1 

UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

MICHAEL A. DUNCAN, 

Petitioner, 

 Case No. 14-cv-13863 

v. 

 HON. MARK A. GOLDSMITH 

CATHERINE S. BAUMAN,1

 Respondent. 

_______________________________/ 

OPINION AND ORDER 

(1) DENYING THE PETITION FOR WRIT OF HABEAS CORPUS (Dkt. 1); (2) 

DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY; AND (3) GRANTING 

LEAVE TO APPEAL IN FORMA PAUPERIS

I. INTRODUCTION 

Petitioner Michael A. Duncan, presently confined at the Alger Correctional Facility in 

Munising, Michigan, filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. 

§ 2254 (Dkt. 1). Petitioner challenges his plea conviction for second-degree home invasion, 

Mich. Comp. Laws § 750.110a(2); domestic violence, third offense, Mich. Comp. Laws § 

750.81(4); and being a third habitual offender, Mich. Comp. Laws § 769.11. For the reasons 

stated below, the Court denies petition for writ of habeas corpus. 

II. BACKGROUND 

Petitioner was originally charged with first-degree home invasion and domestic violence, 

third offense. The prosecutor initially filed a notice of intent to seek a sentence enhancement, 

 

1 Petitioner has been transferred to the Alger Correctional Facility, see 12/15/2014 Notice (Dkt. 

7), where Catherine S. Bauman is the warden. The only proper respondent in a habeas case is the 

habeas petitioner’s custodian, which, in the case of an incarcerated habeas petitioner, is the 

warden of the facility where the petitioner is incarcerated. See Edwards v. Johns, 450 F. Supp. 

2d 755, 757 (E.D. Mich. 2006); see also Rules Governing § 2254 Cases, Rule 2(a), 28 U.S.C. 

foll. § 2254. Therefore, the Court substitutes Warden Catherine S. Bauman in the caption.

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charging Petitioner with being a fourth felony habitual offender. The notice indicated that 

Petitioner faced up to life in prison on the original first-degree home invasion charge, and 15 

years in prison on the domestic violence charge, if convicted as a fourth habitual offender. 

 On January 17, 2012, Petitioner pleaded no contest to a reduced charge of second-degree 

home invasion and to the domestic violence, third offense charge, in exchange for dismissal of 

the first-degree home invasion charge. 1/17/2012 Plea Tr. at 3-4 (Dkt. 9-6). The following 

exchange took place between defense counsel and Petitioner: 

[COUNSEL]: I did come to the jail and I went over the plea 

agreement, is that correct, with you? 

[Petitioner]: Yes. 

[COUNSEL]: And I also went over the potential guidelines in this 

case, and there are some variables that are outstanding, it could be 

exactly what I figured, it could be a little bit more, it could be a 

little bit less, is that correct? 

[Petitioner]: Yes. 

[COUNSEL]: And understanding that you’re wanting to accept 

this plea deal of the reduction from the home invasion first degree 

to the home invasion second degree, is that correct? 

[Petitioner]: Yes. 

[COUNSEL]: Understanding that you’re going to plead no contest 

to the home invasion second degree along with the domestic 

violence third charge, is that correct? 

[Petitioner]: Yes. 

[COUNSEL]: And you’re wanting to proceed with that plea today? 

[Petitioner]: Yes. 

Id. at 4-5. 

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 The trial judge asked Petitioner some initial questions. Petitioner indicated that he had an 

opportunity to talk to his counsel about the pending charges, about the penalties he faced, and 

about his rights. Petitioner indicated that he reviewed the notice of intent to seek sentence 

enhancement that charged him with being a fourth felony habitual offender with his attorney 

prior to the plea, and he understood the provisions on that form. The judge explained the charges 

in the Information and advised Petitioner that he faced up to 20 years in prison for the firstdegree home invasion count, and up to two years for the domestic violence count. Petitioner 

replied that he understood. Id. at 5-8. 

