UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

ROBERT LONG,

Petitioner,

v. CASE NO. 2:09-CV-12124

HONORABLE AVERN COHN

TIMOTHY BALL,

Respondent. 

________________________________/

MEMORANDUM AND ORDER

DENYING THE PETITION FOR A WRIT OF HABEAS CORPUS

AND

DENYING A CERTIFICATE OF APPEALABILITY

I. Introduction

This is a habeas case under 28 U.S.C. § 2254. Michigan prisoner Robert Long

(“Petitioner”), pleaded guilty to the felony offenses of operating a vehicle while

intoxicated or impaired, third offense, MICH. COMP. LAWS § 257.625(1), and fleeing and

eluding a police officer, MICH. COMP. LAWS § 750.479a(3), and the misdemeanor offense

of operating a vehicle with a suspended license, MICH. COMP. LAWS § 257.904(3)(a), in

the Oakland County Circuit Court, in exchange for an agreement that his minimum

sentence would be capped at 24 months. He was sentenced as a fourth habitual

offender, MICH. COMP. LAWS § 769.12, to concurrent terms of 2 to 20 years in prison on

the felony convictions and 151 days in jail (time served) on the misdemeanor conviction

in 2007.

Petitioner raises claims concerning the constitutionality of Michigan’s Heidi’s law,

the trial court’s jurisdiction to sentence him as a third drunk driving offender, a violation of

Michigan’s 14-day rule for preliminary examination, and the effectiveness of trial counsel. 

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For the reasons that follow, the petition will be denied. The Court will also denies a

certificate of appealability.

II. Background

Petitioner’s convictions arise from a drunk driving incident which occurred in

Waterford, Michigan on July 13, 2007. At the plea hearing on November 26, 2007,

Petitioner admitted that he was driving under the influence of alcoholic liquor on

Waterfront Drive near Barnhart Road. When a uniformed Oakland County Sheriff’s

Deputy driving a police motorcycle attempted to pull him over, Petitioner refused to stop

and drove through a residential neighborhood. Following his arrest, Petitioner had a

blood alcohol content of .14 at the hospital. Petitioner knew that his driver’s license was

suspended at the time of the incident.

As to his prior offenses, Petitioner admitted that he had been convicted of

operating while impaired by liquor in January, 2007, operating under the influence of

liquor in March, 1996, and operating while intoxicated or impaired, third offense, in May,

1995. Petitioner could not remember whether he was convicted of operating while

intoxicated or impaired, third offense, in November, 1992. Petitioner also admitted that

he had been convicted of unlawful driving away of a motor vehicle in May, 1987. 

Petitioner testified that he was 44 years old, that he could read and write, and that

he was able to understand the proceedings. He confirmed that he had consulted with

counsel and was satisfied with his advice. He said that he understood the plea

agreement and its consequences and that he was aware of the rights he was giving up

by pleading guilty. He indicated that he was pleading guilty of his own free will and

denied being threatened or coerced into tendering his plea. The trial court accepted the

plea.

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On December 11, 2007, the trial court sentenced Petitioner, in accordance with

his plea agreement, to the aforementioned terms of imprisonment.

Petitioner filed a delayed application for leave to appeal with the Michigan Court of

Appeals raising the same claims presented on habeas review. The court denied the

application for lack of merit in the grounds presented. People v. Long, No. 285015

(Mich. Ct. App. May 27, 2008) (unpublished). Petitioner also filed an application for

leave to appeal with the Michigan Supreme Court, which was denied in a standard order. 

People v. Long, 482 Mich. 1118, 758 N.W.2d 273 (2008).

Petitioner thereafter filed the present habeas petition raising the following claims:

I. Heidi’s Law (MCL 257.625) is unconstitutional as applied by using

time-barred priors in old statute. It violates due process of law and

the Ex Post Facto Clause of the United States and Michigan

Constitutions.

II. The circuit court had no jurisdiction to sentence him as a third

offender because he only had one prior within the 10-year window.

