UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

LARRY ROBERT HALE,

Petitioner,

CASE NO. 2:14-CV-14600

v. HONORABLE GERALD E. ROSEN

STEVEN RIVARD,

Respondent.

___________________________________/

OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF

HABEAS CORPUS, DENYING A CERTIFICATE OF APPEALABILITY,

AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

I. Introduction

Michigan prisoner Larry Robert Hale (“Petitioner”), through counsel, has filed a petition for

a writ of habeas corpus asserting that he is being held in violation of his constitutional rights. 

Petitioner pleaded no contest to third-degree criminal sexual conduct, MICH. COMP. LAWS

§ 750.520d(1)(b), in the Berrien County Circuit Court and was sentenced to 10 to 15 years

imprisonment in 2012. In his pleadings, he asserts that his plea was not knowing, intelligent, and

voluntary due to his low mental ability and that the trial court should have held a competency

hearing. For the reasons stated, the Court denies the petition for a writ of habeas corpus. The Court

also denies a certificate of appealability and denies leave to proceed in forma pauperis on appeal.

II. Facts and Procedural History

Petitioner’s conviction arises from his sexual conduct with a nine-year-old girl, who was a

family friend, at his home in Berrien County, Michigan between 2009 and 2011. At the preliminary

examination, which provided the factual basis for the plea, the victim testified that Petitioner used

his privates, fingers, and tongue to touch and/or penetrate her privates and mouth. See 3/6/12

2:14-cv-14600-GER-DRG Doc # 9 Filed 07/26/16 Pg 1 of 17 Pg ID 434
Prelim. Exam. Hrg. Tr., pp. 27-31. The victim’s six-year-old sister testified that Petitioner did “bad

touches” to her, but could not remember the details. Id. at p. 20. The girls’ uncle testified that the

girls disclosed Petitioner’s conduct to him one day while they were driving in the car. Id. at pp. 9-

10. Petitioner was charged with multiple counts of criminal sexual conduct concerning the nineyear-old.

On June 11, 2012, Petitioner pleaded no contest to one count of third-degree criminal sexual

conduct in exchange for the dismissal of the other charges and a sentence of 10 to 15 years

imprisonment. At the plea hearing, the following colloquy occurred:

THE COURT: Alright, I understand that we have a plea agreement in this case, Mr.

Parish?

MR. PARISH: We do, your Honor. The agreement is that Mr. Hale will plead no

contest to a single count of Criminal Sexual Conduct in the 3rd Degree; in return all

the other charges will be dismissed . It's also part of the agreement, on both sides,

that there be an agreed sentence in this matter of not less than 10, nor more than 15

years. Do you understand all that?

THE DEFENDANT: Yes.

MR. PARISH: And that's what you wanna do?

THE DEFENDANT: Yes.

THE COURT: Okay.

MR. PARISH: We do have one small problem I want to call to your Honor's

attention and that's this. My client does not read and as a result, while I can have him

sign the Advice of Rights, I have not had an opportunity until just this moment to go

through those with him, so I would suggest that, perhaps, it might be quickest just

to read them aloud when we reach that point.

THE COURT: Okay, that's fine. Alright, sir, can you please raise your right hand?

Do you solemnly swear or affirm, under the pains and penalties of perjury, that the

testimony you're about to give in the matter now pending before the Court will be the

truth, the whole truth and nothing but the truth?

THE DEFENDANT: Yes.

2

2:14-cv-14600-GER-DRG Doc # 9 Filed 07/26/16 Pg 2 of 17 Pg ID 435
THE COURT: Okay. Can you give me the rights form, please, Mr . Parish?

MR. PARISH: Yes. You wanna sign it there. I'm gonna have him sign it, although,

as I said, he--

THE COURT: That's fine.

MR. PARISH: I'm gonna to give him a copy so that anybody else can help him read

it.

THE COURT: Alright, I need to ask you a few questions, sir. I'm not trying to be

insulting. I just need to establish a record. How old are you?

THE DEFENDANT: Fifty-four.

THE COURT: How far have you gone in school?

THE DEFENDANT: Actually, I quit in the 10th grade.

THE COURT: Okay. You just-- Can you speak closer to the microphone, please?

You-- You--

THE DEFENDANT: I'm 54 and I quit in the 10th grade.

