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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

THOMAS LEIGH, III,

Petitioner,

CASE NO. 5:09-CV-13642

v. HONORABLE JOHN CORBETT O’MEARA

UNITED STATES DISTRICT JUDGE

CATHERINE BEAUMAN,

Respondent.

_________________________________/

OPINION AND ORDER DENYING THE PETITION FOR WRIT OF HABEAS

CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY

OR LEAVE TO APPEAL IN FORMA PAUPERIS

Thomas Leigh, III, (Petitioner”), presently confined at the Cotton Correctional

Facility in Jackson, Michigan, seeks the issuance of a writ of habeas corpus pursuant to

28 U.S.C. § 2254. In his pro se application, petitioner challenges his conviction for

resisting and obstructing a police officer, M.C.L.A. 750.81d(1); and being a fourth felony

habitual offender, M.C.L.A. 769.12. For the reasons stated below, the application for writ

of habeas corpus is DENIED.

I. Background

This Court recites verbatim the relevant facts relied upon by the Michigan Court of

Appeals, which are presumed correct on habeas review pursuant to 28 U.S.C. §

2254(e)(1). See Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009):

Officers tried to arrest defendant when he reported to his parole office on an

outstanding warrant. Defendant, who apparently was armed with a handgun

and a knife, struggled with the officers. After defendant was initially subdued,

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he attacked a corrections officer, injuring her face and body with his head. At

some point, he was apparently injured, and was transported to Detroit

Receiving Hospital. Defendant allegedly leaped from the examining table,

escaped the room, and ran down the hall, but was restrained.

Defendant was charged with resisting and obstructing, felon in possession of

a firearm, possession of a firearm during the commission of a felony, and

carrying a concealed weapon. Defendant pleaded guilty to resisting and

obstructing and to his habitual offender status in return for dismissal of the

other charges and a sentence agreement of eight to 15 years in prison.

People v. Leigh, No. 279202, * 1 (Mich.Ct.App. September 11, 2008).

Petitioner’s conviction and sentence were affirmed on appeal, although the case wasx

remanded to the trial court for the correction of petitioner’s presentence report. Id., lv. den.

483 Mich. 883; 759 N.W. 2d 388 (2009); reconsideration den. 483 Mich. 982; 764 N.W. 2d

225 (2009).

I. Constitutional error occurred under the IV & XIV Amendments for

structural error when the 36th District Court and the 3rd Circuit Court did not

have subject matter jurisdiction for executing prosecution due to jurisdictional

defects over the statutory charge.

II. Abuse of process in violation of 18 U.S.C. 1506.

III. Constitutional error occurred under the IV & XIV Amendments for

statutory structural error, when the parole agents and the transportation unit

committed an illegal search and seizure which occurred from an unlawful

arrest, and denied the defendant substantive due process and equal protection

of law.

IV. Constitutional error occurred under the VI Amendment for structural error

when the defense counsel failed to file a motion to challenge the legality of the

defendant's arrest and failed to file a motion to suppress the evidence obtained

from the arrest.

V. The constitutional errors occurred under the V and XIV amendments

because the defendant was deprived of his rights of due process and also a

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constitutional error occurred under the VI amendment where the record does

not show that the defendant was advised or had actual knowledge of the actual

sentencing guidelines. As a result the defendant's guilty plea bargain was

illusory and the plea was not intelligent, voluntary nor understanding to the

defendant and failure to raise this issue is ineffective assistance of counsel.

VI. Failure of trial counsel to insure on record that Mr. Leigh was familiar

with the sentence guidelines scoring or to allocate on Mr. Leigh's behalf is

ineffective assistance in violation of Am VI of the U.S. Constitution.

II. Standard of Review

28 U.S.C. § 2254(d) 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, 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.

A decision of a state court is “contrary to” clearly established federal law if the state

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

of law or if the state court decides a case differently than the Supreme Court has on a set of

materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). An

“unreasonable application” occurs when “a state court decision unreasonably applies the law

of [the Supreme Court] to the facts of a prisoner’s case.” Id. at 409. A federal habeas court

may not “issue the writ simply because that court concludes in its independent judgment that

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the relevant state-court decision applied clearly established federal law erroneously or

incorrectly." Id. at 410-11.

III. Discussion

A. Claim # 1. The jurisdictional claim.

Petitioner first claims that the 36th District Court and the Wayne County Circuit

Court lacked subject matter jurisdiction because the outstanding arrest warrant that he

was arrested on was invalid because the victim did not wish to press charges in that case.

The determination of whether a state court is vested with jurisdiction under state

law over a criminal case is a function of the state courts, not the federal courts. Wills v.

Egeler, 532 F. 2d 1058, 1059 (6th Cir. 1976); See also Daniel v. McQuiggin, 678 F.Supp.

2d 547, 553 (E.D. Mich. 2009). The Sixth Circuit has noted that “[a] state court's

interpretation of state jurisdictional issues conclusively establishes jurisdiction for

purposes of federal habeas review.” Strunk v. Martin, 27 Fed. Appx. 473, 475 (6th Cir.

2001). Petitioner’s claim that the trial court lacked jurisdiction to try his case raises an

issue of state law, because it questions the interpretation of Michigan law, and is

therefore not cognizable in federal habeas review. See United States ex. rel. Holliday v.

Sheriff of Du Page County, Ill., 152 F. Supp. 1004, 1013 (N.D. Ill. 2001); Cf. Toler v.

McGinnis, 23 Fed. Appx. 259, 266 (6th Cir. 2001)(district court lacked authority on

habeas review to review petitioner’s claim that the state court erred in refusing to instruct

jury on the requirements for extraterritorial jurisdiction, because the claim was

contingent upon an interpretation of an alleged violation of state law). 

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B. Claims # 2, 3, and 4. Petitioner’s pre-plea claims.

The Court will consolidate petitioner’s pre-plea claims together for judicial

economy. In his second claim, petitioner contends that the felony arrest warrants both in

the armed robbery case that he was arrested for by his parole officers and the subsequent

warrant issued for his arrest in this case are invalid because neither warrant contains a

proper signature and bar number for the judge signing it and are undated. In his third

claim, petitioner contends that the parole officers committed an illegal search and seizure

in violation of the Fourth Amendment when they arrested petitioner and seized the

firearm from him. In his fourth claim, petitioner contends that his trial counsel was

ineffective for failing to file a motion to challenge the legality of petitioner’s arrest and a

motion to suppress the evidence obtained from that arrest.

An unconditional guilty plea constitutes a waiver of all pre-plea non-jurisdictional

constitutional deprivations. Tollett v. Henderson, 411 U.S. 258, 267 (1973). A guilty

plea represents a break in the chain of events which has proceeded it in the criminal

process; when a criminal defendant has solemnly admitted in open court that he or she is

in fact guilty of the offense which he or she is charged, the defendant may not thereafter

raise independent claims relating to the deprivation of constitutional rights which

occurred prior to the entry of the guilty. Id. 

Under Michigan law, a plea to the information waives any challenge to

irregularities in the complaint. See U.S. ex rel. Penachio v. Kropp, 448 F.2d 110, 111 (6th

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Cir. 1971); Rogers v. Kropp, Warden, 387 F. 2d 374, 375 (6th Cir. 1968). Because

petitioner pleaded guilty to the charge without ever challenging the deficiencies with the

criminal complaint, petitioner is precluded from obtaining habeas relief on the issue.

Likewise, petitioner’s unconditional plea of guilty waives any Fourth Amendment

challenges to the legality of his arrest or the search. pleads guilty, the defendant must

expressly do so in writing pursuant to Rule 11(a)(2), Fed.R.Crim.P. See e.g. United

States v. Herrera, 265 F.3d 349, 351 (6th Cir.2001) (“It is elemental that a guilty

pleading defendant may not appeal an adverse pre-plea ruling on a suppression of

evidence motion unless he has preserved the right to do so by entering a conditional plea

of guilty in compliance with Fed.R.Crim.P. 11(a)(2)”); See also U.S. v. Kirksey, 118

F.3d 1113, 1114-15 (6th Cir. 1997). Michigan caselaw likewise holds that an

unconditional plea of guilty waives review of Fourth Amendment challenges to the

legality of an arrest or a search. People v. New, 427 Mich. 482, 494; 398 N.W.2d 358

(1986).

Finally. pre-plea claims of ineffective assistance of trial counsel like the ones

complained of by petitioner are considered nonjurisdictional defects that are waived by a

guilty plea. See United States v. Stiger, 20 Fed. Appx. 307, 309 (6th Cir. 2001); Siebert v.

