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McGowan v. Burt

United States Court of Appeals, Sixth Circuit

June 8, 2015

DEMETRIC MCGOWAN, Petitioner-Appellee,
SHERRY BURT, Respondent-Appellant

Petition for certiorari filed at, 08/11/2015

Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 2:09-cv-14539--Arthur J. Tarnow, District Judge.


John S. Pallas, Linus Richard Banghart-Linn, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellant.

Samuel Allen Early, III, Detroit, Michigan, for Appellee.

BEFORE: McKEAGUE and DONALD, Circuit Judges; MATTICE, District Judge.[*]


Page 511

McKEAGUE, Circuit Judge.

This is an appeal from an order of the district court conditionally granting habeas relief to petitioner Demetric McGowan. McGowan is a prisoner in the custody of the Michigan Department of Corrections, serving a sentence of from 195 to 480 months for drug trafficking and firearms offenses, in addition to a 24-month sentence for a felony firearm offense. The appeal is brought by the State in the name of Sherry Burt, Warden of the Muskegon Correctional Facility, where McGowan is currently incarcerated. The order granting habeas relief has been stayed pending appeal. The district court determined that McGowan received ineffective assistance of counsel during plea negotiations, which adversely affected his decision to reject the prosecution's plea offer. In so ruling, the State contends the district court failed to give required deference to the contrary ruling of the Michigan Court of Appeals. We agree with the State and, for the reasons that follow, vacate the judgment of the district court.


Trial took place in the Monroe County Circuit Court on December 11, 2006. McGowan was charged--as a habitual offender, third offense--with (1) possession with intent to deliver 50 or more but less than 450 grams of cocaine; (2) felon in possession of a firearm; (3) possession of a firearm during commission of a felony; and (4) carrying a concealed weapon. At the start of the day, last-minute plea negotiations ensued. The prosecution agreed that, if McGowan pled guilty to counts 1 and 3 as a second-offense habitual offender, it would recommend a minimum sentence of five years on the cocaine charge and a two-year mandatory consecutive sentence on the felony firearm charge.

Page 512

McGowan's counsel, Attorney Craig Tank, advised McGowan that he estimated the sentencing guidelines minimum-sentence range (on the cocaine offense as a second-offense habitual offender) to be 45 to 93 months.[1] The trial court then advised McGowan that " there's really no telling until we did a presentence investigation report to know for sure what the guidelines would be" . . . and further, that " any sentence that the Court would fashion might be different" than the five-years-plus-two-years sentence discussed. R.7-5, Trial Tr. at 5-6, Page ID 331-32. Counsel then elicited confirmation from McGowan on the record that they had discussed the guidelines and the prosecution's offer at length, that counsel had no position on whether to go to trial or not, and that the decision was solely up to McGowan. Without hesitation, McGowan elected to " proceed forward to trial." Id. at 6, Page ID 332.

After a one-day jury trial, McGowan was found guilty on all four charges. Sentence was imposed on January 18, 2007. The parties agreed at sentencing that 78 to 195 months was the minimum-sentence range for the count 1 charge. Attorney Tank acknowledged " this came out a little bit different than I thought," referring to his earlier estimate when McGowan rejected the prosecution's plea offer. R. 7-6, Sent. Tr. at 16, Page ID 679. The court imposed a sentence of 195 to 480 months on the count 1 cocaine charge; sentences of 34 to 120 months on the count 2 and 4 charges, to run concurrently with the count 1 sentence; and a mandatory 24-month sentence on count 3, to be served consecutively.

McGowan moved for a new trial, contending his counsel's erroneous pretrial reading of the sentencing guidelines constituted ineffective assistance of counsel. The trial court conducted an evidentiary hearing and received testimony from McGowan and his former counsel. In rejecting the prosecution's offer, McGowan said he understood that the 45-to-93-month range represented the minimum-sentence range he would be exposed to if he were subsequently convicted of the count 1 offense in trial. R. 7-8, Hrg. Tr. at 7, Page ID 716. Reasoning that the 60-month sentence the prosecution offered to recommend was only 33 months less than his " maximum minimum" exposure if found guilty of count 1 by the jury, McGowan decided to go to trial. Had he known that the actual guidelines range would ultimately be 78 to 195 months, McGowan said he would ...

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