The opinion of the court was delivered by: Honorable Denise Page Hood
OPINION AND ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS, DENYING A CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
Petitioner, Carnell Bates, is a state inmate currently incarcerated at Kinross Correctional Facility in Kincheloe, Michigan. Petitioner was convicted at the conclusion of a Wayne County Circuit Court jury trial of one count of first-degree premeditated murder, Mich. Comp. Laws §750.316; and possession of a firearm during the commission of a felony, Mich. Comp. Laws §750.227b. Petitioner was sentenced to life imprisonment for the murder conviction and a consecutive two year term of imprisonment for the felony firearm conviction. Petitioner has filed a petition for writ of habeas corpus through counsel under 28 U.S.C. §2254. For the reasons that follow, the Court will deny the petition. The Court also denies a certificate of appealability and leave to proceed in forma pauperis on appeal.
Petitioner's convictions arise from the shooting death of Prince Edward Russell in Detroit, Michigan on February 17, 1985. Petitioner and his brother, Darnell Bates, were convicted of the murder. The Michigan Court of Appeals 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:
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).
Following sentencing, Petitioner and his brother, Darnell Bates, filed a joint appeal in the Michigan Court of Appeals raising the following claims:
"I. Was defendant deprived of his right under the 14th Amendment to the United States Constitution and under Section 17, Article I, Michigan Constitution 1963 to have the prosecution prove each and every element of the crime charged against him beyond a reasonable doubt when he was convicted of premeditated murder in the first degree when the prosecution failed to adduce sufficient evidence to convince any rational trier of fact of the element of premeditation beyond a reasonable doubt.
II. Was defendant deprived of his right to due process and a fair trial under the 14th Amendment to the United States Constitution and under Section 17, Article I, Michigan Constitution 1963, when the trial judge gave an erroneous and confusing instruction on the defendant's only defense, that of alibi."
Petitioner and his brother, Darnell Bates, filed a joint reply brief adding the following claim for review on appeal:
I. Whether when the trial judge elected to instruct the jury on the defense alibi, it was his duty to instruct the jury fully and accurately so as not to prejudice the defendant.
The Michigan Court of Appeals issued a consolidated opinion affirming Petitioner and Darnell Bates' convictions. People v. Bates, No. 93152 (Mich. Ct. App. April 17, 1987) (unpublished). Subsequently, Petitioner and Darnell Bates filed a joint application for leave to appeal with the Michigan Supreme Court raising the same issues presented before the Michigan Court of Appeals. The Michigan Supreme Court denied relief. People v. Bates, No. 80725 (Mich. Sup. Ct. June 26, 1987).
Petitioner and Darnell Bates 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 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 then filed an application for leave to appeal with the Michigan Court of Appeals raising the following issues:
"I. Whether defendants were deprived of their right under the 6th Amendment to the United States Constitution and under Section 20, Article I, Michigan Constitution 1963 to effective assistance on trial when their trial counsel failed and omitted to communicate to them the fact that the prosecutor had made a plea bargain offer and the terms thereof.
II. Whether defendants waived the issue presented in their present application and whether they are estopped by laches or any other principle of law from asserting the issue of ineffectiveness of trial counsel as basis for appellate relief."
Leave to appeal was granted. People v. Bates, No: 110628 (Mich. ct. App. Dec. 5, 1988). The Michigan Court of Appeals then affirmed the trial court's decision. People v. Bates, No. 110628 (Mich. Ct. App. Dec. 27, 1989) (unpublished). Petitioner and Darnell Bates subsequently filed an application for leave to appeal with the Michigan Supreme Court and relief was denied. People v. Bates, No. 88068 (Mich. Sup. Ct. Sept. 5, 1990).
Petitioner and Darnell Bates then filed their second joint petition for writ of habeas corpus with this Court asserting the following:
"I. Whether Petitioners were deprived of their right under the Sixth Amendment to the United States Constitution to effective assistance of counsel on trial when their trial counsel failed and omitted to communicate to them the fact that the prosecutor had made a plea bargain offer and the terms thereof."
The Court dismissed the petition without prejudice as an abuse of the writ. Bates v. Withrow, No. 90-CV- 40256-SN (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). Petitioner and Darnell Bates filed a motion for reconsideration which was denied on February 9, 1993. They subsequently filed a joint writ of certiorari in the United States Supreme Court which was also denied.
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. 97-0163 (6th Cir. Aug. 13, 1997).
Petitioner subsequently filed another motion for relief from judgment with the state trial court based upon the following issues: (1) newly-discovered evidence in the form of Kip Beasley's recanting affidavit; (2) lack of subject matter and personal jurisdiction over this case; and (3) deprivation of the right to a fair trial due to the cumulative effect of all the post conviction errors. The trial court denied the motion finding that Beasley's affidavit was unreliable; the trial court was vested with proper jurisdiction; and an insufficient number of errors were found to rise to the level of causing manifest injustice. People v. Bates, No. 85-2957 (Wayne Co. Cir. Ct. April 14, 2004). Petitioner filed an application for leave to appeal with the Michigan Court of Appeals raising the following claims:
I. Where Kip Beasley, the only prosecution witness who testified at trial that he witnessed Mr. Carnell Bates and his twin brother, Darnell Bates shoot and kill the decedent, has now admitted under oath at a post-conviction evidentiary hearing that he perjured himself at the trial; that the defendants were not even present at the time the decedent was shot; and that he himself and and another man committed the murder and disposed of the body; and where the successor trial court denied the motion for new trial without having read the trial transcript and without making a finding that Beasley's recent testimony would not make a different result probable on retrial; the decision of the trial court must be reversed, and a new trial must be granted; or alternatively, this case must be remanded for further proceedings before a different judge with respect whether Beasley's recent testimony would make a different result probable on retrial.
II. This case should be judged under the statutory standards for determining whether "justice has not been done," rather than the more restrictive standards of MCR 6.500."
Relief was denied "for failure to meet the burden of establishing entitlement to relief under MCR 6.508(D)." People v. Bates, No. 263527 (Mich. Ct. App. Feb. 9, 2006). Petitioner then filed an application for leave to appeal with the Michigan Supreme Court raising the same claims and relief was ...