The opinion of the court was delivered by: Honorable Thomas L. Ludington
ORDER ADOPTING REPORT AND RECOMMENDATION, OVERRULING PETITIONER'S OBJECTIONS, DENYING PETITION FOR WRIT OF HABEAS CORPUS, AND GRANTING IN PART AND DENYING IN PART A CERTIFICATE OF APPEALABILITY AND PERMISSION TO PROCEED IN FORMA PAUPERIS ON APPEAL
On January 26, 2007, Petitioner William Motten filed a petition for writ of habeas corpus challenging the constitutionality of his conviction for two counts of assault with the intent to murder, felon in possession of a firearm, and felony firearm. The charges stem from a shooting at an "after hours" gambling and drinking establishment on May 20, 2000. A disputed bet on a craps game led to an altercation, which ended with three men shot, one fatally.
On June 26, 2001, police issued an arrest warrant for Petitioner's arrest. Along with the four crimes mentioned above, Petitioner was also charged with first degree murder. After a March 2002 trial, a jury acquitted Petitioner of the first degree murder charge, but could not reach a verdict on the remaining charges. The trial judge declared a mistrial as to the four counts that the jury was unable to reach a verdict. Counsel did not object to the declaration of a mistrial.
On May 28, 2002, a second trial commenced before the same trial judge on the remaining charges. The trial court again concluded that the jury was deadlocked, and declared another mistrial. Again, neither party objected to the declaration of mistrial. The trial judge, however, recused himself from the third trial.
On September 30, 2002, a third trial commenced with the jury finding Petitioner guilty of two counts of assault with the intent to murder, felon in possession of a firearm, and felony firearm. Each assault with the intent to murder charge carried a maximum sentence of life imprisonment, the felon in possession of a firearm charge a maximum of five years imprisonment, and the felony firearm charge carried a mandatory consecutive sentence of two years. On October 24, 2002, Petitioner was sentenced to a term of imprisonment of 285 to 700 months for each of the assault charges, three to five years of imprisonment for the felon in possession charge, and a mandatory two-year term of imprisonment for the felony firearm charge.
Petitioner appealed his conviction and sentence to the Michigan Court of Appeals, arguing that (1) the prosecution did not meet its evidentiary burden to convict him of the assault with intent to murder charges, (2) his conviction violated his rights under the Double Jeopardy Clause of the Fifth Amendment, (3) the trial judge erroneously permitted evidence regarding the death of one victim, and (4) the trial judge erroneously considered the killing of one victim as an aggravating factor at sentencing, in violation of the United States Supreme Court's decision in Blakely v. Washington, 542 U.S. 296 (2004).
On July 20, 2004, the Michigan Court of Appeals affirmed Petitioner's conviction, concluding that the assault charges were supported by sufficient evidence, the decision to declare a mistrial following the second trial was not plain error, and the trial court properly admitted evidence of the death of one of the alleged victims. Notwithstanding those conclusions, the appellate court remanded the case to the trial court to reconsider the sentence in light of Blakely. After reconsideration, the trial court imposed the same sentences, concluding that Blakely did not apply.
Petitioner sought a writ of habeas corpus from this court on January 26, 2007. His petition advances three challenges to his conviction and sentence. First, he contends that the third trial violated his right not to "be twice put in jeopardy of life or limb" for the same offense. U.S. Const. Amend. V. Second, Petitioner contends his rights under the due process clause were violated because the prosecution did not present sufficient evidence to support the assault with intent to commit murder convictions. Finally, Petitioner asserts that the trial judge violated Petitioner's due process rights when it considered evidence that one of the alleged victims died as a result of the shooting, even though he had been acquitted of murder.
On August 3, 2007, Respondent answered the petition. Respondent argues that Petitioner's double jeopardy claim was procedurally defaulted when he did not object at the trial court level to the declaration of a mistrial. Second, Respondent contends the state court adjudication of Petitioner's sufficiency of the evidence claim did not result in an unreasonable application of clearly established Supreme Court precedent. Finally, Respondent asserts that Petitioner's sentence did not violate Blakely because Michigan employs an indeterminate sentencing framework-distinguishable from the circumstance in Blakely.
On referral from this Court, Magistrate Judge Michael J. Hluchaniuk issued a report and recommendation that the Court deny the petition, largely adopting Respondent's arguments. Petitioner timely objected to the report and recommendation. While partly for an alternative reason, the Court will ADOPT the report and recommendation and DENY the petition for a writ of habeas corpus. The Court will, however, issue a certificate of appealability as to the double jeopardy claim and permit Petitioner to proceed in forma pauperis on appeal of that claim.
As introduced above, Petitioner was suspected of shooting three men after an altercation at an "after hours" gambling establishment. According to witnesses, Petitioner became upset over a disputed twenty dollar bet on the dice game "craps." Shortly thereafter, gunfire broke out and three men working at the club were shot -- Lorenzy Henson, Charles Mickle, and Edward Jarrett. Jarrett died as a result of his wounds, but Henson and Mickle each survived. The prosecution theorized that Petitioner, incensed by the dispute, gunned down the three men because they were employees of the after hours club.
On March 26, 2002, Petitioner was tried on five felony counts. After the conclusion of proofs, argument, and instructions, the jury began deliberation at 10:57 a.m. on March 28, 2002. See Tr. Mar. 28, 2002 at 83--84. At 1:36 p.m., the testimony of Henson, Mickle, and a customer, Robert Huber, were replayed at the jury's request. Id. at 83--149. At 2:36 p.m., the jury reinitiated deliberations, however, with a substitute juror. Id. at 149.
