1

 Petitioner does not specify how many counts that he was convicted of. However, the Michigan

Department of Corrections’ Offender Tracking Information System (OTIS), which this court is permitted to

take judicial notice of, See Ward v. Wolfenbarger,323 F. Supp. 2d 818, 821, n. 3 (E.D. Mich. 2004),

indicates that petitioner pleaded no contest in the Oakland County Circuit Court in Case # 02-85639- FC to

1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

JOHN GEORGE,

Petitioner, Civil No. 2:09-CV-13080

HONORABLE GEORGE CARAM STEEH

v. UNITED STATES DISTRICT JUDGE

CINDI CURTIN,

Respondent,

________________________________/

OPINION AND ORDER DENYING THE 

PETITION FOR WRIT OF HABEAS CORPUS

John George, (“Petitioner”), presently confined at the Oaks Correctional

Facility in Manistee, Michigan, has filed a pro se petition for writ of habeas corpus

pursuant to 28 U.S.C. § 2254, challenging his conviction and sentence for 

assault with intent to rob while armed, M.C.L.A. 750.89; breaking and entering a

building with intent to commit larceny, M.C.L.A. 750.110; and felony-firearm,

M.C.L.A. 750.227b. For the reasons stated below, the petition for writ of habeas

corpus is SUMMARILY DISMISSED. 

I. Background

Petitioner pleaded no contest to the above charges in the Oakland County

Circuit Court in Case # 02-185639-FC. 1

 On January 21, 2003, petitioner was

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two counts of assault with intent to rob while armed, one count of breaking and entering, and three counts

of felony-firearm, for an offense that occurred on June 21, 2002. It also appears that petitioner was

convicted of being a fourth felony habitual offender pursuant to M.C.L.A. 769.12, although he does not

mention this conviction in his petition. 

2

 On the same day, petitioner received prison sentences on ten additional counts of armed

robbery, assault with intent to rob while armed, breaking and entering, and felony-firearm in two other

Oakland County Circuit Court case files, # 02-185604-FC and 02-185695-FC. Petitioner does not

challenge these convictions in this petition. 

2

sentenced to eighteen to fifty years in prison on the assault with intent to rob

while armed convictions, ten to fifty years in prison on the breaking and entering

conviction, and received consecutive two year prison terms on the felony-firearm

convictions. 2

 

Petitioner’s conviction and sentence was affirmed on appeal. People v.

George, No. 284058 (Mich.Ct.App. June 2, 2008); lv. den. 482 Mich. 1065; 757

N.W. 2d 457 (2008).

Petitioner now seeks the issuance of a writ of habeas corpus on the

following grounds:

I. Was Defendant deprived of his constitutional amendments rights

V, XIV due process when the court failed to establish the requisite

factual foundation for acceptance of the no contest plea?

II. Petitioner was deprived of constitutional amendment rights V, XIV

of due process when the court wrongly assessed restitution.

III. Petitioner was deprived of constitutional amendment rights V, VI,

XIV of due process and effective assistance of trial counsel when

counsel failed to object to the foregoing errors.

II. Standard of Review

An application for a writ of habeas corpus on behalf of a

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person in custody pursuant to the judgment of a State court

shall not be granted with respect to any claim that was

adjudicated on the merits in State court proceedings unless

the adjudication of the claim–

(1) resulted in a decision that was contrary to, or involved

an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of

the United States; or

(2) resulted in a decision that was based on an

unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). 

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. An

"unreasonable application" occurs when the state court identifies the correct

legal principle from a Supreme Court’s decision but unreasonably applies that

principle to the facts of the prisoner’s case. Williams v. Taylor, 529 U.S. 362,

412-13 (2000). A federal habeas court may not find a state adjudication to be

"unreasonable" "simply because that court concludes in its independent

judgment that the relevant state-court decision applied clearly established

federal law erroneously or incorrectly." Id. at 411.

A petition for a writ of habeas corpus must set forth facts that give rise to a

cause of action under federal law or it may summarily be dismissed. See Perez

v. Hemingway, 157 F. Supp. 2d 790, 796 (E.D. Mich. 2001). Federal courts are

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4

also authorized to dismiss any habeas petition that appears legally insufficient

on its face. McFarland v. Scott, 512 U.S. 849, 856 (1994). A federal district court

is authorized to summarily dismiss a habeas corpus petition if it plainly appears

from the face of the petition or the exhibits that are attached to it that the

petitioner is not entitled to federal habeas relief. See Carson v. Burke, 178 F. 3d

434, 436 (6th Cir. 1999); Rules Governing § 2254 Cases, Rule 4, 28 U.S.C. foll. §

2254. The Sixth Circuit, in fact, long ago indicated that they “disapprove the

practice of issuing a show cause order [to the respondent] until after the District

Court first has made a careful examination of the petition.” Allen v. Perini, 424 F.

