UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION 

 

GREGORY LEWIS HOLDER,

Petitioner,

v. Case No. 09-10954

CATHERINE S. BAUMAN,

Respondent.

 /

OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

AND GRANTING A CERTIFICATE OF APPEALABILITY

This habeas corpus petition may illustrate better than most the importance of

making a contemporaneous accurate record, and the dubious wisdom of judges and

attorneys discussing plea bargains and sentencing practices other than in court. Also, it

makes clear the dispositive power of unambiguous statements and solemn

acknowledgments that are recorded. On March 15, 2009, Petitioner Gregory Lewis

Holder filed a petition for the writ of habeas corpus pursuant to 28 U.S.C. § 2254,

challenging his plea-based convictions for drug and firearm offenses committed in

Genesee County, Michigan. Petitioner alleges that his guilty plea was involuntary and

that his trial attorney misled him about the sentence the judge would impose. 

Respondent Catherine S. Bauman has filed a response in opposition to the petition. 

The court concludes that Petitioner’s sworn statements on the record at his guilty plea

amply demonstrate that he understood then that there was, in fact, no off-the-record

sentencing deal or similar judicial commitment, and he is not entitled to habeas relief.

The petition will be denied.

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I. BACKGROUND

In 2006, Petitioner was charged in the Genesee County Circuit Court (Case No.

06-18371) with the following eight crimes: (1) conspiracy to possess with intent to

deliver 1,000 or more grams of cocaine; (2) possession with intent to deliver 1,000 or

more grams of cocaine; (3) felon in possession of a firearm; (4) carrying a concealed

weapon; (5) possession of a firearm during the commission of, or attempt to commit, a

felony; (6) possession with intent to deliver marijuana; (7) possession with intent to

deliver ecstasy; and (8) possession with intent to deliver methamphetamine. The Court

will refer to this state court case as Case A. Attorney Neil Rockind represented

Petitioner in Case A. 

In another case in Genesee County Circuit Court (Case No. 06-18335), Petitioner

was represented by attorney Jeffrey Skinner and charged with delivery of 50 to 449

grams of cocaine. The Court will refer to this case as Case B. In a third case in

Genesee County Circuit Court (Case No. 06-18836), Petitioner was charged with

delivery of 450 to 999 grams of cocaine. 

On January 9, 2007, Petitioner pleaded guilty under oath to counts two, three,

and five of Case A. Those counts charged Petitioner with possession with intent to

deliver 1,000 or more grams of cocaine, Mich. Comp. Laws § 333.7401(2)(a)(i), felon in

possession of a firearm, Mich. Comp. Laws § 750.224f, and possession of a firearm

during the commission of, or attempt to commit, a felony, Mich. Comp. Laws §

750.227b. Petitioner also pleaded guilty, as charged, to delivery of 50 to 449 grams of

cocaine, Mich. Comp. Laws § 333.7401(2)(a)(ii), in Case B. 

In exchange for Petitioner’s plea, the prosecutor dismissed case number 06-

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18836, which charged Petitioner with delivery of 450 to 999 grams of cocaine, and

counts one, four, six, seven, and eight of Case A. The prosecutor also agreed not to

seek consecutive sentences or sentencing enhancement as a result of Petitioner’s

status as a habitual offender and repeat drug offender. 

Petitioner attempted to withdraw his plea on the date of sentencing, alleging that

his anticipated sentence was more than an agreed-upon sentence of two years in prison

for the felony firearm conviction and fifteen years in prison for the other crimes. On

March 22, 2007, the trial court heard oral arguments and denied Petitioner’s motion to

withdraw the plea. The trial court then sentenced Petitioner to imprisonment in Case A

to 225 to 475 months for possession with intent to deliver 1,000 grams or more of

cocaine, one to five years for felon-in-possession of a firearm, and a consecutive term

of two years for possession of a firearm during the commission of a felony. The trial

court sentenced Petitioner to a concurrent sentence of 99 to 240 months for delivery of

50 to 449 grams of cocaine in Case B. 

Petitioner raised his habeas claims in applications for leave to appeal. The

Michigan Court of Appeals denied leave to appeal for lack of merit in the grounds

presented. See People v. Holder, No. 278965 (Mich. Ct. App. Aug. 7, 2007); People v.

Holder, No. 278967 (Mich. Ct. App. Aug. 24, 2007). On December 20, 2007, the

Michigan Supreme Court denied leave to appeal because it was not persuaded to

review the issues. See People v. Holder, 742 N.W.2d 126 (Mich. 2007); People v.

Holder, 742 N.W.2d 124 (Mich. 2007). 

In March of 2009, Petitioner filed two separate habeas corpus petitions, one for

Case A and one for Case B. The petition challenging Case A was given United States

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District Court number 09-10954 and assigned to this court. Case B was given United

States District Court number 09-10973 and assigned to another judge in this District. 

After case number 09-10973 was reassigned to this court as a companion case, the

court dismissed that case and directed Petitioner to incorporate all his claims in an

amended petition filed in case number 09-10954. Petitioner complied with the court’s

order, and Respondent filed an answer in opposition to the amended petition. The case

is now ready to be adjudicated.

II. STANDARD OF REVIEW

“The statutory authority of federal courts to issue habeas corpus relief for

persons in state custody is provided by 28 U.S.C. § 2254, as amended by the

Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).” Harrington v. Richter,

131 S. Ct. 770, 783 (2011). Pursuant to § 2254, state prisoners are not entitled to the

writ of habeas corpus unless 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

(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). In addition, “where 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)). 

Petitioner alleges that § 2254(d) does not apply here because the state courts

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did not address the merits of his claims. It is true that both state appellate courts merely

issued one-sentence orders denying leave to appeal. Nevertheless, “[w]hen a federal

claim has been presented to a state court and the state court has denied relief, it may

be presumed that the state court adjudicated the claim on the merits in the absence of

any indication or state-law procedural principles to the contrary.” Harrington, 131 S. Ct.

at 784-85. Petitioner presented his claims to the Michigan Court of Appeals and to the

Michigan Supreme Court. Neither court stated that Petitioner’s claims were barred from

review by a procedural error. The Court therefore presumes that the state appellate

court orders were adjudications on the merits and that the deference due under §

2254(d) applies here. 

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 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, 131 S. Ct. at 786. To obtain a writ of habeas corpus from

a federal court, a state prisoner must show that the state court’s ruling on a claim “was

so lacking in justification” that it resulted in “an error well understood and comprehended

in existing law beyond any possibility for fairminded disagreement.” Id. at 786-87. 

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III. DISCUSSION

A. Voluntariness of the Plea

Petitioner contends that his trial attorney informed him that he would receive a

sentence of fifteen years for the drug conviction in Case A. Petitioner alleges that, as a

result of this incorrect information, his guilty plea was involuntary and a violation of his

constitutional right to due process.

Because a guilty plea involves a waiver of constitutional rights, it must be a

knowing, voluntary, and intelligent act done with sufficient awareness of the relevant

circumstances and likely consequences. Brady v. United States, 397 U.S. 742, 748

(1970). The defendant must appreciate the consequences of his plea, waive his rights

without being coerced, and understand the rights that he is surrendering. Ruelas v.

Wolfenbarger, 580 F.3d 403, 408 (6th Cir. 2009), cert. denied, 130 S. Ct. 3322 (2010). 

“A guilty plea can be involuntary as a result of the ineffective assistance of counsel.” 

United States v. Gardner, 417 F.3d 541, 545 (6th Cir. 2005). But “a ‘plea of guilty

entered by one fully aware of the direct consequences’ of the plea is voluntary in a

constitutional sense ‘unless induced by threats . . . , misrepresentation . . . , or perhaps

by promises that are by their nature improper as having no proper relationship to the

prosecutor’s business.’” Bousley v. United States, 523 U.S. 614, 619 (1998) (quoting

Brady, 397 U.S. at 755)). The voluntariness of a plea is determined by considering all

the relevant circumstances surrounding the plea. Brady, 397 U.S. at 749.

At the plea proceeding in this case, the prosecutor thoroughly explained the

terms of the plea agreement and specifically stated that there was no sentencing or

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 See People v. Cobbs, 505 N.W.2d 208, 212 (Mich. 1993) (acknowledging that,

“[a]t the request of a party, and not on the judge’s own initiative, a judge may state on

the record the length of sentence that, on the basis of the information then available to

the judge, appears to be appropriate for the charged offense”) (emphasis omitted).

