UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

DAWAN NEAL,

Petitioner,

v.

CINDI CURTIN,

Respondent. 

/

Case Number: 2:08-CV-15306

HON. MARIANNE O. BATTANI

OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

AND DENYING CERTIFICATE OF APPEALABILITY

This is a habeas case under 28 U.S.C. § 2254. Dawan Neal (“Petitioner”), is a

state inmate who is currently confined at the Newberry Correctional Facility in

Newberry, Michigan, where he is serving a sentence of 15 to 30 years’ imprisonment for

carjacking and armed robbery convictions, and a consecutive sentence of two years’

imprisonment for a felony-firearm conviction. Petitioner has filed a pro se petition for

writ of habeas corpus claiming that he is incarcerated in violation of his constitutional

rights. Respondent, through the Attorney General's Office, filed a response, arguing

that Petitioner's claims lack merit or are procedurally defaulted. For the reasons which

follow, the petition will be denied.

I. Background

On May 19, 2006, Petitioner pleaded guilty in Wayne County Circuit Court to

armed robbery, carjacking, and felony firearm. On June 8, 2006, he was sentenced to

15 to 30 years’ imprisonment for the carjacking and armed robbery convictions, to be

served concurrently with one another and consecutively to two years’ imprisonment for
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the felony firearm conviction.

Petitioner filed an application for leave to appeal in the Michigan Court of

Appeals, raising the following claims:

I. Defendant’s plea of guilty was not voluntarily, understandingly, and

intelligently made where trial counsel led client to believe that his

sentencing guidelines would be lower than they in fact were, therefore he

should be able to withdraw his plea.

II. Defendant should be resentenced because he was denied his right to due

process of law and his right to effective assistance of counsel at

sentencing.

The Michigan Court of Appeals denied leave to appeal. People v. Neal, No.

134916 (Mich. Ct. App. Nov. 29, 2007).

Petitioner filed an application for leave to appeal in the Michigan Supreme Court,

raising the same claims raised in the Michigan Court of Appeals. The Michigan

Supreme Court denied leave to appeal. People v. Neal, No. 134916 (Mich. Nov. 29,

2007).

Petitioner then filed a motion for relief from judgment in the trial court, raising the

following claims: (i) counsel was ineffective in failing to move to suppress his statement;

and (ii) counsel was ineffective in failing to object to the trial court’s refusal to consider

the psychological evaluation report. The trial court denied the motion. People v. Neal,

No. 06-0479 (Wayne County Cir. Ct. Feb. 7, 2008). 

Petitioner filed applications for leave to appeal the trial court’s decision in the

Michigan Court of Appeals and Michigan Supreme Court. Both state appellate courts

denied leave to appeal. People v. Neal, No. 284104 (Mich. Ct. App. July 7, 2008);

People v. Neal, No. 136993 (Mich. Nov. 25, 2008). 
3

Petitioner then filed the pending habeas corpus petition. He raises the following

claims:

I. Petitioner’s plea of guilty was not voluntarily, understandingly, and

intelligently made where trial counsel led client to believe that his

sentencing guidelines would be lower than they in fact were, therefore he

should be able to withdraw his plea.

II. Petitioner should be resentenced because he was denied his right to due

process of law and his right to effective assistance of counsel at

sentencing.

III. Did counsel provide constitutionally ineffective assistance by:

A. Failing to move to suppress appellant’s confession to the police.

B. Failing to object when sentencing judge refused to consider

psychological evaluation report or to have the full report put on the

record.

II. Standard of Review

28 U.S.C. § 2254(d) imposes the following standard of review on federal courts

reviewing applications for a writ of habeas corpus:

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). Therefore, federal courts are bound by a state court’s adjudication

of a petitioner’s claims unless the state court’s decision was contrary to or involved an

unreasonable application of clearly established federal law. Franklin v. Francis, 144
1 28 U.S.C. § 2254(e)(1) provides, in pertinent part:

In a proceeding instituted by an application for a writ of

habeas corpus by a person in custody pursuant to the

judgment of a State court, a determination of a factual issue

made by a State court shall be presumed to be correct. 

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F.3d 429 (6th Cir. 1998). Additionally, this Court must presume the correctness of state

court factual determinations. 28 U.S.C. § 2254(e)(1)1; see also Cremeans v. Chapleau,

62 F.3d 167, 169 (6th Cir. 1995) (“We give complete deference to state court findings

unless they are clearly erroneous”). 

The United States Supreme Court has explained the proper application of the

“contrary to” clause as follows:

A state-court decision will certainly be contrary to [the Supreme Court’s]

clearly established precedent if the state court applies a rule that

contradicts the governing law set forth in our cases. . . .

A state-court decision will also be contrary to this Court’s clearly

established precedent if the state court confronts a set of facts that are

materially indistinguishable from a decision of this Court and nevertheless

arrives at a result different from [the Court’s] precedent. 

Williams v. Taylor, 529 U.S. 362, 405-06 (2000). 

With respect to the “unreasonable application” clause of § 2254(d)(1), the United

States Supreme Court held that a federal court should analyze a claim for habeas

corpus relief under the “unreasonable application” clause when “a state-court decision

unreasonably applies the law of this Court to the facts of a prisoner’s case.” Id. at 409. 

The Court defined “unreasonable application” as follows:

[A] federal habeas court making the “unreasonable application” inquiry

should ask whether the state court’s application of clearly established

federal law was objectively unreasonable. . .
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[A]n unreasonable application of federal law is different from an incorrect

application of federal law. . . . Under § 2254(d)(1)’s “unreasonable

application” clause, then, 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. Rather, that application must also be

unreasonable. 

Id. at 409-11. 

If a claim is fairly presented in state court, but the state court, although denying

the claim, fails to address it, a federal court on habeas review must conduct an

independent review of the state court’s decision. Harris v. Stovall, 212 F.3d 940 (6th

Cir. 2000). This independent review requires the federal court to “review the record and

applicable law to determine whether the state court decision is contrary to federal law,

unreasonably applies clearly established law, or is based on an unreasonable

determination of the facts in light of the evidence presented.” Id. at 943. However, the

independent review “is not a full, de novo review of the claims, but remains deferential

because the court cannot grant relief unless the state court’s result is not in keeping

with the strictures of the AEDPA.” Id. 

“Where the state court fails to adjudicate a claim on the merits, however,

AEDPA's deferential standard of review does not apply.” Williams v. Anderson, 460

F.3d 789, 796 (6th Cir. 2006). “If deference to the state court is inapplicable or

inappropriate,” the court exercises it “independent judgment" and reviews the claim de

novo. McKenzie v. Smith, 326 F.3d 721, 726-27 (6th Cir. 2003). 
6

III. Discussion

A. Voluntariness of Plea

In his first habeas claim, Petitioner argues that his guilty plea was involuntary

because it was entered without knowledge of the sentencing guidelines. 

To be valid, a guilty plea must be voluntarily and intelligently made. Brady v.

U.S., 397 U.S. 742, 748-49 (1970). The plea must be made “with sufficient awareness

of the relevant circumstances and likely consequences.” Id. at 748. The voluntariness

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

surrounding it.” Id. at 749. A "plea of guilty entered by one fully aware of the direct

consequences" of the plea is voluntary in a constitutional sense, and the mere fact that

the defendant "did not correctly assess every relevant factor entering into his decision"

does not mean that the decision was not intelligent. Id. at 755, 757. “[T]he decision

whether or not to plead guilty ultimately rests with the client.” Lyons v. Jackson, 299

F.3d 588, 598 (6th Cir. 2002). 

Failure to advise a defendant about the possible sentencing guidelines does not

render a plea involuntary so long as the defendant was informed of the maximum

possible sentence. “[F]or a defendant's plea of guilty to be voluntary, the defendant

must be aware of the maximum sentence that could be imposed.” King v. Dutton, 17

F.3d 151, 153 (6th Cir. 1994); U.S. v. Quiroga, 554 F.3d 1150, 1155 (8th Cir. 2009). 

There is no constitutional requirement that a defendant be informed of a possible

minimum sentence. Accord Canady v. Warden, Lebanon Correctional Inst., 2009 WL

1097536, *7-8 (S.D. Ohio Apr. 22, 2009) (finding plea voluntary and knowing where

defendant was informed of the maximum sentence). 
7

The Sixth Circuit has stated that in cases challenging the voluntariness of a plea

agreement a petitioner is bound by his in-court statements regarding his understanding

of the plea: 

If we were to rely on [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 (which he now argues

were untruthful) 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, 564 (6th Cir. 1999) (quoting Baker v. United States,

781 F.2d 85, 90 (6th Cir. 1986)). 

In this case, the plea colloquy shows that Petitioner was informed of the

maximum possible sentence he faced. He was also informed of the rights he was

waiving by pleading guilty, such as the right to a trial by jury. Petitioner indicated that he

understood his rights and was voluntarily waiving them. Additionally, Petitioner stated

that no promises had been made to him in exchange for his guilty plea beyond those

stated on the record. 

Accordingly, the Court finds that Petitioner has not shown that his guilty plea was

involuntarily or unknowingly made. 

B. Alleged Ineffective Assistance of Counsel

In his second and third claims for habeas relief, Petitioner argues that his

attorney was ineffective. Specifically, Petitioner alleges that counsel was ineffective in:

(i) misleading Petitioner into believing he would received a sentence of only six years;
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(ii) failing to move to suppress his conviction; and (iii) failing to object when the

sentencing judge refused to consider the psychological evaluation report. 