At 3:55 p.m., the court reconvened in the presence of the jury to address the following note from the jury: "Do we have to be unanimous on all five counts?" Id. The court provided the following instruction to the jury: "I explained that you must be unanimous, but you don't have to be consistent. You can find him not guilty of all counts, you can find him guilty of all counts, or guilty of some and not guilty of others. But it has to be unanimous." Id. at 149--50. The foreperson indicated that the jury had not reached a unanimous verdict on any count. Id. In light of the late hour of the day, the court dismissed the jury and instructed the jury to return the following morning to continue deliberations. Id.
At the conclusion of that day, defense counsel made the following criticism of the court's direction to the jury: "You can't tell them, well, I'm sorry, the Court can tell them anything the Court wants. But I don't think it's appropriate to tell them they have to stay in until they reach a verdict, because -- " Id. at 1511. Apparently, counsel and the jury expressed some concern because March 29, 2002 was Good Friday. In response, the Court summoned the jury and provided the following clarification regarding the time for deliberation:
[T]he Court will be open tomorrow. In fact, everybody who works for the Court has to stay here until 12 or 12:30. . . . [The jury will continue deliberating] [u]nless you have finished your business before that [time]. But I'm not saying that you have to do something by a certain time. I want that to be understood. . . .
But if you haven't [reached a verdict], you know, we'll just come back until we've, you know. I'm not trying to say that we're going to keep you in there on bread and water or anything lake that. But we'll be open until 12:30.
But I'm not limiting you to that, either. I don't want you to think that you have to do it by a certain time; I'm just telling you what time the court closes.
After excusing the jury, the following exchange took place:
The Court: Okay. The note that you want me to put on the record said, "We know that we will not be unanimous on any given count."
So, what they're asking us is if we can discharge them. And I've stated to them they have to keep deliberating.
Ms. Reed: Your honor, I believe there is a deadlock jury instruction. And if that's the note they sent out, then I would request that they get the deadlock jury instruction.
The Court: I hate to do that, because, it looks --
Ms. Reed: I didn't make a request --
The Court: -- coercive, you know. They're going to do what they want to do.
And by saying something like that only creates an appellate issue, that I'm trying to say. (a), the minority should listen to the majority, or whatever that is. I don't like to do that. They already know what the evidence is, you know.
But anyway, we'll let them go back in first thing tomorrow. Id. at 153--54.
Although the Rule 5 materials do not include a transcript of the proceedings conducted on May 29, 2002, the parties agree that certain events occurred. First, the Court did provide a "deadlocked jury instruction." See Pet. at 11. Michigan Courts often employ a standard instruction when encouraging juries to continue deliberations. It provides:
(1) You have returned from deliberations, indicating that you believe you cannot reach a verdict. I am going to ask you to please return to the jury room and resume your deliberations in the hope that after further discussion you will be able to reach a verdict. As you deliberate, please keep in mind the guidelines I gave you earlier.
(2) Remember, it is your duty to consult with your fellow jurors and try to reach agreement, if you can do so without violating your own judgment. To return a verdict, you must all agree, and the verdict must represent the judgment of each of you.
(3) As you deliberate, you should carefully and seriously consider the views of your fellow jurors. Talk things over in a spirit of fairness and frankness.
(4) Naturally, there will be differences of opinion. You should each not only express your opinion but also give the facts and the reasons on which you base it. By reasoning the matter out, jurors can often reach agreement.
(5) When you continue your deliberations, do not hesitate to rethink your own views and change your opinion if you decide it was wrong.
(6) However, none of you should give up your honest beliefs about the weight or effect of the evidence only because of what your fellow jurors think or only for the sake of reaching agreement.
Mich. Crim. Jury Instruction 3.12. After two hours of deliberation, the jurors reached a unanimous not-guilty verdict with respect to the first degree murder charge, but were unable to agree on the remaining counts. The Court declared a mistrial with respect to the four remaining counts. There is no indication that counsel for Petitioner objected to that decision.
On May 28, 2002, the Petitioner stood trial for the four remaining counts. At 11:40 a.m. on May 30, 2002, the Court concluded instructions and the jury began deliberations. Tr. May 30, 2002, at 126. At 2:12 p.m., the jury, by note, asked to review certain testimony and the Court obliged the request. Id. At 2:41 p.m., the jury continued deliberation. Id. at 155.
At 3:00 p.m., the Court and the jury reconvened to address an apparent jury question regarding the elements of assault with the intent to commit murder. Id. at 155--56. The trial judge answered concisely, stating in part "[i]f he fired a gun at that man, and he intended to kill him when he shot that gun, find him guilty. If he didn't shoot it and he didn't intend to kill him, then find him not guilty. I can't really give you any instructions other than that." Id. at 156. The jury resumed deliberations at 3:01 p.m., and proceedings reconvened at 3:59 p.m. The Court offered the following communication to the jury:
Okay. Ladies and gentlemen, I know that you've been working hard. However, in times [sic] of deliberation, there really hasn't been a lot.
And you know, it's quite expensive and time consuming to try cases.
So, I think that under the circumstances, when you listen to each other and you deliberate a little bit more on this case, maybe you will come to a consensus, and maybe ...