1

By Order entered this date, Cindi S. Curtin has been substituted in place of Kenneth McKee

as the proper respondent in this action.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

GERALD LEROY WERTH,

Petitioner,

CASE NO. 5:09-CV-11472

v. JUDGE JOHN CORBETT O’MEARA

MAGISTRATE JUDGE PAUL J. KOMIVES

CINDI S. CURTIN,

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 .................................... 3

C. Standard of Review ............................................................... 6

D. Denial of Self-Representation ........................................................ 8

E. Ineffective Assistance of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

1. Clearly Established Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

2. Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

F. Recommendation Regarding Certificate of Appealability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

1. Legal Standard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

2. Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

G. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

III. NOTICE TO PARTIES REGARDING OBJECTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

* * * * *

I. RECOMMENDATION: The Court should deny petitioner’s application for the writ of

habeas corpus. The Court should also grant in part and deny in part a certificate of appealability.

Specifically, the Court should grant the certificate with respect to petitioner’s self-representation

claim, and deny the certificate with respect to petitioner’s ineffective assistance of counsel claim.
2

II. REPORT:

A. Procedural History

1. Petitioner Gerald Leroy Werth is a state prisoner, currently confined at the Oaks

Correctional Facility in Manistee, Michigan.

2. On April 16, 2008, petitioner was convicted of breaking and entering a building with

intent to commit a larceny, MICH. COMP. LAWS § 750.110; and possession of burglary tools, MICH.

COMP.LAWS § 750.116, pursuant to his guilty plea in the Genesee County Circuit Court. Petitioner

subsequently filed two motions to withdraw his plea, one through counsel and one pro se. The trial

court denied the motions, and on March 19, 2008, petitioner was sentenced as a second habitual

offender to a term of 47 months’ to 15 years’ imprisonment.

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

raising, through counsel, the following claims:

I. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING

APPELLANT’S MOTION TO WITHDRAW HIS PLEA MADE PRIOR TO

SENTENCING WHERE HE HAD A FAIR AND JUST REASON TO

SUPPORT PLEA WITHDRAWAL AND PLAINTIFF DID NOT

DEMONSTRATE SUBSTANTIAL PREJUDICE IN RELIANCE ON THE

PLEA.

II. APPELLANT MUST BE ALLOWED TO WITHDRAW HIS GUILTY

PLEA BECAUSE THE TRIAL JUDGE VIOLATED HIS

CONSTITUTIONAL, STATUTORY, AND RULE-BASED RIGHTS TO

REPRESENT HIMSELF.

III. THE TRIAL COURT ERRONEOUSLY DENIED APPELLANT’S

MOTION TO WITHDRAW HIS GUILTY PLEA, MADE BEFORE

SENTENCING, WHERE THE PLEA WAS THE PRODUCT OF

INEFFECTIVE ASSISTANCE OF HIS ATTORNEY, WHO FAILED TO

INVESTIGATE DEFENSE WITNESSES AND ACQUIRE

EXCULPATORY EVIDENCE.

The court of appeals denied petitioner’s application for leave to appeal in a standard order, “for lack
3

of merit in the grounds presented.” See People v. Werth, No. 288151 (Mich. Ct. App. Nov. 10, 2008).

4. 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. Werth, 483 Mich. 916, 762 N.W.2d 489 (2009).

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

on April 20, 2009. As grounds for the writ of habeas corpus, he raises the self-representation and

ineffective assistance of counsel claims that he raised in the state courts. In addition, he claims that

his arrest was without probable cause and violated the Fourth Amendment.

6. Respondent filed her answer on October 7, 2009. She contends that petitioner’s

Fourth Amendment claim is unexhausted, and that petitioner’s remaining claims are without merit.

7. Petitioner filed a reply to respondent’s answer on October 23, 2009. In his reply,

petitioner asks the Court to dismiss the unexhausted claim.

B. Factual Background Underlying Petitioner’s Conviction

Petitioner’s convictions arise from the burglary of Khirfan’s Blue Collar Market in Flint

Township in the early morning hours of November 7, 2007. At the preliminary examination,

Sergeant David Stone of the Flint Township Police Department testified that he was called to the

scene, and it appeared that the store had been broken into. The alarm wires had been cut and the

alarm box removed, and the store was in disarray. A number of items appeared to have been taken

from the store, including knives and cigarettes. He was later informed that Ken Monroe of the

Burton Police Department had recovered the cash register and lottery machine taken from the store.

