McGowan v. Burt

43 F. Supp. 3d 761, 2014 U.S. Dist. LEXIS 117995, 2014 WL 4428389
CourtDistrict Court, E.D. Michigan
DecidedAugust 25, 2014
DocketCivil No. 2:09-CV-14539
StatusPublished
Cited by1 cases

This text of 43 F. Supp. 3d 761 (McGowan v. Burt) is published on Counsel Stack Legal Research, covering District Court, E.D. Michigan primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McGowan v. Burt, 43 F. Supp. 3d 761, 2014 U.S. Dist. LEXIS 117995, 2014 WL 4428389 (E.D. Mich. 2014).

Opinion

OPINION AND ORDER CONDITIONALLY GRANTING THE PETITION FOR WRIT OF HABEAS CORPUS

ARTHUR J. TARNOW, Senior District Judge.

Demetric McGowan, (“Petitioner”), incarcerated at the Muskegon Correctional Facility, filed a petition for a writ of habe-as corpus pursuant to 28 U.S.C. § 2254, through counsel S. Allen Early, challenging his conviction for possession with intent to distribute 50-450 grams of cocaine, M.C.L.A. 333.7401(2)(a)(iii); felony-firearm, M.C.L.A. 750.227b; felon in posses[764]*764sion of a firearm, M.C.L.A. 750.224f; carrying a concealed weapon, M.C.L.A. 750.227; and being a third felony habitual offender, M.C.L.A. 769.11.

Petitioner was convicted following a jury trial. At sentencing, petitioner’s sentencing guidelines on the cocaine conviction were, scored at 78-195 months. Petitioner was sentenced to 195 months, or sixteen years, three months, to forty years in prison. Petitioner’s counsel admitted at sentencing that he made a mistake in calculating the guidelines just prior to trial during the plea discussions. (Tr. 1/18/07, pp. 16-20).

This Court finds that petitioner was denied the effective assistance of trial counsel when his attorney gave him, before trial, inaccurate advice that the guidelines range1 after trial would be 45-93 months (3 3/4 years-8 3/4 years) when in fact it was 78-195 month (6 1/2 years-16 1/4 years), which caused petitioner to reject the prosecutor’s plea bargain offer and receive a much greater sentence after being convicted at trial. Accordingly, the petition for writ of habeas corpus is conditionally granted.

I.Background

Petitioner was convicted following a jury trial in the Monroe County Circuit Court. The relevant facts relied upon by the Michigan Court of Appeals are:

Police received an anonymous tip of drug use at an apartment, received consent from the resident to conduct a search, and discovered drugs in the apartment. The apartment occupant was on parole and agreed to arrange a purchase for three and one-half ounces of cocaine from her supplier, defendant. Defendant called the occupant turned informant when he was on his way with the drugs. When he arrived, defendant was arrested carrying three and one-half ounces of cocaine and a gun. Conversely, defendant claimed that he merely carried three and one-half grams of cocaine. Defendant asserted that he did not intend to deliver the cocaine, but rather, it was for his own personal use. He further testified that he came to visit the informant for commercial sex.
People v. McGowan, No. 275781 [2008 WL 723945] *1 (Mich.Ct.App. March 18, 2008).

Petitioner’s conviction was affirmed on appeal. Id., lv. den. 482 Mich. 1030, 769 N.W.2d 202 (2008).

Petitioner filed his original petition for writ of habeas corpus, seeking habeas relief on the following grounds:

I. Defendant was denied the opportunity tó present a defense at trial.
II. Defendant was denied a fair trial when the admission of testimony that defendant has a reputation for drugs/ guns was entered and trial counsel was ineffective for not moving for mistrial/objecting.
III. Trial counsel was ineffective in failing to accurately, calculate sentencing guidelines, resulting in defendant’s fail[765]*765ure to accept the plea offer articulated by the trial court and the prosecution at-the start of the trial.
IV. Defendant was denied a fair trial when the prosecutor failed to disclose the identity of witness Edmud prior to trial in violation of the Brady doctrine.
V. The lower court expressed an opinion that the court’s sentencing practices were much harsher than the present legislative guidelines and as a result sentenced petitioner at the top of the guidelines, even though probation and the prosecution recommended a much lower sentence, resulting In constitutional error.

Petitioner was subsequently permitted to delete the fourth claim from his petition because it had not been exhausted with the state courts. Petitioner’s counsel was also given time to file an amended petition for writ of habeas corpus.

Petitioner’s original counsel Lawrence J. Bunting subsequently filed an amended petition for writ of habeas corpus, in which he raised the following two grounds for relief:

I. The Michigan Court of Appeals and Michigan Supreme Court denied petitioner his right to due process guaranteed under the Fourteenth Amendment to the United States Constitution by refusing to grant posttrial relief where petitioner’s defense attorney was ineffective, in violation of petitioner’s Sixth Amendment right to representation.2
II. Whether petitioner has been deprived of his Due Process guaranteed under the Fourteenth Amendment to the United States Constitution where newly discovered evidence reveals that the Michigan State Police Lieutenant in charge of this case has been charged with corruption.

This Court permitted counsel to file the ■amended habeas petition but noted that petitioner’s claim involving the police lieutenant had yet to be exhausted with the state courts. On September 9, 2011, this Court held the petition in abeyance to permit petitioner to return to the state courts to exhaust additional claims.

Petitioner filed a post-conviction motion for relief from judgment with the trial court, which was denied. People v. McGowan, No. 06-35201-FH (Monroe County Circuit Court, January 20, 2012). The Michigan appellate courts denied petitioner leave to appeal. People v. McGowan, No. 308520 (Mich.Ct.App. August 24, 2012); lv. den. 493 Mich. 967, 829 N.W.2d 223 (2013).

On August 27, 2013, petitioner, through his new counsel, S. Allen Early, filed an amended petition for writ of habeas corpus, seeking relief on the following grounds:

I. Petitioner’s trial counsel was ineffective during the plea bargain process and at trial and the ineffectiveness prejudiced petitioner denying petitioner his Sixth Amendment right to counsel.3
II. Petitioner was deprived of his right to due process under the Fourteenth Amendment where newly discovered evidence reveals that the Michigan State Police Lieutenant in charge of this case has been charged with corruption and pled guilty to racketeering with a 2-20 year sentence.4

[766]*766II. 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—

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Related

McGowan v. Christiansen
353 F. Supp. 3d 662 (E.D. Michigan, 2018)

Cite This Page — Counsel Stack

Bluebook (online)
43 F. Supp. 3d 761, 2014 U.S. Dist. LEXIS 117995, 2014 WL 4428389, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcgowan-v-burt-mied-2014.