THE COURT: Okay. And we already covered the fact that you have some difficulty

reading, so I'm gonna go throughTHE DEFENDANT: Correct.

THE COURT: --these rights--

THE DEFENDANT: My education's--

THE COURT: --with you one--

THE DEFENDANT: --bad.

THE COURT: --at a time. Are you currently under the influence of any controlled

substance, prescription medication or alcohol that would make it difficult for you to

understand me or speak with your attorney Mr. Parish?

THE DEFENDANT: Nope. I just take medication for my heart.

THE COURT: Okay. But that doesn't affect your comprehension of your--

3

2:14-cv-14600-GER-DRG Doc # 9 Filed 07/26/16 Pg 3 of 17 Pg ID 436
THE DEFENDANT: No.

THE COURT: --surrounding or what's happening?

THE DEFENDANT: No.

THE COURT: Okay. You're currently appearing in Courtroom 193 in Saint Joseph,

Michigan with your attorney Mr. Parish standing at your side, the People are, again,

represented here this morning by the prosecuting attorney Mr. Sepic. It is alleged that

from September 20th of 2009 to on or about August 24th of 2011 in Berrien County,

Michigan, you committed the offense of Criminal Sexual Conduct in the 3rd Degree

by having sexual contact with McKyndsie Kaeding, a person under 13 years of age--

MR. SEPIC: And that would be by -- Count 1 would be by penetration, judge.

THE COURT: All right. digitally or . . . -- by penetration . . . Was it

MR. SEPIC: Penis/vagina.

THE COURT: All right. -- penetration, penis to vagina, with McKyndsie Kaeding,

a person under 13 years of age. This is charged as Criminal Sexual Conduct in the

3rd Degree. It is a felony. The maximum penalty is 15 years in a Michigan state

prison, mandatory collection of a DNA sample, fines, costs, probation, as well as,

registration under the Michigan Sex Offender Act. You understand the charge

against you, sir?

THE DEFENDANT: Correct.

THE COURT: You have to say yes or no.

THE DEFENDANT: Yes.

THE COURT: And how do you wish to plead, guilty, not guilty, no contest?

THE DEFENDANT: No contest.

THE COURT: You understand, sir, that if I accept your no contest plea here this

morning, you'll not have a jury trial of any kind and you'll be giving up all the rights

you'd have had at that jury trial? You understand that?

THE DEFENDANT: No trial?

THE COURT: Right. And, do you understand that all of the rights that you would

have at that jury trial are contained in this Advice of Rights Circuit Court Plea form,

which you've signed here this morning, they include: The right to be tried by a jury;

4

2:14-cv-14600-GER-DRG Doc # 9 Filed 07/26/16 Pg 4 of 17 Pg ID 437
to be presumed innocent until proven guilty; to have the Prosecutor, in this case, Mr.

Sepic, prove beyond a reasonable doubt that you are guilty; to have the witnesses

against you appear at your trial; to question the witnesses against you - Mr. Parish,

your attorney, would question them for you; to have the Court ordy--order any

witnesses that you want for your defense to appear at trial - in other words, if you

believe you have witnesses that can prove you're innocent of this charge, they would

be subpoenaed and I would require them to be here and attend; to remain silent

during your trial - you don't have to testify; to not have that silence used against you

- I would give the jury an instruction that they're not to consider the fact that you

didn't testify; and finally, if you choose to, you have the right to testify at your own

felony jury trial; do you understand that if I accept your no contest plea all of these

rights that I just read to you are gone?

THE DEFENDANT: Yes.

THE COURT: You have to speak louder, please.

THE DEFENDANT: Yes.

THE COURT: And that's what you want me to do, sir?

THE DEFENDANT: Yes.

THE COURT: You further understand that if the Court accepts your no contest plea

here this morning you'll be giving up any claim that your plea was because of, or the

result of, any promises, tricks or threats that you don't tell me about right now, and,

you'll also be waiving any claim that this was not your decision to plead no contest;

in other words, you can't come back tomorrow morning and say, I didn't want to do

that yesterday morning, Judge LaSata, Mr. Parish told me I had to do it, or, Mr. Sepic

came back and threatened me in the holding cell; you understand you're giving up

any claim like that?

THE DEFENDANT: You means towards--

THE COURT: Yeah. If I accept-- Did any of that happen? Did anyone threaten you

or tell you--

THE DEFENDANT: No.