3d 134, 140 (6th Cir. 1970). A district court therefore has the duty to screen out

any habeas corpus petition which lacks merit on its face. Id. at 141. No return to

a habeas petition is necessary when the petition is frivolous, or obviously lacks

merit, or where the necessary facts can be determined from the petition itself

without consideration of a return by the state. Id. 

After undertaking the review required by Rule 4, this Court concludes that

petitioner’s habeas claims are meritless, such that the petition must be

summarily denied. See Robinson v. Jackson, 366 F. Supp. 2d 524, 525 (E.D.

Mich. 2005). 

III. Discussion

A. Claim # 1. The inadequate factual basis claim.

Petitioner first contends that there was an insufficient factual basis for the

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5

court to accept his no contest plea. 

There is no federal constitutional requirement that a factual basis be

established to support a guilty or no contest plea. See Roddy v. Black, 516 F. 2d

1380, 1385 (6th Cir. 1975); See also Holtgreive v. Curtis, 174 F. Supp. 2d 572,

582 (2001). Although M.C.R. 6.302(D)(1) requires that a factual basis must be

elicited from a defendant prior to accepting his or her guilty or no contest plea,

no federal constitutional issue is raised by the failure of a Michigan trial court to

comply with a state law or court rule concerning establishing the factual basis of

a guilty or no contest plea. Holtgrieve, 174 F. Supp. 2d at 582. “[T]he

requirement that a sentencing court must satisfy itself that a sufficient factual

basis supports the guilty plea is not a requirement of the Constitution, but rather

a requirement created by rules and statutes.” United States v. Tunning, 69 F. 3d

107, 111 (6th Cir. 1995). Petitioner's claim that the trial court failed to establish a

sufficient factual basis to support his no contest plea does not provide a basis for

federal habeas relief, because there is no federal constitutional requirement that

a factual basis supporting a guilty plea be established, or that the defendant

admit factual guilt, so long as the plea is intelligently and voluntarily made.

Holtgreive, 174 F. Supp. 2d at 583.

Moreover, contrary to petitioner’s assertion, a police report can provide a

sufficient factual basis under Michigan law to establish a no contest plea. See

People v. Harvey, 146 Mich. App. 631, 635; 381 N.W.2d 779 (1985). Petitioner

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is not entitled to habeas relief on his first claim.

B. Claim # 2. The restitution claim.

Petitioner next alleges that the trial court improperly assessed restitution in

the amount of $ 3,708.00 without any testimony or the introduction of the

presentence report.

Petitioner does not state a claim upon which federal habeas relief can be

granted. Where a habeas petitioner is not claiming the right to be released but is

challenging the imposition of a fine or other costs, he or she may not bring a

petition for writ of habeas corpus. United States v. Watroba, 56 F. 3d 28, 29 (6th

Cir. 1995). Continuing liability under a restitution order is like a fine-only

conviction and is not a serious restraint on liberty as to warrant habeas relief. 

Barnickel v. United States, 113 F. 3d 704, 706 (7th Cir. 1997)(quoting Tinder v.

Paula, 725 F. 2d 801, 805 (1st Cir. 1984)); See also Flores v. Hickman, 533 F.

Supp. 2d 1068, 1085 (C.D. Cal. 2008). Because the appropriate relief would be

an amendment of the court’s order of restitution and not release from custody,

the grant of a writ of habeas corpus or other postconviction relief would be

inappropriate. United States v. Zaragoza, 16 F. Supp. 2d 1111, 1112 (N.D. Ind.

1998).

Petitioner’s current restitution order is not a sufficient enough restraint on

his liberty so as to warrant habeas relief. Moreover, petitioner still has available

state remedies if he is unable to pay this restitution. Under M.C.L.A. 780.766

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7

(12), petitioner may at any time petition the sentencing judge or his or her

successor to modify the method of payment and the sentencing judge may

modify the method of payment if the court determines that payment under the

order would impose a manifest hardship to the defendant or his family. In

addition, M.C.L.A. 780.766(14) indicates that a defendant shall not be

incarcerated for a violation of probation or parole for failure to pay the ordered

restitution unless either the court or the parole board determines that the

defendant has the resources to pay the ordered restitution and has not made a

good faith effort to do so. If petitioner’s parole was either extended or revoked

due to his failure to pay restitution, he would then be “in custody” and this Court

would have the jurisdiction to hear his claim. However, until such time, the

threat that petitioner’s liberty will be severely restrained is “too speculative to

warrant the exercise of federal habeas jurisdiction.” Tinder, 725 F. 2d at 806. 

Petitioner is not entitled to habeas relief on his second claim.

C. Claim # 3. The ineffective assistance of counsel claim.

Petitioner lastly contends that he was deprived of the effective assistance

of trial counsel.

