1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

MARK THOMPKINS,

Petitioner, Case No. 2:08-CV-14809

v. HONORABLE GERALD E. ROSEN

 CHIEF UNITED STATES DISTRICT JUDGE

NICK J. LUDWIG,

Respondent.

______________________________/

OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND

DENYING CERTIFICATE OF APPEALABILITY

I. Introduction

Petitioner, Mark Thompkins, filed this case under 28 U.S.C. § 2254. Petitioner is a

state inmate currently incarcerated at the Cooper Street Correctional Facility in Jackson,

Michigan. Petitioner pled no contest in Wayne Circuit Court to the offense of larceny from

a person. MICH. COMP. LAWS § 750.357. The trial court sentenced him as a fourth habitual

offender to six-to-fifteen years in prison. Petitioner seeks a writ of habeas corpus on the

grounds that: (1) he involuntarily pled no-contest, (2) the trial court violated Michigan's 180-

day speedy trial rule, and (3) the trial court did not give him credit for time served while

awaiting trial. For the reasons stated below, the Court denies the petition. The Court also

declines to issue Petitioner a certificate of appealability.

II. Background

The charges against Petitioner resulted from an incident in which he drove off in a

woman's parked pick-up truck with her young child. The driver of the vehicle and her son

became lost driving home from the airport. She stopped in the parking lot of a restaurant

2:08-cv-14809-GER-SDP Doc # 16 Filed 04/28/11 Pg 1 of 13 Pg ID 448
2

to use a payphone and left her six-year-old son in the rear passenger seat of her unlocked

and running truck. Petitioner approached the woman and pretended to use the payphone

next to her. He then climbed into the driver's seat of the vehicle. The woman screamed

that her son was inside and pounded on the windows, but Petitioner locked the doors and

drove away. A bystander chased the vehicle on foot. About a block away, Petitioner

stopped, removed the victim's purse from the vehicle, and ran away. The pursuing

bystander walked the woman's son back, and the police arrived shortly thereafter.

Petitioner was apprehended and the woman identified him at a lineup.

Petitioner was charged with kidnapping, unlawfully driving away an automobile, and

two counts of larceny. Defense counsel filed a motion to dismiss the kidnapping charge.

He asserted that insufficient evidence was offered at the preliminary examination to show

that Petitioner intended to take the child. The trial court granted the motion, prompting a

quick settlement of the remaining charges. 

Petitioner entered into a plea bargain whereby he agreed to plead no-contest to onecount of larceny with a six-to-fifteen year sentence agreement in exchange for dismissal

of the remaining charges.

At the plea hearing Petitioner was placed under oath. The trial court informed

Petitioner of the terms of the deal, including the sentencing agreement, and Petitioner

indicated his understanding. Petitioner stated that he did not have any questions about his

rights and understood that they would be waived. The following colloquy then occurred:

The Court: Is it your own choice to plead no contest?

Petitioner: Yes, Your Honor.

The Court: Has anyone threatened you to make this plea?

2:08-cv-14809-GER-SDP Doc # 16 Filed 04/28/11 Pg 2 of 13 Pg ID 449
3

Petitioner: No, Sir.

The Court: To get you to make this plea?

Petitioner: No, Sir.

The Court: Has anyone promised you anything beyond what is in the plea

agreement?

Petitioner: No, Sir.

The Court: Has anyone used any undue influence or force against you that

is causing you to make this plea?

Petitioner: No, Sir.

The Court: Do you offer your plea freely and voluntarily?

Petitioner: Yes, Sir. 

The Court: Do you understand that if your plea is the result of any

undisclosed promises or threats, you must disclose them to me now,

otherwise you will be giving up the claim that it was because of those

promises or threats and not your own choice to enter the plea?

Petitioner: Yes, Sir.

Plea Transcript at 14-15. The trial court accepted Petitioner's plea and found that it was

made voluntarily and without any undue influence, compulsion, or duress. 

Petitioner moved to withdraw his plea at sentencing on the grounds that his attorney

had forced him to accept the plea bargain. The trial court denied the motion:

I'm not satisfied that a requisite showing has been made that there's any

basis to withdraw the plea. Nothing has been presented to the Court on that

issue other than you relaying what he maintains is what he says, that his

attorney scared him. I don't find that to be sufficient on an evidentiary

grounds to cause me to allow him to set aside his plea.

Sentencing Transcript, at 7. The court then sentenced Petitioner under the terms of the

agreement. 

2:08-cv-14809-GER-SDP Doc # 16 Filed 04/28/11 Pg 3 of 13 Pg ID 450
4

Petitioner filed a delayed application for leave to appeal with the Michigan Court of

Appeals, raising one issue:

I. Whether [Petitioner] is entitled to jail credit for this case since his parole status

was closed on the prior case?