His investigation led him to a trailer park, where he learned that a man (later identified as Keith

Finley) was selling cigarettes. He questioned Finley and eventually obtained consent from Crystal
4

Davidson, with whom Finley was living, to search her trailer. The search uncovered a trash barrel

filled with cartons and loose packs of cigarettes, pornographic magazines, knives, several bottles of

alcohol, and burglary tools. Petitioner was found hiding in a closet. Finley and Davidson admitted

that they knew the property was stolen. See Prelim. Exam. Tr., at 7-23. Finley and Davidson each

testified at the preliminary examination that petitioner was living in Davidson’s trailer, and had

often talked about looking at places to break into. They woke up on the morning of November 7 and

found petitioner sitting in the trailer surrounded by the property stolen from the store. Petitioner

admitted to them that he had stolen the items. Finley admitted that he had helped petitioner dispose

of some of the stolen property, and had sold some of the cigarettes. Davidson testified that petitioner

had written a letter to her apologizing for all the trouble he had caused, and the letter was admitted

into evidence. See Prelim. Exam. Tr., at 23-65. On cross-examination, Davidson denied that she

had called a former boyfriend and offered to sell him cigarettes. See id. at 62-63.

After the arraignment, petitioner filed a pro se motion for discovery of Davidson’s cell phone

records and for appointment of an investigator. Petitioner indicated that he wished to obtain the

cell phone records to show that Davidson had in fact called her former boyfriend, and had thus

perjured herself at the preliminary examination. Petitioner also indicated that he wished to

discharge counsel and represent himself. The trial court ordered the prosecutor to provide

information to petitioner regarding Davidson’s cell phone number and allowed petitioner an

opportunity to subpoena the cell phone carrier. The court did not rule on petitioner’s request to

represent himself, but indicated that it was unlikely that petitioner would be able to do so. See

Pretrial Tr., dated 2/8/08. One week later, petitioner appeared with substitute counsel, who indicated

that the records had not yet been obtained, and the matter was adjourned. See Pretrial Tr., dated
5

2/15/08. On March 14, 2008, the matter was again postponed because the records had not been

obtained from the cell phone provider. See Pretrial Tr., dated 3/14/08. On April 14, the day

originally scheduled for trial, the parties informed the court that the prosecutor had submitted a plea

offer to petitioner and that petitioner wished to have time to consider the offer. Petitioner also

renewed his request for discovery of the cell phone records, as well as his request to represent himself,

claiming that he wished to represent himself because counsel had done nothing to help him. The

trial court denied petitioner’s request to represent himself, concluding that petitioner was not

equipped to do so and that the court could not assure that petitioner would control his behavior in

the courtroom. The court adjourned the matter to the next day, so that petitioner could consider

the prosecutor’s plea offer. See Pretrial Tr., dated 4/14/08.

Trial commenced the following day, April 15. On that day, the parties gave their opening

statements, three prosecution witnesses testified, and one defense witness testified. The following

day, the parties informed the court that a plea agreement had been reached. Under the agreement,

petitioner agreed to plead guilty to the breaking and entering and possession of burglary tools charges

in the information. In exchange, petitioner would be sentenced as a second habitual offender, which

subjected him to lower sentencing guidelines and a 15 year maximum, rather than as a fourth

habitual offender, which would have subjected him to a potential sentence of life imprisonment. The

prosecutor also agreed not to pursue against petitioner unlawful driving away an automobile or

receiving and concealing stolen property charges arising from a separate incident. See Plea Tr., at

4-5; Plea Agreement dated 4/16/08. Petitioner indicated that he understood the terms of the

agreement. See Plea Tr., at 5. The trial court explained to petitioner the charges he was facing and

the maximum penalty on those charges, and petitioner indicated that he understood. See id. at 6-7.
6

The trial court informed petitioner of the rights he was giving up by pleading guilty and petitioner

indicated that he understood his rights and that he was waiving these rights by pleading guilty. See

id. at 7-9. Petitioner denied that any one had coerced or threatened him to plead guilty, or that he

had been made any promises not reflected in the plea agreement. See id. at 9. Petitioner indicated

that it was his choice to plead guilty. See id. at 9-10. The court then questioned petitioner regarding

the circumstances of the crime, establishing a factual basis for the plea. See id. at 10-18. The court

then accepted petitioner’s plea. See id. at 18.

Prior to sentencing, petitioner filed two motions to withdraw his plea, one through counsel

and one pro se. Following a hearing, the trial court denied the motions. Later the same day, the trial

court sentenced petitioner.

C. 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).
7

“[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 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
8

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

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.).

D. Denial of Self-Representation

Petitioner first contends that his plea was invalid because he was denied his constitutional

right to represent himself. The Sixth Amendment, applicable to the states through the Fourteenth

Amendment Due Process Clause, provides that a criminal defendant shall have the right to the

assistance of counsel in his defense. See U.S. CONST. amend. VI. This right necessarily implies its

corollary, that a defendant has a right to proceed without counsel and represent himself. See Martinez

v. Court of Appeal of Cal., Fourth Appellate Dist., 528 U.S. 152, 154 (2000); Faretta v. California, 422

U.S. 806, 833-34 (1975). The right to assistance of counsel and the right to self-representation are

thus correlative rights; the assertion of one necessarily constitutes a waiver of the other. See United

States v. Conder, 423 F.2d 904, 908 (6th Cir. 1970). Nevertheless, a defendant’s waiver of his right

to counsel and decision to proceed pro se must be knowing and intelligent. See Faretta, 422 U.S. at
9

835; Carnley v. Cochran, 369 U.S. 506, 516 (1962). As the Supreme Court explained, in order for

the defendant’s decision to be knowing and voluntary, “he should be made aware of the dangers and

disadvantages of self-representation, so that the record will establish that ‘he knows what he is doing

and his choice is made with eyes open.’” Faretta, 422 U.S. at 835 (quoting Adams v. United States ex

rel. McCann, 317 U.S. 269, 279 (1942)). However, the Supreme Court has “not prescribed any

formula or script to be read to a defendant who states that he elects to proceed without counsel,”

Iowa v. Tovar, 541 U.S. 77, 88 (2004), and there is “no sacrosanct litany for warning defendants

against waiving the right to counsel.” United States v. Jones, 421 F.3d 359, 363 (5th Cir. 2005).

Rather, the adequacy of a defendant’s waiver is determined from the facts and circumstances of the

case. See Tovar, 541 U.S. at 88.

However, the right to self-representation is not absolute. See Martinez, 528 U.S. at 161. A

defendant’s request for self-representation must be made clearly and unequivocally. See Buhl v.

Cooksey, 233 F. 3d 783, 792 (3d Cir. 2000); Munkus v. Furlong, 170 F. 3d 980, 983-984 (10th Cir.

1999). The right to self-representation is waived if it is not timely and unequivocally asserted. See

Jackson v. Ylst, 921 F. 2d 882, 888 (9th Cir. 1990). The right to self-representation may also be

waived through conduct which indicates that the defendant is vacillating on the issue or has

abandoned his or her request altogether. See Wilson v. Walker, 204 F. 3d 33, 37 (2d Cir. 2000). A

waiver of the right to self-representation may also be found if it reasonably appears to the court that

the defendant abandoned his initial request to represent himself. See id.

Here, it appears that petitioner has a strong, if not meritorious, claim that he was denied his

Sixth Amendment right to self-representation. Petitioner repeatedly requested that he be allowed

to represent himself, and thus his request was unequivocal. Petitioner also asserted his request on
10

multiple occasions well before trial, rendering his request timely. Further, nothing in the record

suggests that petitioner was incapable of validly waiving his right to counsel or of acting as counsel

on his own behalf. And although the trial judge expressed concern about whether petitioner would

be able to properly comport himself, “[t]his ground for terminating self-representation is unavailable

here . . . because [petitioner] was not even allowed to begin to represent himself, and because he was

respectful and compliant and did not provide a basis to conclude a trial could not have gone forward

had he been allowed to press his own claims.” Indiana v. Edwards, 554 U.S. 164, ___, 128 S. Ct.

2379, 2392 (2008) (Scalia, J., dissenting).

