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2:11-cv-12667-PDB-LJM Doc # 9 Filed 07/30/13 Pg 1 of 11 Pg ID 187

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

DANIEL LEROY YANNA,

Petitioner,


v.

LINDA TRIBLEY,

Respondent.

______________________________________/

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.

I. BACKGROUND

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
for dismissal.

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–

(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)
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

410-11.

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”).

III. DISCUSSION

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

into.

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.

§ 2254.

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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IV.

CONCLUSION

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

pauperis.

SO ORDERED.

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.

s/Deborah Tofil
Case Manager

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