III. The district court violated the 14-day rule for preliminary examination.

IV. Ineffective assistance of counsel where initial counsel withdrew and

substitute counsel failed to object to the 14-day rule violation.

Respondent has filed an answer to the petition contending that it should be denied for

lack of merit.

III. Analysis

A. Standard of Review

Federal law imposes the following standard of review for habeas cases:

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,

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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).

“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 [that] precedent.’” 

Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003) (per curiam) (quoting Williams v. Taylor,

529 U.S. 362, 405-06 (2000)); see also Bell v. Cone, 535 U.S. 685, 694 (2002). “[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 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. “AEDPA thus imposes a ‘highly deferential standard for

evaluating state-court rulings,’ and ‘demands that state-court decisions be given the

benefit of the doubt.’” Renico v. Lett, _ U.S. _, 130 S. Ct. 1855, 1862 (2010) (quoting

Lindh, 521 U.S. at 333, n. 7; Woodford v. Viscotti, 537 U.S. 19, 24 (2002) (per curiam)).

The Supreme Court recently held that “a state court’s determination that a claim

lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree’

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on the correctness of the state court’s decision.” Harrington v. Richter, _ U.S. _, 131 S.

Ct. 770, 786 (2011) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The

Supreme Court emphasized “that even a strong case for relief does not mean the state

court’s contrary conclusion was unreasonable.” Id. ( citing Lockyer v. Andrade, 538 U.S.

63, 75 (2003). Pursuant to § 2254(d), “a habeas court must determine what arguments

or theories supported or . . . could have supported, the state court’s decision; and then it

must ask whether it is possible fairminded jurists could disagree that those arguments or

theories are inconsistent with the holding in a prior decision” of the Supreme Court. Id. 

Thus, in order to obtain habeas relief in federal court, a state prisoner must show that the

state court’s rejection of his claim “was so lacking in justification that there was an error

well understood and comprehended in existing law beyond any possibility for fairminded

disagreement.” Id.

Section 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 at the time the state court renders its decision. See

Williams, 529 U.S. at 412; see also Knowles v. Mirzayance, _ U.S. _, 129 S. Ct. 1411,

1419 (2009) (noting that the Supreme Court “has held on numerous occasions that it is

not ‘an unreasonable application of clearly established Federal law’ for a state court to

decline to apply a specific legal rule that has not been squarely established by this

Court”) (quoting Wright v. Van Patten, 552 U.S. 120, 125-26 (2008) (per curiam));

Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). Section 2254(d) “does not require a

state court to give reasons before its decision can be deemed to have been ‘adjudicated

on the merits.’” Harrington, 131 S. Ct. at 785. Furthermore, it “does not require citation

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

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

contradicts them.” Early v. Packer, 537 U.S. 3, 8 (2002); see also Mitchell, 540 U.S. at

16. While the requirements of “clearly established law” are to be determined solely by

Supreme Court precedent, the decisions of lower federal courts may be useful in

assessing the reasonableness of the state court’s resolution of an issue. See Stewart v.

Erwin, 503 F.3d 488, 493 (6th Cir. 2007) (citing Williams v. Bowersox, 340 F.3d 667, 671

(8th Cir. 2003)); Dickens v. Jones, 203 F. Supp. 354, 359 (E.D. Mich. 2002).

A state court’s factual determinations are presumed correct on federal habeas

review. See 28 U.S.C. § 2254(e)(1). A petitioner may rebut this presumption only with

clear and convincing evidence. See Warren v. Smith, 161 F.3d 358, 360-61 (6th Cir.

1998). Moreover, habeas review is “limited to the record that was before the state court.” 

Cullen v. Pinholster, _ U.S. _, 131 S. Ct. 1388, 1398 (2011).

