UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

ANTHONY WEST,

 

Petitioner, Case No. 15-11218

 Hon. Arthur J. Tarnow

v.

MARY BERGHUIS,

Respondent.

________________________________________/

OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS

CORPUS, GRANTING A CERTIFICATE OF APPEALABILITY, AND

GRANTING PERMISSION TO APPEAL IN FORMA PAUPERIS

Petitioner Anthony West filed this application for a writ of habeas corpus pursuant to

28 U.S.C. § 2254. Petitioner was convicted after he pled guilty in the Wayne Circuit Court

to second-degree, MICH. COMP. LAWS § 750.317, and possession of a firearm during the

commission of a felony, MICH. COMP. LAWS § 750.227b. In accordance with his plea

agreement Petitioner was sentenced to 20 to 40 years for the murder conviction and a

consecutive 2 years for the firearm offense. 

The petition enumerates six claims: 1) Petitioner was denied the effective assistance

of appellate counsel who failed to file a direct appeal, 2) appellate counsel failed to provide

Petitioner with discovery materials, 3) Petitioner was denied the effective assistance of trial

counsel who failed to investigate and pursue a self-defense or accident defense, 4) the state

court erroneously rejected Petitioner’s ineffective assistance of trial counsel claim on the

basis that his guilty plea waived review, 5) Petitioner’s plea was involuntary due to his

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counsel’s ineffectiveness, and 6) Petitioner’s trial counsel was ineffective for revealing

confidential calls he made from jail. 

The Court will deny the petition because the claims are without merit. The Court will,

however, grant Petitioner a certificate of appealability and grant Petitioner permission to

proceed on appeal in forma pauperis.

I. Background

This case involves the April 15, 2009, fatal shooting of Brian Garner. Petitioner was

originally charged with first-degree murder, possession of a firearm by a felon, commission

of a felony with a firearm, and with being a third-time habitual felony offender.

A preliminary examination was held two weeks after the shooting. The parties

stipulated that the victim died from a single gunshot wound to the back. Jasmine Godboldo

testified she was the victim’s fiancé. Misha Starks was Godboldo’s mother, and Petitioner

was Starks’ boyfriend. The four resided together at a house on Evergreen in Detroit.

Godboldo testified at the preliminary hearing that on the evening of April 15, 2009,

Petitioner and Garner engaged in a verbal altercation after Petitioner accused Starks of

cheating on him. Garner escorted Petitioner from the house, and the two continued to argue

outside. Garner was not armed. 

According to Godboldo, when Petitioner and Garner reached the sidewalk Petitioner

said, “I’m not a punk ass nigga” and pulled out a handgun. Dkt. 9-2, at 13. Garner jumped

back and held his hands in the air. Id., at 16. Petitioner then pointed the gun at Garner and

fired it five times. Petitioner ran away from the scene. 9-1-1 was called, but Garner died of

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his wounds. 

On cross-examination, retained counsel, Robert Slameka, elicited testimony that

Petitioner and Starks frequently fought, and Petitioner was previously thrown-out of the

house. Godboldo admitted that she saw Garner push Petitioner just before Petitioner pulled

out the gun. Counsel noted that in her statement to police Godboldo said she only heard three

shots, not five. Godboldo explained that she initially told police that Petitioner first fired

three shots, ran, then turned around and fired two more shots. She testified at the hearing that

there was no pause in the shots and her statement to police was mistaken. 

At a pretrial hearing held on August 14, 2009, defense counsel indicated that the

prosecutor offered a plea bargain to second-degree murder and felony-firearm, with a

sentence agreement of “23 years plus 2,” but Petitioner declined the offer. Defense counsel

complained that Petitioner had made numerous phone calls to a primary witness “with an

attempt to massage testimony.” Dkt. 9-6, at 4. The prosecutor provided the taped phone

conversations to defense counsel, and defense counsel indicated his frustration with

Petitioner’s conduct: “The real problem with this case now, is this, my client is claiming it’s

either self-defense or accident. There are no witnesses that support that. Meaning, he would

be the only one who could testify to that. Obviously, his testimony is going to be impeached

dramatically by what he said that’s recorded.” Id., at 4. “And I’ve tried, Judge, honestly, to

help him. It’s impossible.” Id., at 5.

