The opinion of the court was delivered by: Honorable Denise Page Hood
OPINION AND ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS AND DENYING A CERTIFICATE OF APPEALABILITY AND LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
Michigan prisoner Darnell Bates ("Petitioner") has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his state court convictions for first-degree murder and felony firearm which were imposed following a jury trial in the Wayne County Circuit Court in 1985. Petitioner was sentenced to consecutive terms of life imprisonment without the possibility of parole and two years imprisonment on those convictions. Petitioner has previously and unsuccessfully challenged his convictions on federal habeas review, but the United States Court of Appeals for the Sixth Circuit has granted him leave to file a successive petition. See In re Darnell Bates, Nos. 05-1994/2158 (6th Cir. 2006). In his pleadings, Petitioner raises claims alleging perjured testimony and actual innocence, ineffective assistance of trial and appellate counsel, conflict of interest of counsel, prosecutorial misconduct, and improper jury instructions. For the reasons stated herein, the Court denies the petition for a writ of habeas corpus. The Court also denies a certificate of appealability and leave to proceed in forma pauperis on appeal.
II. Facts and Procedural History
Petitioner's convictions arise from the shooting death of Prince Edward Russell in Detroit, Michigan on February 17, 1985. Petitioner and his brother, Carnell Bates, were convicted of the murder. The Michigan Court of Appeals summarized the trial testimony as follows:
Prince Edward Russell (Prince) is the deceased. Prince was a drug dealer and carried both a gun and a beeper. Prince' s mother, Marie Russell, testified that in the early evening of February 17, 1985, defendant Carnell Bates (Carnell), who she referred to as Twin, came over to her house looking for Prince. Although Prince was not there, Carnell stayed there for approximately one hour with Prince's girlfriend, Melody. When Melody left with Carnell, she took a gun with her. Melody also appeared to be Carnell's girlfriend.
The following morning, at 7:30 a.m., someone called the police to report what appeared to be a dead body in an alley. When the police arrived, they discovered Prince's body wrapped in some blankets and tied with two electrical cords and a rope. Prince died from massive blood loss, the result of multiple gunshot wounds. Prince was shot either twelve or thirteen times, seven times in the chest, twice in the back, twice in the left arm, once in the head, and once in the left leg.
On March 1, 1985, defendant Darnell Bates (Darnell) was arrested following an automobile accident. Detroit Police Officer William Price testified that he initially began following the car in which Darnell was riding because the driver was speeding and ran a stop sign. Immediately after Darnell's vehicle struck another vehicle, Darnell exited on the passenger's side and Price saw him throw a pistol back in the car. This gun was recovered in the car after Darnell's arrest. Detroit Police Officer John Winslow also testified that a brown paper bag with suspected narcotics was recovered from the car. John Journe, the driver of the car, testified that he did not have a gun and that the brown bag belonged to Darnell.
Kip C. Beasley (Kip) testified that he had been granted immunity from prosecution in this case in exchange for his cooperation. Kip stated that he saw Carnell and Melody about 10:30 p.m. on February 17, riding in Carnell's car. Kip then joined the two and as the three rode in Carnell's car, Kip described Carnell as being "hyper---got real aggressive air about his self". Carnell then told Kip that Prince had said he (Prince) was going to kill Carnell and take his spot in the drug operation and that Prince had been cutting up "rocks" and buying guns without Carnell's knowledge. Carnell, very angry and swearing, then told Kip "This guy gotta go... he has to go."
Carnell then stopped the car at a telephone booth and called Prince. Then, he called Darnell. Thereafter, Carnell, Kip, and Melody drove to Prince' s house, but Melody asked to be let out of the car so that Prince would not see her. Carnell drove by Prince's house, went back to the telephone booth and again called Darnell. The group then went to a place on Seven Mile Road and Livernois and Darnell met them there several minutes later. After some discussion, Darnell and Kip took Melody to Darnell's girlfriend's house. The discussion concerned Kip's, Darnell's and Carnell's plans to talk about the narcotics situation alone with Prince. Darnell told Carnell that he (Carnell) should tell Prince that Darnell had been robbed and that they were going to the house on Plainview to get a gun. From there they would go after the "robbers." To make this story more believable, Darnell gave his girlfriend his rings and his money.
