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Drain v. Ludwick

March 24, 2010

WILLIAM EARL DRAIN, PETITIONER,
v.
NICK LUDWICK, RESPONDENT.



The opinion of the court was delivered by: Honorable Paul D. Borman District Judge

OPINION AND ORDER (1) DENYING PETITION FOR WRIT OF HABEAS CORPUS AND (2) DENYING CERTIFICATE OF APPEALABILITY

Petitioner William Earl Drain filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254. Petitioner is currently incarcerated at the St. Louis Correctional Facility in St. Louis, Michigan and challenges his convictions for second-degree murder, felon in possession of a firearm, and felony firearm. For the reasons set forth below, the Court denies the petition.

I.

Petitioner's conviction arises from the shooting death of Theodus Hinton on November 9, 2005, in the City of Detroit.

Hinton's girlfriend, Dawanda Ramaey testified that she and Hinton were walking down Gunston Street toward Hinton's house when Petitioner walked by them on the sidewalk. She noticed Petitioner because Hinton told her that Petitioner was staring at them. Hinton asked Petitioner what he was staring at. Petitioner and Hinton exchanged words, then Petitioner turned around and shot Hinton. Ramaey testified that neither she nor Hinton were armed.

Antonio Hayes, Hinton's brother, testified that he saw Petitioner and Hinton struggling before the shot was fired. He did not know if the gun was present when the two began struggling. Hayes saw the men arguing and walked toward them from a distance of two to three blocks. As Hayes reached the two men, Hinton was shot. Hayes struggled with Petitioner for the gun, finally wrestling it from Petitioner. Petitioner then fled.

Several eyewitnesses testified. Chartonya Mason initially told police that Petitioner shot Hinton when the men were two to five inches apart, but upon examination by the prosecutor estimated the separation to be approximately six feet. She testified that a second boy approached the men after the gunshot had been fired. LaTonya Garrell testified that Petitioner pulled a gun out of his shirt and shot Hinton. A third man was present, but she gave conflicting testimony about how far away the third man was at the time the shots were fired.

Jennifer Brown testified that she was a passenger in a vehicle driven by Angelita Drake that was traveling down Gunston Street at the time of the shooting. She saw Petitioner, Hinton and Ramaey together at the time of the shooting. She observed Petitioner walk around Hinton and then start arguing with him. She testified Hinton was shot at very close range and was fighting with Petitioner when the shots were fired.

Angelita Drake testified that she was driving her vehicle when the shooting occurred. She saw Petitioner and Hinton struggling together, then heard gunshots.

Detroit Police Officer Michael Carlisle testified that Petitioner gave a custodial statement on the afternoon of November 9, 2005. Petitioner stated that he came upon Hinton and his girlfriend arguing on Gunston Street. After he walked past them, he turned around to look at them because they were arguing. Hinton asked him what he was looking at and threatened him because he was in Hinton's neighborhood. According to Petitioner, Hinton then called to one of his friends to come over. Petitioner told Hinton he did not want any trouble. Hinton's friend continued to approach him, so Petitioner pulled a gun. Hinton punched him in the face, his friend then punched Petitioner in the back of the head. Petitioner stated that this punch to the back of the head caused his gun to accidentally discharge.

Petitioner did not testify at trial.

II.

Following a jury trial in Wayne County Circuit Court, Petitioner was convicted of second-degree murder, felon in possession, and felony firearm. On March 30, 2006, he was sentenced to 28 to 68-1/2 years' imprisonment for the second-degree murder conviction, 3-1/3 to 5 years' imprisonment for the felon in possession conviction, and two years' imprisonment for the felony firearm conviction.

Petitioner filed a motion for a Ginther hearing in the trial court. The trial court denied the motion. People v. Drain, No. 05-12450-01 (Wayne ...


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