At that point Petitioner personally addressed the court, stating that he did not think he

said anything wrong on the phone to the witness. Petitioner also complained that he had not

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had an opportunity to go over the discovery packet. Id., at 6. Counsel responded: “I sat in the

jail with him and read to him, verbatim, every period, every sentence, every word of every

witness report. I did that. . . . He has one witness, a Ms. Skinner, who is going to be the

greatest witness in the world. Unfortunately, it doesn’t help him, and I’ve read that to him

and said, here it is. So when he says he hasn’t had a chance to know what the witnesses say,

that’s utterly false.” Id., at 6-7. Petitioner maintained that he did not know what was in the

discovery packet. Id., at 7.

Three days later, on August 17, 2009, another pretrial hearing was held. Defense

counsel indicated that the prosecutor would not reduce his plea offer, and Petitioner indicated

his desire to go to trial instead. Dkt. 9-7, at 1. Petitioner believed that a better offer was

forthcoming, but defense counsel indicated that the prosecutor stated that he would not make

a better offer. Id., at 2. The matter was then set for trial to begin on October 5, 2009.

On the date set for trial, a plea bargain was finally struck. Dkt. 9-8. Petitioner was

placed under oath. The Court informed Petitioner that he was charged with first-degree

murder which carried a sentence of life imprisonment. Id., at 6. The Court indicated that the

plea agreement called for him to plead guilty to second-degree murder with a sentence of 20

to 40 years plus 2 years for the firearm offense. Id., at 6. Petitioner indicated his

understanding. The Court informed Petitioner of the rights he would be waiving by entering

his plea, and he indicated his understanding. Id., at 7-8. Petitioner agreed that his plea was

not the result of promises or threats not disclosed to the court. Id., 7. 

Petitioner then testified that on April 15, 2009, he shot Brian Garner with a gun. Id.,

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at 8. Petitioner testified that he did so with the intent to kill him or cause great bodily harm.

Id., at 9. The court found that Petitioner’s plea was knowingly, voluntarily, and

understandingly made. Id., at 10. 

At the sentencing hearing, Petitioner indicated his remorse for killing the victim. Dkt.

9-9, at 11-12. He also indicated that the victim attacked him and that the shooting was an

accident. Id., at 12. 

Petitioner was appointed appellate counsel who missed the deadline for filing a

motion to withdraw the plea. Instead, on October 20, 2010, appellate counsel filed a motion

for relief from judgment, asserting that Petitioner was deprived of the effective assistance of

counsel when counsel failed to investigate and present a self-defense or accident defense

instead of threatening him that he would be convicted of first-degree murder if he did not

plead guilty.

The trial court denied the motion by order dated May 16, 2011, Dkt. 9-11. The court

found that Petitioner’s claims were without merit because Petitioner’s plea was voluntarily,

knowingly, and understandingly made. Id., at 4. The court further found that Petitioner had

failed to demonstrate that his counsel was ineffective. Id., at 4.

On April 19, 2012, Petitioner filed a delayed application for leave to appeal in the

Michigan Court of Appeals. On September 19, 2012, the Michigan Court of Appeals denied

the delayed application. Petitioner then filed an application for leave to appeal with the

Michigan Supreme Court. On October 28, 2013, the Michigan Supreme Court remanded the

matter back to the Michigan Court of Appeals for reconsideration under the standard

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applicable to direct appeals. The Michigan Supreme Court noted that Petitioner’s appellate

counsel had failed to timely file a motion to withdraw the plea, and failed to file a timely

appeal in the Michigan Court of Appeals, depriving Petitioner of his direct appeal as a result

of constitutionally ineffective assistance of appellate counsel. People v. West, 838 N.W.2d

559 (Mich. Sup. Ct. Oct. 28, 2013).

