UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

NORTHERN DIVISION 

KENNETH KELLEY, 

 Petitioner, Case No. 14-cv-14254 

v Honorable Thomas L. Ludington 

THOMAS WINN, 

 Respondent. 

__________________________________________/ 

OPINION AND ORDER SUMMARILY DENYING THE PETITION FOR WRIT OF 

HABEAS CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF 

APPEALABILITY OR LEAVE TO APPEAL IN FORMA PAUPERIS 

Petition Kenneth Kelley, confined at the Saginaw Correctional Facility in Freeland, 

Michigan, filed a pro se application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. 

Petitioner was convicted by a jury in the Wayne County Circuit Court of assault with intent to do 

great bodily harm less than murder, Mich. Comp Laws § 750.84; armed robbery, Mich. Comp 

Laws § 750.529; felon in possession of a firearm, Mich. Comp Laws § 750.224f; intentional 

discharge of a firearm at a dwelling or occupied structure, Mich. Comp Laws § 750.234b; 

felony-firearm, Mich. Comp Laws § 750.227b, and being a second felony habitual offender, 

Mich. Comp Laws § 769.10. Petitioner was sentenced to five to ten years on the assault 

conviction, twenty to thirty years on the armed robbery conviction, two years, six months to five 

years on the felon in possession of a firearm conviction, two to four years on the intentional 

discharge of a firearm conviction, and a consecutive two year prison sentence on the felonyfirearm conviction. Petitioner contends that his trial convictions should be vacated and an earlier 

guilty plea should be reinstated because the trial judge set aside Petitioner’s guilty plea without 

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his consent and because he was denied the right to a fair trial when the judge refused to provide 

the trial transcripts to the jury during deliberations. Petitioner’s claims are non-cognizable issues 

for federal habeas relief. Therefore, the petitioner will be summarily denied.

I. 

 The Michigan Court of Appeals reviewed the relevant facts of the case in affirming 

Petitioner’s conviction:1

The underlying facts supporting defendant’s convictions are not relevant for the 

issues on appeal; thus, they will not be discussed. However, some of the 

procedural history is important. 

On July 19, 2011, defendant entered into a plea agreement. The plea agreement 

required defendant to plead guilty to count I, assault with intent to do great bodily 

harm less than murder, MCL 750.84, count II, armed robbery, MCL 750.529, and 

count VI, felony-firearm, MCL 750.227b(1). In exchange, the prosecution would 

drop the habitual offender status and dismiss the remaining counts of felon in 

possession of a firearm, discharge of a firearm at a building, and felonious assault. 

Defendant repeatedly asserted that he understood the plea and desired to accept 

the deal. During his allocution, defendant indicated that he hit the victim in the 

head, shot him while intending to seriously injure him, and stole the victim’s coat. 

After which, the trial court accepted his plea. 

Before defendant’s sentencing hearing, however, defendant sent the trial court a 

letter requesting that he be allowed to withdraw his guilty plea. The letter stated 

the following: 

I want to see if I can withdraw my plea because I didn’t 

understand. My lawyer told me that [sic] to take the plea for 14 

mounths [sic]. 

I have a learn[ing] problem[;] please I want to go to trial. I have 

people to say that I was[n’t] in town when this happened. I got 

rob[bed] for my coat and my state [identification] was in my 

coat[;] that’s [wh]y he’s saying that it was me. I had got [sic] 

rob[bed] for my car and in front [of] my house and they shot 

thr[e]w my house[,] took my coat and 800 dollar[s].... I never shot 

nobody or rob[bed]. I never knew this man. 

 

1

 This review is presumed correct on habeas review pursuant to 28 U.S.C. § 2254(e)(1). See Wagner v. Smith, 581 

F.3d 410, 413 (6th Cir. 2009). 

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The trial court noted that defendant was attempting to withdraw his plea pursuant 

to MCR 6.310(B), which controls when a defendant wishes to withdraw a plea 

after it was accepted but before sentencing. The following exchange took place 

when the trial court asked defendant about withdrawing his plea: 

THE COURT: You want to withdraw your plea, right? 

[Defendant]: I’m innocent but I will take it. 

THE COURT: No, no, no, no. Listen, listen, listen[.] 

[Defendant]: 

1

 I will take it I’m guilty. I will take it. I will take 14. 

[Defense counsel and defendant confer.] 

THE COURT: Mr. Kelley. 

[Defendant]: I want to take the 14. 

THE COURT: Sorry[?] 