THE COURT: --to plead--

THE DEFENDANT: No.

THE COURT: --no contest? Okay.

5

2:14-cv-14600-GER-DRG Doc # 9 Filed 07/26/16 Pg 5 of 17 Pg ID 438
THE DEFENDANT: No.

THE COURT: And you understand that you can't come back and--and tell me that--

THE DEFENDANT: Right.

THE COURT: --tomorrow?

THE DEFENDANT: Okay.

THE COURT: This is the time and place. I have not yet accepted your no contest

plea, and you're under oath.

THE DEFENDANT: (No verbal response)

THE COURT: All right. Do you further understand that any appeal of your

conviction and sentence pursuant to this no contest plea to the Michigan Court of

Appeals, the court above me, must be by application for leave to appeal and not by

right?

THE DEFENDANT: Yeah.

THE COURT: Okay. Are you currently on parole or probation, sir?

THE DEFENDANT: Sir?

THE COURT: Are you currently on parole or probation?

THE DEFENDANT: No. This is my first.

THE COURT: Mr. Sepic, can you please place the plea agreement on the record, sir?

MR. SEPIC: Yes, judge. In exchange for a plea of no contest to the amended Count

1 of CSC 3rd, the People will dismiss Counts 2 , 3 , 4 and 7, and further, that at the

time of sentence, the parties agree that the minimum sentence will be 10 years.

THE COURT: Mr. Parish?

MR. PARISH: That's all correct, your Honor. I don't have the charges in front of me.

I presume those--that the dismissal is of all charges except the amended Count 1.

And am I correct on that?

MR. SEPIC: That's correct.

MR. PARISH: Then it is correct, your Honor.

6

2:14-cv-14600-GER-DRG Doc # 9 Filed 07/26/16 Pg 6 of 17 Pg ID 439
THE COURT: Okay. And finally, Mr . Hale, is that your understanding, sir?

THE DEFENDANT: (Inaudible)

THE COURT: Can you speak up, please?

THE DEFENDANT: Yes. Sorry.

THE COURT: Other than that plea agreement just placed on the record and agreed

to by all the parties, has anyone used any other promises, tricks or threats to get you

to plead no contest?

THE DEFENDANT: No.

THE COURT: Are you pleading no contest of your own free act and will?

THE DEFENDANT: On my own. YesTHE COURT: I'm--

THE DEFENDANT: --on my--

THE COURT: Yea--

THE DEFENDANT: --own.

THE COURT: Okay. I didn't understand the last thing you said.

THE DEFENDANT: On my own.

THE COURT: On your own. Okay. And, counsel, obviously, I presided over the

preliminary examination conducted on March 6th of 2012. I recall the testimony of

the two victims at that court proceeding. May the Court also review the probable

cause sheet in order to establish the factual basis for the no contest plea?

MR. PARISH: Yes, your Honor.

MR. SEPIC: Yes, your Honor.

THE COURT: I also have my notes in the file from preliminary examination; the

testimony of the two children. Alright, counsel, are you satis--that's a factual basis

as established in the court file at the preliminary examination as well as the probable

cause sheet?

MR. PARISH: I am, your Honor.

7

2:14-cv-14600-GER-DRG Doc # 9 Filed 07/26/16 Pg 7 of 17 Pg ID 440
MR. SEPIC: Yes, your Honor. And I would just note for the record that actually

those facts the Court is referring to would actually give the facts for CSC 1st Degree,

but, of course, the Court can accept a plea to a lesser based on the greater offense,

and I believe that's--

THE COURT: You agreeMR. SEPIC: --the case.

THE COURT: You agree with all that, Mr. Parish?

MR. PARISH: Yes.

THE COURT: Okay. Counsel, are either of you aware of any promises, tricks or

threats not disclosed on the record here this morning?

MR. SEPIC: No, your Honor.

MR. PARISH: No, your Honor.

THE COURT: And has the Court complied with all of MCR 6.302 (B ) through (D )?

MR. SEPIC: Yes, judge.

MR. PARISH: Yes, your Honor.

THE COURT: Alright, Mr. Hale, I find, sir, that a sufficient factual basis has been

established to support your no contest plea. I further find that your plea of no contest

has been made knowingly, freely, voluntarily and understandingly, it is offered

without duress, compulsion, undue influence, the promise of benefit or leniency, and

I do accept your no contest plea....