Respondent argues that the second and third claims of ineffective assistance of

counsel are barred from review because they are procedurally defaulted. “[F]ederal

courts are not required to address a procedural-default issue before deciding against

the petitioner on the merits.” Hudson v. Jones, 351 F.3d 212, 215 (6th Cir. 2003), citing

Lambrix v. Singletary, 520 U.S. 518, 525 (1997). “Judicial economy might counsel

giving the [other] question priority, for example, if it were easily resolvable against the

habeas petitioner, whereas the procedural-bar issue involved complicated issues of

state law.” Lambrix, 520 U.S. at 525. In this case, the Court finds that the interests of

judicial economy are best served by addressing the merits of these claims. 

Generally, to prevail on an ineffective assistance of counsel claim on habeas

review, a petitioner must demonstrate (1) that “counsel’s representation fell below an

objective standard of reasonableness,” and (2) that “there is a reasonable probability

that, but for counsel's unprofessional errors, the result of the proceeding would have

been different.” Strickland v. Washington, 466 U.S. 668, 687-88 (1984). 

The two-part Strickland test applies to claims of ineffective assistance of counsel

based upon counsel’s conduct prior to the entry of a plea. Hill v. Lockhart, 474 U.S. 52,

58-59 (1985). In the context of guilty pleas, the first half of the Strickland test is the

same standard set forth above. Id. The second, or "prejudice," requirement, on the

other hand, focuses on whether counsel's constitutionally ineffective performance

affected the outcome of the plea process. In other words, in order to satisfy the

"prejudice" requirement, the defendant must show that there is a reasonable probability
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that, but for counsel's errors, he would not have pleaded guilty and would have insisted

on going to trial. Id. 

The trial court transcript shows that Petitioner was informed of the maximum

sentence he faced. At sentencing, Petitioner did not express any concern or surprise

when informed of the guidelines. To the extent that his attorney incorrectly informed

him or he misunderstood his attorney regarding the sentencing guidelines, Petitioner

has not shown a reasonable probability that, but for counsel’s errors, he would not have

pleaded guilty. The Court finds that Petitioner has failed to show that his attorney was

ineffective in this regard. 

Second, Petitioner argues that counsel was ineffective in failing to move to

suppress his custodial statement. 

Where a petitioner alleges that his attorney improperly failed to file a

motion to suppress evidence prior to the guilty plea, he must show that a

suppression motion had merit, and that if the motion had been granted, he

would not have pled guilty and would have insisted on his right to stand

trial. Hill, 474 U.S. at 60 (1985).

Brooks v. Edwards, 96 F.3d 1448, unpublished, 1996 WL 506505 (6th Cir. June 5,

1996). 

In denying Petitioner’s motion for relief from judgment, the trial court stated that

defense counsel filed a motion to suppress the custodial statement and that a hearing

was scheduled on the motion for May 19, 2006. Ultimately, Petitioner pleaded guilty on

that date and the hearing, consequently, was not held. Because the factual predicate

for this claim is belied by the record, this claim is denied. 

Finally, Petitioner alleges that counsel was ineffective in failing to object to the

trial court’s decision not to consider the psychological report regarding Petitioner. Trial
10

counsel did object to the scoring of several of the guideline calculations. Counsel

successfully argued that the offense variables ten and fourteen should be scored at

zero points. Counsel brought to the court's attention Petitioner's remorse. Counsel

performed competently, advocating for his client at sentencing. In denying the motion

for relief from judgment, the trial court held that the psychological report was properly

excluded. Thus, any objection by counsel would have been futile. Moreover, Petitioner

has not shown that he was entitled to have this document considered at sentencing. 

Accordingly, he has not shown that counsel was ineffective. 

IV. Certificate of Appealability

Federal Rule of Appellate Procedure 22 provides that an appeal may not proceed

unless a certificate of appealability (COA) is issued under 28 U.S.C. § 2253. Rule 11 of

the Rules Governing Section 2254 Proceedings now requires that the Court “must issue

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

applicant.” 

A COA may be issued “only if the applicant has made a substantial showing of

the denial of a constitutional right.” 28 U.S.C. §2253(c)(2). A petitioner must show “that

reasonable jurists could debate whether (or, for that matter, agree that) the petition

should have been resolved in a different manner or that the issues presented were

adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S.

473, 484 (2000) (citation omitted). In this case, the Court concludes that reasonable

jurists would not debate the conclusion that the petition fails to state a claim upon which

habeas corpus relief should be granted. Therefore, the Court will deny a certificate of

appealability.
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V. Conclusion

For the foregoing reasons, IT IS ORDERED that the petition for a writ of habeas

corpus is DENIED and the matter is DISMISSED WITH PREJUDICE.

IT IS FURTHER ORDERED that a certificate of appealability is DENIED. 

s/Marianne O. Battani 

MARIANNE O. BATTANI

UNITED STATES DISTRICT JUDGE

DATE:October 29, 2010

CERTIFICATE OF SERVICE

I hereby certify that on the above date a copy of this Order was served upon the

Petitioner, and Counsel for the Respondent.

s/Bernadette M. Thebolt

Case Manager