                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 13a0042n.06

                                           No. 11-1885
                                                                                        FILED
                          UNITED STATES COURT OF APPEALS                            Jan 08, 2013
                               FOR THE SIXTH CIRCUIT                          DEBORAH S. HUNT, Clerk


MICHAEL RINCKEY,                                   )
                                                   )
       Petitioner-Appellant,                       )
                                                   )
v.                                                 )   ON APPEAL FROM THE UNITED
                                                   )   STATES DISTRICT COURT FOR THE
GREG MCQUIGGAN,                                    )   EASTERN DISTRICT OF MICHIGAN
                                                   )
       Respondent-Appellee.                        )
                                                   )



BEFORE:        BATCHELDER, Chief Judge; MERRITT and KETHLEDGE, Circuit Judges.

       MERRITT, Circuit Judge. Michael Rinckey, a Michigan prisoner represented by counsel,

appeals the district court’s denial of his petition for a writ of habeas corpus filed pursuant to 28

U.S.C. § 2254. Rinckey pled guilty to first-degree home invasion and conspiracy to commit second-

degree home invasion. He received consecutive sentences of 75 months to 20 years on the first-

degree home invasion conviction and 57 months to 15 years for the conspiracy conviction. He then

filed a motion to withdraw his plea, which was denied by the Michigan trial court. The Michigan

Court of Appeals denied Rinckey’s leave to appeal “for lack of merit in the grounds presented.”

People v. Rinckey, No. 276972 (Mich. Ct. App. June 14, 2007). Rinckey’s application for leave to

appeal to the Michigan Supreme Court was also denied. People v. Rinckey, 480 Mich. 926 (2007)

(order).
Rinckey v. McQuiggan
No. 11-1885

        Rinckey’s habeas petition claims that (1) his plea was involuntary, (2) he received ineffective

assistance of counsel, and (3) the trial court considered improper factors in passing sentence. The

district court denied the petition. Memorandum and Order, June 16, 2011, and granted a Certificate

of Appealability only on the ineffective assistance of counsel claim. We denied Rinckey’s motion

to expand his Certificate of Appealability to include the other two issues raised in his habeas petition.

Because we agree with the district court’s well-reasoned opinion, we affirm the judgment of the

district court.

                                                   I.

        In February 2004, Rinckey and two coconspirators, Michael Locklear and Shannon Sniff,

learned that an elderly woman, Mary Odell, kept bags of silver coins hidden in her basement. The

three planned to steal the coins and began watching Ms. Odell’s home. Conveniently and

unfortunately, Ms. Odell inadvertently left her house keys in the door, which Locklear stole and used

to gain entry to the house late one night while Rinckey kept watch outside the house. Ms. Odell

came out of the house and confronted Rinckey, but Rinckey and Locklear made off with six bags of

coins. Several nights later, Locklear and Sniff, without Rinckey, returned to Ms. Odell’s house to

steal the remaining coins. A friend of Ms. Odell’s, 72-year-old Harold Kalbfleich, was in the house

in an effort to protect Ms. Odell and her property. Locklear shot and killed Kalbfleich and was

subsequently convicted of first-degree murder. Rinckey was charged with first-degree home

invasion for his participation in the first theft of coins from the Odell home. He was also charged

with conspiracy to commit second-degree home invasion for his part in the ongoing conspiracy that

led to the second break in and the death of Kalbfleich. After rejecting the first plea offer, Rinckey

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No. 11-1885

pled guilty to both charges. The state trial court sentenced Rinckey at the top of the guideline range

for each charge, which resulted in a minimum of 75 months for the first-degree home invasion

charge and a minimum of 57 months for the conspiracy to commit second-degree home invasion,

and ordered the sentences to run consecutively. Rinckey was appointed new counsel to pursue his

appeal. Appellate counsel filed a motion to withdraw the plea, for an evidentiary hearing, and for

resentencing asserting essentially the same claims raised in the habeas petition: the plea was

involuntary, trial counsel was ineffective, and the trial court considered improper factors in

sentencing. After the motions were denied by the state trial court and the denials affirmed on appeal,

Rinckey filed this habeas petition.

                                                  II.

       A habeas petitioner is entitled to a writ of habeas corpus if he can show that the state court’s

adjudication on the merits “resulted in a decision that 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). The Michigan trial court rejected Rinckey’s ineffective assistance

of counsel claim on the merits, Hearing Tr. on Motion to Withdraw Plea, Feb. 28, 2007, at 52, and

the Michigan Court of Appeals denied leave to appeal “for lack of merit in the grounds presented.”

People v. Rinckey, No. 276972 (Mich. Ct. App. June 14, 2007). Under the Antiterrorism and

Effective Death Penalty Act, we give a high degree of deference to factual findings of the state court.

See 28 U.S.C. § 2254(d)(2).

       A Certificate of Appealability was granted only as to the ineffective assistance of counsel

claim. Specifically, Rinckey claims he was denied effective assistance of counsel from his trial

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No. 11-1885

counsel, Gerald Lykins, because Lykins (1) did not inform him of the possibility of receiving

consecutive sentences for the two crimes to which he pled guilty; (2) did not accurately advise him

of the applicable sentencing guideline ranges for the crimes; (3) incorrectly advised him that he could

not withdraw his plea at sentencing; and (4) failed to advise him that the counts that were dismissed

as part of the plea bargain could be taken into account in sentencing.

       In assessing whether Rinckey received effective assistance of counsel in his plea negotiations,

we look to the familiar standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). To

prove ineffective assistance of counsel, Rinckey must prove that (1) counsel’s performance was

deficient, and (2) he was prejudiced by the ineffective assistance. Id. at 687. This standard applies

during the plea-negotiation process. See Hill v. Lockhart, 474 U.S. 52, 59 (1985) (“[T]he

voluntariness of the plea depends on whether counsel’s advice was within the range of competence

demanded of attorneys in criminal cases.”). Failing to advise a client of factors that could negate the

benefit of a guilty plea may render the plea involuntary. See Miller v. Straub, 299 F.3d 570, 580-81

(6th Cir. 2002).

       Applying these standards, trial counsel had an obligation to ensure that his client understood

that he faced the possibility of consecutive sentences. In denying the motion to withdraw the plea,

the Michigan trial court made a factual finding on the record that Rinckey’s trial counsel did inform

Rinckey of the possibility of receiving consecutive sentences. Motion to Withdraw Plea Hearing,

Feb. 28, 2007, Tr. at 51 (“[I]t was clear that [defense counsel] and Mr. Rinckey understood that




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No. 11-1885

consecutive sentencing and a higher-than-hoped for guideline range was likely applicable.”)1 During

the hearing on the motion to withdraw the plea, the Michigan trial court made reference to numerous

instances in the state-court record over the course of the lengthy plea negotiations that demonstrated

Rinckey knew about the possibility of consecutive sentences. Our review of the state-court record

leads us to conclude that the Michigan trial court was not clearly erroneous in its finding. Some of

the more salient examples relied on by the state trial court in making its finding include a letter from

the prosecutor to Rinckey’s trial counsel on December 28, 2005, stating:

        My calculation of the guidelines for the home invasion first charge is 30 to 50
        months. For the conspiracy charge, the guidelines are 12 to 24 months. In the event
        of a trial and conviction, which I consider likely, I will be asking for consecutive
        sentencing and an upward departure from the sentencing guidelines. If I am
        successful, your client could face over 20 years in prison.

Id. at 43-44. Rinckey rejected this offer and it was withdrawn. After this offer was rejected,

interviews with Rinckey and police investigation led to further armed robbery and firearm charges

against Rinckey in two unrelated cases. The parties negotiated a new plea agreement that called for

Rinckey to plead guilty to the first-degree home invasion and second-degree conspiracy to commit

home invasion charges relating to the events at the Odell home. In exchange, the prosecutor agreed

to dismiss the unrelated armed robbery and firearm charges and also agreed not to file any further

charges relating to events at the Odell house. There was no reference to sentencing in the plea

agreement.




       1
        The same Michigan state court judge who had accepted Rinckey’s plea and sentenced him
also presided over Rinckey’s motion to withdraw his plea.

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No. 11-1885

       In finding that Rinckey knew about the possibility of consecutive sentences, the state trial

court referred to the plea hearing held on April 3, 2006. Id. at 46-49. Under oath, Rinckey

acknowledged the terms of the plea agreement and denied repeatedly that anything had been

promised him beyond what was in the plea agreement. The trial judge specifically told Rinckey,

“[I]f I accept your plea, you are giving up any claim that your plea was the result of some promise

or threat that wasn’t brought out or disclosed on the record here today. Do you understand that?”

Rinckey answered yes. Id. at 46-47 (citing Plea Hearing, Apr. 3, 2006, Tr. at 8. Rinckey confirmed

to the trial judge a few moments later that the plea agreement was his “complete understanding” with

the prosecutor. Plea Hearing Tr. at 11. As required under Michigan law, the trial court informed

Rinckey during the plea hearing that the first-degree home invasion conviction was punishable by

up to 20 years in prison and that the conviction of conspiracy to commit second-degree home

invasion carried a maximum of 15 years imprisonment. Id. at 10. There was no discussion on the

record as to whether the terms would run concurrently or consecutively. At the conclusion of the

hearing, the trial court asked Rinckey if he was satisfied with the service of his attorney, to which

Rinckey replied in the affirmative. Id. at 16.

       In finding that counsel had been effective, the state trial court also relied on a telephonic

hearing it held with counsel following the plea hearing where defense counsel requested

postponement of the sentencing hearing because he had just received the presentence report and

needed more time to go over it with Rinckey, who was not present during the telephonic hearing.

Motion to Withdraw Plea Hearing Tr. at 45-46. During this hearing, the prosecutor repeated his

intention to seek an upward departure and consecutive sentencing. The trial court granted Rinckey’s

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No. 11-1885

motion to postpone the sentencing hearing and directed the parties to brief the issues of the

appropriate guideline ranges, consecutive sentences and upward departure. Motion to Postpone

Sentencing Hearing, May 23, 2006, Tr. at 22.

       The trial court also relied on testimony from the sentencing hearing held on June 12, 2006,

in denying the motion to withdraw the plea. Motion to Withdraw Plea Hearing Tr. at 45-46. At the

sentencing hearing, the trial court allowed both parties to present argument as to the proper sentence

to be imposed on Rinckey. Id. Defense counsel acknowledged that the sentencing guidelines were

“accurately scored,” but argued that it was improper for the court to consider the two dismissed

charges when sentencing Rinckey because they were unrelated to the home invasion to which

Rinckey pled guilty. Counsel also asked for leniency due to the fact that, although Rinckey was still

part of the conspiracy, he was not present when Kalbfleich was murdered in the Odell home by

Locklear. Defense counsel also represented to the state trial court that “Mr. Rinckey understands[]

that it’s completely within your discretion to sentence him consecutively and that’s what you intend

to do.” Sentencing Hearing, June 12, 2006, Tr. at 15. At the close of defense counsel’s argument

and request for leniency, the court asked Rinckey if he had anything to add before sentencing, to

which Rinckey replied no. Id. at 19. The trial court then went on to explain thoroughly the

reasoning behind its decision to sentence Rinckey to consecutive sentences of 75 months to 20 years

for the first-degree home invasion and 57 months to 15 years for the conspiracy to commit second-

degree home invasion.

       In explaining its reasons for denying the motion to withdraw the plea and the request for an

evidentiary hearing, the state trial court reviewed testimony from each of the previous hearings and

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No. 11-1885

stated that it could find no “indicia on the record to indicate that something untoward or improper

may have happened or poor lawyering might have occurred[.] I look for some hint that along the

way there was a concern or there might have been some misunderstanding . . . . I have zero instances

where Mr. Rinckey has raised any concern with counsel . . . .” Motion to Withdraw Hearing Tr. at

49-51.

         Our review of the law regarding ineffective assistance of counsel during plea negotiations,

coupled with the factual findings by the state trial court that Rinckey’s trial counsel advised him of

the possibility of receiving consecutive sentences, leads us to conclude that Rinckey has not shown

that his counsel’s performance was deficient. Rinckey pled guilty to the two home-invasion charges,

the plea agreement made no mention of sentencing, the state trial court informed him of the

maximum sentence for each count during his plea agreement, and Rinckey made no indication at

either the plea hearing or his sentencing hearing, even when directly asked by the judge, that he was

dissatisfied with his counsel’s representation or that he wanted to withdraw his plea. He told the

state trial court at his plea hearing that no promises had been made to him outside of what was in the

plea agreement. The record indicates that consecutive sentencing was contemplated from the start

and Rinckey’s counsel argued against it, including filing briefs on that specific issue before

sentencing.2



         2
        In his briefs filed in our Court, Rinckey makes numerous references to an “upward
departure” in his sentence. The state trial court specifically stated it did not impose an upward
departure, Motion to Withdraw Plea Hearing Tr. at 45 (“I did decide to not provide for an upward
departure . . . .”). The state-court record clearly demonstrates that the sentence for each crime was
within the applicable guideline range.