On December 5, 2013, the Michigan Court of Appeals issued an unpublished opinion

denying Petitioner’s application for leave to appeal, finding in part that Petitioner’s valid

guilty plea waived his claim of ineffective assistance of counsel. People v. West, 2013 WL

6633985 (Mich. Ct. App. Dec. 5, 2015). Petitioner then filed an application for leave to

appeal in the Michigan Supreme Court, but it was denied by standard order. People v. West,

847 N.W.2d 628 (Mich. Sup. Ct. June 24, 2014).

Petitioner then commenced the present action. The Court appointed Petitioner counsel

and ordered discovery. Counsel for Petitioner filed a supplemental brief, supported by police

reports and other materials available to defense counsel prior to trial proceedings. Dkt. 17.

Among the items submitted is a statement made by Andrea Skinner to police on May

3, 2009. Id., Exhibit A, at 1. Skinner told police that she was sitting in her car which was

parked next door to the scene of the shooting. She saw the two men arguing for about three

minutes. Skinner told police: 

Then the guy that got shot started walking back towards the house but the

shooter said something to him that made him turn around again and confront

the shooter. . . . They had a couple more words then the victim grabbed the

shooter by the collar with both hands and was pushing him towards Evergreen.

The victim was saying “can’t no body fuck with me.” They got to the body

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(sic?) of their driveway and on to my grass. Then the victim let him go. He

takes a step back. Then the shooter pulls out a gun. The victim had his hands

up out to his sides. The shooter fires the gun three times. After the third shot

I got out of my truck and ran to the backyard of my house and called 911.

Then I came back to the front and saw the shooter just standing still over the

victim. After around twenty seconds the shooter ran towards Seven Mile. 

Id., at 1. 

Skinner also told police that she never saw the victim with a weapon. Id., at 2. She

said the only time the victim assaulted the shooter was when he had him by the collar and

“was shaking him.” “It was like the victim was playing with a doll.” Id., She saw Petitioner

aim the gun at the victim’s mid-section. Id.

Petitioner also made a statement to police. Id., Exhibit B. Petitioner told police the

victim pushed him to the ground, picked him up, and shook him. Petitioner started to walk

away but the victim came at him again. Petitioner explained: “I had a gun in my pocket and

I wanted to get him off of me so I started shooting. I thought he was going to hurt me.” Id.,

at 1. Petitioner stated that he was not trying to hit the victim, and he was just trying to scare

him. Id., at 2. 

Petitioner also filed a statement by Gregory Morris, an investigator for the Federal

Defender’s Office. Id., Exhibit C. Morris’s statement indicates that he spoke with Mark

Phillips on January 4, 2016. Phillips is a life-long friend of Petitioner, and he retained Robert

Slameka to represent Petitioner. Id., at 1-2. Phillips told Morris that he paid Slameka

$10,000, and was told that he would need an additional $7,500 to ensure that Petitioner

would be sentenced to 10 to 15 years. Slameka later informed Phillips that because the

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autopsy showed that the victim was shot in the back, Petitioner would have to take a plea

deal with a 20 year minimum sentence. Id., at 2. 

Phillips states that he also spoke with Ms. Skinner, and she told him that Slameka

never spoke with her. Skinner told Phillips that the victim was “all over” Petitioner “shoving

him down the driveway, almost to Evergreen, before he was shot.” Id., at 2. When the victim

grabbed Petitioner, Petitioner said, “I ain’t trying to fight nobody.” Id., at 3.

Finally, counsel for Petitioner filed Michigan Attorney Discipline Board records

indicating that Slameka has been formally admonished on ten occasions, reprimanded on four

occasions, and suspended from the practice of law twice. Id., Exhibit D. 

Petitioner’s initial pleading also contains additional documents from the police

investigation. Brianna Williams made a statement to police on May 3, 2009. Dkt. 1, at 99.

