UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

RAYMOND WAYNE BARLOW,

Petitioner,

v. CASE NO. 09-10884

 HONORABLE GEORGE CARAM STEEH

CAROL HOWES,

Respondent.

_______________________________/

OPINION AND ORDER

DENYING THE HABEAS CORPUS PETITION,

DENYING A CERTIFICATE OF APPEALABILITY, BUT

GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

Raymond Wayne Barlow (“petitioner”) is a state prisoner at Lakeland

Correctional Facility in Coldwater, Michigan. He has filed a pro se habeas corpus

petition pursuant to 28 U.S.C. § 2254. The pleading challenges petitioner’s convictions

for armed robbery, assault with intent to commit murder, and possession of a firearm

during the commission of a felony (felony firearm). Warden Carol Howes (“respondent”)

urges the Court through counsel to deny the petition. 

Having reviewed the pleadings and record, the Court concludes that petitioner is

not entitled to the relief he seeks. Accordingly, the petition will be denied. 

I. Background

A. The Facts

Petitioner was charged in Wayne County, Michigan with one count of armed

robbery, two counts of assault with intent to commit murder, two counts of felonious

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assault, and one count of felony firearm. The charges arose from an incident in Lincoln

Park, Michigan on July 1, 2005. The record indicates that Petitioner removed five sets of

cologne from a Sears department store that day without paying for the items. When a

loss-prevention officer confronted him outside the store, he dropped the merchandise

and attempted to walk away. The officer grabbed petitioner by one arm, and a second

loss-prevention officer grabbed petitioner by the other arm. Petitioner managed to

reach into his pants pocket and pull out a gun. He shot one of the officers two times

and then left in a van driven by another person. One of the loss-prevention officers

observed the licence plate number on the van, and the police determined that petitioner

was the suspect. They found him hiding in his home on July 6, 2005.

 Following his arrest, petitioner made a statement to the police in which he

admitted that he went to Sears to steal cologne because he needed money and he

knew that he could sell the cologne. He claimed that he forgot he had the gun in his

pants and that the gun accidentally discharged when he took it out of his pocket and

struggled with the loss-prevention officers. 

B. The Plea, Sentence, and Appeals

On September 29, 2005, petitioner pleaded no contest in Wayne County Circuit

Court to armed robbery, Mich. Comp. Laws § 750.529, one count of assault with intent

to commit murder, Mich. Comp. Laws § 750.83, and felony firearm, Mich. Comp. Laws §

750.227b. In return, the prosecutor dismissed the two felonious assault charges and

one count of assault with intent to commit murder. In addition, the trial court agreed to

sentence petitioner to two years for the felony firearm conviction, followed by concurrent

terms of 126 months (ten and half years) to thirty years for the armed robbery and

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assault charges. On October 14, 2005, the trial court sentenced Petitioner pursuant to

the plea and sentencing agreement. 

In an application for leave to appeal, petitioner argued through counsel that he

was sentenced on the basis of conduct not admitted at his plea, nor found by a jury

beyond a reasonable doubt. The Michigan Court of Appeals denied leave to appeal for

lack of merit in the ground presented. See People v. Barlow, No. 270970 (Mich. Ct.

App. July 28, 2006). On October 31, 2006, the Michigan Supreme Court denied leave

to appeal because it was not persuaded to review the issue. See People v. Barlow, 477

Mich. 918; 722 N.W.2d 816 (2006).

On November 26, 2007, petitioner filed a motion for relief from judgment in which

he alleged that (1) he was denied his constitutional right to effective assistance of

counsel where the factual basis for his plea was not supported by the record, (2) he was

improperly charged, and (3) he was denied his right to plead no contest to the correct

charge due to prosecutorial misconduct. The trial court denied petitioner’s motion after

concluding that petitioner’s attorneys were not ineffective and that petitioner had failed

to show “cause” for not raising his claims on appeal and actual prejudice from the

alleged irregularities. 

In a subsequent appeal from the trial court’s order, petitioner alleged that he was

improperly charged and that his plea was involuntary because he was charged under

the wrong statute. The Michigan Court of Appeals denied leave to appeal for failure to

establish entitlement to relief under Michigan Court Rule 6.508(D). See People v.