However, the Court need not decide whether petitioner was, in fact, denied his right to selfrepresentation, because the claim is waived by petitioner’s guilty plea. “It is well-settled that an

unconditional guilty plea constitutes a waiver of the right to appeal all nonjurisdictional antecedent

rulings and cures all antecedent constitutional defects.” United States v. Lopez-Armenta, 400 F.3d

1173, 1175 (9th Cir. 2005). As the Supreme Court has explained:

A guilty plea represents a break in the chain of events which had preceded it in the

criminal process. When a criminal defendant has solemnly admitted in open court

that he is in fact guilty of the offense with which he is charged, he may not thereafter

raise independent claims relating to the deprivation of constitutional rights that

occurred prior to the entry of the guilty plea.

Tollett v. Henderson, 411 U.S. 258, 267 (1973). The fact that a denial of the right of selfrepresentation raises a structural error does not alter the conclusion that petitioner’s plea waived his

claim. Although structural errors are presumed to be prejudicial and thus not subject to harmless

error review, such errors are nevertheless subject to the general rules of waiver, forfeiture, and default.

See Johnson v. United States, 520 U.S. 461, 466 (1997) (waived or forfeited structural error subject

to plain error review under FED.R.CRIM.P. 52(b)); Hunt v. Houston, 563 F.3d 695, 704 n.2 (8th Cir.
11

2009) (habeas petitioner’s claimed structural error barred by petitioner’s procedural default of claim

in state court); Ward v. Hinsley, 377 F.3d 719, 725-26 (7th Cir. 2004) (same); United States v.

Suescun, 237 F.3d 1284, 1288 n.12 (11th Cir. 2001) (“Structural defects do not absolve a defendant’s

waiver of a defense or objection.”). Indeed, Tollett itself supports this conclusion, finding that the

defendant’s plea in that case waived any claim that African-Americans had been systematically

excluded from the jury selected prior to his plea, Tollett, 411 U.S. at 266-68, an error which the Court

held in Vasquez v. Hillery, 474 U.S. 254, 262-64 (1986), to be structural. See United States v.

Moussaoui, 591 F.3d 263, 280 n.12 (4th Cir. 2010) (relying on Tollett and Vasquez to support the

court’s conclusion that defendant’s guilty plea waived his antecedent claim that he was denied his

right of self-representation).

For this reason, the courts that have considered the issue, both state and federal, have almost

uniformly concluded that a denial of the right to self-representation is waived by a subsequent

voluntary guilty plea. See Moussaoui, 591 F.3d at 279-80; Gomez v. Berge, 434 F.3d 940, 943 (7th Cir.

2006); Ploof v. Gorczyk, No. 96-2428, 1996 WL 705869, at *2 (2d Cir. Dec. 9, 1996); United States

v. Seybold, 979 F.2d 582, 585-86 (7th Cir. 1992); United States v. Montgomery, 529 F.2d 1404, 1406

(10th Cir. 1976); State v. Szemple, 753 A.2d 732, 736 (N.J. Super. Ct. App. Div. 2000); People v.

Shields, 613 N.Y.S.2d 281, 282 (N.Y. Super. Ct. App. Div. 1994); State v. Claiborne, No. 61343-0-I,

2009 WL 1140331, at *2 (Wash. Ct. App. Apr. 27, 2009); State v. Jens, No. 03-3135-CR, 2005 WL

147022, at *4 (Wis. Ct. App. Jan. 25, 2005). Only two courts have concluded otherwise. See United

States v. Hernandez, 203 F.3d 614, 626-27 (9th Cir. 2000), abrogated in part on other grounds by Indiana
2

In People v. Hoffman, No. 266560, 2007 WL 397224 (Mich. Ct. App. Feb. 6, 2007), the Michigan

Court of Appeals reversed the defendant’s plea-based conviction, finding that the erroneous denial of

self-representation constituted structural error requiring reversal, regardless of whether the plea was

voluntary. Unlike the cases discussed above, however, the court did not consider the waiver issue.

3

To the extent petitioner is asserting a claim based on the trial court’s failure to allow him to

withdraw apart from the underlying constitutional claim relating to counsel’s assistance, his claim

provides no basis for habeas relief. Federal habeas courts have no authority to interfere with perceived

errors in state law unless the petitioner is denied fundamental fairness 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 31749157, at *5 (E.D. Mich. Dec. 5, 2002) (Lawson, J.); Freeman v. Muncy, 748

F. Supp. 423, 429 (E.D. Va. 1990); Williams 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 failure to allow petitioner to withdraw his plea under the

governing state court rules does not state a cognizable basis for habeas relief.

12

v. Edwards, 554 U.S. 164 (2008); People v. Marlow, 96 P.3d 126, 146-46 (Cal. 2004).2 Because the

view of the overwhelming majority of courts is more consistent with both Tollett and the general

treatment of structural errors as being subject to waiver, forfeiture, and default, the Court should

conclude that petitioner’s self-representation claim is waived by his guilty plea. Accordingly, the

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

E. Ineffective Assistance of Counsel

Petitioner also contends that the trial court erred in failing to allow him to withdraw his plea,

because his plea resulted from ineffective assistance provided by counsel. The Court should conclude

that petitioner is not entitled to habeas relief on this claim.3

1. Clearly Established Law

A plea of guilty is valid if it is entered voluntarily and intelligently, as determined under the

totality of the circumstances. See Brady v. United States, 397 U.S. 742, 748-49 (1970); King v.

Dutton, 17 F.3d 151, 153 (6th Cir. 1994). The Constitution requires, for a plea to be valid, that the

defendant be informed of all direct consequences of his plea. See Brady, 397 U.S. at 755; King, 17
13

F.3d at 153. A solemn declaration of guilt by the defendant carries a presumption of truthfulness.

See Blackledge v. Allison, 431 U.S. 63, 74 (1977); Henderson v. Morgan, 426 U.S. 637, 648 (1976).

“The subsequent presentation of conclusory allegations unsupported by specifics is subject to

summary dismissal, as are contentions that in the face of the record are wholly incredible.”

Blackledge, 431 U.S. at 74. Where the defendant “was fully aware of the likely consequences when

he pleaded guilty[,] it is not unfair to expect him to live with those consequences[.]” Mabry v.

Johnson, 467 U.S. 504, 511 (1984). Thus,

[i]t is well settled that a voluntary and intelligent plea of guilty made by an accused

person, who has been advised by competent counsel, may not be collaterally attacked.

It is also well settled that plea agreements are consistent with the requirements of

voluntariness and intelligence--because each side may obtain advantages when a

guilty plea is exchanged for sentencing concessions, the agreement is no less

voluntary than any other bargained-for exchange.

Id. at 508 (footnotes omitted).

The Sixth Amendment right to counsel and the 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 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 Strickland inquiry, a strong presumption exists
14

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

689; see also 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 (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 factfinder, “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 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 act or omission, he would not have

pleaded guilty is not enough to prove such a claim. Petitioner must show that
15

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. 2d 637, 655 (E.D. Mich. 2002) (Friedman, J.) (same); 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 contends that his plea was invalid because counsel failed to investigate exculpatory

evidence, to wit, the phone records of Crystal Davidson. However, petitioner has failed to show how

this evidence could have affected his decision to plead guilty. In the first place, this evidence was

not “exculpatory” as petitioner claims. Even assuming that the phone records would show that

Davidson in fact called her former boyfriend after the burglary–a fact for which petitioner still has

no support–this evidence would not have exculpated petitioner. At most, it would have provided

a basis on which to impeach Davidson’s testimony at the preliminary examination that she had not

called her former boyfriend. Even if impeached on this basis, however, the odds of petitioner’s

acquittal would not have significantly improved. It was already admitted by both Davidson and

Finley that they knew the property in the trailer had been stolen, and it was admitted by Finley that

he had helped petitioner dispose of some of the property and had sold some of the stolen cigarettes.

Additional evidence that Davidson had also tried to sell some of the cigarettes would not have

affected the jury’s assessment of either her or Finley’s credibility, and thus it would not have

significantly impacted petitioner’s weighing of the risks of trial versus the terms of the plea
16

agreement.

Petitioner also contends that counsel was ineffective for failing to interview Antonio Odom.