The Michigan Court of Appeals denied the application for leave to appeal "for lack

of merit in the grounds presented." People v. Thompkins, No. 270925 (Mich. Ct. App. July

18, 2006). Petitioner filed an application for leave to appeal in the Michigan Supreme Court

and raised the same claim, but it was denied by form order. People v. Thompkins, No.

131870 (Mich. Sup. Ct. Oct. 31, 2006).

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

raised the following three issues:

I. The trial court abused its discretion and reversibly erred in denying the

defense motion to dismiss the charges with prejudice due to a 180-day

violation.

II. The trial court violated Petitioner's due process rights by denying

Petitioner's motion for plea withdrawal, where defense trial counsel had

coerced Petitioner into pleading guilty.

III. Where Petitioner's assigned counsel for his direct appeal by leave failed

to adequately federalize his issue and failed raised two meritorious

constitutional issues, Petitioner was denied due process by counsel's failure

to raise Issue I and II, which resulted in a deprivation of Petitioner's

constitutional rights to appeal, and to the effective assistance of counsel on

appeals.

The trial court denied Petitioner's motion, and Petitioner filed a delayed application

for leave to appeal in the Michigan Court of Appeals. It was denied because Petitioner had

"failed to meet the burden of establishing entitlement to relief under Mich. Ct. R. 6.508(D)."

People v. Thompkins, No. 281974 (Mich. Ct. App. Nov. 19, 2007). Petitioner attempted to

appeal this decision to the Michigan Supreme Court, but it denied relief by use of the same

2:08-cv-14809-GER-SDP Doc # 16 Filed 04/28/11 Pg 4 of 13 Pg ID 451
5

form order. People v. Thompkins, No. 136305 (Mich. Sup. Ct. Apr. 25, 2008). 

Petitioner enumerates six, overlapping claims in his petition:

I. The trial court violated Petitioner's due process rights by denying the

motion for plea withdrawal when the plea was involuntary.

II. The trial court erred when it failed to grant credit from the time that the

prosecution knew or should have known that the Michigan Department of

Corrections had custody of Petitioner.

III. Petitioner was denied due process by appellate counsel's failure to raise

the above issues, which resulted in a deprivation of Petitioner's constitutional

rights to appeal, and to the effective assistance of counsel on appeal.

IV. The trial court abused its discretion and reversibly erred in denying the

defense motion to dismiss the charges with prejudice due to a 180-day

violation.

V. The trial court violated Petitioner's due process rights by denying

Petitioner's motion for plea withdrawal, where defense trial counsel had

coerced Petitioner into pleading guilty.

VI. Petitioner's appellate counsel was ineffective for failing to raise the

meritorious constitutional issues presented above in Claims I and II.

III. Standard of Review

Review of this case is governed by the Antiterrorism and Effective Death Penalty Act

of 1996 (“AEDPA”). Pursuant to the AEDPA, Petitioner is entitled to a writ of habeas

corpus only if he can show that the state court's adjudication of his claims on the merits-

(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). 

A decision of a state court is "contrary to" clearly established federal law if the state

2:08-cv-14809-GER-SDP Doc # 16 Filed 04/28/11 Pg 5 of 13 Pg ID 452
6

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 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 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). The "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, 176 L.

Ed. 2d 678 (2010)((quoting Lindh v. Murphy, 521 U.S. 320, 333, n. 7 (1997); Woodford v.

Visciotti, 537 U.S. 19, 24 (2002) (per curiam)). "[A] state court's determination that a claim

lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on

the correctness of the state court's decision." Harrington v. Richter, 131 S.Ct. 770, No.

2011 WL 148587, * 11 (U.S. 2011)(citing Yarborough v. Alvarado, 541 U.S. 652, 664

(2004)). The Supreme Court has emphasized "that even a strong case for relief does not

mean the state court's contrary conclusion was unreasonable." Id. (citing Lockyer v.

Andrade, 538 U.S. 63, 75 (2003). Furthermore, pursuant to § 2254(d), "a habeas court

must determine what arguments or theories supported or . . . could have supported, the

state court's decision; and then it must ask whether it is possible fairminded jurists could

2:08-cv-14809-GER-SDP Doc # 16 Filed 04/28/11 Pg 6 of 13 Pg ID 453
7

disagree that those arguments or theories are inconsistent with the holding in a prior

decision" of the Supreme Court. Id. "[I]f this standard is difficult to meet, that is because

it was meant to be." Harrington, 131 S. Ct. 770. 

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

federal courts from relitigating 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. (citing

Jackson v. Virginia, 443 U.S. 307, 332, n. 5 (1979))(Stevens, J., concurring in judgment)).

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." 131 S.Ct. at 786-787.

IV. Discussion 

A. No Contest Plea

Petitioner's first and fifth claims assert that he involuntarily pled no contest as the

result of threats made by his trial attorney. Respondent asserts that the claims are barred

from review because they were not raised during his appeal of right.

Under the procedural default doctrine, a federal habeas court will not review a

question of federal law if the state court's decision rests on a substantive or procedural

state law ground that is independent of the federal question and is adequate to support the

2:08-cv-14809-GER-SDP Doc # 16 Filed 04/28/11 Pg 7 of 13 Pg ID 454
8

judgment. See Coleman v. Thompson, 501 U.S. 722, 729 (1991). A court must look to the

last reasoned state court decision to determine if it rests on a substantive or procedural

state law ground. Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991).

Respondent correctly notes that Petitioner's first and fifth claims were raised for the

first time in Petitioner's motion for relief from judgment, but contrary to his assertion, the

appellate court orders denying post-conviction relief under Michigan Court Rule 6.508(d)

did not rely on a state procedural ground. See Guilmette v. Howes, 624 F. 3d 286, 291 (6th

Cir. 2010). This Court must "therefore look to the last reasoned state court opinion to

determine the basis for the state court's rejection" of Petitioner's claims. Id. The trial court's

discussion of Petitioner's claims appears to reject them on the merits. The trial court found

that because the claims were meritless, Petitioner could not demonstrate prejudice under

Rule 6.508(D)(3)(b)(ii). The question of whether this decision relies on a procedural ground

is a difficult one. It need not be addressed here because it is simpler to resolve Petitioner's

claims on the merits. While a procedural default issue should ordinarily be resolved first,

"judicial economy sometimes dictates reaching the merits of [a claim or claims] if the merits

are easily resolvable against a petitioner while the procedural bar issues are complicated."

Barrett v. Acevedo, 169 F.3d 1155, 1162 (8th Cir. 1999) (internal citations omitted). 

A guilty plea is valid if it is entered voluntarily, knowingly and intelligently, "'with

sufficient awareness of the relevant circumstances and likely consequences.'" Bradshaw

v. Stumpf, 545 U.S. 175, 183 (2005) (quoting Brady v. United States, 397 U.S. 742, 748

(1970)). The same standard applies to a plea of no contest or nolo contendere. See

Fautenberry v. Mitchell, 515 F.3d 614, 636-37 (6th Cir. 2008); North Carolina v. Alford, 400

U.S. 25, 37 (1970) ("An individual accused of crime may voluntarily, knowingly and

2:08-cv-14809-GER-SDP Doc # 16 Filed 04/28/11 Pg 8 of 13 Pg ID 455
9

understandingly consent to the imposition of a prison sentence even if he is unwilling or

unable to admit his participation in the acts constituting the crime"). 

A voluntary plea is 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 own

counsel" that is not "induced by threats (or promises to discontinue improper harassment),

misrepresentations (including unfulfilled or unfulfillable promises), or perhaps by promises

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

business (e.g. bribes).'"Brady, 397 U.S. at 755, 90 S. Ct at 1472 (quoting Shelton v. United

States, 246 F.2d 571, 572 n. 2 (5th Cir. 1957)). 

The state has the burden of showing that the plea was voluntary. Garcia v. Johnson,

991 F.2d 324, 326 (6th Cir. 1993) (citing Boykin v. Alabama, 395 U.S. 238 (1969)). When

the state provides a transcript of the plea proceedings sufficient to show that the plea was

voluntary, and the state court finds as a factual matter that the plea was proper, a

presumption of correctness arises. Id. 

With respect to Petitioner's plea of no contest, the trial court found as a factual

matter that it was voluntary. A review of the plea hearing transcript supports this finding.

The transcript reveals no actual or threatened physical harm or mental coercion

overbearing Petitioner's will. It reveals no evidence that Petitioner was so overborne that

he could not rationally weigh the advantages of pleading no contest against the advantages

of going to trial. There is no suggestion of ineffective assistance of counsel at the plea.

In light of Petitioner's plea colloquy, his bare claim that his counsel forced him into pleading

guilty is insufficient to overcome the presumption of truthfulness which attaches to

statements made during the plea colloquy, in which Petitioner denied that any threats had

2:08-cv-14809-GER-SDP Doc # 16 Filed 04/28/11 Pg 9 of 13 Pg ID 456
10

been used to get him to enter his plea. The trial court's rejection of Petitioner's claim that

his plea was involuntary was thus consistent with clearly established Supreme Court

precedent and cannot form the basis for granting habeas relief.

B. Jail Credit

Petitioner was on parole at the time he committed the instant offense. After his

arrest, Petitioner alleges that his parole was rescinded but that he was not required to

serve any additional time on that prior sentence. Petitioner's second claim asserts that he

was therefore entitled to sentencing credit. The Michigan Court of Appeals summarily

rejected the claim when it denied his application for leave to appeal "for lack of merit in the

grounds presented." Thompkins, supra.

A federal court may grant a writ of habeas corpus only if the petitioner "is in custody

in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. §§

2241(c)(3), 2254(a). A prisoner generally has no constitutional right to sentencing credit,

although state law may create a liberty interest in sentencing credit protected by the Due

Process Clause. Hansard v. Barrett, 980 F.2d 1059, 1062 (6th Cir. 1992). Petitioner has

not presented any authority standing for the strange proposition that rescinding a prisoner's

parole because he commits a new offense acts to discharge him from the remainder of his

prior sentence. In fact, Michigan law requires a parolee to serve the unexpired portion of

his maximum sentence for his prior conviction if he commits a crime while on parole. MICH.

COMP. LAWS 791.238(2). Michigan's jail credit statute does not credit prisoners with time

served for unrelated offenses. MICH. COMP. LAWS 769.11b; People v. Prieskorn, 424 Mich.

327, 344, 381 N.W.2d 646, 652 (1985). Because Michigan law does not create a right to

the credit Petitioner seeks, his claim is not cognizable on habeas review.

2:08-cv-14809-GER-SDP Doc # 16 Filed 04/28/11 Pg 10 of 13 Pg ID 457
11

C. 180-Day Rule

Petitioner's fourth claim alleges that he was denied his right to due process because

he was brought to trial in violation of Michigan's 180-day rule. MICH. COMP. LAWS 780.131.

This statute grants state prisoners the right to a trial within 180 days of notice to the

prosecutor that the defendant is detained or incarcerated on another conviction. Petitioner

moved to dismiss the charges on these grounds in the trial court, but the motion was

denied. 

"[I]t is not the province of a federal habeas court to reexamine state-court

determinations on state-law questions." Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (per

curiam opinion). A violation of a state speedy-trial law by a state court is non-cognizable

on habeas review. See Norris v. Schotten, 146 F.3d 314, 328 (6th Cir. 1998) (discussing

review of a violation of a state speedy trial law in the context of a habeas proceeding);

Stewart v. Nix, 972 F.2d 967, 970 (8th Cir. 1992) (stating that a petitioner's rights under the

Sixth Amendment are not affected by a state statute); Wells v. Petsock, 941 F.2d 253, 256

(3rd Cir. 1991). Therefore, Petitioner is not entitled to habeas relief for any claimed violation

of Michigan's 180-day rule.

D. Ineffective Assistance of Appellate Counsel

Petitioner's third and sixth claim assert that he was denied the effective assistance

of counsel when his appellate counsel failed to raise claims regarding the voluntariness of

his plea and sentencing credit during Petitioner's direct appeal. This claim is not being

raised as an independent ground for habeas relief, but rather it seeks to demonstrate

"cause" to excuse the alleged procedural default of the underlying claims. Because the

Court did not impose a default and found those claims to be without merit, Petitioner's

2:08-cv-14809-GER-SDP Doc # 16 Filed 04/28/11 Pg 11 of 13 Pg ID 458
12

ineffective assistance of appellate counsel claim is moot. 

VI. Certificate of Appealability

A petitioner must receive a certificate of appealability ("COA") in order to appeal the

denial of a habeas petition for relief from either a state or federal conviction. 28 U.S.C. §§

2253(c)(1)(A), (B). A court may issue a COA "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 federal

district 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

of reason could disagree with the district court's resolution of his constitutional claims or

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)(citation omitted). In

applying this 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 Court concludes that jurists of reason would not find the Court's

assessment of Petitioner's claims debatable or wrong. The Court thus declines to issue

Petitioner a certificate of appealability.

VI. ORDER

Based upon the foregoing, IT IS ORDERED that the petition for a writ of habeas

corpus is DENIED WITH PREJUDICE.

2:08-cv-14809-GER-SDP Doc # 16 Filed 04/28/11 Pg 12 of 13 Pg ID 459
13

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

s/Gerald E. Rosen 

Chief Judge, United States District Court

Dated: April 28, 2011

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

record on April 28, 2011, by electronic mail and upon Mark Thompkins, #258525,

Cooper Street Correctional Facility, 3100 Cooper Street, Jackson, MI 49201 by ordinary

mail.

s/Ruth A. Gunther 

Case Manager

2:08-cv-14809-GER-SDP Doc # 16 Filed 04/28/11 Pg 13 of 13 Pg ID 460