After dropping Melody off, Darnell and Kip drove to Prince's house. Carnell followed in his own vehicle. Darnell asked for his gun. Prince claimed the gun was in his house, but before he could go in and get it, Carnell asked Prince to enter his car. Prince complied and, after talking for a few minutes, Carnell and Prince drove off. Darnell and Kip followed.
Darnell then forced Carnell's car to pull over and told Carnell to let Prince go back to his house to get his gun. Prince then retrieved his gun and gave it to Kip. Prince reentered Carnell's vehicle and Kip reentered Darnell's car. Carnell followed Darnell to the Plainview house. Upon arrival, Kip gave Prince's gun to Darnell. Kip already had a weapon. The men entered the home and Darnell pretended to look for a gun.
Then, Carnell pulled out his gun and led Prince to a bedroom. Carnell confronted Prince with the story that Prince was cutting up "rocks" and buying guns and that he was going to kill Carnell. Prince denied these allegations and Carnell hit Prince. Carnell then searched Prince and found money and cocaine. It was at this time that Carnell shot Prince in the left shoulder. After shooting him, Carnell asked Prince if he was okay and resumed the questioning. Prince still denied the allegations and Darnell shot Prince in the leg. Darnell again questioned Prince and then "unloaded." Kip described the situation as "just a steady gun fire from that point on. He (Darnell) shot until he ran out of bullets, I guess." At the same time, Carnell was also shooting until his gun jammed. Carnell then took Kip's gun and shot Prince once or twice more.
Following the shooting, the three men went into the kitchen and drank some beer. After a discussion between the brothers, Darnell handed Kip a gun and told him to shoot Prince, stating, "put two in his head." At this point, Kip and Carnell believed Prince was already dead, but Darnell wanted to make sure. Fearing for his own life, Kip complied and shot Prince in the head. Afterwards, Darnell suggested that they dispose of the body. The men then wrapped Prince's body in some blankets and secured it with two electrical cords and a rope. Before all three men put Prince's body in the trunk of another car, Carnell took Prince's beeper and gathered up some shell casings in order to dispose of them. Subsequently, Prince's body was dumped in the alley.
At trial, the guns were admitted into evidence and identified by Kip as those used in the shooting. Additionally, there was testimony linking a number of spent bullets found at the scene as being shot from those same guns. Moreover, one of the electrical cords used to tie the body had been cut from a fan located in the house. The other cord used in wrapping the body had been cut from a motorized chair which was also located in the Plainview house.
Finally, Carnell testified that he worked for Kip in the drug organization, dropping off cocaine and picking up money on Santa Rosa Street. He stated that he did not carry a gun or any weapon. Although Carnell admitted being at Prince's house on February 17 and leaving there with Melody, he claimed that they left to meet Prince. When Prince failed to show up, he claimed that he took Melody to Darnell's girlfriend's house. After Darnell arrived, both men left, picked up some Chinese food and then returned to Darnell's girlfriend's home. They stayed there until 5:30 a.m. the next morning. Carnell claimed that defendants had not seen Prince that night.
People v. Bates, No. 93152, slip op. at *1-5 (Mich. Ct. App. April 17, 1987) (unpublished).
At the close of trial, the jury convicted Petitioner (and his brother) of first-degree murder and possession of a firearm during the commission of felony. The trial court subsequently sentenced Petitioner to life imprisonment without the possibility of parole on the murder conviction and a consecutive term of two years' imprisonment on the felony firearm conviction.
Following sentencing, Petitioner and his brother filed a joint appeal in the Michigan Court of Appeals raising claims of insufficient evidence and improper jury instructions. The Michigan Court of Appeals affirmed Petitioner's convictions. People v. Bates, No. 93152 (Mich. Ct. App. April 17, 1987) (unpublished). The Michigan Supreme Court denied leave to appeal. People v. Bates, No. 80725 (Mich. June 26, 1987).
