               NOT RECOMMENDED FOR FULL- TEXT PUBLICATION
                          File Name: 07a0552n.06
                           Filed: August 8, 2007

                                          No. 06-1184

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

JOSEPH ASHBAUGH,                                )
                                                )
       Petitioner-Appellant,                    )    ON APPEAL FROM THE UNITED
                                                )    STATES DISTRICT COURT FOR THE
v.                                              )    EASTERN DISTRICT OF MICHIGAN
                                                )
DAVID GUNDY,                                    )
                                                )
       Respondent-Appellee.                     )
                                                )

       Before: ROGERS and COOK, Circuit Judges; and DOWD, District Judge.*

       DOWD, District Judge. This is an appeal from the denial of relief to the petitioner, Joseph

Ashbaugh (“the defendant”), who entered guilty pleas in Michigan state court to a series of crimes

arising from the defendant’s assault of a handicapped male after an incident involving the

defendant’s girlfriend. The District Court Judge, Marianne O. Battani, summarized the state court

convictions:

       On February 22, 2001, the petitioner pleaded guilty to: one count of extortion,
       MICH.COMP. LAWS § 750.84; two counts of assault with intent to great bodily
       harm less than murder, MICH COMP.LAWS § 750.84; and assault with a dangerous
       weapon, MICH.COMP. LAWS § 750.82. In return, the prosecutor dismissed one
       count of first-degree criminal sexual conduct, one count of kidnapping, and a charge
       that petitioner violated the conditions of probation for a previous offense. The
       charges arose from the allegations that Petitioner and two other people threatened,
       beat, and sexually assaulted a mentally handicapped young man.

Joint Appendix (“JA”), page 302.

       *
          The Honorable David D. Dowd, Jr., Senior United States District Judge for the Northern
District of Ohio, sitting by designation.
No. 06-1184
Ashbaugh v. Gundy

        The petitioner was sentenced to concurrent terms of imprisonment for seventeen and a half

to forty years for the extortion conviction; five to twenty years for each count of assault to do great

bodily harm; and two to eight years for assault with a dangerous weapon.

        After failing to obtain collateral relief from the Michigan Court of Appeals, he petitioned

the Michigan Supreme Court for leave to appeal, adding a new claim that his plea was involuntary.

The Michigan Supreme Court denied him leave to appeal, and Ashbaugh filed the instant habeas

petition in federal court alleging three claims: involuntariness of the plea, ineffective assistance of

counsel, and another issue under Michigan law. The district court found that Ashbaugh had not

exhausted those claims in state court, but excused the exhaustion requirement and denied on the

merits the first two claims and dismissed the remaining state-law claim as incognizable in federal

court. The district court then granted a certificate of appealability on the exhaustion issue and the

ineffective assistance of counsel and involuntariness of plea claims. Ashbaugh explicitly abandoned

the freestanding ineffective assistance claim in his brief, (Pet. Br. at 4), and appeals the district

court’s decision that (1) his involuntary-plea claim is unexhausted and (2) his involuntary-plea claim

is meritless.

        Concerning the exhaustion issue, it is undisputed that the defendant presented his

involuntary-plea claim for the first time to the Michigan Supreme Court. The parties debate whether

a claim is exhausted by presenting it to the highest court in the state or whether it must also be

presented to an intermediate appellate court. Compare Hafley v. Sowders, 902 F.2d 480, 483 (6th

Cir. 1990), with Manning v. Alexander, 912 F.2d 878, 881 (6th Cir. 1990).



                                                  2
No. 06-1184
Ashbaugh v. Gundy

       The court need not decide the exhaustion issue because the only other issue on appeal,

defendant’s involuntary-plea claim, lacks merit. “An application for a writ of habeas corpus may

be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies

available in the courts of the State.” 28 U.S.C. § 2254(b)(2). If the court finds that “‘the federal

constitutional claim [is] plainly meritless and it would be a waste of time and judicial resources to

require exhaustion,’ nonexhaustion and procedural default should be excused.” Lyons v. Stovall, 188

F.3d 327, 333 (6th Cir. 1999) (quoting Cain v. Redman, 947 F.2d 817, 820 (6th Cir. 1991)); see also

Linscott v. Rose, 436 F.3d 587, 592 (6th Cir. 2006).

       With respect to the involuntary plea claim, a federal court may grant a writ for habeas corpus

to a state prisoner only if the state court’s decision “was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme Court of the United

States,” 28 U.S.C. § 2254(d)(1), or “was based on an unreasonable determination of the facts in light

of the evidence presented in the State court proceeding,” id. § 2254(d)(2). See Harrison v. Motley,

478 F.3d 750, 754 (6th Cir. 2007). The state court need not have even been aware of the Supreme

Court cases; the relevant inquiry is whether “the reasoning [or] the result of the state-court decision

contradicts them.” Early v. Packer, 537 U.S. 3, 8 (2003) (per curiam). Thus, a court should grant

the writ under § 2254(d)(1) only if relevant Supreme Court law would have mandated that

Ashbaugh’s plea be vacated.

       Ashbaugh argues that he was confused by the proceedings, that his attorney failed to explain

the consequences of a guilty plea and told him that he would, instead of being sentenced to prison,

be sent to a mental hospital. As Ashbaugh has abandoned his freestanding ineffective assistance of

                                                  3
No. 06-1184
Ashbaugh v. Gundy

counsel claim, he must show not only that his counsel rendered “advice outside the range of

competence demanded of attorneys in criminal cases,” Tollett v. Henderson, 411 U.S. 258, 268

(1973), but also that his misapprehension would entitle him to relief. See id. at 267-68; McMann

v. Richardson, 397 U.S. 759, 770-71 (1970).            The Supreme Court recently held that “the

Constitution, in respect to a defendant’s awareness of relevant circumstances, does not require

complete knowledge of the relevant circumstances, but permits a court to accept a guilty plea, with

its accompanying waiver of various constitutional rights, despite various forms of misapprehension

under which a defendant might labor,” United States v. Ruiz, 536 U.S. 622, 630 (2002), including

the fact that a defendant may misapprehend the likely penalties. Brady v. United States, 397 U.S.

742, 757 (1970). Ashbaugh’s alleged confusion, even if true, would not warrant vacatur of his plea

under federal law as determined by the Supreme Court, and § 2254(d)(1) affords him no relief.

        Furthermore, a “state court decision involves ‘an unreasonable determination of the facts in

light of the evidence presented in the State court proceeding’ only if it is shown that the state court’s

presumptively correct factual findings are rebutted by ‘clear and convincing evidence’ and do not

have support in the record.” Matthews v. Ishee, 486 F.3d 883, 889 (6th Cir. 2007) (quoting 28

U.S.C. § 2254(e)(1)). Ashbaugh therefore must set forth clear and convincing evidence rebutting

the state court’s finding that his plea was “knowingly, freely and voluntarily made.” (J.A. at 84.)

        In this case, the defendant did not meet that standard. The district court correctly reviewed

the plea transcript and this court rejects the defendant’s argument that the “state court’s decision that

[his] plea was knowing and voluntary based on a review of the plea transcript is an unreasonable

determination of the facts in the light of the evidence before this Court.” (Pet. Br. at 17 (citing 28

                                                   4
No. 06-1184
Ashbaugh v. Gundy

U.S.C. § 2254(d)(2).) Ashbaugh selectively quotes one part of the transcript where he was confused

by one question concerning whether any promises had been made to induce him to plead guilty.

(J.A. at 79-80.) In response to a previous question asking him whether “anyone tried to force [him]

to plead guilty by any mistreatment, by any pressure or by any duress made upon you in any way,”

Ashbaugh answered, “No, sir.” (J.A. at 79.) Additionally, notwithstanding Ashbaugh’s highly

selective example of one instance of some confusion, the plea transcript as a whole clearly indicates

that his plea was knowing and voluntary, (J.A. at 69-85), and he is not entitled to relief under

§ 2254(d)(2).

        Because Ashbaugh’s allegations are insufficient to warrant relief, he is not entitled to an

evidentiary hearing. See Schriro v. Landrigan, 127 S. Ct. 1933, 1940 (2007) (“In deciding whether

to grant an evidentiary hearing, a federal court must consider whether such a hearing could enable

an applicant to prove the petition's factual allegations, which, if true, would entitle the applicant to

federal habeas relief.”).

        For the foregoing reasons, the district court’s denial of the defendant’s petition for habeas

corpus is AFFIRMED.




                                                   5