In his pro se motion to withdraw the plea, petitioner indicated only that Odom would testify that

prosecution witness Kenneth Werth (who had not yet testified, either at the preliminary

examination or at trial, when petitioner entered his plea), was lying. Petitioner, however, provides

no information regarding the purported substance of either Kenneth Werth’s or Odom’s testimony,

much less any evidence to support his claim. It is petitioner’s burden to establish the elements of his

ineffective assistance of counsel claim. See United States v. Pierce, 63 F.3d 818, 833 (6th Cir. 1995)

(petitioner bears the burden of establishing counsel’s ineffectiveness); Lewis v. Alexander, 11 F.3d

1349, 1352 (6th Cir. 1993) (same). Thus, “a petition for habeas corpus relief based on counsel’s

failure to call witnesses must present this evidence in the form of the actual testimony by the witness

or affidavits.” United States ex rel. Townsend v. Young, No. 01 C 0800, 2001 WL 910387, at *5 (N.D.

Ill. Aug. 8, 2001) (citing United States v. Ashimi, 932 F.2d 643, 650 (7th Cir. 1991)); see also, Pittman

v. Florida, No. 8:05-cv-1700, 2008 WL 2414027, at *12 (M.D. Fla. June 11, 2008). Because

petitioner has provided no information, much less evidence, regarding the substance of Odom’s

purported testimony, he has failed to establish either the counsel was deficient or that he was

prejudiced thereby.

Finally, petitioner contends that counsel was ineffective for failing to substantiate his claim

that the preliminary examination transcripts were inaccurate. This issue, however, was explored

both in pretrial motions and through the examination of the court reporter prior to the start of trial.

See Trial Tr., Vol. I, at 23-33. Beyond petitioner’s speculative assertion, there is absolutely nothing

in the record to indicate that the preliminary examination transcript does not accurately reflect the
17

proceedings at the preliminary examination. And, petitioner has failed to explain in his petition

what the alleged inaccuracy was or how it could have helped exonerate him at trial.

In the end, the prosecution had a substantial case against petitioner. Had he gone to trial and

been convicted, he could have been sentenced as a fourth habitual offender to a term of up to life

imprisonment. Further, he could have faced trial on additional charges of unlawful driving away an

automobile and receiving and concealing stolen property, which given petitioner’s prior record would

also have subjected him to potential extensive sentences, which additionally could have run

consecutive to the sentences to which he pleaded guilty. See Plea Tr., at 4. Weighing this likelihood

of a conviction followed by a severe penalty, petitioner concluded that his interests were best served

by accepting a plea deal limiting his sentencing exposure to a maximum of 15 years imprisonment.

Counsel’s alleged errors with respect to collateral matters of little exculpatory value could not have

impacted petitioner’s assessment of the risks and benefits of trial versus the plea deal. Thus,

petitioner cannot show that counsel was ineffective, and the Court should conclude that petitioner

is not entitled to habeas relief on this claim.

F. 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
18

(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 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
19

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

Here, 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

respect to his ineffective assistance of counsel claims, for the reasons explained above. However, the

Court should conclude that petitioner is entitled to a certificate of appealability with respect to his

denial of self-representation claim, because the resolution of that claim is reasonably debatable and

petitioner has made a substantial showing of a denial of a constitutional right. As explained above,

petitioner has presented a strong claim that the trial court committed constitutional error in denying

his requests to represent himself. I conclude that this claim is waived by petitioner’s guilty plea in

light of the majority position so holding and the consistency of this conclusion with the general rules

regarding waiver by guilty plea and waivers of structural errors. However, although the majority of

courts have reached this conclusion, there is contrary authority suggesting that a guilty plea does not

waive an antecedent constitutional claim based on the denial of the right to self-representation, and

the Sixth Circuit has not spoken on the issue. In these circumstances, the resolution of petitioner’s

self-representation claim is reasonably debatable, and the Court should conclude that petitioner is

entitled to a certificate of appealability with respect to that claim.

G. 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
20

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

Court should grant in part and deny in part a certificate of appealability. Specifically, the Court

should grant a certificate of appealability with respect to petitioner’s self-representation claim, and

deny the certificate with respect to petitioner’s ineffective assistance of counsel claim.

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
21

Dated: 6/8/10 

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 June 8, 2010.

s/Eddrey Butts 

Case Manager