Petitioner and his brother then filed a joint petition for writ of habeas corpus in this Court raising the same claims presented to the state courts on direct appeal of their convictions. The Court found that their claims lacked merit and denied the petition. Bates v. Withrow, No. 87-CV-72569-DT (E.D. Mich. Jan. 28, 1988) (Taylor, J.), cert. of prob. cause den. No. 88-1133 (6th Cir. March 31, 1989).
On March 21, 1988, Petitioner filed a motion for leave to file a delayed motion for new trial and for an evidentiary hearing in the state trial court. The trial court conducted a hearing to determine whether trial counsel was ineffective for failing to communicate a plea offer to Petitioner. The court thereafter denied the motion on July 21, 1988. Petitioner filed an application for leave to appeal with the Michigan Court of Appeals, which was granted. The court then affirmed the trial court's decision. People v. Bates, No. 110628 (Mich. Ct. App. Dec. 27, 1988) (unpublished). The Michigan Supreme Court denied leave to appeal. People v. Bates, No. 88068 (Sept. 5, 1990).
Petitioner and his brother then filed their second joint petition for writ of habeas corpus with this Court asserting that trial counsel was ineffective for failing to communicate a plea offer before trial. The Court dismissed the petition as an abuse of the writ. Bates v. Withrow, No. 90-CV-40256-FL (E.D. Mich. March 31, 1992) (Newblatt, J. adopting magistrate judge's report and recommendation), aff'd. No. 92-1487 (6th Cir. Dec. 18, 1992).
In 1994, Petitioner filed a motion for relief from judgment in the state trial court alleging ineffective assistance of counsel, which the trial court denied on February 18, 1994. Petitioner filed an application for leave to appeal with the Michigan Court of Appeals, which remanded the case for an evidentiary hearing. Following the required hearing, the trial court denied the motion on June 1, 1995. Petitioner filed an application for leave to appeal with the Michigan Court of Appeals, which was denied. People v. Bates, No. 173818 (Mich. Ct. App. Oct. 23, 1995) (unpublished). The Michigan Supreme Court denied leave to appeal. People v. Bates, 452 Mich. 874, 552 N.W.2d 173 (July 29, 1996). On May 19, 1997, Petitioner sought permission from the Sixth Circuit to file a successive habeas petition, but his request was denied. In re Bates, No. 97-0162 (6th Cir. Aug. 11, 1997).
On June 2, 2002, Petitioner filed another motion for relief from judgment with the state trial court based upon newly-discovered evidence, Kip Beasley's affidavit, and claiming that trial counsel was ineffective for failing to investigate his case and meet with him and that appellate counsel was ineffective. The trial court denied the motion finding that Beasley's affidavit was unreliable and that Petitioner had not shown that trial or appellate counsel were ineffective. People v. Bates, No. 85-01507 (Wayne Co. Cir. Ct. Sept. 27, 2002). Petitioner filed an application for leave to appeal with the Michigan Court of Appeals, which was denied "for failure to meet the burden of establishing entitlement to relief under MCR 6.508(D)." People v. Bates, No. 251123 (Mich. Ct. App. March 11, 2004). Petitioner then filed an application for leave to appeal with the Michigan Supreme Court, which was similarly denied. People v. Bates, 472 Mich. 851, 691 N.W.2d 455 (Jan. 27, 2005). Petitioner's motion for reconsideration was also denied. People v. Bates, 472 Mich. 897, 695 N.W.2d 72 (April 26, 2005).
Petitioner, through counsel, thereafter filed the instant petition raising the following claims as grounds for relief:
I. He was denied due process where he was convicted on the basis of perjured testimony, where the state court denied an evidentiary hearing and new trial despite newly-discovered evidence proving the perjury.
II. He suffered from deprivation of counsel that was also ineffective assistance of counsel.
III. He suffered from ineffective assistance of counsel on appeal.
IV. His issues from the 1997 petition for habeas corpus should be considered because [the petition] rejected on the basis of untimeliness now known to be incorrect.
V. He should be allowed a successive petition for habeas corpus, and excused from procedural defaults, if any, because of a ...