Shannon v. Berghuis

• Decision Date: 31 May 2016
• Docket Number: Civil Action No. 15-cv-13053
• Parties: LOVOTNY CEDRIC SHANNON, Petitioner, v. MARY BERGHUIS, Respondent.
• Court: U.S. District Court — Eastern District of Michigan

LOVOTNY CEDRIC SHANNON, Petitioner, v. MARY BERGHUIS, Respondent.

Civil Action No. 15-cv-13053

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

May 31, 2016

HON. BERNARD A. FRIEDMAN UNITED STATES DISTRICT COURT

OPINION AND ORDER GRANTING THE MOTION FOR IMMEDIATE CONSIDERATION, DENYING THE MOTION FOR SUMMARY JUDGMENT, DENYING THE PETITION FOR WRIT OF HABEAS CORPUS, AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY AND LEAVE TO APPEAL IN FORMA PAUPERIS

Lovotny Cedric Shannon, ("petitioner"), confined at the West Shoreline Correctional Facility in Muskegon Heights, Michigan, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his application, filed pro se, petitioner challenges his conviction for first-degree home invasion, Mich. Comp. Laws § 750.110a(2); and felonious assault, Mich. Comp. Laws § 750.82. The Court shall grant petitioner's motion for immediate consideration and shall deny the motion for summary judgment. The Court denied with prejudice the petition for writ of habeas corpus.

I. Background

Petitioner pleaded nolo contendere to the above offenses in the Washtenaw County Circuit Court on March 12, 2012. In exchange for his plea, the prosecutor agreed to dismiss a fourth felony habitual offender charge. (Tr. 3/12/12, pp. 3-6).

On the day of sentencing, petitioner moved to withdraw his plea, claiming that he was innocent. The judge rejected petitioner's motion, noting that in the 23 years that the judge had been on the bench, petitioner repeatedly came before the court always proclaiming his innocence while pleading guilty. (Tr. 5/1/12, pp. 6-9). Petitioner was sentenced to 10 to 20 years in prison on the home invasion conviction and 2 to 4 years on the felonious assault conviction.

Petitioner, through appellate counsel, again filed a motion to withdraw the plea, in part on the ground that petitioner was innocent, and in part on his claim that petitioner did not understand the proceedings against him because he was under the influence of certain medications. The motion to withdraw was denied. (Tr. 2/12/13, pp. 7-8).

Petitioner, through appellate counsel, filed an application for leave to appeal with the Michigan Court of Appeals, which was denied. People v. Shannon, No. 315426 (Mich.Ct.App. May 2, 2013).

Petitioner filed a pro per application for leave to appeal to the Michigan Supreme Court, which was denied. People v. Shannon, 495 Mich. 906, 839 N.W. 2d 493 (2013).

Petitioner filed a post-conviction motion for relief from judgment, which was denied. People v. Shannon, No. 11-1133-FH (Washtenaw Cty. Cir. Ct. July 8, 2014); reconsideration den. People v. Shannon, No. 11-1133-FH (Washtenaw Cty. Cir. Ct. Aug. 29, 2014). Petitioner filed a second motion for relief from judgment, which was denied on the ground that it was an impermissible successive motion barred by the Michigan Court Rules. People v. Shannon, No. 11-1133-FH (Washtenaw Cty. Cir. Ct. Nov. 14, 2014). Petitioner appealed the denial of both motions to the Michigan appellate courts, which denied his application for leave to appeal. People v. Shannon, No. 323351 (Mich.Ct.App. Oct. 21, 2014); lv. den. 498 Mich. 865, 866 N.W. 2d 431(2015).

Petitioner seeks a writ of habeas corpus on the following grounds:

I. Shannon was misinformed of the maximum sentence prior to entering his no contest plea, so he should have been permitted to withdraw his plea. His appellate counsel was ineffective for failing to raise this on direct appeal.

II. Shannon suffered a complete absence of counsel at a critical stage of the proceedings when he was only given access to a law student prior to his preliminary examination and did not get an interview with an actual lawyer.