She stated that she was seated in the car with Skinner when the incident occurred. She saw

both men emerge from the house arguing. She saw the victim shake Petitioner after Petitioner

said something to him. Williams stated: “The tall guy let go of the shorter guy and it looked

like the taller guy was going to hit the shorter guy. Then the shorter guy pulled out a gun and

started shooting.” Id. Williams said “it looked like” Petitioner was pointing the gun towards

the ground. Id. She heard Petitioner tell the victim that he did not want to fight because the

victim was just a kid. Id., at 100. 

Mesha Starks gave a sworn statement pursuant to an investigative subpoena on April

17, 2009. Dkt. 1, at 110. Starks testified regarding the initial argument and how the victim

escorted Petitioner from her house. Id., at 111-127. When Petitioner attempted to walk back

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towards the house, the victim pushed him. Id., at 130-31. Starks explained: “[Petitioner]

pulled the gun out of his right pocket because [the victim] had pushed him. [Petitioner]

stumbled back. He reached in his right pocket. He said I’m no, no, no, I’m not no punk-ass

nigger. [The victim] was standing right there in front of him. When [the victim] realized he

was reaching in his pocket, [the victim] stepped back, threw his hands up. . . . [Petitioner]

pulled the gun out. He said I’m no punk-ass nigger. He was like boom, boom, boom, boom,

boom, boom, and he shot towards the ground. I never knew [the victim] was hit.” Id., at 134.

The victim walked away then lied down in the street. Id., at 136. 

Starks confirmed, however, that in her first statement to police she said that Petitioner

pointed the gun at the victim when he fired it. Id., at 140. She said the victim was standing

three or four feet away from Petitioner when he was shot. Id., at 142. The victim stepped

back when Petitioner pulled out his gun. Id., at 148-49. 

Jasmine Godboldo also gave a sworn statement pursuant to an investigative subpoena

on April 17, 2009, Dkt. 1, at 208. She likewise testified regarding the argument leading up

to the shooting. Id., at 209-226. She described how the victim escorted Petitioner out of the

house. Id., at 226. She heard the victim tell Petitioner that he could not treat the women

disrespectfully. Id. Petitioner then pulled his gun out from somewhere under his shirt as he

was stumbling off the curb. Id., at 227. Godboldo said: “He pointed the gun. They were at

close range. They were standing very close to each other. . . . Maybe two feet.” Id., at 227.

“[The victim] puts his hands up as if he surrenders after the shots had been off, after this to

look like he’s in shock or he give up. And [the victim] walks in the middle of street and lays

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there. He doesn’t fall. He just lays.” Id., at 228. “I saw the gun pointing dead at [the victim]

hitting him in the chest.” Id., at 229. Godboldo testified that when the victim saw the gun he

put his hands up and was beginning to back away. Id., at 230. She heard five shots and

believed that the victim was struck twice. Id. 

Godboldo confirmed that in her first statement to police she said: “When they got to

the end of the driveway, [Petitioner] turned around and said something to [the victim]. I

couldn’t hear what [Petitioner said], but then, then he pushed [the victim], and [the victim]

pushed him back. And then [Petitioner] pulled out his pistol and shot [the victim]. He fired

three shots.” Id., at 235. She then heard two additional shots after she ran inside. Id. 

Godboldo again claimed that the pause between shots was a mistake on her part, and

that the shots all occurred together. Id., at 236. She saw Petitioner point the gun at the victim

when he fired. Id., at 237-38. The victim did not push or attack Petitioner first; Petitioner

pushed the victim, the victim pushed him back, and then Petitioner shot the victim. Id., at

239. Godboldo did not see the victim shake Petitioner, nor did he push Petitioner to the

ground. Id., at 240. 

II. Standard of Review

This habeas petition is reviewed under the standards set forth in the Antiterrorism and

Effective Death Penalty Act of 1996 (AEDPA), Pub.L. No. 104-132, 110 Stat. 1214 (Apr.

