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By Order entered this date, Lloyd Rapelje has been substituted in place of Percy Connerly as

the proper respondent in this action.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

KORCAMONI KAREGA McCLELLAN,

Petitioner,

CASE NO. 2:09-CV-10617

v. JUDGE LAWRENCE P. ZATKOFF

MAGISTRATE JUDGE PAUL J. KOMIVES

LLOYD RAPELJE,

Respondent.1

 /

REPORT AND RECOMMENDATION

Table of Contents

I. RECOMMENDATION ................................................................ 2

II. REPORT ........................................................................... 2

A. Procedural History ............................................................ 2

B. Factual Background Underlying Petitioner’s Conviction ............................... 6

C. Procedural Default ............................................................ 8

D. Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

E. Newly Discovered Evidence (Claim I) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

F. Ineffective Assistance of Counsel (Claim II) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

1. Clearly Established Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

2. Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

G. Exculpatory Evidence (Claim III) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

H. Lack of Factual Basis (Claim IV) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

I. Recommendation Regarding Certificate of Appealability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

1. Legal Standard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

2. Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

J. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

III. NOTICE TO PARTIES REGARDING OBJECTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
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I. RECOMMENDATION: The Court should deny petitioner’s application for the writ of

habeas corpus. If the Court accepts this recommendation, the Court should also deny petitioner a

certificate of appealability.

II. REPORT:

A. Procedural History

1. Petitioner Korcamoni Karega McClellan is a state prisoner, currently confined at the

Saginaw Correctional Facility in Freeland, Michigan.

2. On December 9, 2003, petitioner was convicted of assault with intent to do great

bodily harm less than murder, MICH.COMP. LAWS § 750.84; and possession of a firearm during the

commission of a felony, MICH.COMP.LAWS § 750.227b, pursuant to plea of nolo contendere in the

Wayne County Circuit Court. Pursuant to the plea agreement, petitioner was sentenced to a term

of 51⁄2-10 years’ imprisonment on the assault conviction, and to a mandatory consecutive term of

2 years’ imprisonment on the felony-firearm conviction.

3. Petitioner filed a post-sentence motion to withdraw the plea on the basis of newly

discovered evidence and police misconduct. The trial court denied the motion on January 8, 2004.

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

raising, through counsel, the following claims:

I. THE TRIAL COURT ERRONEOUSLY DENIED APPELLANT’S

MOTION TO WITHDRAW HIS NOLO CONTENDERE PLEA DESPITE

NEWLY DISCOVERED EXCULPATORY EVIDENCE WHICH WOULD

HAVE BEEN HELPFUL IN THE CROSS EXAMINATION OF

PROSECUTION WITNESSES AND PLEA WITHDRAWAL POSED NO

PREJUDICE.

II. THE TRIAL COURT ERRONEOUSLY DENIED APPELLANT’S POST

SENTENCING MOTION TO WITHDRAW HIS NOLO CONTENDERE

PLEA WHICH WAS THE PRODUCT OF INEFFECTIVE ASSISTANCE
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OF HIS ATTORNEY WHO FAILED TO INVESTIGATE AND FILE A

DISPOSITIVE PRETRIAL MOTION TO EXCLUDE ILLEGALLY

SEIZED EVIDENCE AND TO OBTAIN EXCULPATORY EVIDENCE IN

A TIMELY MANNER AND/OR REQUEST A CONTINUANCE OF

TRIAL.

III. THE TRIAL COURT ERRONEOUSLY DENIED APPELLANT’S POSTSENTENCING MOTION TO WITHDRAW HIS NOLO CONTENDERE

PLEA WHICH WAS THE PRODUCT OF MISCONDUCT BY THE

PROSECUTOR, WHO FAILED TO DISCLOSE COURT ORDERED

EXCULPATORY EVIDENCE WHICH WOULD HAVE BEEN HELPFUL

IN THE CROSS EXAMINATION OF PROSECUTION WITNESSES.

IV. APPELLANT’S PLEA WAS COERCED AND RENDERED

INVOLUNTARY BY THE COURT’S SUA SPONTE INITIATION OF

THE ISSUE OF SENTENCE LENGTH ADVISING APPELLANT WHAT

SENTENCE HE MIGHT EXPECT, IN VIOLATION OF THE

PROHIBITIONS IN KILLIBREW AND COBBS AGAINST JUDGE

INITIATING DISCUSSION REGARDING SENTENCE DISPOSITION.

V. APPELLANT’S SENTENCE OF FIVE AND ONE-HALF TO TEN YEARS

IN PRISON FOR ASSAULT WITH INTENT TO DO GREAT BODILY

HARM REPRESENTS A SIGNIFICANT DEPARTURE FROM THE

LEGISLATIVE MANDATED SENTENCING GUIDELINES WITHOUT

SUBSTANTIAL AND COMPELLING REASONS ARTICULATED BY

THE TRIAL COURT, WHICH IS IN VIOLATION OF THE STATUTE

EVEN THOUGH A SENTENCE AGREEMENT EXISTED IN

CONNECTION WITH THE PLEA BARGAIN.

The court of appeals denied petitioner’s application for leave to appeal in a standard order. See

People v. McClellan, No. 259130 (Mich. Ct. App. Feb. 3, 2005).

5. Petitioner, proceeding pro se, sought leave to appeal these issues to the Michigan

Supreme Court. The Supreme Court denied petitioner’s application for leave to appeal in a standard

order. See People v. McClellan, 474 Mich. 952, 706 N.W.2d 729 (2005).

6. On July 12, 2006, petitioner filed a motion for relief from judgment in the trial court

pursuant to MICH.CT.R. 6.500-.508, raising the following claims, the first four in his initial motion

and the fifth in a supplemental brief:
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I. DEFENDANT McCLELLAN WAS DEPRIVED OF HIS LIBERTY

WITHOUT DUE PROCESS OF LAW, WHERE DURING HIS MOTION

TO WITHDRAW HIS PLEA OF NOLO CONTENDERE PRIOR TO

SENTENCING, THE COURT REFUSED TO VIEW EXCULPATORY

EVIDENCE WHICH THE DEFENDANT CLAIMED EXONERATED

HIM, WHICH HE BROUGHT FORTH IN AN ATTEMPT TO SATISFY

HIS BURDEN THAT HE SHOW “A FAIR AND JUST” REASON, IN THE

INTEREST OF JUSTICE FOR PLEA WITHDRAWAL.

II. DEFENDANT McCLELLAN WAS DEPRIVED OF HIS LIBERTY

WITHOUT DUE PROCESS OF LAW, WHERE THE TRIAL COURT

OBTAINED INSUFFICIENT FACTUAL BASIS TO SUPPORT HIS PLEA

OF NOLO CONTENDERE.

III. DEFENDANT McCLELLAN WAS DEPRIVED OF HIS LIBERTY

WITHOUT DUE PROCESS OF LAW, WHERE HIS PLEA WAS

RENDERED INVOLUNTARY, UNKNOWING AND UNINTELLIGENT

BY THAT [SIC] HE WAS NEVER INFORMED THAT THE SENTENCE

AGREEMENT WAS A DEPARTURE FROM THE LEGISLATIVE

MANDATED SENTENCING GUIDELINES.

IV. DEFENDANT McCLELLAN HAS DEMONSTRATED “GOOD CAUSE”

AND “ACTUAL PREJUDICE” SATISFYING THE REQUIREMENT

UNDER MCR 6.508(D)(3)(a), (b).

V. DEFENSE COUNSEL FAILED TO ADEQUATELY INVESTIGATE AND

PREPARE DEFENDANT’S CASE FOR TRIAL THEREFORE

RESULTING IN AN INVOLUNTARY PLEA.

On May 17, 2007, the trial court denied petitioner’s motion for relief from judgment pursuant to

MICH. CT. R. 6.508(D)(2) because the claims had already been raised by and decided against

petitioner in his direct appeal. See People v. McClellan, No. 03-10906, at 2-3 (Wayne County,

Mich., Cir. Ct. May 17, 2007). The Michigan Court of Appeals and Michigan Supreme Court

denied petitioner’s applications for leave to appeal in standard orders, based on petitioner’s “failure

to meet the burden of establishing entitlement to relief under MCR 6.508(D).” People v. McClellan,

482 Mich. 1030, 769 N.W.2d 194 (2008); People v. McClellan, No. 282854 (Mich. Ct. App. Mar.

21, 2008).
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In a fifth claim, petitioner contends that the procedural default doctrine is inapplicable and that

he has, in any event, established good cause to overcome any procedural default. This claim does not

state an independent basis for habeas relief, but merely addresses whether the Court may reach the four

substantive claims raised by petitioner.

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7. Petitioner, proceeding pro se, filed the instant application for a writ of habeas corpus

on February 19, 2009. As grounds for the writ of habeas corpus, he raises five claims:

I. PETITIONER McCLELLAN WAS DENIED DUE PROCESS OF LAW

WHERE THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING

HIS PRE-SENTENCE AND POST-CONVICTION MOTIONS TO

WITHDRAW HIS NOLO CONTENDERE PLEA DESPITE NEWLY

DISCOVERED EXCULPATORY EVIDENCE AND A PLEA

WITHDRAWAL POSED NO PREJUDICE, AND BY REFUSING TO

VIEW EXCULPATORY EVIDENCE WHICH PETITIONER CLAIMED

EXONERATED HIM.

II. PETITIONER McCLELLAN WAS DEPRIVED OF HIS RIGHT TO

EFFECTIVE ASSISTANCE OF COUNSEL GUARANTEED BY THE

UNITED STATES AND MICHIGAN CONSTITUTIONS, WHEN HIS

TRIAL ATTORNEY, (A) FAILED TO OBTAIN EXCULPATORY

EVIDENCE IN A TIMELY MANNER AND/OR REQUEST A

CONTINUANCE OF THE TRIAL, AND (B) FAILED TO ADEQUATELY

INVESTIGATE AND REQUEST DISCLOSURE OF MANDATORY

DISCOVERY AND SPECIFIC COURT ORDERED DISCOVERY.

III. PETITIONER McCLELLAN WAS DENIED DUE PROCESS OF LAW

WHERE THE TRIAL COURT ERRONEOUSLY DENIED PETITIONER’S

PRE-SENTENCE AND POST-CONVICTION MOTIONS TO

WITHDRAW HIS NOLO CONTENDERE PLEA WHICH WAS A

PRODUCT OF MISCONDUCT BY THE PROSECUTOR, WHO FAILED

TO DISCLOSE MANDATORY AND SPECIFIC DISCOVERY

EVIDENCE ORDERED BY THE COURT.

IV. PETITIONER McCLELLAN WAS DENIED DUE PROCESS OF LAW

WHERE THE TRIAL COURT FAILED TO OBTAIN SUFFICIENT

FACTUAL BASIS TO SUPPORT HIS PLEA OF NOLO CONTENDERE.2

8. Respondent filed his answer on September 1, 2009. He contends that petitioner’s

claim factual basis claim is procedurally defaulted, and that all the claims are without merit.

B. Factual Background Underlying Petitioner’s Conviction
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Petitioner’s conviction arises from two separate incidents, both involving a firearm. They

were charged separately and the petitioner had a trial date set for each incident. According to the

factual basis stipulated to by the defense and set forth by the prosecutor at the plea hearing:

The date is February 11, 2002, in front of 850 Calvert Street in the City of

Detroit. Damon Player (sp) was on routine patrol with his partner. He encountered

the defendant, Mr. McClellan, out on the street with a Glock handgun. They tried to

tell him to stop and they were trying to apprehend him. He turned with the Glock

handgun, which is a deadly weapon, and fired at least four shots directly at Officer

Player. None of the shots took effect.

At the time he did this, he was armed with a one Glock handgun .40 caliber

that shot 9-millimeter bullets. 

The date is January 21st, 2002. The area is Second and Collingwood Streets

in the City of Detroit. At that point in time defendant possessed a 9-millimeter

handgun. By him possessing it, he did so illegally. He had previously been convicted

of carrying a concealed weapon and he was ineligible to carry a firearm and his right

to do such had not been restored.

Plea Tr. at 12-13.

In Case No. 03-10906, petitioner was charged with one count of assault with intent to

commit murder, one count of being a felon in possession of a firearm, one count of felony firearm,

one count of carrying a concealed weapon, a second count of being a felon in possession of a

firearm, a second count of felony firearm, and a count of receiving and concealing stolen property

more than $200 and less than $1,000. See id. 6-7. In Case No. 03-10849, petitioner was charged

with one count of assault with intent to murder, one count of resisting and obstructing a police

officer, one count of felony firearm, one count of forgery or alteration of an operator’s license, and

one count of being a felon in possession of a firearm. See id. at 9. On the day set for trial, petitioner

entered a no contest plea pursuant to a plea agreement. Pursuant to the plea bargain, petitioner

agreed to plead no contest on two counts in Case No. 03-10906 and one count in Case No. 03-10849.