Barlow, No. 284726 (Mich. Ct. App. Sept. 23, 2008). 

Petitioner raised the same issues in the Michigan Supreme Court, along with two

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new issues, which alleged ineffective assistance of counsel and prosecutorial

misconduct. The Michigan Supreme Court denied leave to appeal for failure to

establish entitlement to relief under Michigan Court Rule 6.508(D). See People v.

Barlow, 483 Mich. 894; 760 N.W.2d 485 (2009). 

C. The Habeas Petition and Answer

Petitioner filed his habeas corpus petition on March 9, 2009. He alleges that: (1)

he was denied his constitutional right to effective assistance of counsel by counsel’s

failure to investigate, to assert a viable defense, and to present mitigating evidence at

sentencing; (2) his plea was involuntary because he was charged under the wrong

statute; and (3) his appellate attorney was ineffective for failing to raise a claim

challenging the sufficiency of the evidence. 

Respondent argues in her answer to the petition that petitioner’s claims lack

merit and are unexhausted or procedurally defaulted. The doctrines of exhaustion of

state remedies and procedural default are not jurisdictional requirements. Pudelski v.

Wilson, 576 F.3d 595, 606 (6th Cir. 2009), cert. denied, __ U.S. __, 130 S. Ct. 3274

(2010). Thus, there is no need to consider whether petitioner’s claims are exhausted or

procedurally defaulted. The Court will proceed to address petitioner’s claims on their

merits, using the following standard of review.

II. Standard of Review

State prisoners are entitled to the writ of habeas corpus only if the state court’s

adjudication of their 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

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(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). 

A state court’s decision is “contrary to” clearly established federal law if the state

court arrives at a conclusion opposite to that reached by the Supreme Court on a

question of law or if the state court decides a case differently than the Supreme Court

has on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-

06 (2000). An “unreasonable 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. Rather, that application must

also be unreasonable.” Id. at 411. “[W]here factual findings are challenged, the habeas

petitioner has the burden of rebutting, by clear and convincing evidence, the

presumption that the state court’s factual findings are correct.” Goodwin v. Johnson,

632 F.3d 301, 308 (6th Cir. 2011) (citing 28 U.S.C. § 2254(e)(1) and Landrum v.

Mitchell, 625 F.3d 905, 914 (6th Cir. 2010)). 

“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, __ U.S. __, __, 131 S. Ct. 770, 786 (2011). To

obtain a writ of habeas corpus from a federal court, a petitioner must show that the state

court’s decision “was so lacking in justification” that it resulted in “an error well

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understood and comprehended in existing law beyond any possibility for fairminded

disagreement.” Id. at 786-87. 

III. Discussion

The essence of petitioner’s three claims is that, at most, he is guilty of retail

fraud, not armed robbery. At the time of petitioner’s plea, the elements of armed

robbery were: (1) the use of force or violence or assaulting anyone present or putting

the person in fear, (2) in the course of committing a larceny, (3) while in possession of a

dangerous weapon or an article used or fashioned to lead any person present to

reasonably believe that the article was a dangerous weapon or while representing that

he or she is in possession of a dangerous weapon. Mich. Comp. Laws §§ 750.529 and

750.530; People v. Chambers, 277 Mich. App. 1, 7; 742 N.W.2d 610, 614 (2007); Mich.

CJI2d 18.1. The phrase “in the course of committing a larceny” encompasses “acts that

occur in an attempt to commit the larceny, or during commission of the larceny, or in

flight or attempted flight after the commission of the larceny, or in an attempt to retain

possession of the property.” Mich. Comp. Laws § 750.530(2). 

The record before the Court reveals that, in the course of committing a larceny,

petitioner assaulted a loss-prevention officer to facilitate his escape. He took property

out of Sears without paying for it and when he was grabbed by two loss-prevention

officers, he pulled a gun out of his pocket, and shot an officer two times in an attempt to

escape. Thus, the elements of armed robbery were satisfied. Having reached this

conclusion, the Court will proceed to address petitioner’s claims about his attorneys and

his plea. 