Jackson, 205 F. Supp. 2d 727, 733-34 (E.D. Mich. 2002)(habeas petitioner's claims

regarding alleged deprivations of his constitutional rights that occurred before his guilty

plea, as a result of his trial counsel's alleged ineffective assistance, were foreclosed by

his guilty plea, where he stated at plea that he was satisfied with counsel’s

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representation, and he did not complain of counsel's advice concerning plea agreement).

See also Trombley v. Anderson, 584 F. 2d 807, 808 (6th Cir. 1978)(habeas petitioner

waived claim that he had been denied assistance of counsel at juvenile hearing by

subsequently pleading guilty in adult court). Petitioner is not entitled to habeas relief on

his second, third, and fourth claims.

C. Claims # 5 and # 6. The guilty plea claims.

The Court will consolidate petitioner’s fifth and sixth claims together because

they are interrelated. Petitioner claims that his plea was involuntary because neither the

trial court nor his counsel explained to him that the minimum sentencing guidelines for

the offense of resisting and obstructing a police officer were 12-24 months and that the

sentence agreement of 8-15 years was an upward departure from this guideline range. 

Petitioner further contends that his plea is illusory because his sentence was an upward

departure from the guidelines range.

Initially, the Court observes that petitioner has no absolute right to withdraw his

guilty plea. See Shanks v. Wolfenbarger, 387 F. Supp. 2d 740, 748, 655 (E.D. Mich.

2005)(internal citations omitted). Therefore, unless the plea violated a

clearly-established constitutional right, whether to allow the withdrawal of a criminal

defendant’s guilty plea is discretionary with the state trial court. Id. 

A guilty plea that is entered in state court must be voluntarily and intelligently

made. See Shanks, 387 F. Supp. 2d at 749; Doyle v. Scutt, 347 F. Supp. 2d 474, 482

(E.D. Mich. 2004)(both citing Boykin v. Alabama, 395 U.S. 238, 242 (1969)). In order

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for a plea of guilty to be voluntarily and intelligently made, the defendant must be aware

of the “relevant circumstances and likely consequences” of his plea. Hart v. Marion

Correctional Institution, 927 F. 2d 256, 257 (6th Cir. 1991); Shanks, 387 F. Supp. 2d at

749. 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 (1984). A plea of guilty entered by one fully aware of the direct consequences,

including the actual value of any commitments made to him by the court, prosecutor, or

his or her own counsel, must stand unless induced by threats (or promises to discontinue

improper harassment), misrepresentation (including unfulfilled or unfulillable promises),

or perhaps by promises that are by their nature improper as having no proper relationship

to the prosecutor’s business (i.e. bribes). Id. Federal and state courts will uphold a state

court guilty plea if the circumstances demonstrate that the defendant understood the

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nature and consequences of the charges and voluntarily chose to plead guilty. See e.g.

Thirkield v. Pitcher, 199 F. Supp. 2d 637, 652 (E.D. Mich. 2002). 

Petitioner has failed to show that his plea was involuntary. Petitioner was

advised of the charges that he was pleading guilty to as well as the maximum possible

penalty for resisting and obstructing a police officer and being a fourth felony habitual

offender. Petitioner was also advised that by accepting the plea agreement, he was

agreeing to a sentence of eight to fifteen years. The Sixth Circuit has noted that “[t]here

is no constitutional requirement that a defendant be informed by the court during the plea

colloquy of his estimated guidelines sentencing range.” U.S. v. Ufie, 5 Fed.Appx. 357,

359 (6th Cir. 2001); See also Smith v. Burt, No. 2009 WL 2876987, * 3 (E.D. Mich.

September 3, 2009)(ruling that the petitioner’s plea was not involuntary because he was

not advised of the applicable sentencing guidelines range, noting that “[T]here is no

constitutional requirement that a defendant be informed of a possible minimum

sentence.”). Therefore, the trial court’s failure to advise petitioner of the sentencing

guidelines range for the charge of resisting and obstructing and being a fourth felony

habitual offender did not render his plea involuntary. See United States v. Stephens, 906

F.2d 251, 253-54 (6th Cir.1990)(upholding district court's denial of motion to withdraw

guilty plea where defendant was informed of consequences of guilty plea, knew

maximum sentence of imprisonment, and understood that court would sentence

defendant according to the Guidelines even though defendant did not know specific

Guidelines range to which he was exposed). 