 As the judge began to explain the prosecutor’s notice of intent to seek sentence 

enhancement for fourth or subsequent offense, trial counsel interrupted the judge: 

[COUNSEL]: Excuse me, your Honor, we are not going to do the 

habitual because there is a dispute – it’s possibly a third, we’re 

going to take that at sentencing. 

THE COURT: You’re going to wait. Agreed? 

[PROSECUTOR]: Yes, we can address that at sentencing. 

Id. at 8. 

 The trial court then advised Petitioner of the rights that he was waiving by pleading no 

contest. Petitioner understood that he was waiving his rights by pleading no contest. Id. at 8-10. 

Petitioner confirmed that he had reviewed the plea agreement, that it was complete, and that no 

other promises were made to him other than the ones placed on the record. Petitioner denied that 

he had been threatened to plead no contest. Id. at 11-12. The trial judge explained the plea 

agreement, indicated that second-degree home invasion was a felony punishable by 

imprisonment for not more than 15 years. Petitioner indicated that he agreed to the terms of the 

plea agreement and had discussed them with his attorney. Id. at 12-14. 

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 Petitioner’s sentencing was held on February 7, 2012. The prosecutor informed the court 

that Petitioner’s habitual fourth notice should have been a habitual third notice, and a copy of the 

amended notice charging Petitioner with being a third felony habitual offender was provided to 

trial counsel. Trial counsel agreed that Petitioner should have been charged with being a third 

felony offender, and not as a fourth felony habitual offender. 2/7/2012 Sentencing Tr. at 3-4 

(Dkt. 9-8). Defense counsel then informed the judge that Petitioner wanted to withdraw his 

plea: 

Your Honor, I know the Court will recall at the time that I took this 

plea I made a factual record, and I voir dired my client with the 

Court’s permission regarding this plea. This was a case where 

there was a plea bargain, there was a reduction from a home 

invasion first to a home invasion second, and I made a factual -- a 

record asking my client did he recognize that if he proceeded with 

the plea that his guidelines at the time of sentencing could be 

higher, lower, or the same of what I had calculated them. At the 

time I received the PSI [pre-sentence investigation report] I 

recognized that the guidelines were higher than what we originally 

looked at. I went over to the jail and I spoke with my client, and I 

went through line by line the PSI and the guidelines and the 

sentencing guideline book. What I discovered was, was that 

because of some extensive (indiscernible) results we did not have 

at the time of the plea, it upped his guidelines from the 29 to the 

43. I went through all of the prior misdemeanors with my client, 

which he verified with me, and therefore his guidelines increased. 

At that time my client indicated to me this is not what he agreed to 

and that he wanted to withdraw his plea. I indicated to my client 

that I had made a record indicating that his guidelines could be 

higher, I cannot change his criminal history, and that I did not feel 

that the Court would, in fact, allow him to withdraw his plea, but 

that I would ask the Court if the Court would consider allowing 

him to withdraw his plea and allow him to go to trial on this 

matter. I have asked the Court at the bench, and now I’m formally 

placing it on the record that my client would like to withdraw his 

plea. 

Id. at 4-5. 

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 The trial judge denied Petitioner’s motion to withdraw his plea, observing that trial 

counsel made a record at the plea hearing that the sentencing guidelines might change, that they 

could be higher or lower “but what would control is the guidelines as calculated at the time of 

sentencing.” Id. at 6. The judge indicated that he was “satisfied that the plea in this case was 

freely, knowingly, and voluntarily given, the record will reflect that.” Id. 

 Petitioner informed the judge that he had received the notice of intent to seek 

enhancement for a third offense from his lawyer and had reviewed the notice with counsel. 

Petitioner acknowledged that he had two prior convictions. The judge advised Petitioner that, as 

a result of his prior convictions, the sentences that he faced regarding the underlying charges 

would be enhanced. The judge advised Petitioner that, as a result of being charged with being a 

third felony habitual offender, he faced up to 30 years in prison on the home invasion charge, 

and that on the domestic violence charge, he faced up to four years in prison. Petitioner stated 

that he understood this and had discussed the matter with his lawyer. Id. at 8-9. Petitioner’s 

sentencing guidelines were 43 to 129 months. The judge sentenced Petitioner within the 

guidelines to concurrent prison terms of six to 30 years’ imprisonment for the home invasion 

conviction, and 30 months to four years for the domestic violence, third offense. Id. at 11. 

 Petitioner’s conviction and sentence was affirmed on appeal. People v. Duncan, No. 

311786 (Mich. Ct. App. Sept. 14, 2012) (Dkt. 9-12); leave denied, 823 N.W.2d 573 (Mich. 2012) 

(Dkt. 9-13). 

 Petitioner filed a post-conviction motion for relief from judgment (Dkt. 9-9), which was 

denied by the trial court. People v. Duncan, No. 11-238903-FH, Op. & Order (Oakland Cnty. 

Cir. Ct. Dec. 5, 2013) (Dkt. 9-11). Petitioner did not appeal the denial of the post-conviction 

motion. 

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 Petitioner seeks a writ of habeas corpus (Dkt. 1). In his petition, Petitioner raises the 

following claims: 

Was petitioner denied his due process rights to withdraw his plea 

when he not informed of the maximum enhanced penalty? 

Pet. at 6 (cm/ecf page). In the memorandum in support of his petition, Petitioner raises the 

following claim: 

Where defendant met the requirements of the court rule by 

establishing before sentencing that his plea was based on a material 

misunderstanding of the sentencing guidelines and withdraw of the 

no[lo] contendere plea was in the interest of justice, the trial 

court’s refusal to set aside the plea was an abuse of discretion. 

Pet. at 19 (cm/ecf page). 

III. STANDARD OF REVIEW 

Title 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death Penalty 

Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214, 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, or if 

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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, 405-406 (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 411.

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). Thus, the AEDPA “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) (quotation marks and citations omitted). 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, 131 S. Ct. 770, 786 (2011) (quotation marks). The Supreme Court has emphasized “that 

even a strong case for relief does not mean the state court’s contrary conclusion was 

unreasonable.” Id. (citation omitted). Furthermore, pursuant to section 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. Habeas relief is not appropriate unless each ground that supported the state-court’s 

decision is examined and found to be unreasonable under the AEDPA. See Wetzel v. Lambert, 

132 S. Ct. 1195, 1199 (2012). 

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 “If this standard is difficult to meet, that is because it was meant to be.” Harrington, 131 

S. Ct. at 786. Although 28 U.S.C. § 2254(d), as amended by the AEDPA, does not completely 

bar federal courts from re-litigating claims that have previously been rejected in the state courts, 

it preserves the authority for a federal court to grant habeas relief only “in cases where there is no 

possibility fairminded jurists could disagree that the state court’s decision conflicts with” the 

Supreme Court’s precedents. Id. Indeed, section 2254(d) “reflects the view that habeas corpus is 

a guard against extreme malfunctions in the state criminal justice systems, not a substitute for 

ordinary error correction through appeal.” Id. (quotation marks omitted). Thus, a “readiness to 

attribute error [to a state court] is inconsistent with the presumption that state courts know and 

follow the law.” Woodford v. Viscotti, 537 U.S. 19, 24 (2002). Therefore, 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, 

131 S. Ct. at 786-787. 

 Lastly, a federal habeas court must presume the correctness of state court factual 

determinations. See 28 U.S.C. § 2254(e)(1). A petitioner may rebut this presumption only with 

clear and convincing evidence. Warren v. Smith, 161 F.3d 358, 360-61 (6th Cir. 1998). 

 The Michigan Court of Appeals denied Petitioner’s application for leave to appeal in a 

form order “for lack of merit in the grounds presented.” The Michigan Supreme Court 

subsequently denied Petitioner leave to appeal in a standard form order without any extended 

discussion. Determining whether a state court’s decision resulted from an unreasonable legal or 

factual conclusion, as would warrant federal habeas relief, does not require that there be an 

opinion from the state court that explains the state court’s reasoning. Harrington, 562 U.S. at 98. 

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“Where a state court’s decision is unaccompanied by an explanation, the habeas petitioner’s 

burden still must be met by showing there was no reasonable basis for the state court to deny 

relief.” Id. In fact, when a habeas petitioner has presented a federal claim to a state court and 

that state court has denied relief, “it may be presumed that the state court adjudicated the claim 

on the merits in the absence of any indication or state-law procedural principles to the contrary.” 

Id. at 99. That presumption may be overcome only when there is a reason to think that some 

other explanation for the state court’s decision is more likely. Id. at 99-100. 

 In the present case, the AEDPA deferential standard of review applies to Petitioner’s 

case, where the Michigan Court of Appeals rejected Petitioner’s appeal “for lack of merit in the 

grounds presented,” and the Michigan Supreme Court subsequently denied leave to appeal in a 

standard form order, because these orders amounted to a decision on the merits. See Werth v. 

Bell, 692 F. 3d 486, 492-494 (6th Cir. 2012).

IV. ANALYSIS

A. Merits 

Petitioner claims that he should have been permitted to withdraw his no-contest plea 

because he was not informed of the maximum penalty for the sentencing enhancement as a third 

habitual offender. Petitioner further claims that he was entitled to withdraw his plea because he 

believed that the sentencing guidelines on the home invasion charge would be 29 to 43 months, 

and because the plea agreement references only a 15-year maximum sentence. 

 At the outset, Petitioner has no federal constitutional right or absolute right under state 

law to withdraw his no contest plea. See Adams v. Burt, 471 F. Supp. 2d 835, 843 (E.D. Mich. 

2007). Therefore, unless the plea violated a clearly-established constitutional right, whether to 

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allow the withdrawal of a criminal defendant’s guilty or no contest plea is discretionary with the 

state trial court. See Hoffman v. Jones, 159 F. Supp. 2d 648, 655 (E.D. Mich. 2001). 

 The only question on collateral review of a guilty plea is whether the plea was counseled 

and voluntary. United States v. Broce, 488 U.S. 563, 569 (1989). Therefore, the specific 

question for this Court is whether Petitioner’s no-contest plea was voluntary and intelligent. 

Hoffman, 159 F. Supp. 2d at 655. “A plea of guilty [or no contest] is constitutionally valid only 

to the extent it is ‘voluntary’ and ‘intelligent.’” Bousley v. United States, 523 U.S. 614, 618 

(1998) (quoting Brady v. United States, 397 U.S. 742, 748 (1970)). A guilty or no-contest plea 

is voluntary if the accused understands the nature of the charges against him and the 

constitutional protections that he is waiving. Henderson v. Morgan, 426 U.S. 637, 645 n.13 

(1976). A plea is knowing and intelligent if it is done “with sufficient awareness of the relevant 

circumstances and likely consequences.” Brady v. United States, 397 U.S. 742, 748 (1970). The 

defendant must also be aware of the maximum sentence that can be imposed for the crime for 

which he or she is pleading guilty or no contest. King v. Dutton, 17 F.3d 151, 154 (6th Cir. 

1994). 

 When a petitioner brings a federal habeas petition challenging his plea of guilty or no 

contest, the state generally satisfies its burden by producing a transcript of the state-court 

proceedings showing that the plea was made voluntarily. Garcia v. Johnson, 991 F.2d 324, 326 

(6th Cir. 1993). The factual findings of a state court that the guilty plea was properly made are 

generally accorded a presumption of correctness. Petitioner must overcome a heavy burden if 

the federal court is to overturn these findings by the state court. Id. Additionally, a habeas 

petitioner bears a heavy burden of rebutting the presumption that his or her guilty or no-contest 

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plea, as evidenced by the plea colloquy, is valid. Myers v. Straub, 159 F. Supp. 2d 621, 626 

(E.D. Mich. 2001). 

 It is only when the consensual character of a guilty or no-contest plea is called into 

question that the validity of a guilty plea may be impaired. Mabry v. Johnson, 467 U.S. 504, 

508-509 (1984). A plea of guilty entered by one fully aware of the direct consequences, 

including the actual value of any commitments made to him by the court, prosecutor, or his or 

her own counsel, must stand unless induced by threats (or promises to discontinue improper 

harassment), misrepresentation (including unfulfilled or unfulillable promises), or, perhaps, by 

promises that are by their nature improper as having no proper relationship to the prosecutor’s 

business (i.e., bribes). Id. 

 Petitioner initially contends that his plea should have been set aside because the judge 

failed to advise him at the time of his initial plea to the underlying charges that he could face a 

maximum sentence of 30 years for the home invasion charge as a third felony habitual offender. 

 A trial judge’s failure to advise a criminal defendant about the maximum possible penalty 

that he or she could receive from pleading guilty or no contest, standing alone, does not require 

that the plea be set aside. See Riggins v. McMackin, 935 F.2d 790, 795 (6th Cir. 1991). “A 

defendant may learn of information not relayed to him by the trial court from other sources, such 

as his attorney.” Id. 

 The prosecutor initially filed a notice of intent to seek a sentence enhancement charging 

Petitioner with being a fourth felony habitual offender. The notice indicated that Petitioner faced 

up to life in prison on the original first-degree home invasion charge. See 11/3/2011 Notice 

(Dkt. 9-4). At the time of the plea, Petitioner indicated that he reviewed the notice of intent to 

seek sentence enhancement, charging Petitioner with being a fourth felony habitual offender, 

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with his attorney prior to pleading no contest and understood the provisions on that form. 

1/17/2012 Plea Tr. at 7. The judge was about to explain the penalties for being a fourth felony 

habitual offender when Petitioner’s counsel interrupted the judge and indicated that the parties 

would take up the habitual offender charge at sentencing because there was a dispute over 

whether Petitioner was only a third habitual offender. Id. at 8. However, at the time of his plea, 

Petitioner had been made aware by the original notice of intent to seek sentencing enhancement, 

which he reviewed with his counsel, that he faced a possible life sentence. 

At sentencing, the parties agreed to amend the supplemental notice to reflect that 

Petitioner was only a third habitual offender. Petitioner acknowledged receiving a copy of the 

notice of intent to seek enhancement for a third offense from his lawyer and had reviewed the 

notice with counsel. The trial judge at that point advised Petitioner that he faced up to 30 years 

in prison on the second-degree home invasion charge for being a third felony habitual offender. 

Petitioner was aware, at the time that he pleaded no contest to the underlying charges, that 

he faced a possible life sentence if he received a sentence enhancement as a fourth habitual 

offender. Thus, the court’s failure to advise him at the time of his plea that he faced up to 30 

years in prison if convicted only of being a third habitual offender would not render his plea 

involuntary. Because Petitioner was originally informed by counsel that he faced a possible life 

sentence if convicted as a fourth felony habitual offender, Petitioner is not entitled to withdraw 

his plea because he does not allege that he would not have pleaded no contest had he known that 

the maximum penalty was only 30 years if convicted as a third habitual offender. See, e.g., 

United States v. Kennedy, 493 F. App’x 615, 616 (6th Cir. 2012) (defendant was not entitled to 

withdraw plea based on court’s misstatement that maximum sentence was 15 years for offense 

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that carried a maximum five-year penalty, where the defendant failed to show that he would not 

have pleaded guilty if he had been advised of the correct maximum sentence). 

 Petitioner next contends that his plea was involuntary because he believed that his 

sentencing guidelines were only 29 to 43 months if he pleaded no contest. 

