CECIL HAWKINS JR v. STEVEN RIVARD

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United States Court of Appeals, Sixth Circuit.

CECIL R. HAWKINS, JR., Petitioner-Appellant, v. STEVEN RIVARD, Warden, also named as William Schuette, Attorney General for the State of Michigan, Robert Napel, Respondent-Appellee.

No. 16-1406

Decided: November 10, 2016

ORDER

Cecil Hawkins, a Michigan prisoner proceeding pro se, appeals the district court's denial of his petition for a writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254. Currently pending is Hawkins's Motion for a Remand to the District Court or, in the alternative, Motion for a Certificate of Appealability (“COA”).

In August 2006, while incarcerated at the Muskegon Correctional Facility, Hawkins and his co-defendant and fellow inmate, Jeffrey Jowske, in an effort to escape, assaulted a corrections officer while in possession of a weapon, namely, an Elmer's glue bottle filled with hot sauce. Jowske sprayed the corrections officer in the face with the glue bottle while Hawkins managed to take control of a garbage truck that had pulled up to a sally port at the facility. Hawkins and Jowske drove away in the truck and breached the two-fence system around the perimeter of the facility, but were eventually apprehended on the outer perimeter road. Hawkins entered a plea of guilty to prison escape and possession of a weapon in prison and a no-contest plea to assault of a prison employee. Hawkins's pleas were conditioned on his right to appeal the denial of five pro se motions he had filed, specifically, his motions to dismiss for insufficient evidence, to assert the necessity defense, for an evidentiary hearing, to dismiss the weapons charge, and for court-appointed experts. Pursuant to an agreement under People v. Cobbs, 505 N.W.2d 208 (Mich. 1993), the trial court sentenced Hawkins as a fourth-time habitual offender to concurrent terms of five to ten years' imprisonment for the escape and weapons convictions and three to ten years' imprisonment for the assault conviction. These sentences were to be served consecutively to the sentences he was currently serving for his previous convictions of kidnapping (life imprisonment) and criminal sexual conduct (three concurrent terms of thirty-three to fifty years' imprisonment). See People v. Hawkins, No. 226718, 2002 WL 482571, at *1 (Mich. Ct. App. Mar. 29, 2002). The Michigan Court of Appeals summarily denied Hawkins's delayed application for leave to appeal for lack of merit in the grounds presented. People v. Hawkins, No. 285167 (Mich. Ct. App. Aug. 15, 2008). The Michigan Supreme Court denied leave to appeal, People v. Hawkins, 768 N.W.2d 84 (Mich. 2009), and denied Hawkins's motion for reconsideration, People v. Hawkins, 772 N.W.2d 377 (Mich. 2009).

Hawkins returned to the trial court and filed a motion for relief from judgment, raising nine new claims. The trial court denied eight of Hawkins's claims, but granted relief on his claim challenging the restitution amount. The Michigan Court of Appeals denied Hawkins's application for leave to appeal for failure to establish entitlement to relief under Michigan Court Rule 6.508. People v. Hawkins, No. 308167 (Mich. Ct. App. June 12, 2012). The Michigan Supreme Court denied Hawkins's appeal. People v. Hawkins, 822 N.W.2d 779 (Mich. 2012).

In his amended habeas petition, Hawkins raised the following grounds for relief: (1) the prosecutor presented insufficient evidence at the preliminary examination to bind him over for trial; (2) the trial court erred in denying his motion to present a necessity defense and his motion for court-appointed experts to support that defense; (3) the trial court erred by denying his request for an evidentiary hearing to allow him to prove that his kidnapping and criminal sexual conduct convictions were invalid and that his imprisonment was unlawful; (4) the trial court erred by denying his motion to dismiss the weapons charge; (5) his sentence violated Apprendi v. New Jersey, 530 U.S. 466 (2000); (6) his sentence exceeds the statutory maximum; (7) his sentence for assault of a prison employee violates the Ex Post Facto Clause; (8) he received ineffective assistance of trial and appellate counsel; and (9) his pleas of not guilty and no contest were not knowing and voluntary. A magistrate judge concluded that Hawkins's claims lacked merit and recommended that the petition be dismissed. Over Hawkins's objections, the district court adopted the magistrate judge's report and recommendation, denied the petition, and declined to issue a COA.

In his COA application, Hawkins argues that the district court erroneously issued a blanket denial of a COA, contrary to Murphy v. Ohio, 263 F.3d 466, 467 (6th Cir. 2001), and Porterfield v. Bell, 258 F.3d 484, 487 (6th Cir. 2001), and asks this court to remand the matter to the district court for an assessment of each of his claims under the standard for issuing a COA set forth in Slack v. McDaniel, 529 U.S. 473 (2000). Alternatively, Hawkins asks for a COA on each of the claims raised below.

