                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 12a1134n.06

                                           No. 10-2216                                 FILED
                                                                                   Nov 02, 2012
                          UNITED STATES COURT OF APPEALS                     DEBORAH S. HUNT, Clerk
                               FOR THE SIXTH CIRCUIT

LAVELLE MARKS,                                  )
                                                )
       Petitioner - Appellant,
                                                ) ON APPEAL FROM THE UNITED STATES
v.                                              ) DISTRICT COURT FOR THE EASTERN
                                                )       DISTRICT OF MICHIGAN
SUSAN DAVIS,                                    )
                                                )
       Respondent - Appellee.                                  OPINION
                                                )


Before: COLE and KETHLEDGE, Circuit Judges, and THAPAR,* District Judge.

       AMUL R. THAPAR, District Judge. Lavelle Marks pled guilty in Michigan state court

to murdering another man. The trial court sentenced Marks to 35 to 70 years in prison, which

apparently was higher than he expected. Unhappy with this outcome, Marks moved to withdraw his

plea arguing that his plea was neither knowing nor voluntary. He claims that his attorney promised

him that if he pled guilty he would face a much shorter sentence than the one he received. The

evidence does not support Marks’s assertion. We affirm.

                                                I.

       Marks and his co-defendant, Glenn Turner, forced Mark Carter to accompany them to

Marks’s apartment. Once there, Marks and Turner subjected Carter to several hours of beatings that



*
 Hon. Amul R. Thapar, United States District Judge for the Eastern District of Kentucky, sitting by
designation.
ultimately resulted in Carter’s death. Prosecutors thereafter charged Marks and Turner with murder,

kidnapping, and extortion.

       The government eventually dropped the kidnapping and extortion charges in exchange for

Marks’s guilty plea to second-degree murder. As part of the deal, the government agreed to have

Marks sentenced as a non-habitual offender. The trial court sentenced Marks to 35 to 70 years in

prison. After sentencing, Marks moved to withdraw his plea on the grounds that it was unknowing

and involuntary. Marks claims that he pled guilty because his attorney told him that his plea deal

guaranteed him a sentence of 22 ½ to 37 ½ years. The trial court denied Marks’s motion to withdraw

his plea. The Michigan Court of Appeals affirmed, and the Michigan Supreme Court denied Marks’s

application for a discretionary appeal.

       Marks filed a timely federal habeas corpus petition in the Eastern District of Michigan. The

district court denied Marks’s petition. We granted Marks a certificate of appealability to determine

whether his plea was knowing and voluntary.

                                                  II.

       On appeal, Marks argues that his plea was involuntary as a result of his attorney’s promise

that he would receive a sentence between 22 ½ and 37 ½ years. He also claims that both the district

court and the state courts erred in relying upon the plea transcript and not the evidence he presented.

       At argument, Marks conceded that, after Harrington v. Richter, 131 S. Ct. 770, 786-87

(2011), a state court’s summary denial of a petitioner’s claim is the equivalent of a ruling on the

merits. Thus, the Anti-Terrorism and Effective Death Penalty Act (AEDPA) applies, meaning Marks

must demonstrate that the state court’s decision was “contrary to, or [] an unreasonable application”
of Supreme Court precedent, or that the state court unreasonably determined material facts. 28

U.S.C. § 2254(d).

       Marks argues that Michigan violated his “constitutional rights” by accepting a plea that was

neither knowing nor voluntary. For a plea to be knowing and voluntary, a defendant must be aware

of the consequences of his plea, including the “actual value of any commitments made to him by the

court, prosecutor, or his own counsel.” Brady v. United States, 397 U.S. 742, 755 (1970) (quotation

omitted). Marks bases his argument that his plea was neither knowing nor voluntary on a single line

in his plea transcript. After the prosecutor and Marks’s counsel summarized the terms of Marks’s

plea agreement, the trial court asked Marks whether he was promised anything additional for his

guilty plea. Marks stated that “nobody really promised me nothing, but within the guidelines, 22½

to 37½, and they drop the other charges and drop the Habitual, that’s it.” This statement, Marks

contends, demonstrates that his counsel incorrectly told him his plea deal was for 22 ½ to 37 ½ years

in prison.

       But there is a more plausible explanation for Marks’s statement. Michigan’s Sentencing

Guidelines, unlike the federal sentencing guidelines, only provide for a minimum sentence; the

maximum is determined by statute. See, e.g., Montes v. Trombley, 599 F.3d 490, 496 (6th Cir.

2010). Thus, under Michigan’s guidelines, Marks’s statement that he believed he would be

sentenced “within the guidelines, 22½ to 37½” describes the range for his minimum sentence, not

his total sentence. And that was, in fact, Marks’s guidelines range. Michigan scores offenders based

on their prior records and their offense characteristics. Both the prosecutor and defense counsel

agreed at the plea hearing that Marks would score as a D-III offender under Michigan’s Sentencing

Guidelines. Under Michigan’s Sentencing Grid, D-III non-habitual offenders who commit second-
degree murder have a “minimum-minimum” sentence of 270 months (22 ½ years) and a “maximum-

minimum” of 450 months (37 ½ years). See Mich. Comp. Laws Ann. § 777.61. The maximum

sentence for second degree murder is set by statute at life in prison. So when Marks stated that

“nobody really promised me nothing, but within the guidelines, 22½ to 37½,” his statement was a

valid assessment of his minimum sentence. Not surprisingly, then, neither the trial court nor counsel

disagreed with him when he made the statement.

       Even if Marks was confused about the possible consequences of pleading guilty, the state

court could have reasonably found that the plea colloquy cured any misunderstanding. Although all

the circumstances surrounding Marks’s plea are relevant to its voluntariness, see Brady, 397 U.S.

at 749, the plea transcript itself carries great weight. Blackledge v. Allison, 431 U.S. 63, 73-74

(1977) (statements at the plea hearing, along with findings by the judge in accepting the plea,

“constitute a formidable barrier in any subsequent collateral proceedings”). When the trial court

informed Marks that second degree murder “is a felony punishable by any term of years up to life

in prison,” Marks knew the risk he ran by pleading guilty. The “Constitution does not require judges

to explain the meaning of ‘life sentence’ . . . during the plea colloquy in order to combat alleged

misinformation that is not revealed on the record.” McAdoo v. Elo, 365 F.3d 487, 497 (6th Cir.

2004); see also Carethers v. Wolfenbarger, 407 F. App’x 14, 18 (6th Cir. 2011) (“‘Maximum

penalty’ means just what it says—that this is the highest potential sentence [petitioner] could

receive.”); Boyd v. Yukins, 99 F. App’x 699, 703 (6th Cir. 2004) (“Even assuming [counsel] gave

her incorrect information, the trial court remedied any misconception by informing her of the

potential maximum and minimum terms of imprisonment.”).
In any event, it seems unlikely that Marks was ever confused about his possible sentence. In addition

to his plea colloquy, other evidence supports the conclusion that Marks’s plea was knowing and

voluntary. First, Marks was no stranger to Michigan’s criminal justice system. As an adult, Marks

has had fourteen arrests, three felony convictions, and five misdemeanor convictions. His felony

convictions alone would have made him familiar with how Michigan’s Sentencing Guidelines

operate. Second, Marks’s actions at his sentencing indicate that he was aware of the possible

consequences of pleading guilty.       At sentencing, defense counsel stated that probation’s

recommendation of a 37 year minimum sentence was within the anticipated guidelines range at the

time of the plea. See Sentencing Transcript, Marks, Case No. 2:08-CV-13710-GCS, R. 6-14 at 5.

The prosecutor argued at length for a maximum sentence of 67 years. Id. at 19. Marks heard both

statements, but never protested that he could not receive a sentence longer than 37 ½ years. Id.

at 19-22. The sentencing hearing thus demonstrates that Marks did not misunderstand the terms of

his plea agreement.

       Marks cites two other types of evidence in support of his claim. First, he cites a statement

he made at a pretrial hearing when he was trying to get a new attorney. There, he said that his

counsel advised him that he should take a “twenty-year cop.” But this statement was made before

his actual plea and might represent a different stage of plea proceedings or a misunderstanding later

corrected by counsel. Marks’s statement could also have been a shorthand statement reflecting his

eventual deal to a 22 ½ year minimum sentence. And he never referenced the “twenty-year cop”

during his actual plea colloquy five days later. Second, after sentencing, Marks presented several

affidavits (including his own and his parents) claiming that his attorney promised him a 22 ½ to 37 ½

year sentence. The state court, however, was not required to credit Marks’s affidavits, even though
they went uncontested. See 28 U.S.C. § 2254(e)(1); see also Cullen v. Pinholster, 131 S. Ct. 1388,

1402 (2011) (holding that a state court’s summary denial of a state habeas petition, with no

evidentiary hearing on numerous affidavits, did not require a state or federal evidentiary hearing).

Since these affidavits are by interested parties and were sworn after sentencing, the state court could

reasonably find them incredible in light of the contrary evidence in the record. That neither the state

court nor the district court explicitly discussed the affidavits does not mean that they did not consider

them. It appears, instead, that both the state and district courts found the affidavits insufficient to

prove Marks’s claims. In the end, the state court decision does not contradict or unreasonably apply

Supreme Court case law nor is it based on an unreasonable determination of material facts.

B.      Request for Evidentiary Hearing

        Marks also requested that the district court hold an evidentiary hearing. Although the district

court did not specifically rule on Marks’s hearing request, a hearing would have been unwarranted.

When, as here, the state court decides a claim on its merits, our review is limited to the state court

record. See Pinholster, 131 S. Ct. at 1400; Sheppard v. Bagley, 657 F.3d 338, 344 (6th Cir. 2011)

(applying Pinholster to § 2254(d)(2) claims). Since Marks’s claim was adjudicated on the merits,

no hearing was necessary.

        The district court’s judgment is affirmed.