[Defendant]: I want to take the 14 years. 

[Trial court explains the sentencing ramifications to defendant.] 

THE COURT: So you got to tell me what you want to do. 

[Defendant]: I just told you, sir. 

[Defense Counsel]: Tell him again. 

[Defendant]: I will take the 14. 

[Defense Counsel]: Okay. 

[Defendant]: This ain’t right at all. I’m taking the 14 I’m innocent, I’m 

innocent. 

 

[THE COURT:]2 Your motion to withdraw your plea [is] granted. 

 

A four-day jury trial ensued, and defendant now appeals from his jury 

convictions. 

 

1

 The transcript incorrectly attributed this statement to the trial court. (Footnote original). 

2

 The transcript incorrectly attributed this statement to defendant. (Footnote original). 

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People v. Kelley, 2014 WL 307999, at *1-2 (Wayne County Circuit Court, January 28, 2014) 

(emphasis original). 

 Petitioner’s conviction was affirmed on appeal. Id.; lv. den. 496 Mich. 861, 847 N.W.2d 

632 (2014)(Table). 

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

I. Mr. Kelley is entitled to reversal of his trial convictions and reinstatement 

of his guilty plea made pursuant to a plea bargain where his properly 

accepted guilty plea was withdrawn without his consent contrary to the 

standards set forth by MCR 6.310. 

II. Mr. Kelley is entitled to a new trial where the jury was foreclosed access 

to transcripts of testimony during deliberations. 

II. 

 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 or if 

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 

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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 statecourt 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). “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, 130 S. Ct. 1855, 1862 (2010) (quoting Lindh v. Murphy, 521 U.S. 

320, 333, n.7 (1997); Woodford v. Viscotti, 537 U.S. 19, 24 (2002)). “[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) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). 

 In addition, promptly after the filing of a petition for habeas corpus, the Court must 

undertake a preliminary review of the petition to determine whether “it plainly appears from the 

face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in 

the district court.” Rule 4, Rules Governing § 2254 Cases; see also 28 U.S.C. § 2243. If, after 

preliminary consideration, the Court determines that the petitioner is not entitled to relief, the 

Court must summarily dismiss the petition. Id.; see also Allen v. Perini, 424 F. 2d 134, 141 (6th 

Cir.1970) (district court has the duty to “screen out” petitions that lack merit on their face). A 

federal district court is authorized to summarily dismiss a habeas corpus petition if it plainly 

appears from the face of the petition and any attached exhibits that the petitioner is not entitled 

to federal habeas relief. See McFarland v. Scott, 512 U.S. 849, 856 (1994); Carson v. Burke, 

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178 F.3d 434, 436 (6th Cir.1999); Rules Governing § 2254 Cases, Rule 4, 28 U.S.C. foll. § 

2254. No response to a habeas petition is necessary when the petition is frivolous, obviously 

lacks merit, or where the necessary facts can be determined from the petition itself without 

consideration of a response from the State. See Allen, 424 F.2d at 141; Robinson v. Jackson, 

366 F. Supp. 2d 524, 525 (E.D. Mich. 2005). A review of the petition requires the petition to be 

summarily denied. 

III. 

A. 

 Petitioner first contends that his trial convictions should be vacated and his original guilty 

plea should be reinstated because the trial judge vacated the guilty plea at Petitioner’s original 

sentencing without his consent. 

 Petitioner is not entitled to habeas relief for several reasons. First, there is no 

constitutional right to a plea bargain. See Weatherford v. Bursey, 429 U.S. 545, 561 (1977). “It 

is a novel argument that constitutional rights are infringed by trying the defendant rather than 

accepting his plea of guilty.” Id. A criminal defendant thus has neither a right to plead guilty 

nor a federal right that the judge accept a guilty plea. Missouri v. Frye, 132 S. Ct. 1399, 1410 

(2012). The trial court’s alleged refusal to accept the petitioner’s guilty plea thus cannot serve 

as the basis for federal habeas relief. See Ringstaff v. Mintzes, 539 F. Supp. 1124, 1127-28 

(E.D. Mich. 1982). 