A. Trial Counsel

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Petitioner alleges that his trial attorney deprived him of effective assistance of

counsel by failing to investigate a viable defense to the charges and by failing to present

mitigating evidence at sentencing. According to petitioner, if counsel had investigated

the facts and become familiar with the evidence, she would have realized that

petitioner’s conduct was nothing more than retail fraud. Petitioner contends that his

attorney advised him to plead no contest to a crime that never existed and that counsel

presented no mitigating evidence at sentencing, such as the fact that he abandoned the

property and accidentally fired the gun. 

1. Clearly Established Federal Law

To prevail on a claim of ineffective assistance of counsel, a petitioner must

demonstrate “that counsel’s performance was deficient” and “that the deficient

performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687

(1984). In guilty plea cases, the “performance” prong requires showing that defense

counsel’s representation fell below an objective standard of reasonableness or was

outside the range of competence demanded of attorneys in criminal cases. Hill v.

Lockhart, 474 U.S. 52, 56-58 (1985). The “prejudice” prong “focuses on whether

counsel’s constitutionally ineffective performance affected the outcome of the plea

process.” Id. at 59. The petitioner must show “a reasonable probability that, but for

counsel’s errors, he would not have pleaded guilty and would have insisted on going to

trial.” Id. 

2. Application

The two loss-prevention officers involved in this case identified petitioner at the

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preliminary examination as the man whom they attempted to apprehend for larceny at

the Sears store on July 1, 2005. Petitioner subsequently confessed to the police that he

went to Sears to steal cologne. He also admitted that he pulled the gun out of his

pocket when confronted by two men and that the gun discharged accidentally. He went

on to say that, during the struggle, he fired one more time and then fled the area. 

These facts and other facts set forth in the police reports and at the preliminary

examination indicate that petitioner was guilty of armed robbery. He possessed a gun

and assaulted a person in the course of committing a larceny. The larceny was

complete when he exited the store without paying for the cologne, and even if he were

deemed to have abandoned the cologne, “a completed larceny is no longer required for

a conviction of armed robbery.” People v. Williams, 288 Mich. App. 67, 73; 792 N.W.2d

384, 387 (2010), application for leave to appeal granted, 489 Mich. 856; 795 N.W.2d 15

(2011). 

As for petitioner’s claim that the gun discharged accidentally, the testimony at the

preliminary examination suggested otherwise. David DeGraff testified that petitioner

pointed a handgun at him. He later realized that he had been shot in the leg and in the

arm. (Tr. July 19, 2005, at 29-32, 41.) Martiel Hollis testified that petitioner reached for

his pocket and subsequently “directed” or pointed a gun at Mr. DeGraff. (Id. at 59-60,

85.)

Because the facts supported the charges and because the plea and sentencing

agreement were favorable, trial counsel was not ineffective for recommending that

petitioner plead no contest. Petitioner’s conduct amounted to more than mere retail

fraud, and there was no viable defense to the charges inasmuch as he admitted to

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pulling the gun out of his pocket and was observed pointing the gun at one of the lossprevention officers.

As for counsel’s failure to present mitigating evidence at sentencing, there was

little need to present mitigating evidence because the parties and the trial court had

already agreed to a sentence of 126 months to thirty years plus two years for the felony

firearm conviction. Furthermore, the trial court sua sponte acknowledged that petitioner

had no prior felony convictions and that the crimes was out of character for him. The

court also opined that petitioner should be given a “break” for taking responsibility for his

actions. The court then sentenced petitioner to a minimum sentence at the bottom of

the sentencing guidelines. 

The Court concludes that trial counsel’s performance at sentencing was not

deficient and that the alleged deficiency did not prejudice Petitioner. The Court further

concludes that trial counsel was not ineffective for recommending that petitioner plead

no contest. Petitioner, therefore, has no right to relief on the basis of his first claim.

B. The Plea

The second habeas claim alleges that petitioner’s plea was involuntary and

illusory because he was charged with the wrong statute and is actually innocent of

armed robbery. A guilty or no contest plea must be a knowing, voluntary, and intelligent

act done with sufficient awareness of the relevant circumstances and likely

consequences, because the plea is a waiver of various federal constitutional rights. 