B. Heidi’s Law and Jurisdictional Claims

Petitioner first asserts that he is entitled to habeas relief because Heidi’s Law,

M.C.L. § 257.625, is unconstitutional under the state and federal constitutions. He

claims an ex post facto and due process violation. Petitioner relatedly asserts that the

state court lacked jurisdiction to sentence him as a third drunk driving offender due to the

claimed constitutional infirmity.

Prior to January 3, 2007, M.C.L. § 257.625(9)(c) provided that a person who

committed a drunk driving related offense was guilty of felony drunk driving if he had

been convicted of two or more drunk driving related offenses within the previous 10

years. Heidi’s Law, 2006 Mich. Pub. Acts 564, effective January 3, 2007, amended the

statute to remove the 10-year time limitation. The amended statute also changed the

offense from a misdemeanor punishable by up to 93 days in jail to a felony, punishable

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by imprisonment of not less than one year or more than five years.

As an initial matter, Petitioner is not entitled to habeas relief on any claim that

Heidi’s law is unconstitutional under the Michigan Constitution. It is well-established that

federal habeas relief is unavailable for perceived violations of state law. See 28 U.S.C. §

2254(a); Estelle v. McGuire, 502 U.S. 62, 72 (1991). Moreover, the Michigan courts

have rejected similar constitutional challenges to the amended statute and have ruled

that Heidi’s Law does not violate the Michigan Constitution. See People v. Perkins, 280

Mich. App. 244, 251-52, 760 N.W.2d 669 (2008); see also People v. Kerr, No. 285234,

2009 WL 1506666, *1-2 (Mich. Ct. App. May 26, 2009) (unpublished, citing cases);

People v. Mix, No. 282948, 2009 WL 1362344, *3 (Mich. Ct. App. May 14, 2009)

(unpublished, citing Perkins). State courts are the final arbiters of state law and federal

courts will not intervene in such matters. See Lewis v. Jeffers, 497 U.S. 764, 780 (1990);

Cristini v. McKee, 526 F.3d 888, 897 (6th Cir. 2008); see also Bradshaw v. Richey, 546

U.S. 74, 76 (2005); Sanford v. Yukins, 288 F.3d 855, 860 (6th Cir. 2002).

Similarly, the determination of whether a particular state court is vested with

jurisdiction under state law and is the proper venue to hear a criminal case is a “function

of the state courts, not the federal judiciary.” Wills v. Egeler, 532 F.2d 1058, 1059 (6th

Cir. 1976); see also Chandler v. Curtis, 2005 WL 1640083, *2 (E.D. Mich. July 13, 2005);

Groke v. Trombley, 2003 WL 1708109, *5 (E.D. Mich. April 1, 2003); accord Write v.

Angelone, 151 F.3d 151, 157-58 (4th Cir. 1998); Rhode v. Olk-Long, 84 F.3d 284, 287

(8th Cir. 1996). A state court’s determination of state jurisdictional issues conclusively

establishes jurisdiction for purposes of federal habeas review. See Strunk v. Martin, 27

F. App’x 473, 475 (6th Cir. 2001). Petitioner is thus not entitled to habeas relief on any

such state law claims.

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Petitioner has also not shown that Heidi’s Law violates the United States

Constitution. The Ex Post Facto Clause prohibits statutes which make a previously

innocent act criminal, increase the punishment for a crime after its commission, or

deprive a defendant of a defense that was available at the time that the crime was

committed. See Collins v. Youngblood, 497 U.S. 37, 42 (1990). Additionally, the

Supreme Court has stated that people have a fundamental right to fair warning of

conduct which will give rise to criminal penalties and “that right is protected . . . by the

Due Process Clause of the Fifth Amendment.” Marks v. United States, 430 U.S. 188,

191-92 (1977). Heidi’s Law became effective on January 3, 2007. Petitioner’s current

offenses occurred on July 13, 2007. Heidi’s Law did not make a previously innocent act

criminal, did not increase the punishment for Petitioner’s crime after its commission, nor

deprive Petitioner of a defense that was available when the crime was committed. The

statute also provided Petitioner with sufficient notice of the crime and its consequences. 

