistance of counsel in connection with the plea-bargaining process. As described in detail below, the conditional writ requires the State to release Pouncy unless, within the time frame set forth below in Section (V)(G)(1), (1) the State offers Pouncy the plea deal that would have been available to Pouncy but for his counsel's ineffective assistance and (2) if Pouncy timely accepts the plea deal in writing, the State moves the state trial court to vacate Pouncy's conviction, to accept the new plea deal, and to re-sentence Pouncy consistent with that plea deal. The Court DENIES relief on all of Pouncy's other claims. In addition, the Court GRANTS Pouncy a certificate of appealability with respect to (1) the claims on which it denies relief herein and (2) the scope of relief it grants on his ineffective assistance of counsel claim arising out of the plea-bargaining process. (This certificate of appealability is in addition to the certificate that the Court previously granted on Pouncy's claim that the state trial court violated his Sixth Amendment right to a public trial.) Finally, the Court GRANTS Pouncy a certificate of appealability on its previous denial of his Motion for Reconsideration (ECF No. 377).
The Sixth Circuit summarized the facts underlying Pouncy's convictions as follows:
In September 2005, Samuel Anderson agreed to display Ralph Haynes's Chevrolet Monte Carlo for sale on his front lawn. A young man, later identified as Omar Pouncy, visited Anderson and asked to have a look at the car. Pouncy left after asking about the price and returned a few days later to meet with Haynes and his brother Dan. Dan agreed to take Pouncy for a ride in the vehicle, but refused Pouncy's request to take the Monte Carlo to Pouncy's own mechanic. With Dan's permission, Pouncy brought his mechanic to Anderson's house instead. Pouncy then indicated that he would return to purchase the vehicle in a few days. On September 24, Pouncy returned to Anderson's house and asked to take Haynes's car for another test drive. Anderson agreed, but while the two were out in the car, Pouncy pulled a gun on Anderson, forced him to get out of the vehicle, and drove away.
At around that same time, Earl Brady's Chevrolet Camaro was on display at Joseph Davis's "racecar chassis fabrication shop." On September 24 or 25, three men entered Davis's shop and expressed interest in purchasing the Camaro. One of them, also later identified as Pouncy, eventually called Davis and let him know that he was "ready to make a deal." Davis called up Brady, who came to the shop to meet Pouncy, Pouncy's step-brother Wayne Grimes, and another man named Tiakawa Pierce. Pouncy asked if he could take the car to his mechanic's shop to have the vehicle inspected. Brady agreed and drove the Camaro to a house where Pouncy said they would meet the mechanic. While the men waited for the mechanic, Grimes pulled out a gun, demanded the keys to the Camaro, and fired a shot in the air. Brady complied and followed the men's instructions to leave the scene on foot.
A few days later, Thomas Sandstrom advertised his Cadillac for sale in a local paper. A man—again, later identified as Pouncy—called up Sandstrom on October 10 and arranged to inspect the car. The next day, Pouncy and Grimes arrived at Sandstrom's house and asked to take the car to Pouncy's mechanic. Sandstrom agreed and drove the Cadillac to the mechanic's house with Pouncy. Grimes followed in his own car, as did Sandstrom's wife Maria, who was driving her own Chevrolet Corvette. Pouncy directed Sandstrom to a house at the end of a dirt road and, after arriving, asked Sandstrom for the title to the Cadillac. Sandstrom walked over to Maria's car to retrieve the title, but promptly felt Pouncy stick a gun in his side. Pouncy ordered Maria out of her car, demanded Sandstrom's wallet, and instructed the couple to walk away. The Sandstroms eventually managed to flag down a police car, and Maria, who had seen the license plate on Grimes's car, gave the plate number to the police.
Detective James Gagliardi of the Mt. Morris Township Police Department ("MMTPD") took the lead on investigating the theft of Earl Brady's Camaro. After receiving reports of the Sandstrom carjacking, Gagliardi used Maria's tip to track down Grimes. MMTPD officers soon arrested Grimes, who waived his Fifth Amendment rights and agreed to speak with police. Grimes confessed his involvement in the Brady and Sandstrom carjackings, identified Pouncy as the sham purchaser from both thefts, and told police that Tiakawa Pierce had assisted as well. At Gagliardi's request, officers put together photographic lineups with Pouncy and Pierce and showed them to the carjacking victims. Samuel Anderson, Dan Haynes, Earl Brady, Joseph Davis, and Thomas and Maria Sandstrom all identified Pouncy as the sham purchaser from the carjackings. Officers promptly found and arrested Pouncy.
Pouncy , 846 F.3d at 147-148.
Pouncy was charged in two separate cases. In one of the cases, he faced charges arising out of the Sandstrom and Brady carjackings. In the second case, he faced charges arising out of the Haynes carjacking. The habeas proceedings now before the Court relate to Pouncy's convictions in the case involving the Sandstrom and Brady carjackings.
The Sixth Circuit offered the following details about the trial in the Sandstrom and Brady case at issue here:
Pouncy, who was eighteen years old at the time ... [waived his right to counsel and] represent[ed] himself [from the point of the trial immediately following the prosecution's direct examination of its first witness through the conclusion] of his trial.
The trial lasted six days, during which the State called Wayne Grimes, as well as several victims who made unequivocal in-court identifications of Pouncy as the perpetrator. Pouncy did, however, point out inconsistencies in two of the victims’ photographic identifications. When given a copy of a photographic lineup and asked which individual they had previously identified as the sham buyer, both Joseph Davis and Thomas Sandstrom failed to pick out Pouncy's photo. Despite having identified Pouncy as the perpetrator to police, Joseph Davis pointed to a lineup photo of a man named Jaakawa McGruder. Thomas Sandstrom pointed to a photo of Wayne Grimes. Pouncy subsequently took the stand in his defense and testified that he was alone at work at a home-remodeling job when the Brady and Sandstrom carjackings occurred. Pouncy called only one other witness, his mother, who testified that she saw Pouncy at work on the day of the Sandstrom carjacking.
Having heard numerous eyewitness identifications of Pouncy as the perpetrator, the jury convicted Pouncy as charged on four counts of carjacking, four counts of armed robbery, two counts of felony firearm possession, and one count of being a felon in possession of a firearm. The trial court sentenced Pouncy to a term of 586 to 824 months of imprisonment. Just over one month later, Pouncy represented himself in a bench trial on charges arising out of the Haynes carjacking. At the end of that trial, the trial judge convicted and sentenced Pouncy on one count each of carjacking, armed robbery, felony firearm possession, being a felon in possession of a firearm, and carrying a concealed weapon.
Id. at 154.