As an initial matter, Hawkins's claim that the district court issued a blanket denial of a COA is belied by the record. The district court expressly stated in its order denying the petition that it had “considered [Hawkins]'s claims, including his objections, under the Slack standard.” Hawkins appears to believe that he was entitled to a detailed analysis of each claim by the district court before it denied a COA; however, because the court had already reviewed and analyzed the claims through the adoption of the magistrate judge's report and recommendation, it was not necessary for the court to reassess each claim prior to denying a COA. Thus, Hawkins's request for a remand is denied.

A certificate of appealability may issue only if a petitioner makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this standard by demonstrating that jurists of reason 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.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).

Hawkins's first claim asserted that there was insufficient evidence presented at the preliminary hearing to bind him over for trial. Hawkins argues that the district court misconstrued this claim and “did not adjudicate [it] as a due process violation grounded in ‘judge-shopping.’ ” While Hawkins did include in his petition allegations that the prosecutor sought a continuance of the preliminary examination due to a missing witness in order to get the case before a different judge and “abused his charging discretion,” the claim, at its root, challenges the sufficiency of the evidence to bind him over for trial. No reasonable jurist would disagree with the district court's conclusion that this claim is not cognizable on habeas review. See Gerstein v. Pugh, 420 U.S. 103, 119 (1975); Hall v. Ludwig, No. 2:09-CV-12467, 2012 WL 1018906, at *4 (E.D. Mich. Mar. 26, 2012).

In his second claim, Hawkins asserted that the district court erred when it denied his motion to present a necessity defense and his related motion for court-appointed experts to support his defense. Hawkins argued that he should be permitted to present a necessity defense because the convictions on which he was incarcerated were unlawful. “As a general proposition a defendant is entitled to an instruction as to any recognized defense for which there exists evidence sufficient for a reasonable jury to find in his favor.” Mathews v. United States, 485 U.S. 58, 63 (1988). But there is no due process violation for failure to give an instruction on a defense if there was insufficient evidence as a matter of law to support the defense. Gimotty v. Elo, 40 F. App'x 29, 34 (6th Cir. 2002) (citing Neuman v. Rivers, 125 F.3d 315, 323-24 (6th Cir. 1997); Allen v. Morris, 845 F.2d 610, 616-17 (6th Cir. 1988)); see also United States v. Bailey, 444 U.S. 394, 412-415 (1980).

The trial court denied Hawkins's request to present a necessity defense and his related motion for the appointment of experts because the basis for his proposed defense—the alleged unlawfulness of his underlying convictions—did not satisfy the requirements for the defense under Michigan law. See People v. Hocquard, 236 N.W.2d 72 (Mich. 1975). In his COA application, Hawkins argues that the trial court improperly “required him to satisfy the duress defense factors” when he sought to raise a necessity defense. Such an argument, however, asks this court to interpret Michigan law on duress and necessity defenses, which is not permitted on habeas review. See Bradshaw v. Richey, 546 U.S. 74, 76 (2005). No reasonable jurist could disagree with the district court's conclusion that the state court's decision was not contrary to, or an unreasonable application of, clearly established federal law or based on an unreasonable determination of the facts. See 28 U.S.C. § 2254(d).

Hawkins next argued that the trial court erred by denying his motion for an evidentiary hearing to allow him to prove that his underlying convictions were unlawful. The trial court denied Hawkins's motion for an evidentiary hearing, explaining that it would not review the evidentiary rulings in the underlying case because Hawkins was found guilty at trial and he did not contend that the trial was unfair or that he was otherwise prejudiced by the alleged error. Because Hawkins exhausted his appeals on his underlying convictions, no reasonable juror could disagree with the district court's rejection of this claim as meritless.

Next, Hawkins argued that the trial court erroneously denied his motion to dismiss the weapons charge as based on an unconstitutionally vague state statute. He contended that the Elmer's glue bottle filled with hot sauce could not be deemed a weapon because he was authorized to possess both items.

“[T]he void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” Kolender v. Lawson, 461 U.S. 352, 357 (1983). Michigan Compiled Laws § 800.283(4) states:

Unless authorized by the chief administrator of the correctional facility, a prisoner shall not have in his or her possession or under his or her control a weapon or other implement which may be used to injure a prisoner or other person, or to assist a prisoner to escape from imprisonment.

The magistrate judge examined the statute and concluded that the statute was not unconstitutionally vague, explaining that Hawkins “should have known that he could not possess a glue bottle filled with hot sauce” and noting that the bottle was, in fact, used as a weapon when it was sprayed in a corrections officer's face and used to assist Hawkins's and Jowske's escape. Hawkins continues to argue in his COA application that he was authorized to possess both the glue bottle and the sauce and thus the weapons charge should have been dismissed. He fails, however, to show that he was authorized to possess a glue bottle filled with hot sauce that was used to assault a corrections officer. Reasonable jurists could not debate the district court's rejection of this claim.

