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2:11-cv-12636-VAR-CEB Doc # 14 Filed 07/11/13 Pg 1 of 14 Pg ID 574



UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

NATHANIEL O. SMITH, #162081,


Petitioner,

v.

GREG MCQUIGGIN, Warden,

Case Number 2:11-cv-12636

Honorable Victoria A. Roberts

____________________________________________/

Respondent.

OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF HABEAS
CORPUS, DENYING A CERTIFICATE OF APPEALABILITY, AND DENYING

PERMISSION TO PROCEED ON APPEAL IN FORMA PAUPERIS [Dkt. 13]

This matter is before the Court on Petitioner Nathaniel O. Smith’s petition for a writ of

habeas corpus, filed under 28 U.S.C. § 2254. Petitioner pled no contest in the Wayne Circuit Court

to one count of second-degree murder, MICH. COMP. LAWS § 750.317, and one count of felony-

firearm. MICH. COMP. LAWS § 750.227b. He was sentenced on January 18, 2007, to 23-to-50 years

for the murder conviction and a consecutive two-year term for the firearm conviction. The petition

enumerates six claims: (1) Petitioner’s plea was involuntary; (2) the prosecutor suppressed evidence

that was favorable to Petitioner; (3) trial and appellate counsel were ineffective; (4) the state district

and circuit courts erred in allowing Petitioner to face charges of first-degree murder; (5) Petitioner

is actually innocent; and (6) Petitioner has shown good cause and actual prejudice to excuse any

procedural default. The Court finds that Petitioner’s claims are without merit. Therefore, the petition

will be denied. The Court will also deny Petitioner a certificate of appealability and deny

permission to proceed on appeal informa pauperis.

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I. Facts and Procedural History

The charges against Petitioner arose after he and his co-defendant, Charles Womack, got into

a dispute with another customer, Hemant Persaud, in a gas station in Detroit. The incident began

after angry words were exchanged about whether Persaud was Arabic. The dispute quickly escalated

to the point where Petitioner pulled out a firearm, held it against Persaud’s head, and shot him.

Petitioner then emptied Persaud’s pockets and fled the scene. The entire incident was captured and

recorded on the gas station’s video surveillance camera. The only eyewitness was the station

attendant, who saw the shooting from behind a bullet-proof partition.

After his preliminary examination, Petitioner was bound-over for trial on charges of first-

degree felony murder, armed robbery, felon in possession of a firearm, and felony firearm. The

district court did not find probable cause to bind him over on the charges of first-degree

premeditated murder.

The prosecutor file a motion in the state circuit court to reinstate the first-degree

premeditated murder count. The trial court granted the motion and reinstated the first-degree

premeditated murder charge.

On January 18, 2007, Petitioner pled no contest to one count of second-degree murder and

one count of felony firearm. In exchange for his plea, the prosecutor agreed to dismiss charges of

first-degree premeditated murder, first-degree felony murder, armed robbery, felon in possession,

and the notice to enhance his sentence as a fourth-time habitual felony offender. The parties also

agreed to a prison sentence of 23-to-50 years for the murder conviction and a two year consecutive

sentence for the felony-firearm. Following a plea colloquy, the trial court found Petitioner’s plea to

have been made “accurately, understandingly and voluntarily.” Plea Tr. 11.

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On February 2, 2007, Petitioner was sentenced in accordance with the plea agreement to

23-to-50 years for the murder conviction and to a consecutive two year prison sentence for the

felony firearm.

On August 1, 2007, Petitioner filed a motion to withdraw his plea. Petitioner’s motion

asserted that he was entitled to withdraw his plea because: (1) it was coerced by the trial court

reinstating the first-degree premeditated murder charge; (2) Petitioner acted in self-defense, which

was apparent from the video tape of the incident; and (3) his plea was neither understanding nor

voluntary. The trial court denied the motion. Tr. 9/7/07, p 8.