No ex post facto or due process violation occurred. Habeas relief is not warranted.

C. 14-Day Rule and Ineffective Assistance of Counsel Claims

Petitioner next asserts that he is entitled to habeas relief because the state trial

court violated Michigan’s 14-day rule for preliminary examinations. He also asserts that

his defense attorneys were ineffective for allowing and/or failing to object to the alleged

procedural violation.

Claims about the deprivation of constitutional rights that occur before the entry of

a guilty plea, however, are foreclosed by that plea. See United States v. Broce, 488 U.S.

563, 569 (1989); Tollett v. Henderson, 411 U.S. 258, 267 (1973). The Supreme Court

has explained:

[A] guilty plea represents a break in the chain of events which has

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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. He may only attack the voluntary and intelligent

character of the guilty plea by showing that the advice he received from

counsel was not within [constitutional standards].

Tollett, 411 U.S. at 267. Simply stated, a defendant who pleads guilty or no contest

generally waives any non-jurisdictional claims that arose before his plea. In such a case,

the Court’s inquiry is limited to whether the plea was knowing, intelligent, and voluntary. 

See Broce, 488 U.S. at 569. A violation of Michigan’s 14-day rule for preliminary

examinations is not a jurisdictional defect, see People v. Smith, 200 Mich. App. 237, 504

N.W.2d 21 (1993); see also Howard v. White, 76 F. App’x 52, 53 (6th Cir. 2003) (speedy

trial violation waived by plea), nor is any related ineffective assistance of counsel claim. 

See United States v. Stiger, 20 F. App’x 307, 309 (6th Cir. 2001). Petitioner pleaded

guilty to the offenses at issue. Absent a showing that his plea was not knowing,

intelligent, or voluntary, his claims concerning the 14-day rule for preliminary examination

and defense counsel’s conduct during the pre-plea period are foreclosed by his plea. 

See, e.g., Nelson v. Berghuis, No. 1:08-CV-1147, 2008 WL 5383049, *2 (W.D. Mich.

Dec. 18, 2008) (summarily dismissing similar claims pursuant to Tollett).

Moreover, even if these claims were not foreclosed, they would not warrant

habeas relief. Any violation of the 14-day rule concerns a matter of state law. As noted

above, habeas relief does not lie for perceived errors of state law. See, e.g., Estelle v.

McGuire, 502 U.S. 62, 67-68 (1991). 

Additionally, Petitioner cannot establish that his defense attorneys were

ineffective. The Supreme Court has set forth a two-part test for evaluating the claim of a

habeas petitioner who is challenging a plea on the ground that he was denied his Sixth

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Amendment right to the effective assistance of counsel. First, the petitioner must

establish that “counsel’s representation fell below an objective standard of

reasonableness.” Hill v. Lockhart, 474 U.S. 52, 57-58 (1985) (quoting Strickland v.

Washington, 466 U.S. 668, 688 (1984)). To demonstrate that counsel’s performance fell

below this standard, a petitioner must overcome the “strong presumption that counsel's

conduct falls within the wide range of reasonable professional assistance.” Strickland,

466 U.S. at 689. Second, the petitioner must then demonstrate that counsel’s

performance resulted in prejudice, i.e., “that there is a reasonable probability that, but for

counsel’s errors, [he/she] would not have pleaded guilty and would have insisted on

going to trial.” Hill, 474 U.S. at 59. The Supreme Court has explained that “[i]n many

guilty plea cases, the ‘prejudice’ inquiry will closely resemble the inquiry engaged in by

courts reviewing ineffective-assistance challenges to convictions obtained through a

trial.” Id. The inquiry should also be made “objectively, without regard for the

‘idiosyncracies of the particular decisionmaker.’” Id. at 59-60 (quoting Strickland, 466

U.S. at 695).