 In the present case, the trial judge withdrew or vacated Petitioner’s guilty plea after he 

asserted his innocence. Although a criminal defendant may plead guilty even while professing 

his innocence, see North Carolina v. Alford, 400 U.S. 25, 37 (1970), a court is not required to 

accept such a plea. Id. at 38, n. 11; see also United States v. Jones, 103 F. App’x 479, 480 (4th 

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Cir. 2004); United States v. O’Brien, 601 F. 2d 1067 (9th Cir. 1979); United States v. White, 

308 F. App’x 910, 916 (6th Cir. 2009) (defendant’s guilty plea to drug conspiracy charge could 

not be accepted, even though defendant indicated three times, at change of plea hearing, that he 

wished to plead guilty, given that defendant also indicated that he was pleading guilty due to his 

dissatisfaction with his attorney’s lack of effort and was not guilty of conspiracy, that defendant 

never admitted to being part of conspiracy and denied involvement with drugs providing basis 

for agreed relevant conduct, and that defendant indicated erroneously that he was pleading 

guilty to “lesser charge.”). Indeed, “when a defendant casts doubts upon the validity of his 

guilty plea by protesting his innocence or by making exculpatory statements, the court may 

resolve such doubts against the plea.” United States v. Gomez-Gomez, 822 F. 2d 1008, 1011 

(11th Cir. 1987). 

 Secondly, to the extent that the petitioner alleges that the trial judge violated the 

provisions of Michigan Court Rule 6.310 by withdrawing Petitioner’s plea without his consent, 

he would not be entitled to relief. The Supreme Court has held that “‘federal habeas corpus 

review does not lie for errors of state law.’” Estelle v. McGuire, 502 U.S. 62, 67 (1991) 

(quoting Lewis v. Jeffers, 497 U.S. 764, 780 (1990)). Petitioner’s claim that the trial judge 

violated the provisions of Rule 6.310 in vacating the guilty plea without Petitioner’s consent is 

non-cognizable on federal habeas review. See, e.g., Watkins v. Lafler, 517 F. App’x 488, 500 

(6th Cir. 2013). Petitioner is not entitled to habeas relief on his first claim. 

B. 

 Petitioner next contends that his right to a fair trial was violated when the judge refused 

the jurors’ request to review the transcripts of the testimony of four different witnesses during 

deliberations. 

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 There is no federal constitutional law which requires that a jury be provided with a 

witness’s testimony. See Bradley v. Birkett, 192 F. App’x 468, 477 (6th Cir. 2006). No United 

States Supreme Court decision requires judges to re-read testimony of witnesses or to provide 

transcripts of their testimony to jurors upon their request. See Friday v. Straub, 175 F. Supp. 2d 

933, 939 (E.D. Mich. 2001). A habeas petitioner’s claim that a state trial court violated his right 

to a fair trial by refusing to grant a jury request for transcripts is therefore not cognizable in a 

habeas proceeding. Bradley, 192 F. App’x at 477; Spalla v. Foltz, 615 F. Supp. 224, 233-34 

(E.D. Mich. 1985). 

 Given the lack of holdings by the Supreme Court on the issue of whether a state trial 

judge is required to re-read the testimony of witnesses or provide transcripts of their testimony 

to jurors upon their request, the Michigan Court of Appeals’ rejection of the petitioner’s claim 

was not an unreasonable application of clearly established federal law. See Wright v. Van 

Patten, 552 U.S. 120, 126 (2008); Carey v. Musladin, 549 U.S. 70, 77 ( 2006). 

IV. 

 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 Slack v. McDaniel, 529 U.S. 473, 484-85 (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 v. Cockrell, 537 U.S. 322, 327 (2003). In 

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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 

336-37. 

 “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. 

 Petitioner has not made a substantial showing of the denial of a constitutional right. 

Accordingly, a certificate of appealability is not warranted in this case. The Court further 

concludes that the petitioner should not be granted leave to proceed in forma pauperis on 

appeal, as any appeal would be frivolous. See Fed.R.App. P. 24(a). 

V. 

 Accordingly, it is ORDERED that the petition for writ of habeas corpus (ECF No. 1) is 

SUMMARILY DENIED WITH PREJUDICE. 

 It is further ORDERED that a certificate of appealability is DENIED. 

It is further ORDERED that permission to proceed in forma pauperis on appeal is 

DENIED.

s/Thomas L. Ludington 

 THOMAS L. LUDINGTON 

 United States District Judge 

Dated: November 21, 2014 

 

PROOF OF SERVICE 

The undersigned certifies that a copy of the foregoing order was served 

Kenneth Kelley #729470, Saginaw Correctional Facility, 9625 Pierce 

Road, Freeland, MI 48623 by first class U.S. mail on November 21, 

2014. 

 s/Tracy A. Jacobs 

 TRACY A. JACOBS 

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