Petitioner filed a delayed application for leave to appeal in the Michigan Court of Appeals,

raising the following claims:

I. The trial court erred when it denied Petitioner’s motion to withdraw his plea as his
plea was coerced by the trial court’s decision to reinstate the first-degree murder
charge, which had not been bound over from district court.

II. The trial court erred when it denied Petitioner’s motion to withdraw his plea as
he has a valid defense to the charges against him, supported by a video tape of the
incident.

The Michigan Court of Appeals denied Petitioner’s application for “lack of merit in the

grounds presented.” People v. Smith, No. 283435 (Mich. Ct. App. March 7, 2008). Petitioner filed

an application for leave to appeal with the Michigan Supreme Court, raising the same claims, but

the court denied leave to appeal. People v. Smith, No. 136122 (Mich. Sup. Ct. July 29, 2008).

On January 9, 2009, Petitioner filed a motion for relief from judgment in the trial court,

raising the following claims:

I. Petitioner was denied the effective assistance of counsel on appeal.

A. Appellate counsel failed to raise the claim that trial counsel failed to object to the
People’s motion to amend the Information to add the first-degree premeditated

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murder charge, and further failed to object when the trial court did not articulate, on
the record, or in the order, the basis used to determine that the district court had
abused its discretion in refusing to bind over on that charge.

B. Appellate counsel failed to raise the claim that trial counsel failed to seek a
continuance, or remove himself from Petitioner’s representation after the amendment
of the Information because counsel was unprepared to move forward, and informed
Petitioner that he was unable to win the case with the new charge, leaving Petitioner
with a Hobson’s choice of losing at trial with unprepared counsel and receiving a
heavier sentence, or taking a plea to a lesser sentence for a crime for which he is not
guilty.

On December 7, 2009, the trial court issued an opinion and order denying Petitioner’s motion

for relief from judgment. Petitioner then filed a delayed application for leave to appeal with the

Michigan Court of Appeals, but it was denied “for failure to establish entitlement to relief under

MICH. CT. R. 6.508(D).” People v. Smith, No. 296120(Mich. Ct. App. June 9, 2010). The Michigan

Supreme Court denied Petitioner’s application for leave to appeal with citation to the same court

rule. People v. Smith, No. 141386 (Mich. Sup. Ct. February 7, 2011).

II. Standard of Review

Review of this case is governed by the Antiterrorism and Effective Death Penalty Act of

1996 (“AEDPA”). Pursuant to the AEDPA, Petitioner is entitled to a writ of habeas corpus only if

he can show that the state court’s adjudication of his claims on the merits-

(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

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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 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, 176 L. Ed. 2d 678 (2010)((quoting Lindh v. Murphy,

521 U.S. 320, 333, n. 7 (1997); Woodford v. Visciotti, 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 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 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.

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Although 28 U.S.C. § 2254(d), as amended by the AEDPA, does not completely bar federal

courts from relitigating claims that have already 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)). 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.” Id., at 786-787.

III. Analysis

Petitioner’s various legal claims arise from a discrete set of factual allegations. Petitioner

asserts that when the trial court reinstated the premeditated first-degree murder charge, it coerced

him to accept the plea bargain. He adds that his defense counsel was not prepared to defend against

the reinstated charge, and in fact, that the surveillance videotape suppressed by the prosecutor shows

that he acted in self defense. From this set of allegations, Petitioner claims that his plea was

involuntary, he was denied the effective assistance of trial and appellate counsel, the prosecutor

committed misconduct, the state court’s abused their discretion, and that he is actually innocent.

None of the claims has merit.

A. Voluntariness of Plea

"A plea of guilty [or no contest] is more than a confession which admits that the accused did

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various acts; it is itself a conviction; nothing remains but to give judgment and determine

punishment." Boykin v. Alabama, 395 U.S. 238, 242 (1969). Due to the impact of such a plea on a

defendant's constitutional rights, a federal court on habeas corpus review may only overturn a

conviction based upon a guilty plea if it is found that the plea violated a petitioner's constitutional

right to due process. Brady v. United States, 397 U.S. 742, 747 (1970).

A plea of guilty or no contest is invalid unless it is entered by a defendant knowingly,

intelligently and voluntarily, without coercion. Bousley v. United States, 523 U.S. 614, 618 (1998);

Brady v. United States, supra at 747; Stumpf v. Mitchell, 367 F.3d 594, 600 (6th Cir. 2004), reversed

in part on other grounds, 545 U.S. 175 (2005). In order to withstand a post-conviction challenge to

the voluntariness of the plea, the record must be clear as to the voluntariness. Boykin v. Alabama,

supra at 242.

In a federal habeas corpus proceeding in which a petitioner challenges the validity of a guilty

plea, it is the duty of the respondent to demonstrate that the guilty plea was entered knowingly,

intelligently and voluntarily, which is typically accomplished by submission of a presumptively

correct plea proceeding transcript. Stumpf v. Mitchell, supra at 600, citing Garcia v. Johnson, 991

F.2d 324, 326 (6th Cir. 1993). The totality of the circumstances surrounding the entry of a plea must

show that the plea was not coerced by threats or misrepresentations and that the defendant was

informed of all the direct consequences of the plea. Brady v. United States, supra at 755. A ruling

by a state court upholding the validity of the guilty plea is presumed correct, unless there is a

showing that the plea proceeding transcript is somehow inadequate to demonstrate that the plea was

entered knowingly, intelligently and voluntarily. Stumpf v. Mitchell, supra at 600, citing Garcia,

supra at 326-27.

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The record of the plea colloquy here shows that Petitioner’s no contest plea was knowing,

intelligent and voluntary. The complete plea agreement was placed on the record and Petitioner said

that he wanted to plead no contest. Plea Tr. 3-7. Petitioner also signed a Settlement Offer and Notice

of Acceptance, indicating his acceptance of the plea. Petitioner was informed of the exact sentence

he would receive in exchange for his plea. Petitioner was asked if he was satisfied with counsel and

Petitioner replied, “Yes, sir.” Id. 4. Petitioner indicated his understanding of the plea bargain,

including the sentence agreement. When asked if he was pleading voluntarily and of his own free

will, Petitioner replied, “Yes, sir.” Id. 9. Petitioner denied that anyone had threatened or coerced him

into accepting the plea bargain. The court also specifically informed Petitioner about the various

rights that he would be giving up by pleading guilty. When asked if he understood his rights,

Petitioner replied, “Yes, sir.” Id. 7-10. The court accepted Petitioner’s plea, finding it to have been

made accurately, understandingly, and voluntarily. Id. 10-11. The record of the plea hearing there

supports the trial court’s determination that it was validly entered. Petitioner has completely failed

to show how the plea proceeding transcript is somehow inadequate.

Petitioner’s claim that the prosecutor withheld the surveillance video tape or that it somehow

renders his plea involuntary or proves his actual innocence is unpersuasive. The existence of the

video tape was a central feature of the case against him. It was mentioned by both parties during the

preliminary examination, Tr. 9/18/06, 27, 47, and at the sentencing hearing. Sent. Tr. 4. The

prosecutor stated the following regarding the tape during the hearing on Petitioner’s motion to

withdraw his plea:

I set it up with [Petitioner’s trial counsel] to have the defendant come in and
view the video tape. He viewed the video tape. He sat there and looked at it. He’s a
habitual fourth. That he reviewed that. . . . What occurred was there was a clerk in
the store, it was a party store. The two men walk in. The complainant is in the store.

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The complainant I believe the two men started saying things to him about being an
Arab, and he says, “No, I’m not Arab,” and then men start fighting, not fighting but
verbally fighting. And then at that point the complainant put his arm out. The
defendant came back. He pulled a gun from his waistband. The other man, Mr.
Womack, patted him down as Mr. Smith is holding the gun to him. That at that point
Mr. Womack leaves the store. Mister - I cannot remember the complainant’s name,
but he grabbed his arm trying to get the gun from him. That then at that point he
turns toward the door. He was shot one time contact wound to the head by Mr.
Smith. That after he goes down Mr. Smith then ran his pockets looking from more
money. There was some money, a cell phone and jewelry missing from the body of
the complainant. That he couldn’t get out of the door because the cashier, the clerk
he had locked the door.

Tr. 9/7/07, 5-6.

Although Petitioner had his own interpretation of what it showed, at the hearing he did not

dispute that he in fact viewed the tape with his trial counsel. Accordingly, there is nothing to

Petitioner’s claim that the prosecutor withheld the tape or that his counsel was ineffective in failing

to use it to form a defense. Based on the record before the Court and in light of the proper plea

colloquy, Petitioner has not shown that the videotape in any way rendered his plea invalid.

C. Ineffective Assistance of Trial Counsel

Petitioner’s claim of ineffective assistance of counsel is equally unpersuasive. The United

States Supreme Court has set forth a two-part test for evaluating the claim of a habeas petitioner who

is challenging a guilty or no contest plea on the ground that he was denied 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)). Second, the Petitioner must demonstrate that counsel's

performance resulted in prejudice, i.e., "that there is a reasonable probability that, but for counsel's

errors, he would not have pleaded guilty and would have insisted on going to trial." Hill, 474 U.S.

at 59.

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With respect to the fact that Petitioner’s first-degree premeditated charge was reinstated,

contrary to Petitioner’s claim, defense counsel did object to the prosecution’s motion to amend the

Information at the motion hearing held on November 10, 2006. The motion hearing transcript reveals

that defense counsel vigorously argued that the state district court did not abuse its discretion in not

binding Petitioner over on first-degree premeditated murder.1 That the trial court later ruled against

Petitioner does not mandate a finding of deficient performance.

Petitioner does not point to any evidence that defense counsel was unprepared for trial after

the prosecutor’s motion was granted. Petitioner ignores the fact that he was originally bound-over

for trial on first-degree felony murder charges. He and his counsel knew, whether the first-degree

premeditated murder charge was reinstated or not, that he faced mandatory life imprisonment if

convicted as charged. While the addition of a premeditated murder charge added another theory of

guilt, it did not increase Petitioner’s exposure or in any way require substantial additional

preparation. As the trial court noted in denying Petitioner’s motion for relief from judgment, “there

is absolutely no evidence defense counsel was unprepared for what was an amended charge, not a

new charge and based on the same facts.” Trial Court Opinion 12/7/09, 3, n.1. The case here was

factually straight-forward: a videotape depicted the incident, and the only eyewitness was the clerk.

Petitioner has failed to show how the reinstatement of the premeditated murder charge adversely

affected his counsel’s performance. Nor has he shown that had the reinstatement not occurred that

there is a reasonable probability that he would not have accepted the plea deal.

1The state court’s act of reinstating the charges itself did not implicate Petitioner’s federal

rights. Dorchy v. Jones, 320 F. Supp. 2d 564, 578-79 (E.D. Mich. 2004) (denying habeas relief
on a state prisoner's claim that there was insufficient evidence to bind him over for trial); see also
Estelle v. McGuire, 502 U.S. 62, 67 (1991) (ruling that habeas relief is not available for a
violation of state law).

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D. Ineffective Assistance of Appellate Counsel

Petitioner asserts that his appellate counsel was ineffective for failing to raise a challenge

to his trial counsel’s effectiveness on direct appeal. Counsel’s failure to raise an issue on appeal

constitutes ineffective assistance only if there is a reasonable probability that inclusion of the issue

would have changed the result of the appeal. See Howard v. Bouchard, 405 F.3d 459, 485 (6th Cir.

2005). Therefore, failing to raise a meritless claim that has no chance of succeeding does not

constitute ineffective assistance of appellate counsel. See Greer v. Mitchell, 264 F.3d 663, 676 (6th

Cir. 2001). Having determined that Petitioner’s ineffective assistance of trial claim lacks merit, it

follows that appellate counsel’s failure to raise the issue was neither unreasonable nor prejudicial,

and therefore, does not satisfy the requirements under Strickland.

