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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
DANIEL LEROY YANNA,
CASE NO. 2:11-12667
HONORABLE PAUL D. BORMAN
UNITED STATES DISTRICT JUDGE
OPINION AND ORDER DENYING (1) THE PETITION FOR WRIT OF HABEAS
CORPUS, (2) A CERTIFICATE OF APPEALABILITY, AND (3) LEAVE TO APPEAL
IN FORMA PAUPERIS
Daniel Leroy Yanna, (“petitioner”), formally confined at the Saginaw Correctional
Facility in Freeland, Michigan, until his discharge on May 15, 2013, seeks the issuance of a writ
of habeas corpus pursuant to 28 U.S.C. § 2254. 1 In his pro se application, petitioner challenges
his convictions of carrying a weapon with unlawful intent, Mich.Comp.Laws § 750.226;
felony-firearm, Mich.Comp.Laws § 750.227b; and felon in possession of a firearm,
Mich.Comp.Laws § 750. 224f. For the reasons stated below, the application for a writ of habeas
1 The Michigan Department of Corrections' [M.D.O.C.] 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 was discharged from his sentence on May 15, 2013 and is no longer in
custody. The language of §§ 2241(c)(3) and 2254(a) require that a habeas petitioner be “in custody” under the
conviction or sentence under attack at the time that a habeas petition is filed in the federal court. See Maleng v.
Cook, 490 U.S. 488, 490–91 (1989). Whether a petitioner is in custody for purposes of the habeas corpus statute is
determined at the time that the petition is filed. Sevier v. Turner, 742 F.2d 262, 268 (6th Cir.1984). Because
petitioner was in prison at the time he filed his petition, he satisfies the “in custody” requirement of §§ 2241(c)(3)
and 2254(a), in spite of his subsequent discharge. Once federal jurisdiction has attached to a habeas petition in
federal district court, “it is not defeated by the release of the petitioner prior to completion of proceedings” on his or
her habeas application. Carafas v. LaVallee, 391 U.S. 234, 238 (1968).
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corpus is DENIED WITH PREJUDICE.
Petitioner was originally charged with 15 weapons offenses, 13 of which were either
being a felon in possession of a firearm or committing a felony with a firearm. The two other
charges were assault with a dangerous weapon and carrying with unlawful intent. He was also
charged with being a habitual third offender in the Tuscola County Circuit Court. The trial court
utilized the police report when taking petitioner’s plea and during sentencing. At sentencing, the
court also considered the victim impact statement, from Miss Erica Yanna, where the victim
stated that she feared for her life. (Tr. 8/24/2009, p. 8).
On June 8, 2009, petitioner pleaded nolo contendere to carrying a weapon with unlawful
intent, felon in possession of firearm, and felony-firearm with a six month cap on the minimum
sentence for the first two counts and a two-year consecutive sentence on the felony firearm.
In exchange for this plea, the Tuscola County Prosecutor agreed to dismiss the remaining 12
weapon offense charges. (Tr. 6/8/2009, p. 3). 2 The judge advised petitioner about the
maximum penalties for the crimes that he was pleading nolo contendere to and asked petitioner
if he understood the rights outlined in the form signed in the presence of his attorney that he
would waive by pleading nolo contendere. Petitioner indicated that he understood these rights
and was pleading nolo contendere freely and voluntarily, that he was not threatened nor
promised anything in return for his plea. (Id., pp. 6-9). A police report and avoidance of
liability in connection with his divorce proceedings provided the factual basis for the nolo
contendere plea. (Id., p. 9).
2 The plea transcript can be found at this Court’s docket entry # 2.
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Petitioner was sentenced on August 24, 2009 to concurrent terms of 6 months to 10 years
for carrying a weapon with unlawful intent and felon in possession of a firearm. He was also
sentenced to a consecutive term of two years for the felony-firearm conviction.
Petitioner’s conviction was affirmed on appeal. People v. Yanna, No. 299761
(Mich.Ct.App. Dec. 1, 2010), lv. den. 489 Mich. 898; 796 N.W. 2d 83 (2011).
Petitioner now seeks a writ of habeas corpus on the following grounds:
I. The court made a substantive mistake when it convicted Mr. Yanna of felony
firearm and possession of a firearm by a felon. Mr. Yanna had performed all of
the provisions in MCL 750.224(f)(1)(a)(b) and (c) in order to be eligible to own
or possess firearm, appellant’s prior conviction was such that his right to possess
a firearm was reinstated by the passage of three years.
II. There was insufficient evidence to charge and convict appellant of felon in possession
of a firearm, where more than three years had elapsed after completion of a probation fro
[sic] breaking and entering a building, which does not meet ‘specified felony’
requirements under the statute.