 An unfulfilled state promise obtained in return for a guilty plea will entitle a habeas 

petitioner to habeas relief. Myers, 159 F. Supp. 2d at 627. However, a federal court sitting in 

habeas review should not “lightly find misrepresentation in a plea agreement.” Id. 

 In the present case, the parties indicated on the record that the plea agreement consisted 

of Petitioner pleading no contest to a reduced charge of second-degree home invasion and 

domestic violence, third offense, in exchange for dismissal of the first-degree home invasion 

charge. Petitioner acknowledged on the record that there were no other promises to get him to 

enter his plea. Although Petitioner’s counsel indicated that he had gone over the sentencing 

guidelines with Petitioner, counsel also indicated that the guidelines could be lower or higher, 

depending on additional variables. Petitioner acknowledged that he understood this. Nothing in 

the record indicates that Petitioner was promised a specific guidelines sentence. 

 Absent extraordinary circumstances, or some other explanation as to why a defendant did 

not reveal other terms when specifically asked to do so by the trial court, a plea agreement 

consists of the terms revealed in open court, where the trial court scrupulously follows the 

required procedure for taking the defendant’s plea. Baker v. United States, 781 F.2d 85, 90 (6th 

Cir. 1986). Because a plea bargain is contractual in nature, it would violate established contractlaw standards to permit a defendant to attempt to prove that a plea agreement is other than it 

unambiguously appears on a thorough record. Id. Plea agreements are to be strictly construed. 

See United States v. Brummett, 786 F.2d 720, 723 (6th Cir. 1986). A term of a plea agreement 

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“that is unambiguous on its face and agreed to by the defendant in open court will be enforced.” 

McAdoo v. Elo, 365 F.3d 487, 497 (6th Cir. 2004). Moreover, the “Constitution does not require 

judges to explain the meaning of . . . unambiguous terms during the plea colloquy in order to 

combat alleged misinformation that is not revealed on the record.” Id. 

 A “clear reading” of the plea agreement shows that there was no promise by the 

prosecutor or the trial judge that Petitioner would receive a sentence within the sentencing 

guidelines range of 29 to 43 months. Petitioner has, therefore, failed to show that the original 

terms of the plea agreement were breached by the prosecutor or the trial judge. Myers, 159 F. 

Supp. 2d at 628. Moreover, Petitioner would not be entitled to relief on his claim, where 

Petitioner expressly denied the existence of any off-the-record promises at the time of his plea 

when queried by the trial judge. See Phipps v. Romanowski, 566 F. Supp. 2d 638, 647 (E.D. 

Mich. 2008). In light of the fact that Petitioner was advised by the trial judge, the prosecutor, 

and defense counsel that the only plea agreement was that the first-degree home invasion charge 

would be dismissed in exchange for a plea to a reduced charge of second-degree home invasion 

and the domestic violence charge, Petitioner has failed to show that he reasonably believed that 

he would receive a sentence within the sentencing guidelines range of 29 to 43 months by 

pleading no contest. McAdoo, 365 F.3d at 497. Because the parties clearly indicated the terms 

of the plea agreement, and Petitioner expressly denied the existence of any other promises at the 

time of the plea, Petitioner is unable to show that he had any reasonable belief that he would be 

sentenced within the sentencing guidelines range of 29 to 43 months. See Wright v. Lafler, 247 

F. App’x 701, 705-707 (6th Cir. 2007). 

 To the extent that Petitioner claims that his trial counsel misled him regarding the terms 

of the plea agreement, a state court’s proper plea colloquy will cure any misunderstandings that a 

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Petitioner may have had about the consequences of the plea. Ramos v. Rogers, 170 F.3d 560, 

565 (6th Cir. 1999). Thus, a claim of ineffective assistance of counsel predicated on allegedly 

misleading information given by counsel about the terms of a plea agreement can never 

constitute an “extraordinary circumstance” under Baker, when the court conducts a proper, clear, 

and through plea colloquy. Id. 

