Thirkield v. Pitcher
| Decision Date | 27 March 2002 |
| Docket Number | Civil No. 01-CV-70334-DT. |
| Citation | 199 F.Supp.2d 637 |
| Parties | Glenn THIRKIELD, # 249911, Petitioner, v. Terry PITCHER, Respondent. |
| Court | U.S. District Court — Eastern District of Michigan |
Glen Thirkield, Muskegon, MI, pro se.
John G. McBain, Jr., Jackson, MI, Jerrold E. Schrotenboer, Jackson County Prosecutor's Office, Jackson, MI, for Terry Pitcher.
Glenn Thirkield, ("petitioner"), presently confined at the Muskegon Correctional Facility in Muskegon, Michigan, seeks the issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his application, filed pro se, petitioner challenges the legality of his 1996 Jackson County convictions and sentences. For the reasons set forth below, the Court shall deny the petition and dismiss the matter with prejudice.
On April 26, 1996, petitioner pleaded guilty in four separate cases. In case 95-75699-FC, petitioner pleaded guilty to armed robbery, M.C.L. § 750.529, and felony firearm, M.C.L. § 750.227b. In case 96-75700-FC, petitioner pleaded guilty to larceny from a person, M.C.L. § 750.357, carrying a concealed weapon, M.C.L § 750.227, and being a second felony offender, M.C.L. § 769.10. In case 96-75702-FH, petitioner pleaded guilty to unarmed robbery, M.C.L. § 750.530, and being a second felony offender. Finally, in case 96-75703-FC, petitioner pleaded guilty to armed robbery, felony firearm, and being a second felony offender.1
Petitioner alleges that he has a third grade education and that he is illiterate. However, the record indicates that he completed at least the eighth grade and attended the ninth grade before being incarcerated and that he continued to attend school while in prison. Pre-Sentence Investigation Report ("PSIR") at 4. The record also indicates that petitioner scored 102 on an I.Q. test in 1980, indicating that he is of average intelligence. Id. Petitioner alleges that he was taking the psychotropic drugs Thorazine and Elavil and that this adversely affected his judgment in the plea taking process. However, no record was made in state court concerning this matter. Petitioner's answers to the trial court's questioning at his guilty plea proceedings were responsive and appropriate and not indicative of a confused or drugged state of mind. Further, the PSIR includes the following information concerning petitioner's mental health: "Mr. Thirkield stated that he has never been involved in mental health counseling and has no need for it [because] `I don't feel I'm crazy.'" PSIR at 6.
Petitioner was sentenced in all four cases on May 30, 1996, in the Jackson County Circuit Court. All of petitioner's sentences in each separate case are consecutive to his parole violator term and concurrent to the sentences in each other case.
Petitioner was sentenced in case 96-75699-FC to consecutive terms of two years and twenty to forty years imprisonment for felony firearm and armed robbery. Petitioner was sentenced in case 96-75700-FC to concurrent terms of ten to fifteen years and two to five years imprisonment for larceny from a person and carrying a concealed weapon. In case 96-75702-FH petitioner was sentenced to fourteen to twenty-two and a half years imprisonment for unarmed robbery and being a second felony offender. In case 96-75703-FC petitioner was sentenced to consecutive terms of twenty to forty years imprisonment and two years imprisonment for armed robbery, felony firearm, and being a second felony offender. Thus, petitioner's effective new sentences were a twenty to forty year sentence for armed robbery and a consecutive two year mandatory term for felony firearm. All of petitioner's shorter new sentences are concurrent to his twenty to forty year sentence.
Petitioner subsequently filed a motion to withdraw his guilty pleas, or in the alternative, for resentencing. An evidentiary hearing on the motion was held on October 3, 1997. Petitioner testified that, before he pleaded guilty, trial counsel had told him he would be sentenced to ten to twenty-two years for his crimes. Petitioner testified that he only pleaded guilty because he believed that he would receive a ten to twenty-two year sentence. Evidentiary Hearing of October 3, 1997 ("EH") at 13-15. Petitioner testified that his trial attorney Jerry M. Engle gave him a piece of paper before he pleaded guilty which he (petitioner) believed set forth the sentences he would receive upon pleading guilty. EH at 14-15.
Petitioner has attached a copy of this paper as Appendix A of his habeas petition. See, Brief in Support [of] Writ of Habeas Corpus at 1; Petitioner's Appendix A. Written across the top of the paper is the single word "Guidelines." At the bottom of the paper the following writing appears in table form:
Consecutive felony firearm 2-2
AR's 8-20
Unarmed's 2-15
Concurrent 2-15
_____
10-22
Petitioner's Appendix A.
A semi-circle opening to the right is drawn which half-encircles the above writing from "AR's" to "10-22." The word "concurrent" is written outside of the middle of this semi-circle or elongated right-ward opening parentheses mark. Id.
Petitioner admitted that he never heard the trial judge tell him that there was a plea bargain at any of his four guilty plea proceedings. Petitioner admitted that the trial judge never indicated that there was a sentence agreement of ten to twenty-two years, or any sentence agreement at all. EH at 15-16. Petitioner also admitted that the trial judge asked him at each of his plea proceedings if he was pleading guilty voluntarily and that he replied that he was. Petitioner testified that the trial judge asked him at each of his plea proceedings if anyone had forced him to plead guilty and he had not said so. EH at 16. Petitioner testified that he did not say anything about what he believed was his plea agreement during his guilty plea proceedings, because his attorney had told him to agree with whatever the judge said. Id.
Petitioner testified that he tried to withdraw his guilty plea before he was sentenced after receiving a paper from Mr. Engle indicating that he would be sentenced to twenty to forty years for armed robbery and a consecutive two year sentence for felony firearm. EH at 22-24. Petitioner also testified that he first got the paper stating what his sentence would be in the courtroom after he was sentenced. EH at 25. Petitioner further testified that he believed he would be sentenced to ten to twenty-two years up to the time he was sentenced and that there was no time before he was sentenced that he knew he was going to get twenty-two to forty-two years. EH at 25-26. Petitioner testified that he would not have pleaded guilty if he had known that there was no sentence agreement. EH at 28.
On cross-examination, petitioner repeated his testimony that attorney Engle had told him he would be sentenced to ten to twenty-two years as part of his plea bargain. EH at 32. Petitioner again admitted that, when asked by the trial judge at each of his plea proceedings if he was aware of any sentencing agreement or plea bargain, he had testified that he was not. EH at 33.
The following colloquy then took place between the trial judge and petitioner2:
Shortly thereafter, a conference was held between the trial judge, the prosecutor, and defense counsel. After this conference, petitioner and defense counsel conferred. EH at 35-36 Pursuant to an agreement negotiated at that time, petitioner agreed to withdraw his challenge to his guilty plea and ask the trial court to deny his motion in exchange for a promise that the prosecutor would not pursue perjury charges against him. EH at 36-37. The trial judge then denied petitioner's motion to withdraw his guilty plea. EH at 37.
Petitioner then filed a delayed application for leave to appeal to the Michigan Court of Appeals through counsel contending that his sentence was disproportionate to his crimes and circumstances. Petitioner tried to file a pro per supplemental brief raising his claim challenging the voluntariness of his guilty pleas. The Michigan Court of Appeals returned petitioner's pro per supplement because it was received too late. Petitioner tried to file a motion for rehearing raising his plea withdrawal claim. This motion was also returned as not timely filed. The Michigan Court of Appeals denied petitioner leave to appeal for lack of merit in the grounds presented. People v. Thirkield, Michigan Court of Appeals Docket No. 207310 (June 18, 1998).
Petitioner then sought leave to appeal in the Michigan...
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