24, 1996). Under AEDPA, a federal court cannot grant habeas relief with respect to any

claim adjudicated on the merits in a state-court proceeding unless the state adjudication of

the claim either:

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(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. 28

U.S.C. § 2254(d)(1), (2).

“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 a result different from [this] precedent.’” Mitchell v. Esparza, 540

U.S. 12, 15-16 (2003) (per curiam) (quoting Williams v. Taylor, 529 U.S. 362, 405-06

(2000)). “[T]he ‘unreasonable application’ prong of the statute 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). “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 (2011), (quoting Yarborough v. Alvarado, 541 U.S. 652,

664 (2004). “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. . . . As a condition for obtaining habeas corpus from a federal

court, a state prisoner must show that the state court’s ruling on the claim being presented

in federal court was so lacking in justification that there was an error well understood and

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comprehended in existing law beyond any possibility for fairminded disagreement.” Id. at

786-87 (internal quotation omitted).

To obtain relief under § 2254(d)(2), a petitioner must show an unreasonable

determination of fact and that the resulting state court decision was “based on” that

unreasonable determination. Rice v. White, 660 F.3d 242, 250 (6th Cir. 2012).

III. Discussion

A. Ineffective Assistance of Appellate Counsel

Petitioner’s first and second claims assert that his appellate counsel provided

ineffective assistance of counsel by failing to file a timely motion to withdraw the plea or a

timely direct appeal in the Michigan Court of Appeals. He also claims that appellate counsel

failed to provide him with discovery materials.

The right to the effective assistance of counsel includes the right to the effective

assistance of appellate counsel on direct appeal. See Evitts v. Lucey, 469 U.S. 387, 396

(1985); Carpenter v. Mohr, 163 F.3d 938, 946 (6th Cir.1998). In Strickland v. Washington,

466 U.S. 668 (1984), the United States Supreme Court set forth a two-pronged test for

determining whether a habeas petitioner has received the ineffective assistance of counsel.

First, a petitioner must prove that counsel’s performance was deficient. This requires a

showing that counsel made errors so serious that he or she was not functioning as counsel as

guaranteed by the Sixth Amendment. 466 U.S. at 687. Second, the petitioner must establish

that the deficient performance prejudiced the defense. Counsel’s errors must have been so

serious that they deprived the petitioner of a fair appeal. Id.

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Here, although Petitioner’s appellate counsel performed deficiently by failing to

timely pursue a direct appeal on behalf of Petitioner, the Michigan Supreme Court caught the

error and ordered the Michigan Court of Appeals to consider Petitioner’s underlying

substantive claims as if leave to appeal had been granted. The Court of Appeals then issued

a decision rejecting Petitioner’s claims. 

Petitioner has failed to demonstrate that he was prejudiced by his appellate counsel’s

deficient performance because the state courts ultimately provided Petitioner with direct

appellate review of his claims. Compare Hollin v. Sowders, 710 F. 2d 264, 265-67 (6th Cir.

1983)( appellate counsel’s failure to perfect appeal did not prejudice habeas petitioner where

state court’s ruling on petitioner’s motion for post-conviction relief, which was filed by new

counsel, granted him an adequate substitute for direct appellate review); Bair v. Phillips, 106

F. Supp. 2d 934, 938, 943 (E.D. Mich. 2000) (same). Therefore, neither of Petitioner’s first

two claims merit relief.

B. Ineffective Assistance of Trial Counsel

The Court interprets Petitioner’s third, fourth, fifth, and sixth habeas claims to assert

that his trial counsel was ineffective for failing to investigate and pursue a self-defense or

accident defense instead of coercing Petitioner into entering into a plea bargain, and by

revealing private communications made by phone from jail. He also asserts that the Michigan

Courts erred by finding that his guilty plea waived his claims. 

Claims about the deprivation of constitutional rights that occur before the entry of a

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guilty plea are, in fact, foreclosed by a valid guilty plea. See United States v. Broce, 488 U.S.

