RUSHAD CHILDRESS v. GEORGE STEPHENSON (2017)

ORDER

Rushad Childress, a pro se Michigan prisoner, appeals from the district court's judgment dismissing his petition for a writ of habeas corpus filed under 28 U.S.C. § 2254. Childress now applies to this court for a certificate of appealability (COA).

In 2010, Childress pleaded no contest to assault with intent to commit murder and felony-firearm. Prior to sentencing, Childress moved to withdraw his plea, but the trial court denied his motion. The trial court sentenced Childress to 13 to 20 years of imprisonment for the assault conviction and a consecutive two-year term of imprisonment for the felony-firearm offense. When Childress subsequently filed a delayed application for leave to appeal, the Michigan Court of Appeals denied the application. Childress sought further review, which the Michigan Supreme Court denied.

In 2012, Childress filed his federal habeas petition in the district court, alleging that: (1) his initial counsel rendered deficient performance and operated under a conflict of interest, and (2) his substitute counsel provided ineffective assistance. The State moved to dismiss the case for failure to exhaust state court remedies. In response, Childress moved the district court to stay the case so that he could return to state court to exhaust additional claims. The district court granted Childress's motion.

Childress returned to state court and filed a motion for relief from judgment in the trial court. That court denied his motion, and the Michigan Court of Appeals and the Michigan Supreme Court denied further review.

After exhausting these state court remedies, Childress returned to federal court and moved to lift the stay. In that motion, Childress raised an additional claim, arguing that his right to a speedy trial was violated. After the district court granted his motion and lifted the stay of the proceedings, it dismissed his petition as meritless. The court also denied Childress a COA.

Under 28 U.S.C. § 2253(c)(1)(A), this court will grant a COA for an issue raised in a § 2254 petition only if the petitioner has made a substantial showing of the denial of a federal constitutional right. A petitioner satisfies this standard by demonstrating that reasonable jurists “could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Banks v. Dretke, 540 U.S. 668, 705 (2004) (quoting Miller-El v. Cockrell, 537 U.S. 322, 327, 336 (2003)); see also Slack v. McDaniel, 529 U.S. 473, 484 (2000).

Childress argues that his trial counsel provided ineffective assistance during his plea proceedings. In order to establish ineffective assistance of counsel, the petitioner first must show that his counsel's performance was deficient. Strickland v. Washington, 466 U.S. 668, 687 (1984); Tibbetts v. Bradshaw, 633 F.3d 436, 442 (6th Cir. 2011). Second, the petitioner must demonstrate that the deficient performance prejudiced his defense, which requires showing that counsel's errors were so serious as to deprive him of a fair trial. Strickland, 466 U.S. at 687; Tibbetts, 633 F.3d at 442. In the no-contest plea context of the current case, prejudice means that, “but for counsel's errors, [Childress] would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985). “[T]o obtain relief on this type of claim, a petitioner must convince the court that a decision to reject the plea bargain would have been rational under the circumstances.” Padilla v. Kentucky, 559 U.S. 356, 372 (2010). Further, a claim of ineffective assistance of counsel based on allegedly misleading information from counsel regarding the terms of a plea agreement never constitutes an “extraordinary circumstance” warranting relief when the trial court has conducted a proper, clear, and thorough plea colloquy. Ramos v. Rogers, 170 F.3d 560, 565 (6th Cir. 1999).

Reasonable jurists could not disagree with the district court's conclusion that Childress failed to demonstrate ineffective assistance of counsel. Childress contends that both his initial counsel, Major White, and his substitute counsel, Neil Szabo, rendered ineffective assistance. Childress first challenges White's allegedly erroneous advice that Childress might be eligible for early release due to prison overcrowding. Initially, it is noted that, according to White, he made no promise that Childress would receive early release but merely mentioned it as a possibility. Even if White did make this promise, it was not mentioned as part of Childress's plea bargain and, at the plea hearing, Childress repeatedly affirmed that no promises existed outside the record that resulted in his decision to plead no contest. Since Childress is bound by the answers he provided during the plea colloquy, see Ramos, 170 F.3d at 566, he has not shown that he suffered any prejudice from White's alleged misinformation.

Childress also asserts that White acted under a conflict of interest at the first hearing on his motion to withdraw his plea. “In order to establish a violation of the Sixth Amendment, a defendant who raise[s] no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer's performance.” Cuyler v. Sullivan, 446 U.S. 335, 348 (1980); Kelly v. McKee, 847 F.3d 316, 321 (6th Cir. 2017). While White appeared at the first hearing on Childress's motion to withdraw, he did not argue on Childress's behalf because Childress's allegations implicated the effectiveness of his performance. Instead, he provided his version of the conversation with Childress about potential early release. Childress has not shown how any alleged conflict adversely affected White's performance. Even if White acted under a conflict of interest, the trial court's decision to appoint Szabo as substitute counsel remedied any conflict. See Kelly, 847 F.3d at 321.

Childress argues that Szabo also rendered ineffective assistance. Childress's chief contention appears to be that Szabo did not file any further pleadings or make any additional arguments in support of Childress's motion to withdraw beyond those previously made by Childress. Assuming that Szabo's performance was deficient in this regard, Childress does not cite to any additional argument that Szabo should have made. Consequently, he has not demonstrated that he was prejudiced by Szabo's alleged inaction.

Lastly, Childress argued in his motion to lift the stay that his speedy trial rights were violated. Childress does not raise this claim in his COA application and, consequently, this court considers the claim abandoned and not reviewable. See Jackson v. United States, 45 F. App'x 382, 385 (6th Cir. 2002); Elzy v. United States, 205 F.3d 882, 886 (6th Cir. 2000).

Accordingly, this court DENIES Childress a COA for his claims.

ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk