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Johnson v. Birkett

March 31, 2010

CORIELLE DEMONT JOHNSON, PETITIONER,
v.
THOMAS BIRKETT, RESPONDENT.



The opinion of the court was delivered by: Honorable David M. Lawson

OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND PETITIONER'S MOTION FOR SUMMARY JUDGMENT

Petitioner Corielle Johnson, presently confined at Baraga Maximum Correctional Facility in Baraga, Michigan, has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, followed by a motion for summary judgment. He was convicted of first-degree murder, Mich. Comp. Laws § 750.316(1)(a), theft of a firearm, Mich. Comp. Laws § 750.357b, felon in possession of a firearm, Mich. Comp. Laws § 750.224f, and three counts of possessing a firearm during the commission or attempt to commit a felony (felony firearm), Mich. Comp. Laws § 750.227b. He was sentenced to concurrent prison terms of life for murder and three to ten years in prison for the larceny and felon-in-possession convictions, and consecutive two-year terms for the felony firearm convictions. The petitioner alleges that he is incarcerated in violation of his constitutional rights to due process of law and effective assistance of trial counsel. The respondent urges the Court to deny the petition on grounds that the habeas claims are not cognizable on habeas review and lack merit. The Court agrees that the petitioner is not entitled to relief. Therefore, the petition and motion for summary judgment will be denied.

I.

The petitioner was charged in Saginaw County, Michigan with open murder, larceny of a pistol, felon in possession of a firearm, and three counts of felony firearm. The charges arose from the fatal shooting of Devon Stinson in Saginaw, Michigan early on December 26, 2004. The prosecution maintained that the petitioner stole a gun from his girlfriend and then shot Stinson, believing that he was the person with whom he had an altercation earlier that night.

The trial began on October 4, 2005. Tamara Darby, the petitioner's girlfriend at the time of the shooting, testified that she had a relationship with the petitioner in December of 2004. At the time, she owned a six-shot,.357 caliber Ruger revolver, which she kept in a lockbox under her bed. The petitioner was aware of the gun and the fact that she occasionally got the gun out at night and put it back in the lockbox in the morning.

At approximately 11:00 p.m. on December 25, 2004, the petitioner left Darby's home to go to a club in Saginaw. About on hour later, Darby received a telephone call from the petitioner who said that he needed to use her bathroom. She let him in the house, and he stayed there about three or four minutes. She did not know whether he went into any room besides her bathroom because she was not watching him. When she asked him why he had left the club before closing hours, the petitioner stated that a fight involving the "Project Boys" had occurred at the club.

The petitioner left Ms. Darby's house and called her a second time about 1:00 a.m. on December 26, 2004. This time, he said that he needed a charger or battery for his cell phone. She had seen those items in her bedroom earlier that day, and after she let him into the house, the petitioner went to her bedroom for two or three minutes. He left the house but returned about twenty minutes later and went to her bedroom where his young daughter was sleeping. Darby retrieved her gun from the bedroom and placed it under the couch where she was seated in the living room.

The petitioner later told Ms. Darby about a rumor that he had called someone and informed the person that his friend would be dead in ten minutes. Within ten minutes a man was found dead. Ms. Darby eventually read about a murder that occurred between 2:30 a.m and 3:00 a.m. on December 26, 2004. She did not believe that the petitioner was involved in the murder because he was back at her home by then. The rumors, however, caused her to become concerned about her and her children's safety. She eventually informed the petitioner that he would have to leave her home. He left her place on January 5 or 6, 2005.

Sometime between January 4 through 7, 2005, Ms. Darby discovered that her gun was missing. She confronted the petitioner with that information because no one else had been in her house. He denied taking her gun, and he denied killing the young man on Dillon Street. He ultimately did admit firing a shot, and she assumed that he had used her gun.

The petitioner's acquaintance, Lyndon Sampson, also testified for the prosecution. The prosecutor established through Sampson's trial testimony, statement to the police, and preliminary examination testimony that about a week after the shooting, the petitioner mentioned to Sampson that he had shot Mr. Stinson by mistake, thinking that he was someone else.