563, 569 (1989); Tollett v. Henderson, 411 U.S. 258, 267 (1973).

The United States Supreme Court has explained:

[A] guilty plea represents a break in the chain of events which has preceded it

in the criminal process. When a criminal defendant has solemnly admitted in

open court that he is in fact guilty of the offense with which he is charged, he

may not thereafter raise independent claims relating to the deprivation of

constitutional rights that occurred prior to the entry of the guilty plea. He may

only attack the voluntary and intelligent character of the guilty plea by

showing that the advice he received from counsel was not within

[constitutional standards].

Tollett, 411 U.S. at 267. A defendant who pleads guilty generally waives claims that arose

before his plea. In such a case, the court’s inquiry is limited to whether the plea was

knowing, intelligent, and voluntary. See Broce, 488 U.S. at 569. The question here,

therefore, is whether counsel’s alleged antecedent ineffectiveness in failing to investigate and

pursue a self defense or accident defense rendered Petitioner’s plea involuntary. See Hill v.

Lockhart, 474 U.S. 52, 56-57 (1985). 

As stated, a violation of the Sixth Amendment right to effective assistance of counsel

is established where an attorney’s performance was deficient and the deficient performance

prejudiced the defense. Strickland, 466 U.S. at 687. In guilty-plea cases, the performanceprong requires showing that defense counsel’s representation fell below an objective standard

of reasonableness or was outside the range of competence demanded of attorneys in criminal

cases. Hill, 474 U.S. at 56-59. The prejudice-prong “focuses on whether counsel’s

constitutionally ineffective performance affected the outcome of the plea process.” Id. at 59.

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The petitioner must show “a reasonable probability that, but for counsel’s errors, he would

not have pleaded guilty and would have insisted on going to trial.” Id.; see also Smith v.

United States, 348 F.3d 545, 551-552 (6th Cir. 2003).

The Sixth Circuit has interpreted Hill to require a federal habeas court to analyze the

substance of the habeas petitioner’s underlying claim or defense to determine whether, but

for counsel’s error, the petitioner would likely have gone to trial instead of pleading guilty.

See Maples v. Stegall, 340 F. 3d 433, 440 (6th Cir. 2003). A petitioner therefore has the

burden to show a reasonable probability that but for counsel’s errors, he would not have pled

guilty, because there would have been a reasonable chance that he would have been acquitted

had he insisted on going to trial. Heximer v. Woods, 2013 U.S. App. LEXIS 26390 (6th Cir.

May 23, 2013) (Petitioner could not show prejudice under Hill where his affirmative defense

of entrapment would not have succeeded at trial); Garrison v. Elo, 156 F. Supp. 2d 815, 829

(E.D. Mich. 2001).

Petitioner initially argues that he is not required to show actual prejudice because trial

counsel rendered presumptively ineffective assistance under United States v. Cronic, 466

U.S. 648 (1984). In Cronic, the Supreme Court recognized three situations in which Sixth

Amendment violations are “so likely to prejudice the accused that the cost of litigating their

effect in a particular case is unjustified.” Cronic, 466 U.S. at 658. The first situation occurs

when the accused “is denied counsel at a critical stage of his trial.” Id. at 659. The second

situation occurs when “counsel entirely fails to subject the prosecution’s case to meaningful

adversarial testing.” Id. However, in order for a presumption of prejudice to arise based on

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an attorney’s failure to test the prosecutor’s case, the attorney's failure “must be complete.”

Bell v. Cone, 535 U.S. 685, 697 (2002). The third situation occurs under circumstances

“when although counsel is available to assist the accused during trial, the likelihood that any

lawyer, even a fully competent one, could provide effective assistance is so small that a

presumption of prejudice is appropriate without inquiry into the actual conduct of the trial.”

Cronic, 466 U.S. at 659-60.