6/11/12 Plea Hrg. Tr. pp. 3-12.

Petitioner subsequently moved to withdraw his plea asserting that it was not knowing,

intelligent, and voluntary due to his low mental ability. On July 12, 2012, the trial court conducted

a hearing, reviewed the plea proceedings, recalled Petitioner’s problems with reading and writing,

and ruled that the plea was proper and that Petitioner’s claim that he did not understand his plea was

“completely without merit.” See 7/12/12 Motion Hrg. Tr., pp. 10-14. On July 16, 2012, the trial

court sentenced Petitioner to 10 to 15 years imprisonment in accordance with the plea agreement.

8

2:14-cv-14600-GER-DRG Doc # 9 Filed 07/26/16 Pg 8 of 17 Pg ID 441
Petitioner filed a delayed application for leave to appeal with the Michigan Court of Appeals

raising several claims, including his involuntary plea claim, which was denied for lack of merit in

the grounds presented. People v. Hale, No. 315722 (Mich. Ct. App. May 24, 2013) (unpublished). 

Petitioner also filed an application for leave to appeal with the Michigan Supreme Court, which was

denied in a standard order. People v. Hale, 495 Mich. 900, 839 N.W.2d 455 (2013).

Petitioner, through counsel, filed his federal habeas petition on December 5, 2014 asserting

that his plea was not knowing, intelligent, and voluntary due to his low mental ability. Respondent

filed an answer to the petition contending that it should be denied for lack of merit. Petitioner filed

a reply to that answer asserting that his plea was not knowing, intelligent, and voluntary and that the

trial court erred by failing to conduct a competency hearing.

III. Standard of Review

Federal law 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 proceedings.

28 U.S.C. § 2254(d).

“A state court’s decision is ‘contrary to’ . . . clearly established law if it ‘applies a rule that

contradicts the governing law set forth in [Supreme Court cases]’ or if it ‘confronts a set of facts that

are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at

9

2:14-cv-14600-GER-DRG Doc # 9 Filed 07/26/16 Pg 9 of 17 Pg ID 442
a result different from [that] precedent.’” Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003) (per

curiam) (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000)); see also Bell v. Cone, 535 U.S.

685, 694 (2002).

“[T]he ‘unreasonable application’ prong of § 2254(d)(1) permits a federal habeas court to

‘grant the writ if the state court identifies the correct governing legal principle from [the Supreme]

Court but unreasonably applies that principle to the facts of petitioner’s case.” Wiggins v. Smith,

539 U.S. 510, 520 (2003) (quoting Williams, 529 U.S. at 413); see also Bell, 535 U.S. at 694. 

However, “[i]n order for a federal court find a state court’s application of [Supreme Court] precedent

‘unreasonable,’ the state court’s decision must have been more than incorrect or erroneous. The

state court’s application must have been ‘objectively unreasonable.’” Wiggins, 539 U.S. at 520-21

(citations omitted); see also Williams, 529 U.S. at 409. “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, 521 U.S. at 333,

n. 7; 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)). The

Supreme Court has emphasized “that even a strong case for relief does not mean the state court's

contrary conclusion was unreasonable.” Id. (citing Lockyer v. Andrade, 538 U.S. 63, 75 (2003)). 

Pursuant to § 2254(d), “a habeas court must determine what arguments or theories supported or ...

could have supported, the state court's decision; and then it must ask whether it is possible

fairminded jurists could disagree that those arguments or theories are inconsistent with the holding

in a prior decision" of the Supreme Court. Id. Thus, in order to obtain habeas relief in federal court,

10

2:14-cv-14600-GER-DRG Doc # 9 Filed 07/26/16 Pg 10 of 17 Pg ID 443
a state prisoner must 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.” Id; see also White v. Woodall, _ U.S. _, 134 S. Ct. 1697, 1702 (2014). 

Federal judges “are required to afford state courts due respect by overturning their decisions only

when there could be no reasonable dispute that they were wrong.” Woods v. Donald, _ U.S. _, 135

S. Ct. 1372, 1376 (2015). A habeas petitioner cannot prevail as long as it is within the “realm of

possibility” that fairminded jurists could find the state court decision to be reasonable. Woods v.

Etherton, _ U.S. _, 136 S. Ct. 1149, 1152 (2016).

Section 2254(d)(1) limits a federal habeas court’s review to a determination of whether the

state court’s decision comports with clearly established federal law as determined by the Supreme

Court at the time the state court renders its decision. Williams, 529 U.S. at 412; see also Knowles

v. Mirzayance, 556 U.S. 111, 122 (2009) (noting that the Supreme Court “has held on numerous

occasions that it is not ‘an unreasonable application of clearly established Federal law’ for a state

court to decline to apply a specific legal rule that has not been squarely established by this Court”)

(quoting Wright v. Van Patten, 552 U.S. 120, 125-26 (2008) (per curiam)); Lockyer, 538 U.S. at 71-

72. Section 2254(d) “does not require a state court to give reasons before its decision can be deemed

to have been ‘adjudicated on the merits.’” Harrington, 562 U.S. at 100. Furthermore, it “does not

require citation of [Supreme Court] cases–indeed, it does not even require awareness of [Supreme

Court] cases, so long as neither the reasoning nor the result of the state-court decision contradicts

them.” Early v. Packer, 537 U.S. 3, 8 (2002); see also Mitchell, 540 U.S. at 16. While the

requirements of “clearly established law” are to be determined by Supreme Court precedent, the

decisions of lower federal courts may be useful in assessing the reasonableness of the state court’s

decision. Stewart v. Erwin, 503 F.3d 488, 493 (6th Cir. 2007) (citing Williams v. Bowersox, 340

11

2:14-cv-14600-GER-DRG Doc # 9 Filed 07/26/16 Pg 11 of 17 Pg ID 444
F.3d 667, 671 (8th Cir. 2003)); Dickens v. Jones, 203 F. Supp. 354, 359 (E.D. Mich. 2002).

A state court’s factual determinations are presumed correct on federal habeas review. See

28 U.S.C. § 2254(e)(1). A petitioner may rebut this presumption with clear and convincing

evidence. Warren v. Smith, 161 F.3d 358, 360-61 (6th Cir. 1998). Lastly, habeas review is “limited

to the record that was before the state court.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011).

In this case, the state trial court ruled that Petitioner’s plea was valid and denied his plea

withdrawal motion, the Michigan Court of Appeals denied leave to appeal for lack of merit in the

grounds presented, and the Michigan Supreme Court denied leave to appeal in a standard order. For

the reasons that follow, the Court concludes that the state courts’ decisions are neither contrary to

Supreme Court precedent nor an unreasonable application of federal law or the facts.1

IV. Analysis

A. Involuntary Plea Claim

Petitioner first asserts that he is entitled to habeas relief because his no contest plea was not

knowing, intelligent, and voluntary due to his low mental ability. When a criminal defendant is

convicted pursuant to a plea, habeas review is limited to whether the plea was made knowingly,

intelligently, and voluntarily. United States v. Broce, 488 U.S. 563 (1989); Boykin v. Alabama, 395

U.S. 238 (1969). A plea is intelligent and knowing where there is nothing to indicate that the

defendant is incompetent or otherwise not in control of his or her mental faculties, is aware of the

nature of the charges, and is advised by competent counsel. Id. at 756. The plea must be made

“with sufficient awareness of the relevant circumstances and likely consequences.” Id. at 748. A

plea is voluntary if it is not induced by threats or misrepresentations and the defendant is made

1

The Court would reach the same result under a de novo standard of review.

12

2:14-cv-14600-GER-DRG Doc # 9 Filed 07/26/16 Pg 12 of 17 Pg ID 445
aware of the direct consequences of the plea. Brady v. United States, 397 U.S. 742, 755 (1970). The

voluntariness of a plea “can be determined only by considering all of the relevant circumstances

surrounding it.” Id. at 749.

In this case, the state court record reveals that Petitioner’s plea was knowing, intelligent, and

voluntary. Petitioner was 54 years old at the time of his plea and had a 10th grade education. There

is no evidence that he suffered from any physical or psychological problems which would have

impaired his ability to understand the criminal proceedings or the nature of his plea. Petitioner was

represented by legal counsel and conferred with counsel during the plea process. The trial court

advised Petitioner of his trial rights and the fact that he would be giving up those rights by pleading

no contest. The parties discussed the charges, the terms of the plea and sentencing agreement, and

the consequences of the plea. Petitioner indicated he understood the plea agreement, that he wanted

to plead no contest, that he had not been threatened or promised anything other than what was

included in the plea agreement, and that he was pleading no contest of his own free will.

Petitioner asserts that his plea was not knowing, intelligent, and voluntary due to his low

mental ability. He relies upon reports, prepared post-sentencing, which score his IQ at 62 (mentally

deficient range) and which opine that he may not have been able to fully understand his written plea

agreement. At the time of his plea, however, Petitioner stated that he understood the terms of the

plea and the rights that he would be giving up by entering a plea and confirmed that it was his own

decision to plead no contest to the reduced charge of one count of third-degree criminal sexual

conduct with a 10-year minimum and 15-year maximum sentence. The mere fact that Petitioner has

a low IQ, a limited education, and difficulty reading and writing does not render his plea invalid. 

See United States v. Carpenter, 26 F. App’x 327, 342-45 (6th Cir. 2001) (ruling that the district

court did not err in finding that the defendant was competent and that his plea was knowingly made

13

2:14-cv-14600-GER-DRG Doc # 9 Filed 07/26/16 Pg 13 of 17 Pg ID 446
where he had an IQ between 60 and 70); see also Penry v. Lynaugh, 492 U.S. 302, 333-34 (1989)

(ruling that trial court did not err in finding mentally disabled person competent to stand trial); Clark

v. Mitchell, 425 F.3d 270, 283-84 (6th Cir. 2005) (fact that defendant suffers from borderline

retardation or below average intelligence is not dispositive of whether waiver of rights was knowing

and intelligent); Medina v. Singletary, 59 F.3d 1095, 1107 (11th Cir. 1995) (stating that “neither low

intelligence [nor] mental deficiency . . . can be equated with mental incompetence”).

In this case, the parties and the trial court discussed the terms of the plea agreement and its

consequences in detail at the plea hearing. Petitioner indicated that he understood those matters and

that it was his desire to plead no contest. He should be bound by those statements. As aptly stated

by the United States Court of Appeals for the Sixth Circuit when faced with a challenge to a plea

bargain based upon an alleged off-the-record agreement:

If we were to rely on [the petitioner’s] alleged subjective impression rather than the

record, we would be rendering the plea colloquy process meaningless, for any

convict who alleges that he believed the plea bargain was different from that outlined

in the record could withdraw his plea, despite his own statements during the plea

colloquy . . . indicating the opposite. This we will not do, for the plea colloquy

process exists in part to prevent petitioners . . . from making the precise claim that

is today before us. “[W]here the court has scrupulously followed the required

procedure, the defendant is bound by his statements in response to that court’s

inquiry.”

Ramos v. Rogers, 170 F.3d 560, 566 (6th Cir. 1999) (quoting Baker v. United States, 781 F.2d 85,

90 (6th Cir. 1986)). Having reviewed the record, the Court is satisfied that Petitioner’s plea was

knowing, intelligent, and voluntary. Habeas relief is not warranted on this claim.

B. Competency Hearing Claim

Petitioner relatedly asserts (in his reply brief) that he is entitled to habeas relief because the

trial court failed to sua sponte conduct a competency hearing. It is well-established that a criminal

defendant may not be tried unless he or she is competent. Godinez v. Moran, 509 U.S. 389, 396

14

2:14-cv-14600-GER-DRG Doc # 9 Filed 07/26/16 Pg 14 of 17 Pg ID 447
(1993). The standard for competence to plead guilty or no contest and to be sentenced is the same

as the standard for competence to stand trial: whether the defendant has (1) sufficient present ability

to consult with a lawyer and (2) a rational and factual understanding of the proceedings against him

or her. Id. at 396-98. Due process is violated by a trial court’s failure to hold a proper competency

hearing where there is substantial evidence of a defendant’s incompetency. Pate v. Robinson, 383

U.S. 375, 385-86 (1966). The question for a reviewing court in such a case is whether a reasonable

judge, situated as was the trial court judge, should have experienced a “bona fide doubt” about the

defendant’s competency. See Warren v. Lewis, 365 F.3d 529, 533 (6th Cir. 2004) (citing Drope v.