The Supreme Court has recently confirmed that a federal court’s consideration of

ineffective assistance of counsel claims arising from state criminal proceedings is quite

limited on habeas review due to the deference accorded trial attorneys and state

appellate courts reviewing their performance. “The standards created by Strickland and

§ 2254(d) are both ‘highly deferential,’ and when the two apply in tandem, review is

‘doubly’ so.” Harrington, 131 S. Ct. at 788 (internal and end citations omitted). “When §

2254(d) applies, the question is not whether counsel’s actions were reasonable. The

question is whether there is any reasonable argument that counsel satisfied Strickland’s

deferential standard.” Id. at 788. Additionally, the Supreme Court has emphasized the

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extraordinary deference to be afforded trial counsel in the area of plea bargaining. See

Premo v. Moore, 562 U.S. _, 131 S. Ct. 733, 741 (2011) (stating that “strict adherence to

the Strickland standard [is] all the more essential when reviewing the choices an attorney

made at the plea bargain stage”); see also Bray v. Andrews, _ F.3d _, 2011 WL

1544740, *5 (6th Cir. 2011) (citing Premo). 

Petitioner essentially asserts that his defense attorneys were ineffective for

allowing and/or failing to object to the alleged 14-day rule violation. Even assuming that

counsel erred, however, Petitioner cannot establish that he was prejudiced. The remedy

for a 14-day rule violation is a dismissal without prejudice which allows the prosecutor to

reinstate the case. See People v. Grabiec, No. 266805, 2007 WL 2119005, *1 (Mich. Ct.

App. July 24, 2007) (citing People v. Weston, 413 Mich. 371, 376, 319 N.W.2d 537

(1982)). Given that any dismissal based upon a 14-day rule violation would have been

without prejudice to the charges being re-filed, Petitioner cannot show that he was

prejudiced by his defense attorneys’ conduct in this regard. See Williams v.

Romanowski, No. 2:06-CV-12670, 2008 WL 6875005, *25 (E.D. Mich. Jan. 29, 2008)

(magistrate judge’s report); People v. Tidwell, No. 190005, 1997 WL 33350638, *2 (Mich.

Ct. App. May 6, 1997) (unpublished). Petitioner has also not shown that he would have

foregone his plea and insisted on going to trial. The evidence against him was

overwhelming and he had no apparent defense to the charges. Consequently, Petitioner

cannot prevail on these claims. Habeas relief is not warranted.

IV. Conclusion

For the reasons stated above, Petitioner is not entitled to habeas relief on any of

the claims contained in his petition. Accordingly, the petition is DENIED.

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“The district court must issue or deny a certificate of appealability when it enters

a final order adverse to the applicant.” Rules Governing § 2254 Cases, Rule 11(a), 28

U.S.C. foll. § 2254.

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Before Petitioner may appeal this decision, a certificate of appealability (“COA”)

must issue. See 28 U.S.C. § 2253(c)(1)(a); Fed. R. App. P. 22(b).1

 A COA 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). When a federal court rejects a habeas claim on the

merits, the substantial showing threshold is met if the petitioner demonstrates that

reasonable jurists would find the district court’s assessment of the constitutional claim

debatable or wrong. See Slack v. 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). In applying this standard, the court may not conduct

a full merits review, but must limit its examination to a threshold inquiry into the

underlying merit of the claims. Id. at 336-37.

Petitioner has not made a substantial showing of the denial of a constitutional

right as to his habeas claims. Accordingly, a certificate of appealability is DENIED.

SO ORDERED.

Dated: July 26, 2011 S/Avern Cohn 

AVERN COHN

UNITED STATES DISTRICT JUDGE

I hereby certify that a copy of the foregoing document was mailed to Robert Long,

270764, Camp Lehman, 5135 Hartwick Pines Road, Grayling, MI 49738 and the

attorneys of record on this date, July 26, 2011, by electronic and/or ordinary mail.

 S/Julie Owens 

Case Manager, (313) 234-5160

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