Parole agent Gary Lutkus testified that at the time of the murder, the petitioner was on parole for two drug crimes. Detective Sergeant Ryan Larrison of the Michigan State Police testified that two spent metal jackets found in the vehicle where Mr. Stinson had been shot were fired from the same gun, which could have been a.38 or.357 caliber. He was not given a firearm to test, but he explained that a.357 caliber gun is almost always a revolver. Detective Robert Ruth testified that he investigated rumors about other people being responsible for the crime, but the only information that he was able to corroborate was evidence concerning the petitioner's involvement in the crime.

The petitioner did not testify or present any witnesses. His defense was that the prosecution failed to show he was the actual shooter. The jury found the petitioner guilty of first-degree premeditated murder, larceny of a firearm, felon-in-possession of a firearm, and three counts of felony firearm. The trial court imposed the sentences noted above.

The petitioner moved for a new trial on the ground that his trial attorney was ineffective. The trial court held an evidentiary hearing pursuant to People v. Ginther, 390 Mich. 436, 443-44, 212 N.W.2d 922, 925 (1973) (holding that "[a] defendant who wishes to advance claims that depend on matters not of record can properly be required to seek at the trial court level an evidentiary hearing for the purpose of establishing his claims with evidence as a precondition to invoking the processes of the appellate courts"). The trial court denied the petitioner's motion for new trial, stating that the petitioner's claims of ineffective assistance of counsel were without merit and that the petitioner was not deprived of a trial whose result was fair and reliable.

The petitioner raised his habeas claims in the Michigan Court of Appeals, which affirmed his convictions in an unpublished per curiam decision. See People v. Johnson, No. 267822, 2007 WL 4548288 (Mich. Ct. App. Dec. 27, 2007). On April 28, 2008, the Michigan Supreme Court denied leave to appeal because it was not persuaded to review the issues. See People v. Johnson, 480 Mich. 1191, 747 N.W.2d 306 (2008) (table).

The petitioner filed his habeas corpus petition on October 6, 2008. The grounds for relief are:

I. Mr. Johnson is entitled to a new trial where defense counsel provided constitutionally ineffective assistance by: (1) failing to reveal the source of [the petitioner]'s knowledge of the missing gun; (2) failing to reveal evidence of an automatic weapon through proper cross-examination of Antaurean Jones; (3) failing to exclude irrelevant evidence of bad character.

II. Admission of Tamara Darby's entire video-taped statement represented improper impeachment and prejudicial evidence, violating Mr. Johnson's constitutional rights to due process.

III. Improper admission of Lyndon Sampson's tape-recorded statement and preliminary exam violated the court rules and Mr. Johnson's constitutional rights to due process.

IV. Mr. Johnson's state and federal constitutional due process rights to a fair trial were violated when the jury heard evidence of Lyndon Sampson's successful polygraph exam.

The respondent asserts in an answer to the habeas petition that the petitioner's claims are not cognizable on habeas review and lack merit.

II.

The provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996), which govern this case, "circumscribe[d]" the standard of review federal courts must apply when considering applications for a writ of habeas corpus raising constitutional claims, including claims of ineffective assistance of counsel. See Wiggins v. Smith, 539 U.S. 510, 520 (2003). As amended, 28 U.S.C. § 2254(d) permits a federal court to issue the writ only if the state court decision on a federal issue "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court," or it amounted to "an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(1) & (2); Franklin v. Francis, 144 F.3d 429, 433 (6th Cir. 1998). Mere error by the state court will not justify issuance of the writ; rather, the state court's application of federal law "must have been objectively unreasonable."

Wiggins, 539 U.S. at 520-21 (quoting Williams v. Taylor, 529 U.S. 362, 409 (2000) (internal quotes omitted)). Additionally, this Court must presume the correctness of state court factual determinations. 28 U.S.C. ยง 2254(e)(1) ("In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct."); see also West v. Seabold, 73 F.3d 81, 84 (6th Cir. 1996) ...


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