In his next claim, Hawkins asserted that his sentence violated Blakely v. Washington, 542 U.S. 296 (2004), and Apprendi, 530 U.S. 466, because it was based on facts found by the judge at sentencing that were not submitted to a jury and proven beyond a reasonable doubt or admitted by Hawkins. As the magistrate judge pointed out in analyzing Hawkins's claim, this court has held that Michigan's indeterminate sentencing scheme, under which the maximum penalty is set by statute and the minimum penalty falls within a guideline range, does not violate the Blakely-Apprendi rule. See Chontos v. Berghuis, 585 F.3d 1000, 1001-02 (6th Cir. 2009); Montes v. Trombley, 599 F.3d 490, 495 (6th Cir. 2010). The Supreme Court, however, more recently held in Alleyne v. United States, 133 S. Ct. 2151 (2013), “that any fact that increases the mandatory minimum is an ‘element’ that must be submitted to the jury,” thereby calling into question the continued validity of Michigan's use of mandatory minimum sentencing based on judge-found facts. Id. at 2155. And, indeed, in July 2015, the Michigan Supreme Court held that this sentencing scheme was a violation of Apprendi and Alleyne. People v. Lockridge, 870 N.W.2d 502, 506 (Mich.), cert. denied, 136 S. Ct. 590 (2015). Nevertheless, Hawkins is not entitled to a COA on this claim. Habeas relief may be granted only if the state-court adjudication was contrary to clearly established federal law as it existed “at the time of the state-court adjudication.” Greene v. Fisher, 132 S. Ct. 38, 43 (2011). The state court judgment became final when Hawkins was no longer able to appeal that judgment to the United States Supreme Court––long before the Supreme Court's decision in Alleyne and the decision in Lockridge. See 28 U.S.C. § 2244(d)(1)(A). Moreover, the holding in Alleyne is not retroactively applicable to cases on collateral review, see In re Mazzio, 756 F.3d 487, 491 (6th Cir. 2014), and the Lockridge court made its holding applicable only to cases still pending on direct review, 870 N.W.2d at 522-24.

Hawkins next argued that his sentence exceeded the statutory limits and that the state court's scoring of offense variables was based on misinformation. As the magistrate judge explained, Hawkins was sentenced in accordance with the plea agreement. By entering his pleas, Hawkins agreed to the sentences and cannot now challenge them in federal court. See People v. Wiley, 693 N.W.2d 800, 800 (Mich. 2005). Moreover, this ground for relief challenges the trial court's scoring of various offense variables. Such a claim is not cognizable on habeas review. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Howard v. White, 76 F. App'x 52, 53 (6th Cir. 2003). Reasonable jurists could not debate the district court's denial of relief on this claim.

Hawkins's next ground for relief asserted that his sentence for assaulting a prison employee violates the Ex Post Facto Clause because the maximum penalty was four years, not five, at the time he committed the offense. He contends that he only agreed to be sentenced to 100% of the four-year maximum sentence and therefore the maximum sentence imposed could not exceed eight years. But he offers no support for this assertion. In fact, the record belies his claim. At the plea hearing, Hawkins indicated that he understood that, pursuant to Michigan Compiled Laws § 769.12, the original maximum sentence for the assault charge was four years and that, “[w]ith the habitual, that goes up to only [fifteen] years[ ] because it has a smaller original maximum.” He also stated that he understood that the court had “made the Cobbs commitments that [his] sentences would be [five] to [ten] years on each of the[ ] three counts.” No reasonable jurist could debate the district court's rejection of this claim.

In support of his claim of ineffective assistance of appellate counsel, Hawkins argued that his attorney failed to: (1) file a post-conviction motion raising his claims that his sentence on the assault charge violated the Ex Post Facto Clause and that his sentences exceeded the statutory limits; (2) raise a claim that trial counsel was ineffective; (3) file a post-conviction motion to withdraw his guilty plea; (4) raise on appeal the misscoring of offense variables that counsel had objected to at sentencing; (5) raise on appeal the unpreserved sentencing errors; (6) federalize his claims of error that were raised on appeal; and (7) advise him on the procedure for submitting a supplemental brief on appeal. To establish ineffective assistance of counsel, a defendant must show deficient performance and resulting prejudice. Strickland v. Washington, 466 U.S. 668, 687 (1984). The performance inquiry requires the defendant to “show that counsel's representation fell below an objective standard of reasonableness.” Id. at 688. An appellate attorney is not required “to raise every non-frivolous issue on appeal.” Caver v. Straub, 349 F.3d 340, 348 (6th Cir. 2003). Indeed, “ ‘winnowing out weaker arguments on appeal and focusing on’ those more likely to prevail, far from being evidence of incompetence, is the hallmark of effective appellate advocacy.” Smith v. Murray, 477 U.S. 527, 536 (1986) (quoting Jones v. Barnes, 463 U.S. 745, 751-52 (1983)). Where, as here, appellate counsel “presents one argument on appeal rather than another ․ the petitioner must demonstrate that the issue not presented ‘was clearly stronger than issues that counsel did present.’ ” Caver, 349 F.3d at 348 (quoting Smith v. Robbins, 528 U.S. 259, 288 (2000)).

Hawkins makes no arguments in his COA application to show that the issues he claims counsel should have raised on appeal were “clearly stronger” than those appellate counsel did raise. Instead, he merely lists the claims and asserts that his appellate attorney “had a history of misconduct and discipline” and was overworked. By failing to raise anything beyond a conclusory assertion to support his claim, Hawkins his waived his appellate-counsel claim for appeal. 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). Moreover, his assertion that the magistrate judge erroneously applied the “ ‘strength’ analysis of Smith[ ]” rather than the “ ‘merits' analysis mandated by [s]tate law” is unavailing. The magistrate judge applied the appropriate Supreme Court precedent to Hawkins's claim. His argument fails to make a substantial showing that he was denied his constitutional right to effective assistance of counsel on appeal.

Hawkins also asserted that he received ineffective assistance from his trial attorney. In his amended petition, he identified twenty-one alleged errors on the part of counsel. Fourteen of those alleged errors concerned counsel's failure to investigate the facts of the case and potential defenses (numbered 1-11, 14-16), five concerned counsel's failure to make certain objections at sentencing (numbered 17-21), and two concerned “methods to compel Hawkins to plead guilty” (numbered 12-13). The district court addressed only the alleged errors related to counsel's failure to object at sentencing. The magistrate judge concluded that the claims lacked merit, explaining that Hawkins “cannot complain that he received ineffective assistance of counsel when he received the sentences that he agreed to in his plea deal.”

Despite the fact that the district court did not consider all of the alleged errors set forth by Hawkins, he is not entitled to a COA because he has failed to make a substantial showing that these alleged errors amounted to ineffective assistance. The thirteen errors that relate to counsel's failure to investigate are foreclosed by his guilty plea. “When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.” Tollett v. Henderson, 411 U.S. 258, 267 (1973); see United States v. Stiger, 20 F. App'x 307, 308-09 (6th Cir. 2001) (concluding that pre-plea ineffective-assistance-of-counsel-claims were waived by defendant's guilty plea). As for the claims related to counsel's failure to object at sentencing, Hawkins cannot establish that he suffered prejudice under Strickland because, as the magistrate judge noted, he received the sentence to which he agreed as part of his guilty plea. And Hawkins makes no showing that the Cobbs agreement required the offense variables to be properly scored or that the sentence be within a certain guidelines range. As for the claims that counsel failed to object to the restitution amount, Hawkins suffered no prejudice because he was granted relief on this issue in his post-conviction proceeding.

In the remaining two assertions of error, Hawkins argued that counsel compelled him to plead guilty by erroneously advising him that unlawful incarceration and necessity were not defenses to the crime of prison escape and by failing to intervene when corrections officers used “extreme physical restraints when transporting [him] to and from [c]ourt.” These two allegations also formed the basis of Hawkins's final claim in his petition, i.e., that his plea was not knowing and voluntary.

A defendant is entitled to effective assistance of counsel in determining whether to plead guilty. Padilla v. Kentucky, 559 U.S. 356, 364 (2010). Claims of ineffective assistance of counsel in the plea bargaining context are governed by the two-part standard set forth in Strickland, requiring a defendant to demonstrate (1) deficient performance and (2) prejudice, i.e., “the outcome of the plea process would have been different with competent advice.” Lafler v. Cooper, 132 S. Ct. 1376, 1384 (2012). To show Strickland prejudice in the guilty-plea context, a defendant “must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and instead would have insisted on going to trial.” See Hill v. Lockhart, 474 U.S. 52, 59 (1985). First, Hawkins has failed to show that counsel's advice regarding the necessity defense was erroneous, especially in light of the fact that the trial court ultimately considered Hawkins's motion to raise a defense of necessity based on his alleged unlawful incarceration and rejected his request. Second, Hawkins's allegations concerning counsel's failure to intervene in the “unjustified and unauthorized use of extreme physical restraints” are conclusory and unsupported by any evidence. His assertion that “had Attorney Swanson intervened and sought a temporary restraining order ․ the extreme pain would have been stopped” does not satisfy his burden under Strickland. See Wogenstahl v. Mitchell, 668 F.3d 307, 335-36 (6th Cir. 2012). For the same reasons, Hawkins's allegations fail to make a substantial showing that his guilty plea was not knowing and voluntary.

Accordingly, Hawkins's COA application is DENIED.

ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk