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Flood v. Curtin

March 22, 2010

THOMAS FLOOD, #449350, PETITIONER,
v.
CINDI S. CURTIN, RESPONDENT.



The opinion of the court was delivered by: Honorable John Corbett O'Meara

Magistrate Mona K. Majzoub

OPINION & ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS, DENYING CERTIFICATE OF APPEALABILITY AND GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

Petitioner Thomas Flood is presently confined at Cooper Street Correctional Facility in Jackson, Michigan. He has filed a pro se application for a writ of habeas corpus pursuant to 28 U.S.C. §2254. Petitioner was convicted of assault with intent to do great bodily harm less than murder, Mich. Comp. Laws §750.83; and larceny in a building, Mich. Comp. Laws §750.360. Petitioner was sentenced as a fourth habitual offender, Mich. Comp. Laws §769.12, to concurrent terms of five to fifteen years imprisonment for the assault conviction and two to fifteen years on the larceny conviction. For the reasons that follow, the Court will deny the petition.

I. BACKGROUND

Petitioner's conviction arises from an assault upon Julie McBride and the theft of her cell phone. The state appellate court in this case set forth underlying facts, which are presumed correct on habeas review, see Monroe v. Smith, 197 F. Supp.2d 753, 758 (E.D. Mich. 2001), aff'd. 41 Fed. App'x. 730 (6th Cir. 2002), as follows:

Complainant [Julie McBride], defendant's employer, testified that she terminated defendant's employment and argued with him regarding his final wages. Complainant testified that defendant hit her in the head with a stapler and his hand, and threw a trash can at her, spilling the contents onto her. Subsequently, complainant discovered that a cell phone was missing from her purse.

Defendant admitted that he dumped the contents of the trash can on complaint, but denied that he threw the can at her. He admitted that he took complainant's cell phone, but contended that he did not intend to deprive her of it permanently. He maintained that he took the phone because he believed he was owed a debt. The jury found defendant guilty of assault with intent to do great bodily harm less than murder as a lesser included offense of assault with intent to commit murder, and larceny in a building.

People v. Flood, No: 248157, 2004 WL 2951956 (Mich. Ct. App. Dec. 21, 2004). Petitioner filed an appeal of right and raised the following claims:

"I. Mr. Flood was denied his constitutional rights to a fair trial and to the effective assistance of counsel where his trial attorney asserted to the jury during his closing argument that Mr. Flood was guilty of assault, without any statement on the record that Mr. Flood knew about and voluntarily consented to his counsel's admissions of his guilt.

II. Thomas Flood was denied his federal and state constitutional right to due process of law because the trial judge failed to sua sponte instruct the jury on the defense of claim of right.

III. Defense counsel's failure to request an instruction on the defense of claim of right or to object to the trial judge's failure to instruct on that defense denied Thomas Flood his federal and state constitutional right to the effective assistance of counsel."

Petitioner then filed a pro so supplemental brief with the Michigan Court of Appeals raising the following issues:

"I. Whether Mr. Flood was denied his constitutional right to review and challenge the presentence report?

II. Whether habitual information was erroneous, defective and did the prosecutor establish or meet the burden of proof?

III. Whether the sentence information report assessment scoring of prior record variables and offense variables were erroneously determined and not substantiated by proof by the trier of facts, the jury, beyond a reasonable doubt?"

Following a failed attempt to file a motion for remand and a repetitive pro se filing of an application for leave to appeal with the Michigan Court of Appeals, Petitioner's conviction was affirmed. Id.

Petitioner then filed an application for leave to appeal with the Michigan Supreme Court raising the identical claims as those presented before the Michigan Court of Appeals and added the following new claims for review:

"I. Was defendant denied his constitutional right to a trial by judge or jury when defense informed the court that the court's daughter was a contract employee for the complainant, Julie McBride and the court should disqualify itself for possible bias real or imagin[ed]?

II. Did trial counsel render ineffective assistance of counsel by his failure to investigate, subpoena business records, medical records, call ...


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