In Strickland v. Washington, 466 U.S. 668 (1984), the United States

Supreme Court set forth a two-pronged test for determining whether a habeas

petitioner has received the ineffective assistance of counsel. First, a petitioner

must prove that counsel's performance was deficient. This requires a showing

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8

that counsel made errors so serious that he or she was not functioning as

counsel as guaranteed by the Sixth Amendment. Id. at 687. Second, the

petitioner must establish that the deficient performance prejudiced the defense.

Counsel’s errors must have been so serious that they deprived the petitioner of a

fair trial or appeal. Id.

With respect to the performance prong, a habeas petitioner must identify

those acts that were “outside the wide range of professionally competent

assistance” in order to prove deficient performance on the part of counsel. See

Gardner v. Kapture, 261 F. Supp. 2d 793, 803-04 (E.D. Mich. 2003)(quoting

Strickland, 466 U.S. at 690). A reviewing court’s scrutiny of counsel’s

performance is highly deferential. Strickland, 466 U.S. at 689. Counsel is

strongly presumed to have rendered adequate assistance and to have made all

significant decisions in the exercise of reasonable professional judgment. Id. at

690.

To satisfy the prejudice prong under Strickland, a habeas petitioner must

show that “there is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.” Gardner, 261 F.

Supp. 2d at 804 (quoting Strickland, 466 U.S. at 694). A reasonable probability

is one that is sufficient to undermine confidence in the outcome. Id.

Petitioner first contends that his trial counsel was ineffective for failing to

object to the taking of the no contest plea, presumably because of the

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9

inadequate factual basis.

Petitioner has failed to establish that counsel erred in stipulating that the

police reports provided a sufficient factual basis for the charges, because as

noted above, those reports would have provided a sufficient factual basis for the

no contest plea. See e.g. Christian v. Trombley, No. 2008 WL 5111893, * 6 (E.D.

Mich. December 2, 2008). 

Moreover, assuming that counsel was deficient, petitioner is unable to

show that he was prejudiced by counsel’s deficiencies regarding the advice to

plead no contest. In order to satisfy the prejudice requirement for an ineffective

assistance of counsel claim in the context of a guilty (or no contest) plea, the

defendant must show that there is a 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). 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

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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 474, 484 (E.D. Mich. 2004); See also Garrison v. Elo, 156 F.

Supp. 2d 815, 829 (E.D. Mich. 2001). 

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

Shanks v. Wolfenbarger, 387 F. Supp. 2d 740, 750 (E.D. Mich. 2005). Petitioner

does not indicate what defenses, if any, that he had to these charges. Because

petitioner does not explain what viable defense that he had in this case, he has

failed to show that counsel was ineffective in advising him to plead no contest.

Id.

Petitioner next contends that his trial counsel was ineffective for failing to

object to the amount of restitution imposed by the trial court at sentencing.

Petitioner, however, offers no evidence or argument to establish that the amount

of restitution imposed in this case was inaccurate. Conclusory allegations of

ineffective assistance of counsel, without any evidentiary support, do not provide

a basis for habeas relief. Malcum v. Burt, 276 F. Supp. 2d 664, 685 (E.D. Mich.

2003). Because petitioner does not offer any argument as to what counsel could

have done to obtain a different result at sentencing with respect to the amount of

restitution, he is not entitled to habeas relief on this claim. See Dorchy v. Jones,

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320 F. Supp. 2d 564, 581 (E.D. Mich. 2004). 

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. A federal

district court may grant or deny a certificate of appealability when the court

issues a ruling on the habeas petition. Castro v. United States, 310 F. 3d 900,

901 (6th Cir. 2002).

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. Jurists of reason would not find this

Court’s resolution of petitioner’s claims to be debatable or that he should receive

encouragement to proceed further. Myers v. Straub, 159 F. Supp. 2d 621, 629

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(E.D. Mich. 2001). Indeed, it would be a “rare case” in which a district judge

issues a habeas petitioner a certificate of appealability to appeal after he

dismisses a habeas petition without requiring an answer because it plainly

appeared from the face of the petition and any exhibits annexed to it that the

petitioner was not entitled to habeas relief. See e.g. Alexander v. Harris, 595 F.

2d 87, 91 (2d Cir. 1979). The Court will also deny petitioner leave to appeal in

forma pauperis, because the appeal would be frivolous. Myers, 159 F. Supp. 2d

at 629.

V. ORDER

Based upon the foregoing, IT IS ORDERED that the Petition for a Writ of

Habeas Corpus is DISMISSED 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.

Dated: August 26, 2009

S/George Caram Steeh 

GEORGE CARAM STEEH

UNITED STATES DISTRICT JUDGE

CERTIFICATE OF SERVICE

Copies of this Order were served upon attorneys of record on

August 26, 2009, by electronic and/or ordinary mail.

S/Josephine Chaffee

Deputy Clerk

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