E. Actual Innocence

Petitioner claims that the videotape shows that he is innocent. Claims of actual innocence

based on newly-discovered evidence "have never been held to state a ground for federal habeas

relief absent an independent constitutional violation occurring in the underlying state criminal

proceeding." Herrera v. Collins, 506 U.S. 390, 400 (1993). "[F]ederal habeas courts sit to ensure

that individuals are not imprisoned in violation of the Constitution – not to correct errors of fact."

Id. In House v. Bell, the United States Supreme Court declined to answer the question left open in

Herrera – whether a habeas petitioner may bring a freestanding claim of actual innocence. See

House v. Bell, 547 U.S. 518, 555 (2006) (noting that "in a capital case a truly persuasive

demonstration of 'actual innocence' made after trial would render the execution of a defendant

unconstitutional and warrant federal habeas relief if there were no state avenue open to process such

a claim").

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Citing Herrera and House, the United States Court of Appeals for the Sixth Circuit ruled that

a free-standing claim of actual innocence based upon newly discovered evidence does not warrant

federal habeas relief. See Wright v. Stegall, 247 F. App'x 709, 711 (6th Cir. 2007) ("Since the

Supreme Court has declined to recognize a freestanding innocence claim in habeas corpus, outside

the death-penalty context, this court finds that [Petitioner] is not entitled to relief under available

Supreme Court precedent."); Cress v. Palmer, 484 F.3d 844, 854-55 (6th Cir. 2007). Consequently,

Petitioner's assertion that the state courts erred in denying him an evidentiary hearing based upon

newly-discovered evidence or that he is entitled to habeas relief on his claim that the videotape

shows him to be innocent fails to state a claim upon which federal habeas relief may be granted.

F. Evidentiary Hearing

Petitioner requests an evidentiary hearing to support his claims. In Cullen v. Pinholster, 131

S. Ct. 1388 (2011), the Supreme Court held that a federal court's review under 28 U.S.C. §

2254(d)(1)—whether the state court determination was contrary to or an unreasonable application

of established federal law—must be confined to the record that was before the state court. See

Pinholster, 131 S. Ct. at 1398. The Pinholster Court specifically found that the district court should

not have held an evidentiary hearing regarding Pinholster's claims until after the Court determined

that the petition survived review under § 2254(d)(1). In this case, Petitioner’s claims do not survive

§ 2254(d)(1), and therefore no evidentiary hearing is warranted.

IV. Certificate of Appealability

Before Petitioner may appeal this decision, a certificate of appealability must issue. See 28

U.S.C. § 2253(c)(1)(a); FED. R. APP. P. 22(b). A certificate of appealability may issue “only if the

applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. §

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2253(c)(2). When a district court denies 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, a 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. The Court concludes that a certificate of appealability is not warranted; reasonable

jurists could not debate the Court’s assessment of Petitioner’s claims. The Court also denies

Petitioner permission to proceed on appeal in forma pauperis; an appeal could not be taken in good

faith.

Earlier, Petitioner filed an application to proceed in forma pauperis in connection with denial

of his motion to expend the record. The request is denied as well.

V. Conclusion

For the foregoing reasons:

(1)

The petition for a writ of habeas corpus is DENIED and the matter is DISMISSED

WITH PREJUDICE;

A certificate of appealability is DENIED; and

Permission to proceed on appeal in forma pauperis is DENIED.

(2)

(3)

IT IS ORDERED.

/s/ Victoria A. Roberts
Victoria A. Roberts
United States District Judge

Dated: July 11, 2013

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The undersigned certifies that a copy of
this document was served on
the
attorneys of record and Nathaniel Smith
by electronic means or U.S. Mail on July
11, 2013.

S/Linda Vertriest
Deputy Clerk

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