III. Mr. Yanna was denied effective assistance of counsel because counsel failed to move
II. STANDARD OF REVIEW
28 U.S.C. § 2254(d), as amended by The Antiterrorism and Effective Death Penalty Act
of 1996 (AEDPA), 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–
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
determination of the facts in light of the evidence presented in
the State court proceeding.
resulted in a decision that was based on an unreasonable
A decision of a state court is “contrary to” clearly established federal law if the state
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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 the relevant
state-court decision applied clearly established federal law erroneously or incorrectly.” Id. at
The Supreme Court has explained that “[A] federal court’s collateral review of a
state-court decision must be consistent with the respect due state courts in our federal system.”
Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). The “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, 130 S. Ct. 1855, 1862 (2010)((quoting Lindh
v. Murphy, 521 U.S. 320, 333, n. 7 (1997); Woodford v. Viscotti, 537 U.S. 19, 24 (2002) (per
curiam)). “[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 v. Richter, 131 S. Ct. 770, 786 (2011)(citing Yarborough v. Alvarado,
541 U.S. 652, 664 (2004)). The Supreme Court has 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). Furthermore, 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
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that those arguments or theories are inconsistent with the holding in a prior decision” of the
Supreme Court. Id.
“[I]f this standard is difficult to meet, that is because it was meant to be.” Harrington,
131 S. Ct. at 786. Although 28 U.S.C. § 2254(d), as amended by the AEDPA, does not
completely bar federal courts from relitigating claims that have previously been rejected in the
state courts, it preserves the authority for a federal court to grant habeas relief only “in cases
where there is no possibility fairminded jurists could disagree that the state court’s decision
conflicts with” the Supreme Court’s precedents. Id. Indeed, “Section 2254(d) reflects the view
that habeas corpus is a ‘guard against extreme malfunctions in the state criminal justice
systems,’ not a substitute for ordinary error correction through appeal.” Id. (citing Jackson v.
Virginia, 443 U.S. 307, 332, n. 5 (1979)(Stevens, J., concurring in judgment)). Thus, a
“readiness to attribute error [to a state court] is inconsistent with the presumption that state
courts know and follow the law.” Woodford, 537 U.S. at 24. Therefore, in order to obtain
habeas relief in federal court, a state prisoner is required to 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.”
Harrington, 131 S. Ct. at 786-87.
In the present case, the Michigan Court of Appeals denied petitioner’s application for
leave to appeal in a form order “for lack of merit in the grounds presented.” The Michigan
Supreme Court subsequently denied petitioner leave to appeal in a standard form order without
any extended discussion. Determining whether a state court’s decision resulted from an
unreasonable legal or factual conclusion, as would warrant federal habeas relief, does not
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require that there be an opinion from the state court that explains the state court’s reasoning.
Harrington, 131 S. Ct. at 784. “Where a state court’s decision is unaccompanied by an
explanation, the habeas petitioner’s burden still must be met by showing there was no
reasonable basis for the state court to deny relief.” Id. In fact, when a habeas petitioner has
presented a federal claim to a state court and that 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.” Id. at 784-85. That presumption
may be overcome only when there is a reason to think that some other explanation for the state
court’s decision is more likely. Id. at 785. In the present case, the AEDPA deferential standard
of review applies to petitioner’s case where the Michigan Court of Appeals rejected petitioner’s
appeal “for lack of merit in the grounds presented” and the Michigan Supreme Court
subsequently denied leave to appeal in a standard form order. See Hardaway v. Robinson, 655
F.3d 445, 447, 449 n. 1 (6th Cir. 2011)(relying on Harrington in stating that § 2254(d) applies
when “[t]he Michigan Court of Appeals upheld the district court's ruling in an order stating, ‘the
delayed application for leave to appeal is denied, for lack of merit in the grounds presented’”
and “[t]he Michigan Supreme Court, also in a one-sentence order, declined review”).
The Court will discuss petitioner’s claims together for judicial economy. In his first and
second claims, petitioner alleges that the court made a mistake when it convicted petitioner of
felony firearm and possession of a firearm by a felon. More specifically, petitioner alleges that
there was insufficient evidence to convict him of being a felon in possession of a firearm,
because his right to own a firearm was reinstated by the passage of three years and he was thus
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permitted under Michigan law to lawfully possess or carry a firearm. In his third claim,
petitioner contends that his trial counsel was ineffective for failing to move for the dismissal of
the felon in possession of a firearm charges on this basis.
At the outset, petitioner has no federal constitutional right or absolute right under state
law to withdraw his nolo contendere plea. See Adams v. Burt, 471 F. Supp. 2d 835, 843 (E.D.