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 Under M.C.L.A. 769.12(1)(a), a fourth felony habitual offender can be sentenced to up to life in prison if

his current felony carries a maximum sentence of five or more years in prison. The charges of carrying a concealed

weapon and felon in possession of a firearm both carry maximum sentences of five years in prison. M.C.L.A.

750.224f; M.C.L.A. 750.227. 

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As a related claim, petitioner contends that the plea bargain was illusory, in light

of the fact that the sentence agreement of 8-15 years was a departure above the

recommended sentencing guidelines range of 12-24 months.

A plea agreement is entered into involuntarily and unknowingly if the defendant

is unaware that the prosecution’s promise is illusory. See United States v. Randolph, 230

F.3d 243, 250-51 (6th Cir. 2000). Illusory representations made by the prosecutor to

induce a defendant to waive his right to trial and enter a guilty plea have been found to

constitute coercion justifying the withdrawal of a guilty plea. See Spearman v. United

States, 860 F. Supp. 1234, 1249 (E.D. Mich. 1994). 

In the present case, the plea agreement was not illusory, even though the sentence

received by petitioner was an upward departure from the sentencing guidelines range for

resisting and obstructing. In exchange for his plea to this offense and his agreement to

receive a sentence of eight to fifteen years, the prosecutor dismissed charges of carrying

a concealed weapon and being a felon in possession of a firearm. Because petitioner was

charged as a fourth felony habitual offender, he could have faced up to life in prison on

these two charges. 1

 Petitioner was also originally charged with felony-firearm, third

offense, which carries a mandatory ten year sentence which must be served

consecutively to any other sentences imposed. See M.C.L.A. 750.227b. The prosecutor

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dismissed this charge against petitioner as part of the plea bargain as well. 

This Court concludes that the plea and sentence agreement was not illusory

because petitioner was promised the dismissal of charges which therefore amounted to a

real, tangible benefit in consideration for the plea. Daniels v. Overton, 845 F. Supp.

1170, 1174 (E.D. Mich. 1994). Because petitioner derived a real benefit from his plea

bargain in this case, his plea was not illusory and he is therefore not entitled to habeas

relief on his claim. See McAdoo v. Elo, 365 F. 3d 487, 498 (6th Cir. 2004).

Petitioner also claims that he was deprived of the effective assistance of counsel

because his attorney failed to advise him that his sentencing guidelines on the resisting

and obstructing charge were 12-24 months, below the minimum eight year sentence

called for in the plea and sentence agreement.

To show that he was denied the effective assistance of counsel under federal

constitutional standards, a defendant must satisfy a two prong test. First, the defendant

must demonstrate that, considering all of the circumstances, counsel’s performance was

so deficient that the attorney was not functioning as the “counsel” guaranteed by the

Sixth Amendment. Strickland v. Washington, 466 U.S. 668, 687 (1984). In so doing, the

defendant must overcome a strong presumption that counsel’s behavior lies within the

wide range of reasonable professional assistance. Id. Second, the defendant must show

that such performance prejudiced his defense. Id. 

In order to satisfy the prejudice requirement for an ineffective assistance of

counsel claim in the context of a guilty plea, the defendant must show that there is a

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

guilty but would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 58-59

(1985); Bridinger v. Berghuis, 429 F.Supp.2d 903, 910 (E.D. Mich. 2006).

An assessment of whether a defendant would have gone to trial but for counsel’s errors

“will depend largely on whether the affirmative defense likely would have succeeded at

trial.” Hill, 474 U.S. at 59. The Sixth Circuit has interpreted Hill to require a federal

habeas court to always analyze the substance of the habeas petitioner’s underlying claim

or defense to determine whether but for counsel’s error, petitioner would likely have

gone to trial instead of pleading guilty or no contest. See Maples v. Stegall, 340 F. 3d

433, 440 (6th Cir. 2003). The petitioner must therefore show a reasonable probability

that but for counsel’s errors, he would not have pleaded guilty or no contest, because

there would have been a reasonable chance that he would have been acquitted had he

insisted on going to trial. Doyle v. Scutt, 347 F. Supp. 2d at 484; See also Garrison v.