In Case No. 03-10906, petitioner pleaded to an amended count of assault with intent to commit great
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bodily harm, with a sentence agreement of 5 1⁄2 - 10 years, and one count of felony firearm which

carries a mandatory two year sentence to be served prior to the assault sentence. In Case No. 03-

10849, petitioner pleaded no contest to one count of being a felon in possession of a firearm, with

the sentence to run concurrent with the counts in Case No. 03-10906. In exchange for this plea, the

remaining charges against petitioner were dropped. Upon questioning by the trial judge, petitioner

indicated that he understood the counts he was pleading to and that he was waiving his right to a trial

by jury in both cases. See id. at 9-10. He understood that if either trial was held he would be

presumed innocent until proven guilty and have the right to testify and call witnesses on his behalf.

See id. at 10-11. The trial court explained the maximum term of imprisonment petitioner faced by

pleading no contest, and petitioner indicated that he understood. See id. at 8-9. The court explained

to petitioner the rights he was waiving by pleading no contest, and petitioner indicated that he

understood those rights and that he was waiving them by pleading no contest. See id. at 9-12.

Petitioner also indicated that he understood that, by pleading no contest, he was giving up his right

to claim that “anyone threatened [him], used any form of undue influence or promised [him]

anything” that was not written on the settlement agreements. Id. at 11.

After his plea and prior to sentencing, petitioner filed a motion to withdraw the plea.

Petitioner argued that he should be allowed to withdraw the plea because newly discovered

evidence, showing that officer Ziegler filed a false police report in petitioner’s case and was

allegedly fired for that same conduct, exonerates him and also because he was never supplied with

a copy of the search warrant used to search the vehicle and obtain the 40-caliber Glock allegedly

used in the crime. On May 14, 2004, following a hearing conducted by the trial court, petitioner’s

motion to withdraw his plea was denied.
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C. Procedural Default

Respondent first contends that petitioner’s fourth claim, asserting an insufficient factual basis

for the plea, is barred by petitioner’s procedural default in the state courts because petitioner failed

to raise this claim on direct appeal. The Court should disagree.

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 judgment. See Coleman v.

Thompson, 501 U.S. 722, 729 (1991). However, “a procedural default does not bar consideration

of a federal claim on either direct or habeas review unless the last state court rendering a judgment

in the case ‘clearly and expressly’ states that its judgment rests on the procedural bar.” Harris, 489

U.S. at 263. Furthermore, “only a ‘firmly established and regularly followed state practice’ may be

interposed by a State to prevent subsequent review . . . of a federal constitutional claim.” Ford v.

Georgia, 498 U.S. 411, 423-24 (1991) (quoting James v. Kentucky, 466 U.S. 341, 348-51 (1984));

see also, Calderon v. United States Dist. Ct. for the E. Dist. of Cal., 96 F.3d 1126, 1129 (9th Cir.

1996) (internal quotation omitted) (“For the procedural default doctrine to apply, a state rule must

be clear, consistently applied, and well-established at the time of the petitioner’s purported

default.”).

Michigan Court Rule 6.508, governing motions for relief from judgment, provides that the

movant “bears the burden of establishing entitlement to relief.” MICH. CT. R. 6.508(D). The rule

goes on to provide, in three separately numbered paragraphs, procedural situations in which relief

will not be granted: (1) where an appeal relating to the conviction is pending; (2) where the claim

has already been ruled upon in a prior appeal or postconviction motion; and (3) where the claim
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could have been raised in a prior appeal or postconviction motion but was not. See MICH. CT. R.

6.508(D)(1)-(3).

The Michigan Court of Appeals and the Michigan Supreme Court both rejected petitioner’s

appeal based on his “failure to meet the burden of establishing entitlement to relief under MCR

6.508(D).” In Simpson v. Jones, 238 F.3d 399 (6th Cir. 2000), the court held that this identical

language constitutes an invocation of the procedural aspects of Rule 6.508(D), and thus bars federal

habeas review. See Simpson v. Jones, 238 F.3d 399, 408 (6th Cir. 2000). However the en banc

Sixth Circuit has recently rejected this rule, holding that the form orders used by the Michigan courts

constitute unexplained orders which are ambiguous as to whether a procedural bar is being invoked,

and thus a federal habeas court must “look through” these orders to the last reasoned state court

judgment to determine if the claims are barred. See Guilmette v. Howes, ___ F.3d ___, ___, 2010

WL 4117281, at *4 (6th Cir. Oct. 21, 2010) (en banc). Here, the trial court clearly denied relief to

petitioner on all of the claims raised in his motion for relief from judgment pursuant to Rule

6.508(D)(2), because the claims had already been raised by and decided against petitioner on his

direct appeal. Rule 6.508(D)(2), however, does not constitute a procedural bar to federal habeas

review. This rule is merely a collateral estoppel rule which prohibits a trial court from reconsidering

a claim already decided against a defendant on direct appeal. Application of this collateral estoppel

rule does not bar federal habeas review. As this Court has explained: “Rule 6.508(D)(2) is simply

a res judicata rule barring a defendant from relitigating claims in a motion for relief from judgment

which were decided adversely to him in a prior state court decision. Because Petitioner’s . . . claims

were considered on the merits in Petitioner’s [direct appeal], there is no bar to habeas review of

these claims.” Morse v. Trippett, 102 F. Supp. 2d 392, 402 (E.D. Mich. 2000) (Tarnow, J.) (citing
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Ceja v. Stewart, 97 F.3d 1246, 1253 (9th Cir. 1996); Silverstein v. Henderson, 706 F.2d 361, 368

(2d Cir. 1983)); accord Correll v. Thompson, 63 F.3d 1279, 1289 n.8 (4th Cir. 1995). Accordingly,

the Court should conclude that petitioner’s fourth claim is not barred by a procedural default.

D. Standard of Review

Because petitioner’s application was filed after April 24, 1996, his petition is governed by

the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No.

104-132, 110 Stat. 1214 (Apr. 24, 1996). See Lindh v. Murphy, 521 U.S. 320, 326-27 (1997).

Amongst other amendments, the AEDPA amended the substantive standards for granting habeas

relief by providing:

(d) 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.

28 U.S.C. § 2254(d).

“[T]he ‘contrary to’ and ‘unreasonable application’ clauses [have] independent meaning.”