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No. 11-1885

       Rinckey further claims that in pleading guilty he relied on trial counsel’s underestimation of

the guideline range, false assurances that the charges dismissed under the plea bargain could not be

considered in sentencing, and counsel incorrectly informing him that he could not withdraw his

guilty plea prior to sentencing. As with the consecutive-sentencing issue, the record belies Rinckey’s

assertions. At the plea hearing, Rinckey denied that he had been promised anything beyond what

was in the plea agreement, and the plea bargain is silent as to sentencing. At the plea hearing, the

trial court correctly set out the ranges and maximum sentences Rinckey faced for each count. As to

underestimating the guideline range, defense counsel agreed at the sentencing hearing that the

guideline calculations were correct. Sentencing Hearing Tr. at 9 (“We have reviewed the sentencing

guideline range and scoring . . . . [W]e find them to be accurately scored.”). Rinckey did not

indicate to the trial judge at any time that he had a different understanding. As to Rinckey’s claim

that trial counsel incorrectly advised him that he could not withdraw his plea prior to sentencing, the

Michigan trial court made a specific finding when denying the motion to withdraw the plea that he

had “no objective indicia” from the sentencing hearing that Rinckey wished to withdraw his plea,

even after questioning him about whether he was satisfied with the representation he had received

and offering him the opportunity to say anything he liked. Motion to Withdraw Hearing Tr. at 53-54.

As with the consecutive-sentencing issue, these other allegations of ineffective assistance of counsel

by Rinckey were also properly rejected by the state trial court.

       The state trial court did not err in refusing to hold an evidentiary hearing. The state trial court

carefully went over the record during the hearing on the motion to withdraw the plea and found

nothing that would indicate Rinckey was unaware that he faced consecutive sentences or that his

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No. 11-1885

counsel told him he could not withdraw his plea. In particular, he stood before the state trial judge

at both his plea hearing and at sentencing and gave no indication that he was surprised at his sentence

or that he wanted to withdraw his plea, even when directly asked by the judge if he wanted to say

anything. An evidentiary hearing was not needed in the face of the state-court record. See

Blackledge v. Allison, 431 U.S. 63, 73-74 (1977) (“The subsequent presentation of conclusory

allegations unsupported by specifics is subject to summary dismissal, as are contentions that in the

face of the record are wholly incredible.”).

        Rinckey argues in his reply brief that two affidavits, one from him and one from his mother,

were admitted into evidence by the state trial court and should be considered as evidence to support

his claims that he was unaware of the possibility of consecutive sentences and that his trial counsel

told him he could not withdraw his plea at sentencing. Rinckey also argues that the affidavits

support the need for an evidentiary hearing on his ineffective assistance of counsel claim. However,

the state trial court did not find them to be proper affidavits under Michigan law, but stated that even

if it accepted the affidavits, they would not provide sufficient factual support for the relief sought,

including holding an evidentiary hearing. Motion to Withdraw Plea Hearing Tr. at 52-53.

        Rinckey cannot show that his trial counsel’s performance was ineffective. The record shows

that consecutive sentences were discussed from the early stages of the case and continued right up

through sentencing. The terms of the plea bargain included only for Rinckey to plead guilty to the

two offenses concerning the Odell home invasions and for dismissal of the two unrelated charges.

Rinckey stated in open court that there were no additional promises made that were not on the

record. He told the Michigan trial court that he was satisfied with his counsel’s representation.

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No. 11-1885

       Due to the lack of a finding of deficiency on the part of counsel, the district court did not

address whether Rinckey was prejudiced. Mem. and Order at 18 . We agree with the district court’s

finding that the Michigan trial court’s conclusion that Rinckey’s counsel informed him of the

possibility of receiving consecutive sentences. We also agree with its conclusion that counsel’s

performance was not otherwise deficient based on the state-court record. We do not therefore review

the prejudice prong except to note that Rinckey does not claim that he would have rejected the plea

and gone to trial had he known about the consecutive sentences. As the Michigan trial court pointed

out, the plea Rinckey accepted was a “pretty good deal” as he faced a far longer sentence had he gone

to trial and been convicted of all the charges against him, which included the two to which he pled

guilty and the serious charges that were dismissed under the plea agreement.

       For the foregoing reasons, we affirm the judgment of the district court.




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