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Cobbs1 agreement. Both of the attorneys representing Petitioner assured the trial court

that the prosecutor had accurately explained the plea agreement. (Jan. 9, 2007 Tr., 5-

6.) 

Petitioner was twenty-nine years old at the time. The trial court informed him of

the maximum penalty for each of the offenses to which he was pleading guilty. 

Petitioner testified that he understood the plea agreement and agreed with it. Petitioner

stated, as had his two attorneys, that no promises had been made to him, other than

those which resulted from the plea bargaining process and which were stated there on

the record. Petitioner said that it was his own choice to plead guilty and that his plea

was freely, understandingly, and voluntarily made. He maintained that there had been

no undue influence, compulsion, or duress used against him to force him to plead guilty,

and he said that he was pleading guilty because he was guilty. (Id. at 6-12.) 

The record, as summarized above, shows that Petitioner entered his plea of

guilty with sufficient awareness of all the relevant circumstances and the likely

consequences. There is no support in the transcript of the plea proceeding for

Petitioner’s contention that he was promised a sentence of fifteen years for the drug

offense. His possible subjective belief that he would receive such a sentence on the

drug charges must be disregarded because “the record as a whole shows no objective

basis for the belief.” Carwile v. Smith, 874 F.2d 382, 384 (6th Cir. 1989). If this court

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were to rely on Petitioner’s subjective impression that there was such an agreement, the

court “would be rendering the plea colloquy process meaningless, for any convict who

alleges that he believed the plea bargain was different from that outlined in the record

could withdraw his plea, despite his own statements during the plea colloquy . . .

indicating the opposite.” Ramos v. Rogers, 170 F.3d 560, 566 (6th Cir. 1999). “This

[the court] will not do, for the plea colloquy process exists in part to prevent petitioners .

. . from making the precise claim that is today before [the court].” Id. 

Petitioner’s “[s]olemn declarations in open court” that his plea was freely,

understandingly, and voluntarily made, “carry a strong presumption of verity.” 

Blackledge v. Allison, 431 U.S. 63, 74 (1977). Therefore, the court rejects Petitioner’s

allegation that his guilty plea was involuntary due to allegedly being informed that he

would receive a sentence of fifteen years for the drug conviction in Case A. 

B. Trial Counsel

Petitioner alleges in a related claim that his trial attorney was constitutionally

ineffective for leading him to believe that his sentence would be fifteen years on the

drug count in Case A with an additional two years for the felony firearm count. 

Petitioner claims that he would have gone to trial had it not been for his attorney’s

misinformation. 

“A failure to provide professional guidance to a defendant regarding his sentence

exposure prior to a plea may constitute deficient assistance.” Moss v. United States,

323 F.3d 445, 474 (6th Cir. 2003) (citing Magana v. Hofbauer, 263 F.3d 542, 550 (6th

Cir. 2001)). However, under Strickland v. Washington, 466 U.S. 668, 687 (1984), a

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

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deficient performance prejudiced the defense.” 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, 56-59 (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 demonstrate “a

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

and would have insisted on going to trial.” Id. 

In a sentencing memorandum filed in the trial court, attorney Neil Rockind

retrenched from his statements at the guilty plea proceeding and alleged that, during

plea negotiations, the trial court had agreed to sentence Petitioner to fifteen years plus

two additional years for the felony firearm offense. (See Mar. 22, 2007 Tr., 17.) 

Rockind goes on to say in his memorandum that, in reliance on the trial court’s

representations, he informed Petitioner that he would receive a minimum sentence of

seventeen years (fifteen years for the principal charges and two years for the felonyfirearm charge). 

Petitioner’s other trial attorney, Jeffrey Skinner, stated in an affidavit he filed in

the trial court that he recalled the trial court saying fifteen years plus two years for the

felony firearm charge was “reasonable.” (Id.) Skinner’s affidavit said also that the trial

court had “no difficulty” with the proposed sentence and that the court asked the parties

for a reminder before sentencing. (Id.) At the March 22, 2007 hearing, attorney Skinner

said that in view of Petitioner’s recent remarks, “I feel like now . . . I need to take a

defensive position . . . and start making a record” of efforts to counsel Petitioner. (Id. at

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6.) Attorney Skinner also stated on the record that “a year from now I’m going to be

sitting in that witness chair and there’s going to be a SADO attorney standing here, and 

. . . I don’t need that aggravation.” (Id.) Defense attorney Rockind minutes later

explained that he had “done a lot of soul-searching” and that in his filings in support of

Petitioner he was attempting “to be honest with the court as to how we saw things.” (Id.

at 6-7.) 

Petitioner relies on Rockind’s and Skinner’s recollection that there was an off-therecord agreement to sentence him to a total of seventeen years in prison. Standing in

the way of the attorneys’ point of view, however, is the recorded plea proceeding in

which Mr. Cassady, the assistant prosecutor specifically stated, among other things,

that there was no sentencing agreement. (Jan. 9, 2007 Tr. 5.) The defense attorneys

each concurred. (Id. at 6.) Immediately after prosecutor said that there is no Cobbs or

sentence agreement, the trial court asked each defense attorney, in turn, “has Mr.

Cassady accurately stated the plea agreement? (Id.) Attorney Skinner in response

said, “he has,” and attorney Rockind said “yes.” (Id.)

When the trial court asked Petitioner whether he was saying that no other

promises had been made to him other than those stated on the record, Petitioner

replied in the affirmative. (Id. at 10-11.) Petitioner is simply bound by the statements he

made in response to the court’s inquiry during the plea colloquy. Ramos, 170 F.3d at

566. At the March 22, 2007 hearing, there was no explanation offered by the attorneys

casting doubt on their stated agreement with Cassady’s assertion that there were no

sentence deals. If Petitioner is bound by his statements under oath, it would seem only

equitable that officers of the court—even though they were not required to testify under

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oath as was the Petitioner—should be equally bound by their admissions on the same

record. But even if they are not, their client is. United States v. Johnson, 752 F.2d 206,

210-11 (6th Cir. 1985) (“Statements of an attorney that are directly related to the

litigation at hand have been held to be within the attorney's scope of authority and

binding on the client.”). 

Furthermore, a minimum sentence of fifteen years would have been less than the

suggested sentencing guidelines range. At the hearing on Petitioner’s motion to

withdraw his plea, the trial judge explained that he may have agreed to a sentence at

the bottom of whatever the sentencing guidelines turned out to be. ( Mar. 22, 2007 Tr.,

18.) 

Now what I recall about the discussion that had was that we there was

some discussion that was had about what possible sentence Mr. Holder

would have; and I am certain that what I said to you guys is that I don’t

have a problem with sentencing him at the bottom end of the guidelines;

that’s what I normally will say, whatever those guidelines are; and I may

have asked, what the guidelines and, um, I’m not recalling what was

represented to me in terms of what the guidelines were, but if it was

represented that the—that the minimum was fifteen years, then that would

be a representation that counsel would have made to me; and that’s

where Mr. Skinner is hearing the fifteen years and two and maybe that’s

where you come up with it, also, Mr. Rockind, because I probably asked,

well what are his guidelines, which is my normal, typical practice . . . .

(Id. at 18-19.)

But the trial court stated that it “knew for a fact” that it did not agree to sentence

Petitioner below the sentencing guideline range because the court “would never enter

into an agreement to sentence someone below the guideline range knowing that there

are no circumstances that I can state on the record to justify deviating below without the

prosecutor’s permission.” (Id. at 18)

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[T]he Court cannot sit here and say its gonna sentence someone below

the guideline range without getting permission from the prosecutor or

some kind of agreement, unless the Court is convinced that it has

substantial and compelling reasons to deviate below the guideline range. 

And, when you look at this case, there just are no reasons under any

circumstances to deviate below the guidelines.

So the Court knows for a fact—its not that I don’t recall, it’s not that

I’m guessing, this Court knows for a fact that it did not agree to sentence

the Defendant below the guideline range; that’s just not my practice. It

just never happened; and that the whole time I’ve been on this Bench,

unless I’ve got permission from the prosecutor—so I know that did not

happen.

. . . 

I don’t really see a basis to allow him to withdraw his plea, because, as

Mr. Cassady has already indicated, the plea that was taken on the record,

the transcript says what it says what it says; and it’s clear that the court

never agreed to any sentence agreement other than I probably did tell you

I would sentence him at the bottom of the guidelines, which to me seem to

be fair, given the whole situation, unless I could—get some other

agreement from the prosecutor’s office, which apparently never happened.

(Id. at 20-21.) The court concluded by stating, “[T]hat’s what happened, and that was . .

. what should have been represented to Mr. Holder; and, in [the court’s] opinion,

probably . . . what was represented to Mr. Holder.” (Id. at 21.) 

The trial court’s factual findings as to what occurred during the plea proceeding

were clearly stated, pointedly unequivocal on the relevant points, and may “not be

disturbed unless there was an ‘unreasonable determination of the facts in light of the

evidence presented in the State court proceeding,’ § 2254(d)(2), or unless the habeas

petitioner demonstrates the factual findings incorrect by ‘clear and convincing evidence,’

§ 2254(e).” Cooey v. Coyle, 289 F.3d 882, 907 (6th Cir. 2002). Here, the court has on

the one hand unequivocal statements by the trial judge, against statements on the other

hand made in affidavits by Petitioner’s attorneys, one of whom felt “defensive” and the

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other sought to present his “recollection” running to the contrary of the trial judge’s.

On this record, Petitioner has failed to demonstrate by clear and convincing

evidence that the trial court’s factual findings are incorrect. The record of the plea

proceeding does not support his claim that there was an agreement to sentence him to

fifteen years plus two years for the felony firearm conviction. Although this court

recognizes that the defense attorneys may have believed they heard something hopeful

in terms of a sentence prediction, the weight of the evidence supports a conclusion that

there was no agreement. Neither they nor the Petitioner can escape the force of a

clearly stated record of the proceedings.

The court defers to the trial court’s conclusion that there was no agreement to

sentence Petitioner to a total of seventeen years in Case A. The court also defers to

the trial court’s conclusion that trial counsel in all likelihood correctly represented the

terms of the plea agreement, as set forth on the record, to Petitioner. Trial counsel was

not ineffective, and the state appellate courts’ rejection of Petitioner’s claim was neither

contrary to, nor an unreasonable application of, Strickland v. Washington or Hill v.

Lockhart.

IV. CERTIFICATE OF APPEALABILITY

For Petitioner to seek review of this court’s decision, a Certificate of Appealability

(“COA”) must issue. 28 U.S.C. § 2253(c)(1)(A); Fed. R. App. P. 22(b). For a COA to

issue, Petitioner must make “a substantial showing of the denial of a constitutional

right.” 28 U.S.C. § 2253(c)(2). When a court denies a habeas claim on the merits, the

substantial showing threshold is met if the petitioner demonstrates that reasonable

jurists would find the court’s assessment of the claim debatable or wrong. See Slack v.

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McDaniel, 529 U.S. 473, 484-85 (2000). “A petitioner satisfies this standard by

demonstrating that . . . jurists could conclude the issues presented are adequate to

deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327

(2003). Having considered the matter, this court finds that reasonable jurists could

debate its assessment of Petitioner’s habeas claims and will grant a COA on both

claims presented in this case.

V. CONCLUSION

The state appellate courts’ rejection of Petitioner’s claims did not result in

decisions that were contrary to clearly established federal law, unreasonable

applications of federal law, or unreasonable determinations of the facts. Accordingly,

IT IS ORDERED that Petitioner’s amended petition for a writ of habeas corpus

[Dkt. #16] is DENIED.

IT IS FURTHER ORDERED that a certificate of appealability is GRANTED on

both habeas claims presented in this case.

 s/Robert H. Cleland 

ROBERT H. CLELAND

UNITED STATES DISTRICT JUDGE

Dated: August 31, 2011

I hereby certify that a copy of the foregoing document was mailed to counsel of record

on this date, August 31, 2011, by electronic and/or ordinary mail.

 s/Lisa Wagner 

Case Manager and Deputy Clerk

(313) 234-5522

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