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Allen v. Howes

October 29, 2008

CHARLES MASON ALLEN, PETITIONER,
v.
CAROL R. HOWES, RESPONDENT.



The opinion of the court was delivered by: Hon. Bernard A. Friedman

OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

Charles Mason Allen, ("Petitioner"), presently confined at the Lakeland Correctional Facility in Coldwater, Michigan, seeks the issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his application, filed by attorney Marla R. McCowan of the State Appellate Defender Office, petitioner challenges his conviction and sentence for second-degree murder, M.C.L.A. 750.317. For the reasons stated below, the Court will deny the application for writ of habeas corpus.

I. Background

Petitioner was convicted of the above charge following a jury trial in the Wayne County Circuit Court. Petitioner's counsel has provided a detailed statement of facts in the petition for writ of habeas corpus. The Court will therefore accept the factual allegations contained within the habeas petition insofar as they are consistent with the record, because the respondent has not disputed them. See Dickens v. Jones, 203 F. Supp. 2d 354, 360 (E.D. Mich. 2002). Because the facts of this case have been repeated numerous times, they need not be repeated here in their entirety. Therefore, only a brief overview of the facts is required. See Nevers v. Killinger, 990 F. Supp. 844, 847 (E.D. Mich. 1997). As stated by the Michigan Court of Appeals, Defendant's conviction arises from his alleged involvement in the October 6, 1990, shooting death of Niambi Kumasi. Alvin Smith testified that, in October 1990, he was "selling drugs" out of his Manor Street house in Detroit, and learned from his customers that neighborhood rival drug dealers were "undercutting" him by selling drugs at a lower price. He indicated that, on October 3, 1990, between 11:30 and 11:45 p.m., he and two associates went to the rival drug dealers' house, located at 20007 Meyers, and, after confirming that no one was in the house, they "[s]hot it up." Smith and his two associates fled in Smith's white Mercury Cougar.

In a statement made to the police, defendant confirmed that, in October 1990, he was selling drugs out of the Meyers house with Robert Issac (a/k/a "Mack"). Mack's associates included Phillip Whitfield, Nate Jennings, and Ronald Williams. Defendant stated that he was not at the Meyers house when the shooting occurred, but a neighbor told him that three people had "shot it up." Defendant called Mack, whom he "work[ed] for," and told him what happened. In response, Mack told defendant that he saw the shooting, that he and Nate tried to return fire as the perpetrators were leaving, and that "we'd get with them in time."

Smith testified that, between 11:00 p.m. and midnight, he was at his Manor home with several associates, including the victim. They heard a knock on the door and, as one of Smith's associates went to answer it, shots were fired into the house. Smith estimated that "at least" forty bullets were fired into the home. Smith attempted to return fire. According to medical evidence, the victim was shot three times, including a fatal shot by a high-powered bullet that struck her skull.

Defendant stated that, when he heard the gunshots, he remarked to his friends "that's probably Mack shooting up the place." Shortly after the shooting stopped, defendant went to Phyllis Weiss' house to use the phone. After leaving Weiss' house, defendant rode down Manor, saw the police, and told his friends "we hit them," and that he "thought Mack and them did it."

Weiss testified that, on October 6, 1990, she allowed defendant to use her phone several times throughout the day. At approximately 10:30 p.m., while defendant was on the phone, Weiss heard him say, "He found out, we're going to take care of it." She further indicated that, ten to fifteen minutes after the shooting, defendant came to her house, "out of breath," "telling [her] to hurry up and open the door and let him in." Defendant used her phone, and she heard him say, "It's been taken care of."

Defendant was arrested on October 8, 1990, on an unrelated drug charge. At that time, he was not charged with second-degree murder. Defendant made a statement to the police in this case on October 10, 1990. Subsequently, defendant was offered immunity from charges in this case in exchange for his testimony against Whitfield, Jennings, and Isaac, who had been charged with first-degree murder in connection with the victim's death. On November 3, 1990, defendant was arraigned on the drug charge, and a preliminary examination was held on November 15, 1990. At the preliminary examination of Whitfield, Jennings, and Isaac, defendant invoked his Fifth Amendment privilege not to testify, and was thereafter released from custody. Defendant then left Michigan. On June 19, 1991, a felony warrant was issued for defendant's arrest for second-degree murder. In May 2001, the Alliance Fugitive Task Force learned about defendant's whereabouts, and obtained a federal Flight to Avoid Prosecution Warrant. On February 8, 2002, FBI agents arrested defendant in Georgia. On April, 25, 2002, defendant was arraigned on the second-degree murder charge, and his trial commenced on March 26, 2003.

People v. Allen, 2005 WL 1489592, at **1-2 (Mich. Ct. App. Jun. 23, 2005) (footnote omitted).

Petitioner's conviction was affirmed on appeal. Id., reconsideration den. No. 248743 (Mich.Ct. App. Aug. 12, 2005); lv. den. 474 Mich. 1026; 708 N.W. 2d 419 (2006). Additional facts will be discussed when addressing petitioner's claims. Petitioner now seeks the issuance of a writ of habeas corpus on the following grounds:*fn1

I. Petitioner's conviction for second-degree murder must be reversed where his trial commenced more than eleven and one half years after the warrant for his arrest issued in violation of his state and federal constitutional rights to a speedy trial.

II. Mr. Allen was convicted on insufficient evidence of 2nd degree murder where the element of intent was not proven beyond a reasonable doubt, viewing all the evidence in a light favorable to the prosecution.

II. Standard of Review

Title 28, § 2254(d) imposes the following standard of review for habeas cases:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim--

(1) 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; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

A decision of a state court is "contrary to" clearly established federal law if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if the state court decides a case differently than the Supreme Court has on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). An "unreasonable application" occurs when "a state court decision unreasonably applies the law of [the Supreme Court] to the facts of a prisoner's case." Id. at 409. A federal habeas court may not "issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Id. at 410-11.

III. Discussion

A. Claim # 1. The Speedy ...


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