Elo, 156 F. Supp. 2d 815, 829 (E.D. Mich. 2001). A habeas petitioner’s conclusory

allegation that, but for an alleged attorney act or omission he or she would not have

pleaded guilty, is therefore insufficient to prove such a claim. Garrison, 156 F. Supp. 2d

at 829. 

In the present case, petitioner has failed to show a reasonable probability that he

could have prevailed had he insisted on going to trial, or that he would have received a

lesser sentence than he did by pleading no contest. See Thirkield v. Pitcher, 199 F. Supp.

2d 637, 655 (E.D. Mich. 2002). Petitioner argues that he should not have been convicted

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of resisting and obstructing because the arrest warrant that was used in this case to justify

his arrest was defective and that the parole officers otherwise lacked probable cause to

arrest him. Under Michigan law, the lawfulness of an arrest is no longer an element of

the charge of resisting and obstructing. People v. Ventura, 262 Mich.App. 370, 377

(check, 686 N.W.2d 748 (2004). Therefore, “a person may not use force to resist an

arrest made by one he knows or has reason to know is performing his duties regardless of

whether the arrest is illegal under the circumstances of the occasion.” Id. Therefore,

even if the parole officers or police lacked a valid warrant or probable cause to arrest

petitioner, it would not provide a defense to the resisting and obstructing charge. Id., See

also Brooks v. Rothe, 577 F.3d 701, 707-08 (6th Cir. 2009). More importantly, petitioner

was on parole at the time of his arrest. This Court notes that “[T]he warrant and

probable cause requirements of the Fourth Amendment generally do not apply to

searches of parolees, probationers, or their residences.” U.S. v. Smith, 526 F. 3d 306, 308

(6th Cir. 2008)(citing Samson v. California, 547 U.S. 843, 857 ((2006)(permitting

suspicionless searches of parolees); United States v. Knights, 534 U.S. 112, 118

(2001)(upholding a warrantless search of a probationer's apartment based on reasonable

suspicion and a probation condition requiring him to submit to a search at any time)). 

Because petitioner was on parole, he has failed to show that the trial court would have

suppressed the evidence seized in this case from petitioner, even if the parole officers

lacked a proper warrant or probable cause to arrest or search him. Because petitioner has

failed to show that he would have been acquitted had he gone to trial, he is not entitled to

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habeas relief on his claim. 

IV. Conclusion

The Court will deny the petition for writ of habeas corpus. The Court will also

deny a certificate of appealability to petitioner. In order to obtain a certificate of

appealability, a prisoner must make a substantial showing of the denial of a

constitutional right. 28 U.S.C. § 2253(c)(2). To demonstrate this denial, the applicant is

required to show that reasonable jurists could debate whether, or 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). When a district court rejects a habeas petitioner’s constitutional claims

on the merits, the petitioner must demonstrate that reasonable jurists would find the

district court’s assessment of the constitutional claims to be debatable or wrong. Id. at

484. Likewise, when a district court denies a habeas petition on procedural grounds

without reaching the prisoner’s underlying constitutional claims, a certificate of

appealability should issue, and an appeal of the district court’s order may be taken, if the

petitioner shows that jurists of reason would find it debatable whether the petitioner

states a valid claim of the denial of a constitutional right, and that jurists of reason would

find it debatable whether the district court was correct in its procedural ruling. Id. at 484. 

“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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For the reasons stated in this opinion, the Court will deny petitioner a certificate

of appealability because he has failed to make a substantial showing of the denial of a

federal constitutional right with respect to any of the claims. The Court will also deny

petitioner leave to appeal in forma pauperis, because the appeal would be frivolous. See

Allen v. Stovall, 156 F. Supp. 2d 791, 798 (E.D. Mich. 2001).

V. ORDER

Based upon the foregoing, IT IS ORDERED that the petition for a writ of habeas

corpus is DENIED WITH PREJUDICE.

IT IS FURTHER ORDERED That a certificate of appealability is DENIED.

IT IS FURTHER ORDERED that Petitioner will be DENIED leave to appeal in

forma pauperis.

s/John Corbett O’Meara 

United States District Judge

Date: January 21, 2011

I hereby certify that a copy of the foregoing document was served upon the parties of record on this date,

January 22, 2011, using the ECF system and/or ordinary mail.

s/William Barkholz 

Case Manager

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