Missouri, 420 U.S. 162, 173 (1975)); see also Cowans v. Bagley, 639 F.3d 241, 247 (6th Cir. 2011). 

Silence by a defendant and defense counsel on the issue of competency at the time of a plea is

significant evidence that there is no bona fide doubt about the defendant’s competency. United

States v. Gignac, 301 F. App’x 471, 475 (6th Cir. 2008).

Having reviewed the record, this Court concludes that a reasonable judge sitting the trial

court’s place would not have experienced a bona fide doubt as to Petitioner’s competency at the time

of his no contest plea. While Petitioner may have a low IQ, a limited education, and difficulty

reading and writing, such circumstances do not mean that he was incompetent to plead no contest

and be sentenced. See Carpenter supra, 26 F. App’x at 342-45; Hastings v. Yukins, 194 F. Supp.

2d 659, 671-72 (E.D. Mich. 2002) (stating that “neither low intelligence, mental deficiency, nor the

fact that a defendant has been treated with anti-psychotic drugs can automatically be equated with

incompetence” and citing Burket v. Angelone, 208 F.3d 172, 192 (4th Cir. 2000), and Miles v.

Dorsey, 61 F.3d 1459, 1474 (10th Cir. 1995)). At the time of the plea, there was no indication that

Petitioner was unable to sufficiently consult with defense counsel or have a proper understanding

of the criminal proceedings and the plea agreement. To the contrary, the record indicates that

15

2:14-cv-14600-GER-DRG Doc # 9 Filed 07/26/16 Pg 15 of 17 Pg ID 448
Petitioner was 54 years old with a 10th grade education at the time of his plea, that he had been

married several times and employed in factory and detailing jobs, that he entered into the plea

agreement after consulting with counsel, and that he responded appropriately to the court’s questions

at the plea hearing. Petitioner acknowledged that he understood the terms and consequences of his

plea and confirmed that his plea was voluntary. Neither the prosecutor nor defense counsel

expressed concerns about Petitioner’s competency at the time of his plea.

Moreover, the reports discussing Petitioner’s low mental ability, upon which he now relies,

were not before the trial court at the time of his plea or sentencing proceedings. Rather, they were

prepared post-sentencing and first presented to the state courts on appeal. Given such

circumstances, Petitioner fails to establish that the trial court violated his constitutional rights by

failing to sua sponte inquire into his competency at the time of his plea and sentence. Habeas relief

is not warranted on this claim.

V. Conclusion

For the reasons stated, the Court concludes that Petitioner is not entitled to federal habeas

relief on the claims contained in his pleadings. Accordingly, the Court DENIES WITH

PREJUDICE the petition for a writ of habeas corpus.

Before Petitioner may appeal this decision, a certificate of appealability must issue. See 28

U.S.C. § 2253(c)(1)(a); FED. R. APP. P. 22(b). A certificate of appealability may issue “only if the

applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2). When a court denies relief on the merits, the substantial showing threshold is met if

the petitioner demonstrates that reasonable jurists would find the court’s assessment of the

constitutional claims debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). “A

petitioner satisfies this standard by demonstrating that . . . jurists could conclude the issues presented

16

2:14-cv-14600-GER-DRG Doc # 9 Filed 07/26/16 Pg 16 of 17 Pg ID 449
are adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322,

327 (2003). A court may not conduct a full merits review, but must limit its examination to a

threshold inquiry into the merit of the claims. Id. at 336-37. Having conducted the requisite review,

the Court concludes that Petitioner fails to make a substantial showing of the denial of a

constitutional right as to his claims. The Court, therefore, DENIES a certificate of appealability.

Lastly, the Court concludes that Petitioner should not be granted leave to proceed in forma

pauperis on appeal as an appeal cannot be taken in good faith. See FED. R. APP. P. 24(a). 

Accordingly, the Court DENIES leave to proceed in forma pauperis on appeal.

IT IS SO ORDERED.

s/Gerald E. Rosen 

United States District Judge

Dated: July 26, 2016

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing document was served upon the parties and/or counsel

of record on July 26, 2016, by electronic and/or ordinary mail.

s/Julie Owens 

Case Manager, (313) 234-5135

17

2:14-cv-14600-GER-DRG Doc # 9 Filed 07/26/16 Pg 17 of 17 Pg ID 450