Williams v. Taylor, 529 U.S. 362, 405 (2000); see also, Bell v. Cone, 535 U.S. 685, 694 (2002). “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, 529 U.S. at 405-06); see also, Early v. Packer, 537 U.S. 3, 8 (2002); Bell, 535
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U.S. at 694. “[T]he ‘unreasonable application’ prong of § 2254(d)(1) 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); see also, Bell, 535 U.S. at 694.

However, “[i]n order for a federal court to find a state court’s application of [Supreme Court]

precedent ‘unreasonable,’ the state court’s decision must have been more than incorrect or

erroneous. The state court’s application must have been ‘objectively unreasonable.’” Wiggins, 539

U.S. at 520-21 (citations omitted); see also, Williams, 529 U.S. at 409.

By its terms, § 2254(d)(1) limits a federal habeas court’s review to a determination of

whether the state court’s decision comports with “clearly established federal law as determined by

the Supreme Court.” Thus, “§ 2254(d)(1) restricts the source of clearly established law to [the

Supreme] Court’s jurisprudence.” Williams, 529 U.S. at 412. Further, the “phrase ‘refers to the

holdings, as opposed to the dicta, of [the] Court’s decisions as of the time of the relevant state-court

decision.’ In other words, ‘clearly established Federal law’ under § 2254(d)(1) is the governing

legal principle or principles set forth by the Supreme Court at the time the state court renders its

decision.” Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003) (citations omitted) (quoting Williams, 529

U.S. at 412).

Although “clearly established Federal law as determined by the Supreme Court” is the

benchmark for habeas review of a state court decision, the standard set forth in § 2254(d) “does not

require citation of [Supreme Court] cases–indeed, it does not even require awareness of [Supreme

Court] cases, so long as neither the reasoning nor the result of the state-court decision contradicts

them.” Early, 537 U.S. at 8; see also, Mitchell, 540 U.S. at 16. Further, although the requirements
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of “clearly established law” are to be determined solely by the holdings of the Supreme Court, the

decisions of lower federal courts are useful in assessing the reasonableness of the state court’s

resolution of an issue. See Williams v. Bowersox, 340 F.3d 667, 671 (8th Cir. 2003); Phoenix v.

Matesanz, 233 F.3d 77, 83 n.3 (1st Cir. 2000); Dickens v. Jones, 203 F. Supp.2d 354, 359 (E.D.

Mich. 2002) (Tarnow, J.).

E. Newly Discovered Evidence (Claim I)

Petitioner first claims he was denied due process because the trial court denied his motions

to withdraw his no contest plea despite newly discovered exculpatory evidence and refused to view

this evidence. He maintains that newly discovered evidence proves his innocence and that, in the

interest of justice and because it would not prejudice the prosecution, he should have been allowed

to withdraw his plea. This claim provides no basis for habeas relief.

A writ of habeas corpus may be granted “only on the ground that [the petitioner] is in

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

2254(a). Thus, the existence of new evidence, standing alone, is not a basis for granting the writ. As

the Supreme Court has explained: “Claims of actual innocence based on newly discovered evidence

have never been held to state a ground for federal habeas relief absent an independent constitutional

violation occurring in the underlying state criminal proceeding.” Herrera v. Collins, 506 U.S. 390,

400 (1993); see also, id. at 404 (claim of actual innocence is “not itself a constitutional claim, but

instead a gateway through which a habeas petitioner must pass to have his otherwise [procedurally]

barred constitutional claim considered on the merits.”) (emphasis added); Schlup v. Delo, 513 U.S.

298, 314-16 (distinguishing, in part, Herrera because in this case the petitioner “accompanie[d] his

claim of innocence with an assertion of constitutional error at trial.”); Townsend v. Sain, 372 U.S.
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293, 317 (1963) (“Of course, such evidence must bear upon the constitutionality of the applicant’s

detention; the existence merely of newly discovered evidence relevant to the guilt of a state prisoner

is not a ground for relief on federal habeas corpus.”), overruled in part on other grounds, Keeney v.

Tamayo-Reyes, 504 U.S. 1 (1992). Thus, the newly discovered evidence, standing alone, provides

no basis for habeas relief.

Nor does petitioner’s assertion of innocence after the plea was entered render his otherwise

valid plea involuntary. As another court observed long ago, there are “no cases which hold that

denial of guilt, under oath, subsequent to the entry of a guilty plea but prior to sentencing renders

the plea involuntary as a matter of constitutional law.” Hansen v. Mathews, 296 F. Supp. 1398,

1331(E.D. Wis. 1969), aff’d 424 F.2d 1205 (7th Cir. 1970). Although Hansen was decided over

forty years ago, this observation holds true today. It is well established that “factual guilt or

innocence. . . is irrelevant to the question of whether [a defendant’s] plea was voluntary.” United

States ex rel. Smith v. Johnson, 403 F. Supp. 1381, 1397 (E.D. Pa. 1975), aff’d, 538 F.2d 322 (3rd

Cir. 1976); see also, Stewart v. Peters, 958 F.2d 1379, 1385 (7th Cir. 1992) (“A guilty plea is no

more involuntary because the defendant believes he is innocent than the settlement of a civil lawsuit

is involuntary because the defendant refuses to admit liability and may believe in all sincerity that

he is not liable in the least.”) Indeed, the Supreme Court has explicitly held that a criminal defendant

may constitutionally enter a guilty plea even while protesting his innocence or declining to admit

his commission of the crime. See North Carolina v. Alford, 400 U.S. 25, 37-38 (1970). This is

directly applicable to the petitioner’s request for habeas relief. The newly discovered evidence does

not invalidate his valid and voluntary plea of no contest to the charges against him. In addition to

this and contrary to petitioner’s assertion, this evidence is not newly discovered. He had knowledge
14

of the “enhanced” videotape and had viewed it prior to his acceptance of the plea bargain. He also

had knowledge of the fact that his counsel had not yet received a copy of the search warrant used

to obtain the weapon or the evidence technician’s report. See Mot. To Withdraw Plea & Sentence

Tr., at 5, 7-8, 12. Petitioner chose to accept the plea bargain fully aware that these items might have

benefitted his case at trial. The plea bargain offered by the prosecution reduced or eliminated many

of the original counts petitioner was charged with. His acceptance of the plea bargain was a strategic

decision and, by entering into it, he relinquished his right of going to trial and using this evidence

to convince a jury of his innocence. Furthermore, the newly discovered evidence does not prove that

vacating his no contest plea is “in the interest if justice” as petitioner has claimed. At best, it would

have served to aid petitioner in attempting to discredit the testimony of a prosecution witness. See

Calderon v. Thompson, 523 U.S. 538, 563 (1998) (newly discovered impeachment evidence, which

is “a step removed from evidence pertaining to the crime itself,” “provides no basis for finding”

actual innocence); Sawyer v. Whitley, 505 U.S. 333, 349 (1992) (newly discovered impeachment

evidence “will seldom, if ever,” establish actual innocence). There was additional evidence that

supported the charges against petitioner, which would have been used to prove his guilt.