Brady v. United States, 397 U.S. 742, 748 (1970); Fautenberry v. Mitchell, 515 F.3d

614, 636-37 (6th Cir. 2008). The voluntariness of a plea is “determined only by

considering all of the relevant circumstances surrounding it.” Brady, 397 U.S. at 749. 

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The facts, as alleged at the preliminary examination and in the police report,

supported all three of petitioner’s convictions. Thus, petitioner has failed to demonstrate

that he was charged with the wrong statute and is actually innocent of the crimes for

which he was sentenced. Petitioner also has failed to show that his plea was illusory. 

Three counts were dismissed, and the trial court agreed to sentence petitioner at the

bottom of the sentencing guidelines. 

The record also indicates that petitioner pleaded no contest voluntarily and

intelligently. He was given notice at the preliminary examination that an individual who

commits a theft while in possession of a dangerous weapon and who uses the handgun

for purposes of flight is guilty of armed robbery. (Tr. July 19, 2005, at 96.) 

Petitioner was thirty-eight years old at his subsequent no-contest plea, and he

claimed that he understood the charges to which he was pleading no contest, as well

as, the maximum penalties for the charged offenses. He also claimed to understand the

plea and sentencing agreement, and he agreed to accept the proposed sentence of 126

months to thirty years plus two years for the felony firearm conviction. He further

agreed to have the police report serve as the factual basis for his plea, and he stated

that he understood the constitutional rights that he was waiving by pleading no contest. 

He had no questions about his rights, and he said that no one had threatened him or

promised him anything other than what had been discussed in court. When the trial

court asked petitioner whether he knew what was going on and was ready to plead no

contest, petitioner answered, “Yes, your Honor.” 

The Court concludes that petitioner’s plea was voluntary, knowing, and intelligent

and not illusory. To the extent that petitioner is claiming there was an insufficient factual

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basis for his plea, his claim is not cognizable on habeas review, because “[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, but rather a

requirement created by rules and statutes.” United States v. Tunning, 69 F.3d 107, 111

(6th Cir. 1995) (citing Higgason v. Clark, 984 F.2d 203, 208 (7th Cir. 1993)). 

C. Appellate Counsel

The third and final habeas claim alleges that Petitioner’s appellate attorney was

ineffective for failing to challenge the sufficiency of the evidence supporting the charges

for armed robbery and assault with intent to commit murder. Petitioner maintains that

he should have been charged with retail fraud, not armed robbery. 

To prevail on his claim, petitioner must demonstrate that his appellate attorney’s

performance was deficient and that the deficient performance prejudiced the appeal. 

Strickland, 466 U.S. at 687; Smith v. Robbins, 528 U.S. 259, 285 (2000) (stating that the

proper standard for evaluating the petitioner’s claim about appellate counsel is that

enunciated in Strickland). Petitioner was not entitled to compel his attorney to raise all

nonfrivolous claims on appeal, Jones v. Barnes, 463 U.S. 745, 751 (1983), and, as

previously explained, the evidence supported the charges. The Court therefore

concludes that appellate counsel was not ineffective for failing to challenge the factual

basis for petitioner’s plea or the sufficiency of the evidence supporting the charges

against petitioner.

IV. Conclusion

The state courts’ rejection of petitioner’s claims did not result in decisions that

were contrary to Supreme Court precedent, an unreasonable application of Supreme

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Court precedent, or an unreasonable determination of the facts. Accordingly, the

petition for a writ of habeas corpus [Dkt. #1] is DENIED.

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

reasonable jurists would not debate the Court’s assessment of petitioner’s claims, or

conclude that the issues deserve encouragement to proceed further. Slack v.

McDaniel, 529 U.S. 473, 484 (2000). Petitioner nevertheless may proceed in forma

pauperis on appeal because an appeal could be taken in good faith. 28 U.S.C. §

1915(a)(3).

Dated: July 5, 2011

S/George Caram Steeh 

GEORGE CARAM STEEH

UNITED STATES DISTRICT JUDGE

CERTIFICATE OF SERVICE

Copies of this Order were served upon attorneys of record on

July 5, 2011, and also to Raymond Barlow at Lakeland

Correctional Facility, 141 First Street, Coldwater, MI 49036, by

electronic and/or ordinary mail.

S/Josephine Chaffee

Deputy Clerk

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