Mich. 2007)(internal citations omitted). Therefore, unless the plea violated a
clearly-established constitutional right, whether to allow the withdrawal of a criminal
defendant’s guilty or nolo contendere plea is discretionary with the state trial court. See
Hoffman v. Jones, 159 F. Supp. 2d 648, 655 (E.D. Mich. 2001).
A guilty or nolo contendere plea that is entered in state court must be voluntarily and
intelligently made. See Shanks v. Wolfenbarger, 387 F. Supp. 2d 740, 749 (E.D. Mich.
2005)(citing Boykin v. Alabama, 395 U.S. 238, 242 (1969)). In order for a plea of guilty or nolo
contendere 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
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findings by the state court. Id. A federal court will uphold a state court guilty plea if the
circumstances demonstrate that the defendant understood the nature and consequences of the
charges and voluntarily chose to plead guilty. Shanks, 387 F. Supp. 2d at 749. Additionally, a
habeas petitioner bears a heavy burden of rebutting the presumption that his guilty plea, as
evidenced by the plea colloquy, is valid. Id.
However, there is no federal constitutional requirement that a factual basis be
established to support a guilty or nolo contendere 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 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 nolo contendere 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). To the extent that
petitioner is claiming that the trial court failed to establish a sufficient factual basis to support
his nolo contendere plea, this would not provide a basis for federal habeas relief, because there
is no federal constitutional requirement that a factual basis supporting a guilty or nolo
contendere 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.
In the present case, petitioner was advised of the penalties for carrying a weapon with
unlawful intent, felon in possession of a firearm, and felony-firearm. Petitioner informed the
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judge that he understood the penalties for the crimes and was pleading nolo contendere to these
offenses freely and voluntarily, that he had not been threatened nor promised anything in
exchange for his plea. (Tr. June 8, 2009, p. 8). Petitioner requested that he be permitted to
plead nolo contendere being that he was going through a divorce and wanted to avoid civil
liability. (Id., pp. 3-4). Petitioner’s nolo contendere plea was freely and voluntarily entered
In the present case, all of petitioner’s claims have been waived by his nolo contendere
plea. 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 nolo contendere
plea also constitutes a waiver of all non-jurisdictional defects. United States v. Freed, 688 F. 2d
24, 25 (6th Cir. 1982); See also Shanks v. Wolfenbarger, 387 F. Supp. 2d at 747. By entering a
nolo contendere plea, petitioner has waived his right to challenge the sufficiency of the
evidence to convict him of these charges. See United States v. Manni, 810 F.2d 80, 84 (6th Cir.
1987); See also U.S. v. Hawkins, 8 Fed. Appx. 332, 334 (6th Cir. 2001). Petitioner is thus not
entitled to habeas relief on his first and second claims which challenge the sufficiency of the
evidence to convict him of felon in possession of a firearm. Pre-plea claims of ineffective
assistance of trial counsel are likewise considered non-jurisdictional defects that are waived by
a guilty plea. See United States v. Stiger, 20 Fed. Appx. 307, 309 (6th Cir. 2001); See also
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 the plea that he was satisfied with counsel's representation, and he did not
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complain of counsel's advice concerning plea agreement). In the present case, petitioner
indicated at the plea hearing that he was freely entering into a plea agreement made between
himself, his attorney and the office of the prosecutor. (Tr. June 8, 2009, p. 8). Petitioner’s nolo
contendere plea forecloses any challenges to any pre-plea claims of ineffective assistance of
counsel. Petitioner is not entitled to habeas relief on his third claim.
The Court will deny the petition for writ of habeas corpus. The Court will also deny a
certificate of appealability. 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. “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.
For the reasons stated in this opinion, the Court will deny petitioner a certificate of
appealability because reasonable jurists would not find this Court’s assessment of petitioner’s
claims to be debatable or wrong. Johnson v. Smith, 219 F. Supp. 2d 871, 885 (E.D. Mich. 2002).
The Court will also deny petitioner leave to appeal in forma pauperis, because the appeal would
be frivolous. Allen v. Stovall, 156 F. Supp. 2d 791, 798 (E.D. Mich. 2001).
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Accordingly, the Court DENIES WITH PREJUDICE the petition for a writ of habeas
corpus. The Court further DENIES a certificate of appealability and leave to appeal in forma
Dated: July 30, 2013
s/Paul D. Borman
PAUL D. BORMAN
UNITED STATES DISTRICT JUDGE
CERTIFICATE OF SERVICE
The undersigned certifies that a copy of the foregoing order was served upon each attorney or
party of record herein by electronic means or first class U.S. mail on July 30, 2013.