 Finally, although Petitioner claims that he understood the plea agreement to guarantee 

him a sentence within the guidelines range of 29 to 43 months, habeas relief should not be 

granted by crediting a Petitioner’s subjective version of his understanding of the plea bargain. 

See Nichols v. Perini, 818 F.2d 554, 558-559 (6th Cir. 1987); see also Doughty v. Grayson, 397 

F. Supp. 2d 867, 881-882 (E.D. Mich. 2005). Petitioner would, therefore, not be entitled to the 

withdrawal of his plea based on any claim that his attorney gave him erroneous information 

concerning the terms of the plea agreement, where Petitioner was given the correct information 

concerning the terms of the plea agreement by the sentencing judge at the time of the plea, and 

Petitioner expressly denied the existence of other representations or promises. See United States 

v. Todaro, 982 F.2d 1025, 1029-1030 (6th Cir. 1993). Accordingly, the Court concludes that 

Petitioner is not entitled to habeas relief on his claims. 

B. Certificate of Appealability 

Before Petitioner may appeal this Court’s dispositive 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 rejects a habeas claim on the merits, 

the substantial showing threshold is met if the petitioner demonstrates that reasonable jurists 

would find the district court’s assessment of the constitutional claim debatable or wrong. See 

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Slack v. McDaniel, 529 U.S. 473, 484 (2000). “A petitioner satisfies this standard by 

demonstrating that . . . jurists could conclude the issues presented are adequate to deserve 

encouragement to proceed further.” Miller-El, 537 U.S. at 327. In applying that standard, a 

district court may not conduct a full merits review, but must limit its examination to a threshold 

inquiry into the underlying merit of the petitioner’s claims. Id. at 336-337. “The district court 

must issue or deny a certificate of appealability when it enters a final order adverse to the 

applicant.” Rules Governing § 2254 Cases, Rule 11(a), 28 U.S.C. foll. § 2254; Castro v. United 

States, 310 F.3d 900, 901 (6th Cir. 2002). 

Having considered the matter, the Court concludes that Petitioner has failed to make a 

substantial showing of the denial of a constitutional right. Accordingly, a certificate of 

appealability is not warranted in this case. 

C. Leave to Proceed on Appeal In Forma Pauperis 

Although the Court denies a certificate of appealability to Petitioner, the standard for 

granting an application for leave to proceed in forma pauperis (“IFP”) is a lower standard than the 

standard for certificates of appealability. Foster v. Ludwick, 208 F. Supp. 2d 750, 764 (E.D. 

Mich. 2002) (citing United States v. Youngblood, 116 F. 3d 1113, 1115 (5th Cir. 1997)). 

Whereas a certificate of appealability may only be granted if a petitioner makes a substantial 

showing of the denial of a constitutional right, a court may grant IFP status if it finds that an 

appeal is being taken in good faith. Id. at 764-765; 28 U.S.C. § 1915(a)(3); Fed. R. App. P. 24(a). 

“Good faith” requires a showing that the issues raised are not frivolous; it does not require a 

showing of probable success on the merits. Foster, 208 F. Supp. 2d at 765. The Court concludes 

that an appeal in this case could be taken in good faith. Therefore, the Court grants Petitioner 

permission to proceed IFP on appeal. 

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17 

V. CONCLUSION 

For the reasons stated above, the Court denies the petition for writ of habeas corpus 

(Dkt. 1). The Court declines to issue Petitioner a certificate of appealability, but the Court 

grants Petitioner permission to proceed on appeal in forma pauperis. 

SO ORDERED. 

Dated: October 26, 2015 s/Mark A. Goldsmith 

 Detroit, Michigan MARK A. GOLDSMITH 

 United States District Judge 

 

 

CERTIFICATE OF SERVICE

The undersigned certifies that the foregoing document was served upon counsel of record and 

any unrepresented parties via the Court's ECF System to their respective email or First Class 

U.S. mail addresses disclosed on the Notice of Electronic Filing on October 26, 2015. 

 s/Karri Sandusky 

 Case Manager 

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