UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

JAMES HICKS, 

Petitioner, Civil Action No.

09-CV-11920

v. 

HON. BERNARD A. FRIEDMAN

CARMEN PALMER,

Respondent.

___________________/

OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

Petitioner James Hicks, confined at the Michigan Reformatory in Ionia, Michigan,

seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his pro se application, petitioner

challenges his conviction and sentence for armed robbery, Mich. Comp. Laws § 750.529; carjacking,

Mich. Comp. Laws § 750.529a; felonious assault, Mich. Comp. Laws § 750.82; and possession of

a firearm in the commission of a felony, Mich. Comp. Laws § 750.227b. For the reasons stated

below, the court shall deny the petition.

I. Background

Petitioner pled guilty to the above charges in the Wayne County Circuit Court. In

exchange for his plea, the prosecutor dismissed one count of assault with intent to murder and one

count of felonious assault. The parties also entered into a sentencing agreement that petitioner

would serve 10 to 20 years on the armed robbery and carjacking convictions, and 32 to 48 months

on the felonious assault conviction, and that he would receive a mandatory consecutive two-year

sentence on the felony-firearm conviction. The prosecutor agreed not to recommend that the

sentences on the armed robbery and carjacking charges be served consecutively. Petitioner was

advised of the maximum penalties for the charges to which he was pleading guilty, and of the rights

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that he would be relinquishing by pleading guilty. Petitioner stated that he understood these charges

and the possible penalties and that there had been no threats and no promises, other than those

placed on the record, to induce his plea. (Tr., 11/20/2006, pp. 4-8.) On December 6, 2006, petitioner

was sentenced to concurrent terms of 10 to 20 years on the armed robbery and carjacking

convictions, and 32 to 48 months on the felonious assault conviction. He also received a

consecutive two-year sentence on the felony-firearm conviction. 

Petitioner subsequently moved to withdraw his plea and for resentencing. Petitioner

argued that his plea was unknowing and involuntary because the prosecutor had made statements

at a pretrial conference on November 7, 2006, indicating he agreed to a sentence that was 39 months

below the guidelines. The motion for resentencing also challenged the scoring of his guideline

range.

At a pretrial conference conducted on November 7, 2006, the prosecutor made a plea

bargain offer that was similar to the one that was ultimately accepted by petitioner, but with a

sentence agreement of 11 to 20 years on the armed robbery and carjacking charges. The prosecutor

indicated that this sentence agreement was 39 months below the sentencing guidelines range of 171-

285 months, as calculated by the prosecutor. Defense counsel had previously informed the trial

court that the probation department had tentatively scored the sentencing guidelines at 135-185

months. Defense counsel asked the trial judge if she would be willing to consider imposing a

sentence that was below the sentencing guideline range. After hearing argument on the matter, the

trial judge indicated that she would be unwilling to do so. At that time, petitioner did not plead

guilty. (Tr. 11/7/2006, pp. 3-8.) Instead, petitioner pled guilty on November 20, 2006, as per the

plea agreement that was outlined at the time of the plea hearing.

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The trial court denied the motion to withdraw the guilty plea and the motion for

resentencing on September 7, 2007. Petitioner’s conviction was affirmed on appeal. See People v.

Hicks, No. 282508 (Mich. Ct. App. Feb. 5, 2008); lv. den. 482 Mich. 894 (2008).

Petitioner seeks a writ of habeas corpus on the following grounds: (1) that the trial

court erred when it denied the motion to withdraw the plea, and (2) that the trial court erred when

it denied the motion for resentencing/specific performance of the plea agreement.

II. Standard of Review

Title 28, section 2254(d), of the United States Code states:

(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. 

When a state court fails to adjudicate a habeas petitioner’s claim on the merits, federal habeas review

is not subject to the deferential standard contained in § 2254(d) and a federal court is required to

review that claim de novo. See Cone v. Bell, 129 S. Ct. 1769, 1784 (2009); McKenzie v. Smith, 326

F.3d 721, 726 (6th Cir. 2003). The Michigan Court of Appeals and the Michigan Supreme Court

denied petitioner’s applications for leave to appeal by form order. Under these circumstances, “there

are simply no results, let alone reasoning, to which this court can defer. Without such results or

reasoning, any attempt to determine whether the state court decision ‘was contrary to, or involved

an unreasonable application of clearly established Federal law,’ 28 U.S.C. § 2254(d)(1), would be

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futile.” McKenzie, 326 F. 3d at 727.

III. Discussion

A. The Guilty Plea Claim

In his first claim, petitioner contends that the trial court should have permitted him

to withdraw his guilty plea because it was not knowingly and intelligently made. Petitioner claims

that the plea was involuntary because he was led to believe by remarks made by the prosecutor at

the pretrial conference on November 7, 2006, that his minimum sentences on the armed robbery and

carjacking convictions would be 39 months below the sentencing guidelines. Petitioner argues that

he is entitled to withdraw his plea or to be resentenced to a minimum sentence that would be 39

months below the sentencing guidelines range, as scored by petitioner.

The legal standards governing this claim were articulated as follows in Thirkield v.

Pitcher, 199 F. Supp.2d 637, 651-52 (E.D. Mich. 2002):

A plea of guilty must be knowingly and voluntarily made. Boykin v.

Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 1711-12, 23 L.Ed.2d 274

(1969). The defendant must be aware of the “relevant circumstances

and likely consequences” of his plea. Hart v. Marion Correctional

Inst., 927 F.2d 256, 257 (6th Cir.1991). The defendant must also be

aware of the maximum sentence that can be imposed for the crime for

which he or she is pleading guilty. King v. Dutton, 17 F.3d 151, 154

(6th Cir.1994). When a petitioner brings a federal habeas petition

challenging his plea of guilty, the state generally satisfies its burden

by producing a transcript of the state court proceedings showing that

the plea was made voluntarily. Garcia v. Johnson, 991 F.2d 324, 326

(6th Cir.1993). The factual findings of a state court that the guilty

plea was properly made are generally accorded a presumption of

correctness. Petitioner must overcome a heavy burden if the federal

court is to overturn these findings by the state court. Id.

 It is only when the consensual character of a guilty plea is

called into question that the validity of a guilty plea may be impaired.

Mabry v. Johnson, 467 U.S. 504, 508-09, 104 S.Ct. 2543, 2547, 81

L.Ed.2d 437 (1984). A guilty plea “entered by one fully aware of the

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direct consequences, including the actual value of any commitments

made to him by the court, prosecutor, or his own counsel, must stand

unless induced by threats (or promises to discontinue improper

harassment), misrepresentation (including unfulfilled or unfulfillable

promises), or perhaps by promises that are by their nature improper

as having no proper relationship to the prosecutor's business (e.g.,

bribes).” Id. at 509, 104 S.Ct. at 2547 (quoting Brady v. United

States, 397 U.S. 742, 755, 90 S.Ct. 1463, 1472, 25 L.Ed.2d 747

(1970)). Federal and state courts will uphold a state court guilty plea

if the circumstances demonstrate that the defendant understood the

nature and consequences of the charges and voluntarily chose to

plead guilty. See Cunningham v. Diesslin, 92 F.3d 1054, 1060 (10th

Cir.1996).

In the present case, the evidence establishes that petitioner pled guilty to the above

charges freely and voluntarily. He was advised of the maximum penalties for the charges and the

rights that he would be waiving by pleading guilty. He was also advised of the terms of the plea and

sentencing agreement and acknowledged that these were the complete terms of the agreement. In

response to the trial court’s questions, petitioner denied that any other promises had been made to

induce him to plead guilty.

Petitioner claims that he was led to believe from comments made by the prosecutor

at the November 7, 2006, pretrial conference that his minimum sentence would be 39 months below

the guidelines. Because petitioner believes that his sentencing guidelines should have been scored

at 108-180 months, he claims he believed that his sentence would be 39 months below this range.

As the court noted in Myers v. Straub, 159 F. Supp.2d 621, 627 (E.D. Mich. 2001),

[a]n unfulfilled state promise obtained in return for a guilty plea will

entitle a habeas petitioner to habeas relief. Montoya v. Johnson, 226

F.3d 399, 405 (5th Cir.2000); cert. den. 532 U.S. 1067, 121 S.Ct.

2220, 150 L.Ed.2d 212 (2001). However, a federal court sitting in

habeas review should not “lightly find misrepresentation in a plea

agreement.” Id. at 406.

The alleged sentencing agreement that petitioner would be sentenced to 39 months

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below the sentencing guidelines range is not part of the record. Absent extraordinary circumstances,

or a clear explanation as to why defendant did not reveal other terms when specifically asked to do

so by the trial court, a plea agreement consists of the terms revealed in open court, provided that the

trial court “has scrupulously followed the required procedure” for taking the plea. Baker v. United

States, 781 F.2d 85, 90 (6th Cir. 1986). “To allow defendant to attempt to prove by affidavit that the

agreement is otherwise than it appears, unambiguously, on a thorough record would violate

established contract-law standards.” Id. “[A] term that is unambiguous on its face and agreed to by

the defendant in open court will be enforced.” McAdoo v. Elo, 365 F.3d 487, 497 (6th Cir. 2004). 

In the present case, the only agreement made by the prosecutor at the time of the plea

hearing was that one count of assault with intent to murder and one count of felonious assault would

be dismissed. As noted above, the prosecutor and petitioner agreed that petitioner would be

sentenced to 10 to 20 years imprisonment on the armed robbery and carjacking convictions, and 32

to 48 months imprisonment on the felonious assault conviction, and that he would receive a

consecutive two-year prison sentence on the felony-firearm conviction. The prosecutor also agreed

not to seek consecutive sentences on the armed robbery and carjacking charges. The transcript

reveals no promise by the prosecutor or the trial court that petitioner would receive a sentence that

was 39 months below the sentencing guidelines range of 108-180 months, as calculated by

petitioner. Petitioner has therefore failed to show that the terms of the plea agreement were breached

by the prosecutor. Moreover, petitioner expressly denied the existence of any off-the-record

promises at the time of his plea, when questioned by the trial court. Because it is clear from the

record that no promises were made that have not been kept, or that the plea agreement was breached,

petitioner is not entitled to habeas corpus relief.

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Moreover, there is no clearly established federal law requiring a state court judge to

clear up any ambiguities which involve “mere statements made in the colloquy at pretrial hearings.”

Wright v. Lafler, 247 Fed.Appx. 701, 706 (6th Cir. 2007). The prosecutor’s comments about the

proposed sentence agreement of 11 to 20 years being 39 months below the sentencing guideline

range of 171-285 months was made during a colloquy which took place at a pretrial hearing, not at

the hearing where petitioner’s guilty was taken. In any event, the prosecutor’s comments at the

hearing do not indicate that he was agreeing to a minimum sentence that was 39 months below the

sentencing guidelines as ultimately scored by petitioner or even the probation department, but only

that the proposed offer was 39 months below the sentencing guidelines range of 171-285 months as

scored by the prosecutor. The prosecutor said nothing at the pretrial conference that reasonably

could have led petitioner to believe that he would receive a sentence that was 39 months below a

sentencing guideline range of 108-180 months. 

B. The Sentencing Claim

Petitioner next claims that the trial court improperly scored his sentencing guidelines

range by using factors that had not been submitted to a jury and proven beyond a reasonable doubt

or conceded by petitioner himself.

It is well established that “federal habeas corpus relief does not lie for errors of state

law.” Estelle v. McGuire, 502 U.S. 62, 67 (1991). Petitioner’s claim that the state trial court

incorrectly scored or calculated his sentencing guideline range under the Michigan Sentencing

Guidelines is not a cognizable claim for federal habeas review because it is essentially a state law

claim. See Howard v. White, 76 Fed. Appx. 52, 53 (6th Cir. 2003) (“A state court’s alleged

misinterpretation of state sentencing guidelines and crediting statutes is a matter of state concern

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only”). “In short, petitioner had no federal constitutional right to be sentenced within Michigan’s

guideline minimum sentence recommendations.” Doyle v. Scutt, 347 F. Supp.2d 474, 485 (E.D.

Mich. 2004). Habeas relief is not available to correct mere errors in sentencing guideline scoring.

Petitioner, however, also contends that the trial court violated his Sixth Amendment

rights by using factors, in fashioning the sentence, which should have been decided by a jury. In

support of his claim, petitioner relies on Blakely v. Washington, 542 U.S. 296, 301 (2004), in which

the Supreme Court held that, other than a defendant’s prior convictions, any fact that increases a

criminal penalty beyond the prescribed statutory maximum for the offense must be submitted to the

jury and proven beyond a reasonable doubt. See id. at 301. See also Apprendi v. New Jersey, 530

U.S. 466, 490 (2000).

Petitioner’s reliance on Blakely is misplaced because Blakely involved a trial court’s

departure from a state’s determinate sentencing scheme. Michigan, by contrast, has an

indeterminate sentencing system in which the defendant is given a sentence with a minimum and

a maximum sentence. The maximum sentence is not determined by the trial judge but is set by law.

See People v. Drohan, 475 Mich. 140, 160-61 (2006), and People v. Claypool, 470 Mich. 715, 730,

n.14 (2004) (both citing Mich. Comp. Laws § 769.8). Therefore, “‘the Michigan system is

unaffected by the holding in Blakely that was designed to protect the defendant from a higher

sentence based on facts not found by the jury in violation of the Sixth Amendment.’” Drohan, 475

Mich. at 164, quoting Claypool, 470 Mich. at 730 n.14. See also Harris v. United States, 536 U.S.

545, 565 (2002) (“[w]hether chosen by the judge or the legislature, the facts guiding judicial

discretion below the statutory maximum need not be alleged in the indictment, submitted to the jury,

or proved beyond a reasonable doubt” and the judge “may impose the minimum, the maximum, or

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any other sentence within the range without seeking further authorization from those [grand and

petit] juries-and without contradicting Apprendi.”). 

IV. Conclusion

For the reasons stated above, the court shall deny the petition in this matter for a writ

of habeas corpus. The court will also deny a certificate of appealability. “To obtain a COA under

§ 2253(c), a habeas prisoner must make a substantial showing of the denial of a constitutional right,

a demonstration that, under Barefoot, includes showing that reasonable jurists could debate whether

(or, for that matter, agree that) the petition should have been resolved in a different manner or that

the issues presented were adequate to deserve encouragement to proceed further.” Slack v.

McDaniel, 529 U.S. 473, 483-84 (2000) (internal quotation marks omitted). “Where a district court

has rejected the constitutional claims on the merits, . . . [t]he petitioner must demonstrate that

reasonable jurists would find the district courts assessment of the constitutional claims debatable or

wrong.” Id. at 484

For the reasons stated above, the court concludes that petitioner has failed to make

a substantial showing of the denial of a federal constitutional right. Accordingly, no certificate of

appealability may be issued. For the same reason, the court shall deny petitioner leave to proceed

on appeal in forma pauperis.’

V. Order

For the reasons stated above,

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IT IS ORDERED that the petition in this matter for a writ of habeas corpus is denied.

IT IS FURTHER ORDERED that no certificate of appealability shall issue.

IT IS FURTHER ORDERED that petitioner may not proceed on appeal in forma

pauperis.

S/Bernard A. Friedman 

Bernard A. Friedman

Senior United States District Judge

Dated: January 26, 2010

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

26, 2010, by electronic and/or ordinary mail.

S/Felicia Moses for Carol Mullins 

Case Manager

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