III. Shannon was denied the effective assistance of appellate counsel, who improperly withdrew from the case, causing him to lose his appeal of right on certain issues.

IV. Shannon was "actually innocent" as evidenced by multiple constitutional violations.

II. Standard of Review

28 U.S.C. § 2254(d), as amended by The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 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 was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

A decision of a state court is "contrary to" clearly established federal law if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law orif the state court decides a case differently than the Supreme Court has on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). An "unreasonable application" occurs when "a state court decision unreasonably applies the law of [the Supreme Court] to the facts of a prisoner's case." Id. at 409. A federal habeas court may not "issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Id. at 410-11.

The Supreme Court has explained that "a federal court's collateral review of a state-court decision must be consistent with the respect due state courts in our federal system." Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). The "AEDPA thus imposes a 'highly deferential standard for evaluating state-court rulings,'and 'demands that state-court decisions be given the benefit of the doubt.'" Renico v. Lett, 559 U.S. 766, 773 (2010) (quoting Lindh v. Murphy, 521 U.S. 320, 333 n. 7 (1997)); Woodford v. Viscotti, 537 U.S. 19, 24 (2002) (per curiam). "[A] state court's determination that a claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision." Harrington v. Richter, 562 U.S. 86, 101 (2011) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). In order to obtain habeas relief in federal court, a state prisoner is required to show that the state court's rejection of his claim "was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Harrington, 562 U.S. at 103. A habeas petitioner should be denied relief as long as it is within the "realm of possibility" that fairminded jurists could find the state court decision to be reasonable. See Woods v. Etherton, 136 S. Ct. 1149, 1152 (2016).

III. Analysis

A. The motion for immediate consideration is granted.

Petitioner moved for immediate consideration, which is granted.

B. The motion for summary judgment is denied.

Petitioner moved for summary judgment. Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Sanders v. Freeman, 221 F. 3d 846, 851 (6th Cir. 2000) (quoting Fed. R. Civ. Proc. 56(c)). The summary judgment rule applies to habeas proceedings. See Harris v. Stegall, 157 F. Supp. 2d 743, 746 (E.D. Mich. 2001). However, a federal district court should not enter summary judgment in a habeas case if the pleadings or papers present a genuine issue of fact. United States ex. rel. Johnson v. De Robertis, 718 F. 2d 209, 211 (7th Cir. 1983). Respondent's pleadings present a genuine issue of fact concerning petitioner's claims, therefore, the motion for summary judgment is denied.

C. Claims # 1 and # 2 are procedurally defaulted and Claim # 3 is without merit.

Petitioner's first two claims are procedurally defaulted for various reasons. The Court will also discuss petitioner's third claim alleging ineffective assistance of appellate counsel in conjunction with addressing the procedural default issue with respect to the first two claims.

When the state courts clearly and expressly rely on a valid state procedural bar, federal habeas review is also barred unless petitioner can demonstrate "cause" for the default and actual prejudice as a result of the alleged constitutional violation, or can demonstrate that failure to consider the claim will result in a "fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. 722, 750-51 (1991). If petitioner fails to show cause for his procedural default, it isunnecessary for the court to reach the prejudice issue. Smith v. Murray, 477 U.S. 527, 533 (1986). However, in an extraordinary case, where a constitutional error has probably resulted in the conviction of one who is actually innocent, a federal court may consider the constitutional claims presented even in the absence of a showing of cause for procedural default. Murray v. Carrier, 477 U.S. 478, 479-80 (1986). However, to be credible, such a claim of innocence requires a petitioner to support the allegations of constitutional error with new reliable evidence that was not presented at trial. Schlup v. Delo, 513 U.S. 298, 324 (1995).

Respondent contends that petitioner's first claim alleging that the judge misinformed him of the maximum penalty for the home invasion charge and/or breached the plea agreement is defaulted because petitioner raised this claim for the first time in his post-conviction motion, and failed to show cause and prejudice for failing to raise this claim on his direct appeal, as required by M.C.R. 6.508(D)(3), which provides that a court may not grant relief to a defendant if the motion for relief from judgment...