Petitioner cannot show a denial of his constitutional rights by the trial court’s refusal to allow

him to withdraw his plea. Federal habeas courts have no authority to interfere in the trial process.

See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Serra v. Michigan Dep’t of Corrections, 4 F.3d

1348, 1354 (6th Cir. 1993). A criminal defendant has no constitutional right to withdraw a validly

and voluntarily entered guilty plea. See Chene v. Abramajtys, No. 95-1491, 1996 WL 34902, at *2

(6th Cir. Jan. 29, 1996); Metcalf v. Bock, No. 00-10361-BC, 2002 WL 317 49157, at *5 (E.D. Mich.

Dec. 5, 2002) (Lawson, J.); Freeman v. Muncy, 748 F. Supp. 423, 429 (E.D. Va. 1990); Williams
15

v. Smith, 454 F. Supp. 692, 696 (W.D.N.Y. 1978), aff’d, 591 F.2d 169 (2d Cir. 1979). Thus, the trial

court’s refusal to allow petitioner to withdraw his plea under the governing state court rules does

not state a cognizable basis for habeas relief.

Even under the standard applicable to pleas in federal court under FED. R. CRIM. P. 11,

petitioner cannot show that he would be entitled to withdrawal of his plea. Under Rule 11,

withdrawal is permitted only in the “most compelling of circumstances indicating the innocence of

the defendant.” United States v. Tolson, 372 F. Supp. 2d 1, 24 (D.D.C. 2005), aff’d, 264 Fed. Appx.

2 (D.C. Cir. Jan. 25, 2008); see also, United States v. Robinson, 498 F. Supp. 2d 328, 331-32

(D.D.C. 2007). Petitioner has failed to show that these circumstances exist. Because of this and for

the reasons stated above, habeas relief should be denied on this claim.

F. Ineffective Assistance of Counsel (Claim II)

Petitioner next contends that his counsel rendered constitutionally deficient assistance by (1)

failing to obtain exculpatory evidence; and (2) failing to investigate and obtain discovery material.

The Court should conclude that petitioner is not entitled to habeas relief on this claim.

1. Clearly Established Law

The Sixth Amendment right to counsel and the corollary right to effective assistance of

counsel protect the fundamental right to a fair trial. See Strickland v. Washington, 466 U.S. 668, 687

(1984). To establish the ineffective assistance of counsel, petitioner must show that: (1) counsel’s

errors were so serious that “counsel was not functioning as the ‘counsel’ guaranteed the defendant

by the Sixth Amendment;” and (2) counsel’s deficient performance prejudiced the defense. Id. at

687. These two components are mixed questions of law and fact. See id. at 698. Further, “[t]here is

no reason for a court deciding an ineffective assistance claim...to address both components of the
16

inquiry if the defendant makes an insufficient showing on one.” Id. at 697. If “it is easier to dispose

of an ineffectiveness claim on the ground of lack of sufficient prejudice,...that course should be

followed.” Id.

With respect to the performance prong of the inquiry, a strong presumption exists that

counsel’s behavior lies within the wide range of reasonable professional assistance. See id. at 689;

O’Hara v. Wigginton, 24 F.3d 823, 828 (6th Cir. 1994). “[D]efendant must overcome the

presumption that, under the circumstances, the challenged action ‘might be considered sound trial

strategy.’” Strickland, 466 U.S. at 689 (internal citation omitted). “[T]he court should recognize that

counsel is strongly presumed to have rendered adequate assistance and made all significant decisions

in the exercise of reasonable professional judgment.” Id. at 690. With respect to the prejudice prong,

the reviewing court must determine, based on the totality of the evidence before the fact finder,

“whether there is a reasonable probability that, absent the errors, the factfinder would have had a

reasonable doubt respecting guilt.” Id. at 695. Where, as here, a petitioner challenges counsel’s

effectiveness with respect to a guilty plea, “in order to satisfy the ‘prejudice’ requirement, the

[petitioner] must show that there is a reasonable probability that, but for counsel’s errors, he would

not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52,

59 (1985); see also, O’Hara, 24 F.3d at 828. However, with respect to the prejudice prong it is not

enough for petitioner to merely allege that he would have insisted on going to trial had counsel

properly advised him. As other judges of this Court have explained:

In the guilty plea context the petitioner must show that there is a reasonable

probability that, but for counsel’s errors, he would not have pleaded guilty and would

have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 58-59, 106 S.Ct. 366,

88 L.ED.2d 203 (1985). Furthermore, this determination depends in large part on a

prediction of what the outcome of a trial might have been. Id. at 58-60, 106 S.Ct.

366; Armstead v. Scott, 37 F.3d 202, 206 (5th Cir. 1994). In other words, the
17

petitioner must show that, but for counsel’s errors, he would not have pleaded guilty,

because there would have been at least a reasonable chance he would have been

acquitted. If examination of the totality of the circumstances shows that the petitioner

would in all likelihood have been convicted of the same, or greater, charges after a

trial, he cannot show that the advice to plead guilty prejudiced him. A petitioner’s

conclusory allegation that, but for an alleged attorney’s act or omission, he would not

have pleaded guilty is not enough to prove such a claim. Petitioner must show that

there is a reasonable probability that the result of the proceeding would have been

different. It is not sufficient to show that, but for counsel’s alleged errors he would

have been convicted after a trial instead of after entering a guilty plea.

Garrison v. Elo, 156 F. Supp 2d 815, 829 (E.D. Mich. 2001) (O’Meara, J.); see also, Thirkield v.

Pitcher, 199 F. Supp. 637, 655 (E.D. Mich. 2002) (Friedman, J.); Holtgreive v. Curtis, 174 F. Supp.

2d 572, 587 (E.D. Mich. 2001) (Hood, J.) (“If examination of the totality of the circumstances shows

that the petitioner would in all likelihood have been convicted of the same, or greater, charges after

a trial, he cannot show that the advice to plead guilty prejudiced him.”)

2. Analysis

Petitioner’s claim of ineffective assistance of counsel is without merit. He claims that his

counsel was ineffective because counsel failed to obtain exculpatory evidence, namely an enhanced

version of a video tape, in time for trial. As mentioned above, the standard of proof required to prove

that counsel is ineffective is substantial. Under the Strickland test, petitioner must establish deficient

performance and prejudice. In this case, counsel did in fact request this enhanced video tape.

Petitioner’s complaint is that counsel requested it two weeks before the trial date and that it allegedly

would not have been ready for the trial. This claim does not satisfy the performance prong because

this single act can hardly be characterized as an error and does not rebut the strong presumption that

defense counsel rendered effective assistance. Strickland, 466 U.S. at 690. Even if petitioner were

able to show that this error was so serious that, in effect, “counsel was not functioning as the

‘counsel’ guaranteed the defendant by the Sixth Amendment,” Id. at 697, the other prong of the
18

Strickland test would still not be met. The record indicates that petitioner knew of the Channel 4

video and that counsel had subpoenaed the video. He nevertheless chose to plead no contest. See

Plea Tr., at 4. Because this information was known to petitioner prior to the entry of his plea, he

cannot show that “but for counsel’s [failure to request the video sooner], he would not have pleaded

[no contest] and would have insisted on going to trial.” Hill, 474 U.S. at 59.

Petitioner also claims counsel was ineffective by failing to adequately investigate and request

disclosure of mandatory discovery. This claim is also without merit. Petitioner’s assertions with

respect to the enhanced video tape have been addressed above. He also mentions the failure of

counsel to request and investigate the evidence technician reports and a search warrant used to

retrieve a weapon from petitioner’s vehicle. With respect to the evidence technician reports,

petitioner fails to show how these reports would have benefitted his case at trial. It is petitioner’s

burden to show that counsel’s actions satisfy the two prongs of the Strickland test. Without

explaining how this report would have affected his decision to plead guilty, petitioner has failed to

satisfy the prejudice prong of the Strickland test. He also mentions counsel’s failure to request and

investigate the search warrant used to retrieve a gun from petitioner’s vehicle. Yet, in petitioner’s

habeas brief he states that defense counsel mentioned that “[counsel] went to 36th District Court to

look for [a search warrant] on file.” Pet’r’s Br., at 31. Thus by petitioner’s own account defense

counsel did investigate whether or not a search warrant was issued and, therefore, the performance

prong of the Strickland test is not met. Additionally, petitioner does not explain how his case was

prejudiced from counsel’s alleged failure to investigate the existence of the search warrant. If the

search warrant exists then petitioner’s case is not strengthened and he has not produced any evidence

that the search warrant does not exist. This also fails to meet the prejudice standard of the Strickland
19

test. Therefore, habeas relief should not be granted on the basis of this claim.

G. Exculpatory Evidence (Claim III)

In his third claim, petitioner contends that he was denied due process of law by the

prosecutor’s failure to provide discovery material and by the trial court’s failure to allow him to

withdraw his plea on this basis. This claim is actually a combination of two separate issues. The

first one is whether preventing petitioner from withdrawing his guilty plea is a denial of due process.

The second issue is whether the prosecutor’s alleged failure to disclose mandatory discovery

constitutes a denial of due process.

With regard to the first part of the claim, the refusal of the trial court to grant his motion to

withdraw a plea as a basis for habeas relief has already been addressed above and is without merit,

because there is no federal constitutional right to withdraw a validly entered plea.

 The second part of petitioner’s claim concerns the prosecutor’s alleged failure to disclose

favorable evidence, which is a Brady claim. The Due Process Clause requires the state to disclose

exculpatory evidence to the defense. See Brady v. Maryland, 373 U.S. 83 (1963). However,

petitioner’s claim does not meet the requirements of a true Brady violation. “There are three

components of a true Brady violation: The evidence at issue must be favorable to the accused, either

because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by

the State, either willfully or inadvertently; and prejudice must have ensued.” Strickler v. Greene, 527

U.S. 263, 281-82 (1999). Thus, in order to establish a Brady claim, petitioner must show that: (1)

evidence was suppressed by the prosecution in that it was not known to petitioner and not available

from another source; (2) the evidence was favorable or exculpatory; and (3) the evidence was

material to the question of petitioner’s guilt. See Carter v. Bell, 218 F.3d 581, 601 (6th Cir. 2000);
20

Luton v. Grandison, 44 F.3d 626, 628-29 (8th Cir. 1994); see also, Strickler v. Greene, 527 U.S.

263, 281-82 (1999); Moore v. Illinois, 408 U.S. 786, 794-95 (1972). Petitioner bears the burden of

establishing each of these three elements. See Carter, 218 F.3d at 601. 

Petitioner has not established these elements in the three specific Brady violations he alleges

under this claim. Petitioner claims that the prosecution suppressed the evidence technician report,

the search warrant for the alleged weapon used in the crime, and information concerning disciplinary

action taken against an officer because of misconduct. With regard to the evidence technician report,

petitioner includes a complaint concerning his counsel’s neglect in failing to obtain this report. This

creates doubt as to whether or not the prosecutor withheld the evidence or if it was defense counsel’s

neglect that kept it from being obtained. Additionally, petitioner has not advanced a viable theory

as to how this report would have been beneficial to his case. The second instance of alleged

prosecutorial suppression concerns the alleged disciplinary action taken against Officer Ziegler, one

of the officers present at the scene where this specific crime occurred. Petitioner has not proved that

the prosecutor knew about any disciplinary action nor has he shown that such an action even took

place. In fact defense counsel stated only that “it’s our belief that he was either fired or quit as a

result of this incident.” Mot. to Withdraw Plea Tr. on 01/08/04, at 11 (emphasis added). Petitioner

does not support this belief with any evidence and therefore does not carry his burden of establishing

the elements of a Brady violation. See Carter, 218 F.3d at 601. As to the employment status of

Officer Ziegler, defense counsel stated that “[i]t wasn’t until the day of trial that I found out from

the OIC that [Officer Ziegler] was no longer working for the Detroit Police Department.” Id. at 11.