It is a rare case in which a Cronic violation will be found for want of adequate pretrial

preparation. See Johnson v. Bradshaw, 205 F. App'x 426, 432-33 (6th Cir. 2007). Such a

“constructive denial of counsel is limited to situations involving constitutional error of the

first magnitude, which cannot be cured even if no prejudice is shown.” Moss v. Hofbauer,

286 F.3d 851, 860 (6th Cir. 2002). Here, even assuming as true Petitioner’s allegations that

Slameka only briefly met with him and failed to interview witnesses, the record shows that

he was familiar with witness statements, examined witnesses during the preliminary

examination, and participated in pretrial hearings. This of course does not mean that

Slameka’s performance passes constitutional muster, but it does mean that his performance

was not per se prejudicial under Cronic. Petitioner must therefore demonstrate how

Slameka’s performance prejudiced him under Hill in order to be entitled to relief. See Ivory

v. Jackson, 509 F.3d 284, 295 (6th Cir. Mich. 2007). 

Here, in light of all the evidence proffered by Petitioner to the Court, he has not shown

a reasonable likelihood that he would have elected to stand trial and received a more

favorable result instead of accepting the plea offer. There were four people other than

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Petitioner who witnessed the incident: Godboldo, Starks, Skinner, and Williams. None of

these witnesses would have provided Petitioner with a substantial defense such that there is

a reasonable likelihood that he would have insisted on going to trial and received a more

favorable result. Garrison, 156 F. Supp. at 829.

Godboldo testified both at the preliminary examination and pursuant to the 

investigative subpoena that when Petitioner pulled out his gun, the victim backed away with

his hands up. Petitioner then pointed the gun at him and fired five times. She testified that

the victim had pushed Petitioner, but he backed off as soon as Petitioner produced the gun.

Likewise, Starks testified pursuant to the investigative subpoena that the victim pushed

Petitioner, but that he stepped back with his hands out when Petitioner produced the gun. She

did testify during the investigative subpoena proceeding that Petitioner shot towards the

ground, but in her police statement she stated that Petitioner pointed the gun at the victim.

Skinner, who Petitioner claims would have supported his defense, would not have

provided favorable testimony. She did tell police that the victim pushed and shook Petitioner,

but she also described how the victim stepped back when Petitioner drew his gun. She also

told police that Petitioner aimed the gun at the victim’s mid-section and fired it three times.

Williams, on the other hand, only told police that “it looked like” Petitioner was pointing the

gun at the ground, but she also described how the victim let Petitioner go before Petitioner

fired multiple shots. 

Accordingly, all the witnesses agreed on the same general scenario: the victim and

Petitioner were arguing, the victim pushed and/or shook Petitioner after Petitioner said

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something, Petitioner pulled out a gun, the victim backed away, and Petitioner fired multiple

shots from close range. Two witnesses saw Petitioner point the gun at the victim when he

fired, and the physical evidence of course confirmed that the victim was directly shot. One

witness gave conflicting statements about whether Petitioner aimed the gun at the victim, and

the remaining witness thought “it looked like” Petitioner aimed at the ground.

While it is true that Petitioner told police he fired shots into the ground to scare the

victim, the fact remains that all of the witnesses saw him fire multiple shots from close range

after the victim backed away. And two of the four eyewitnesses–including the one Petitioner

claims should have bee used in his defense–were firm about the fact that Petitioner aimed at

the victim. Based on a review of all the record evidence, the Court finds that there is not a

reasonable likelihood that had Petitioner stood trial he would have received a more favorable

outcome. His defense of accident or self-defense was not as strongly supported by the

eyewitness accounts as he claims. Accordingly, even assuming that trial counsel performed

deficiently in failing to investigate and pursue a defense, Petitioner has not demonstrated that

he was prejudiced.

The Court notes that there can be no question that the relationship between Slameka

and Petitioner was a poor one. Any fair reading of the August 14, 2009, pretrial hearing

indicates that the two had differing ideas on how to proceed. The comments made by defense

counsel at this hearing were unnecessary and gratuitous and held no discernable benefit for

Petitioner. Defense counsel merely vented to the trial court that his client was being

unreasonable in failing to accept the plea offer. 

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Counsel indicated at the hearing that Petitioner had made incriminating statements

during recorded phone calls from jail that undermined the defense. While Petitioner claims

that his counsel should have kept this information private, it is clear from the record that

defense counsel learned of the phone calls from the prosecutor, who provided him with

copies of the recordings. Thus, while the Court deems counsel’s conduct at this hearing to

be worthy of criticism and unprofessional, it did not prejudice Petitioner.

Moreover, it is worth noting that at the August 17, 2009, pretrial proceeding the

dispute between counsel and Petitioner was not about whether to stand trial or accept the plea

offer. Rather, the record indicates that Petitioner was awaiting a better plea offer, and defense

counsel did not believe a better offer would be made. In fact, Petitioner was correct, and he

received and accepted a more favorable plea bargain on the eve of trial. In light of this

record, Petitioner has not shown a reasonable probability that he would have stood trial but

for his counsel’s deficient performance. The record shows instead that Petitioner was

desirous of obtaining a plea bargain and was waiting to accept one that he deemed more

favorable.

Finally, the record shows that trial counsel was familiar with Godboldo and Starks’

statements to police. Counsel also referred to Skinner’s statement at a pretrial hearing. As

explained above, all these witnesses at a minimum saw Petitioner fire multiple shots from

close range after being pushed and/or shaken by Petitioner. Given all the eyewitness accounts

and given “that, according to Petitioner’s own [statement] that he responded to being hit . .

. by firing numerous gunshots, counsel could have reasonably concluded that a self-defense

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theory would not have been persuasive at trial.” Durr v. Haas, 2015 U.S. Dist. LEXIS

144594, 9-10 (E.D. Mich. Oct. 26, 2015).

 Finally, the Court concludes that Petitioner’s plea was otherwise validly entered and

not the product of coercion by his counsel as he claims. To satisfy due process a criminal

defendant’s guilty plea must be 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

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.

The record of Petitioner’s plea proceeding shows that it was validly entered. As stated,

the record indicated that Petitioner was aware of Skinner’s statement, and he obviously heard

Godboldo’s testimony. Petitioner was aware of the nature of the charges against him. The

parties and the trial court discussed the terms of the plea agreement and its consequences at

the plea hearing. Petitioner was informed of all the trial rights he would be waiving by

entering his plea. The record indicates that Petitioner understood what he was doing, and that

it was his desire to plead guilty. He is bound by those statements. Where, as here, the trial

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court scrupulously followed the required procedure, Petitioner 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)).

Accordingly, Petitioner has failed to demonstrate entitlement to relief with respect to

any of his claims, and the petition will be denied.

IV. Conclusion

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 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 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 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 demonstrated a substantial showing of the denial of a constitutional

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right with respect to his claim that his plea was rendering involuntary by the ineffective

assistance of his trial counsel. A reasonable jurists might debate whether the Court correctly

denied relief with respect to this claim. Accordingly, a certificate of appealability will issue

as to this claim. The Court will also grant Petitioner permission to proceed on appeal in

forma pauperis. See Foster v. Ludwick, 208 F. Supp. 2d 750, 764 (E.D. Mich. 2002); 28

U.S.C. § 1915(a)(3); Fed. R.App.24 (a).

V

Accordingly, it is ORDERED that the petition for writ of habeas corpus is DENIED.

It is further ORDERED that a certificate of appealability is GRANTED with respect

to Petitioner’s ineffective assistance of trial counsel claim.

It is further ORDERED that Petitioner may proceed in forma pauperis on appeal.

S/Arthur J. Tarnow 

Arthur J. Tarnow

Senior United States District Judge

Dated: September 20, 2016

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

on September 20, 2016, by electronic and/or ordinary mail.

S/Catherine A. Pickles 

Judicial Assistant

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