Furthermore, the prosecutor responded to petitioner’s allegation that he was not aware of Officer

Ziegler being fired by stating that “the officer in charge told me a couple of days before trial that he
21

had spoken to [defense counsel] and conveyed that information.” Id. at 12. This establishes that

petitioner’s counsel knew the employment status of Officer Ziegler and therefore the evidence was

not suppressed. Finally, there is the alleged failure to disclose the search warrant used to obtain the

weapon used in the commission of the crime. This Brady claim appears to be an indirect way of

stating that there was in fact no search warrant issued. This claim is without merit. The prosecutor

asked “[i]f you don’t believe that search warrant exists, how come when you make all your written

motions, you did not bring that to the Court’s attention?” Id. at 15. The prosecutor clearly stated that

“there is a search warrant.” Id. at 14, and petitioner has not presented any evidence to contradict this

statement. Additionally, the alleged suppression of this search warrant fails to meet the second

element of a Brady violation because its existence is neither favorable nor exculpatory. 

In addition to lacking merit, petitioner’s claim does not state a violation of clearly established

federal law under § 2254(d)(1). The Supreme Court has never held that the Brady rule requires

disclosure of exculpatory evidence prior to the entry of a plea, rather than for use at trial. On the

contrary, the Supreme Court has repeatedly referenced the Brady rule as necessary to secure a fair

trial before the fact finder. In Brady, the Court explained that “[a] prosecution that withholds

evidence on demand of an accused which, if made available, would tend to exculpate him . . . helps

shape a trial that bears heavily on the accused.” Brady, 373 U.S. at 87-88 (emphasis added). In

United States v. Agurs, 427 U.S. 97 (1976), the court explained that the rule prohibiting the use of

perjured testimony, upon which the Brady rule is founded, is based on the notion that the use of

perjured testimony represents “a corruption of the truth-seeking function of the trial process.” Id.

at 104 (emphasis added). Similarly, in United States v. Bagley, 473 U.S. 667 (1985), the Court stated

that “suppression of evidence amounts to a constitutional violation only if it deprives the defendant
22

of a fair trial.” Id. at 678 (emphasis added).

In light of this focus on the effects of suppressing evidence on the truth-finding function of

the jury at trial, several courts have held that the failure to disclose exculpatory information prior

to the taking of a plea does not render the plea involuntary or constitute a Brady violation. The

reasoning of this rule was aptly explained by the Fifth Circuit: “Because a Brady violation is defined

in terms of the potential effects of undisclosed information on a judge’s or jury’s assessment of guilt,

it follows that the failure of a prosecutor to disclose exculpatory information to an individual

waiving his right to a trial is not a constitutional violation.” Matthew v. Johnson, 201 F.3d 353, 361-

62 (5th Cir. 2000). To be sure, other courts have reached a contrary conclusion, including the Sixth

Circuit. See, e.g., Sanchez v. United States, 50 F.3d 1448, 1453-54 (9th Cir. 1995); United States v.

Avellino, 136 F.3d 249, 255 (2nd Cir. 1998); Campbell v. Marshall, 769 F.2d 314,324 (6th Cir.

1985). The continued validity of these cases, however, is called into question by the Supreme

Court’s more recent decision in United States v. Ruiz, 536 U.S. 622 (2002). In that case, the Court

held that a plea is not rendered invalid by the prosecutor’s failure to disclose exculpatory

impeachment information prior to the entry of the plea. See id. at 628-33. While the Court expressly

declined to consider whether this rule also applied to exculpatory substantive evidence, the Court’s

reasoning focused on the Brady rule’s connection to the truth-finding function at trial, suggesting

that the holding in Ruiz extends to exculpatory substantive evidence as well. Indeed, at some points

the Court did not distinguish between the two types of exculpatory evidence, going so far as to note

that “due process considerations, the very same considerations that led this Court to find trial related

rights to exculpatory and impeachment information in Brady and Giglio, argue against the existence

of the ‘right’” to pre-plea disclosure. Ruiz, 536 U.S. at 631.
23

More importantly, even if the court of appeals cases recognizing such a right survive Ruiz,

those cases alone cannot provide a right to habeas relief. Under § 2254, habeas relief is available

only if the state court violated clearly established federal law as determined by the Supreme Court.

See 28 U.S.C. § 2254(d)(1). In light of the reasoning of Ruiz, the Court’s repeated description of

Brady as grounded in the right to a fair trial, the lack of any Supreme Court precedent requiring

Brady material to be disclosed prior to the entry of a guilty plea, and the split among the courts of

appeals on this issue, it cannot be said that the right petitioner seeks to invoke here constitutes

clearly established law under § 2254(d)(1). See Jones v. Bryant, 27 Fed. Appx. 699, 701 (7th Cir.

2001). Accordingly, the Court should conclude that petitioner is not entitled to habeas relief on this

claim.

H. Lack of Factual Basis (Claim IV)

Finally, petitioner claims that the trial court’s alleged failure to obtain a valid factual basis

for his plea of no contest constitutes a denial of due process. This claim is without merit. “[T]he

requirement that a sentencing court must satisfy itself that a sufficient factual basis supports the

guilty plea is not a requirement of the Constitution.” United States v. Tunning, 69 F.3d 107, 111 (6th

Cir. 1995). “Violations of state law and procedure that do not infringe specific federal constitutional

protections are not cognizable claims under § 2254.” Estelle v. Mcguire, 502 U.S. 62, 67-68 (1991).

Because the writ of habeas corpus exists only to correct errors of federal law, a state court’s failure

to elicit a factual basis for a guilty plea does not state a claim cognizable on habeas review. See

United States v. McGlocklin, 8 F.3d 1037, 1047 (6th Circ. 1993) (en banc); Willbright v. Smith, 745

F.2d 779, 780 (2d Cir. 1984); Roddy v. Black, 516 F.2d 1380, 1385 (6th Cir. 1975); Coddington v.

Langley, 202 F. Supp. 2d 687, 702 (E.D. Mich. 2002) (Tarnow, J.). And, in any event, the
24

prosecutor’s description of the crime, stipulated to by petitioner at the plea hearing, provided a

factual basis for the crimes for which petitioner was convicted. Therefore habeas relief on this

ground should be denied.

I. Recommendation Regarding Certificate of Appealability

1. Legal Standard

As amended by the Antiterrorism and Effective Death Penalty Act, section 2253 provides

that a petitioner may not appeal a denial of an application for a writ of habeas corpus unless a judge

issues a certificate of appealability. See 28 U.S.C. § 2253(c)(1). The statute further provides that

“[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). As the Sixth Circuit has noted, this

language represents a codification of the Supreme Court’s decision in Barefoot v. Estelle, 463 U.S.

880 (1983), and “[t]he AEDPA thus makes no change to the general showing required to obtain a

certificate[.]” Lyons v. Ohio Adult Parole Auth., 105 F.3d 1063, 1073 (6th Cir. 1997); accord Slack

v. McDaniel, 529 U.S. 473, 483 (2000). Although the statute does not define what constitutes a

“substantial showing” of a denial of a constitutional right, the burden on the petitioner is obviously

less than the burden for establishing entitlement to the writ; otherwise, a certificate could never

issue. Rather, the courts that have considered the issue have concluded that “‘[a] substantial

showing requires the applicant to “demonstrate that the issues are debatable among jurists of reason;

that a court could resolve the issues (in a different manner); or that the questions are adequate to

deserve encouragement to proceed further.”’” Hicks v. Johnson, 186 F.3d 634, 636 (5th Cir. 1999)

(quoting Drinkard v. Johnson, 97 F.3d 751, 755 (5th Cir. 1996) (quoting Barefoot, 463 U.S. at 893

n.4)); accord Slack, 529 U.S. at 483-84. Although the substantive standard is the same, “[t]he new
25

Act does, however, require that certificates of appealability, unlike the former certificates of

probable cause, specify which issues are appealable.” Lyons, 105 F.3d at 1073. (citing 28 U.S.C.

§ 2253(c)(3)).

Effective December 1, 2009, the newly created Rule 11 of the Rules Governing Section 2254

Cases in the United States District Courts, 28 U.S.C. foll. § 2254, provides that “[t]he district court

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

Rule 11(a), 28 U.S.C. foll. § 2254. The rule tracks § 2253(c)(3)’s requirement that any grant of a

certificate of appealability “state the specific issue or issues that satisfy the showing required by §

2253(c)(2),” Rule 11(a), but omits the requirement contained in the pre-amendment version of

Federal Rule of Appellate Procedure 22(b)(1) that the court explain “why a certificate should not

issue.” FED. R. APP. P. 22(b)(1) (version effective prior to 2009 amendment); see id., advisory

committee note, 2009 amendments. In light of the new Rule 11 requirement that the Court either

grant or deny the certificate of appealability at the time of its final adverse order, I include a

recommendation regarding the certificate of appealability issue here.

2. Analysis

If the Court accepts my recommendation regarding the merits of petitioner’s claims, the

Court should also conclude that petitioner is not entitled to a certificate of appealability. With

regard to petitioner’s first claim, it is beyond debate that a criminal defendant has no constitutional

right to withdraw a validly and voluntarily entered guilty plea. See Chene v. Abramajtys, No. 95-

1491, 1996 WL 34902, at *2 (6th Cir. Jan. 29, 1996). The record does not show that petitioner’s plea

was involuntary and as previously stated the evidence mentioned by him is neither newly discovered

nor exculpatory. As to the second claim, ineffective assistance of counsel, the allegations are all
26

addressed in this report and found to lack merit. The alleged failure to obtain an “enhanced”

videotape in time for the trial doesn’t meet the prejudice prong because petitioner entered his plea

despite knowing about the tape. With respect to the evidence technician report and search warrant,

petitioner has not shown that counsel failed to adequately investigate them nor has he shown that

he was prejudiced by any alleged failure. The resolution of this claim is therefore not reasonably

debatable. With regard to petitioner’s Brady claim, it is not reasonably debatable that petitioner has

failed to show that evidence was suppressed or that it was exculpatory. More importantly, in light

of the reasoning of Ruiz, the Court’s repeated description of Brady as grounded in the right to a fair

trial, the lack of any Supreme Court precedent requiring Brady material to be disclosed prior to the

entry of a guilty plea, and the split among the courts of appeals on this issue, it cannot be said that

the right petitioner seeks to invoke here constitutes clearly established law under § 2254(d)(1). See

Jones v. Bryant, 27 Fed. Appx. 699, 701 (7th Cir. 2001). Finally, the resolution of petitioner’s

fourth claim is not reasonably debatable, because it is beyond dispute that “the requirement that a

sentencing court must satisfy itself that a sufficient factual basis supports the guilty plea is not a

requirement of the Constitution,” Tunning, 69 F.3d at 111, and that “[v]iolations of state law and

procedure that do not infringe specific federal constitutional protections are not cognizable claims

under § 2254.” Estelle v. Mcguire, 502 U.S. 62, 67-68 (1991). Accordingly, the Court should

conclude that petitioner is not entitled to a certificate of appealability.

J. Conclusion

In view of the foregoing, the Court should conclude that the state courts’ resolution of

petitioner’s claims did not result in a decision which was contrary to, or which involved an

unreasonable application of, clearly established federal law. Accordingly, the Court should deny
27

petitioner’s application for the writ of habeas corpus. If the Court accepts this recommendation, the

Court should also deny petitioner a certificate of appealability.

III. NOTICE TO PARTIES REGARDING OBJECTIONS:

The parties to this action may object to and seek review of this Report and Recommendation,

but are required to act within fourteen (14) days of service of a copy hereof as provided for in FED.

R. CIV. P. 72(b)(2). Failure to file specific objections constitutes a waiver of any further right of

appeal. See Thomas v. Arn, 474 U.S. 140 (1985); Howard v. Secretary of Health & Human Servs.,

932 F.2d 505 (6th Cir. 1991); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). Filing of

objections which raise some issues but fail to raise others with specificity, will not preserve all the

objections a party might have to this Report and Recommendation. See Willis v. Secretary of Health

& Human Servs., 931 F.2d 390, 401 (6th Cir. 1991). Smith v. Detroit Federation of Teachers Local

231, 829 F.2d 1370, 1373 (6th Cir. 1987). Pursuant to E.D. Mich. LR 72.1(d)(2), a copy of any

objections is to be served upon this Magistrate Judge.

Within fourteen (14) days of service of any objecting party’s timely filed objections, the

opposing party may file a response. The response shall be not more than five (5) pages in length

unless by motion and order such page limit is extended by the Court. The response shall address

specifically, and in the same order raised, each issue contained within the objections.

s/Paul J. Komives 

PAUL J. KOMIVES

UNITED STATES MAGISTRATE JUDGE

Dated: 11/15/10
28

The undersigned certifies that a copy of the foregoing

order was served on the attorneys of record and by

electronic means or U.S. Mail on November 15, 2010.

s/Eddrey Butts 

Case Manager