The opinion of the court was delivered by: Honorable Anna Diggs Taylor
OPINION AND ORDER DENYING THE HABEAS CORPUS PETITION, BUT GRANTING IN PART A CERTIFICATE OF APPEALABILITY AND GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
Petitioner James Everett has filed a pro se application for the writ of habeas corpus pursuant to 28 U.S.C. § 2254. The habeas petition challenges Petitioner's Wayne County conviction for second-degree murder. Respondent argues in an answer to the petition that Petitioner's claims are barred from substantive review by his failure to raise the claims on direct review of his conviction. The Court agrees that Petitioner's claims are procedurally defaulted. Accordingly, the petition will be denied.
Petitioner was charged with second-degree murder and possession of a firearm during the commission or attempt to commit a felony. The charges arose from the fatal shooting of Latesha Lewis in Detroit early on December 23, 1995. The evidence at trial established that, in the latter part of 1995, Petitioner, Kelly Nobles, Earnest Dickerson, and Christopher May were friends, who sold cocaine out of a house on Faircrest Street in Detroit. At some point, Petitioner had a dispute with Earnest Dickerson and Kelly Nobles. On or about December 22, 1995, Petitioner and Christopher May were outside selling drugs when Earnest Dickerson told Petitioner that he could not be doing that. Petitioner replied that he had started the enterprise and that he had a right to be doing it there. Dickerson then went in the house, came out with a rifle, and started shooting at Petitioner. Some of the gunshots hit Petitioner's car. Petitioner became angry and said that something had to be done.
Christopher May subsequently saw Petitioner on Faircrest Street with two other men. He was armed with an AK-47 rifle, and he said that they were going to shoot up the house and throw cocktails (firebombs) in the back of the house. Petitioner warned Ms. Lewis, who sold drugs out of the house on Faircrest Street, to stay away from there. He also asked Ms. Lewis's sister and another person to warn Ms. Lewis to get out of the house. The reason he gave for the warning was that he was going to "plug the house up," which meant that he intended to shoot it up. That same night, the house was shot up and Ms. Lewis was killed by four gunshots as she was lying on a couch on the first floor. Earnest Dickerson was upstairs and returned fire.
Kelly Nobles, who spent the night in the house, saw Petitioner ride slowly by the house in his car moments after the shooting. Petitioner was seated in the front passenger seat. His cousin, Charlie Grace, was driving the car, and there were unidentified people in the back seat. Mr. Nobles concluded that the gunshots had come from Petitioner's car, and he informed the police that Petitioner had shot up the house. Petitioner acted surprised the next day when he learned that Ms. Lewis was dead. He disappeared from Detroit shortly afterward.
Petitioner's defense was that he was in Albany, New York at the time of the shooting. He produced three witnesses (his mother, brother, and sister), who testified that they picked him up in Detroit on or about December 16, 1995, and took him to New York for his niece's first birthday party. They claimed that Petitioner remained in New York until February or March of 1996 and then moved to Mississippi.
Petitioner was charged with the crime about a year after it occurred, and his trial commenced three years after the arrest warrant was issued. On November 24, 1999, a Wayne County Circuit Court jury acquitted Petitioner of the felony firearm charge, but found him guilty of murder in the second degree, Mich. Comp. Laws § 750.317. The trial court sentenced Petitioner to imprisonment for twenty-five to fifty years.
On direct appeal from his conviction, Petitioner alleged through counsel that: (1) the trial court erred by admitting evidence that Petitioner was "on the run" at the time of the crime; (2) the trial court erred by giving a jury instruction on flight; (3) the trial court failed to instruct the jury on voluntary manslaughter; alternatively defense counsel was ineffective for failing to argue how the instruction was supported by the facts; and (4) the sentence was disproportionate to the offense and to the offender. The Michigan Court of Appeals found no merit in these claims and affirmed Petitioner's conviction in an unpublished, per curiam opinion. See People v. Everett, No. 225986 (Mich. Ct. App. May 31, 2002). Petitioner raised the same claims in an application for leave to appeal in the Michigan Supreme Court. On February 28, 2003, the state supreme court denied leave to appeal because it was not persuaded to review the issues. See People v. Everett, 658 N.W.2d 486 (Mich. 2003).
Petitioner subsequently raised all his habeas claims in a motion for relief from judgment. The trial court denied his motion, and the Michigan Court of Appeals denied leave to appeal for failure to establish entitlement to relief under Michigan Court Rule 6.508(D). See People v. Everett, No. 270063 (Mich. Ct. App. Nov. 9, 2006). On October 17, 2007, the Michigan Supreme Court denied leave to appeal for the same reason. See People v. Everett, 739 N.W.2d 625 (Mich. 2007).
Petitioner filed his habeas corpus petition on October 25, 2007. His claims are:
I. Appellant James Everett's convictions should be vacated since they were obtained in violation of his constitutional right to a speedy trial.
II. Appellant Everett's conviction for murder in the second degree should be vacated where the charge was not brought to trial within 120 days or 180 days pursuant to the Interstate Agreement on Detainers Act (IAD) and appellant was returned to the original place of imprisonment in violation of the anti-shuttling provisions of the IAD and his right to a speedy trial.
III. The Wayne County prosecutor's decision not to bring appellant Everett to trial within the 120 days as mandated by the Interstate Agreement on Detainers Act (IAD) on the original state warrant requires the vacating of his murder in the second degree conviction obtained in violation of his right to a speedy trial.
IV. Appellant James Everett was denied his right to effective assistance of counsel guaranteed him by the federal and state constitutions at trial and seeks an evidentiary hearing pursuant to People v. Ginther, 390 Mich. 473 (1973) and a new trial.
V. Appellant Everett was denied a fair jury trial by the judge's lack of impartiality at trial contrary to both the federal and state Constitutions.
VI. The prosecutor's misconduct through the trial violated defendant James Everett's right to due process of law and a fair trial as guaranteed by both the federal and state constitutions.
VII. The trial court's erroneous jury instruction deprived appellant Everett of his due process right to a properly instructed jury and a fair trial.
VIII. Appellant Everett's conviction of guilty for murder in the second degree should be vacated since the guilty verdict was against the great weight of the evidence.
IX. The evidence was insufficient as a matter of law to support defendant James Everett's conviction for murder in the second degree as required by the Due Process Clause.
X. The trial court clearly erred in finding the prosecution used due diligence . . . to produce endorsed res gestae [witness] Lisa Ward at trial and refus[ing] a due process hearing on another missing res gestae witness Earnest "Jodie" Dickerson and denied defendant Everett of a fair trial.
XI. Appellant Everett was denied his right to a fair trial in violation of due process where the court allowed the prosecutor to use rebuttal testimony to interject irrelevant and prejudicial evidence.
XII. Appellant James Everett is entitled to relief from judgment where he is actually innocent of the murder charge and his appellate counsel de[prived] him of his right to effective assistance of counsel under the Sixth and Fourteenth Amendments.
Respondent contends that Petitioner's claims are procedurally defaulted because he failed to raise the claims on direct appeal from his conviction. A claim is procedurally defaulted and may not be considered by a federal court on habeas review "[w]hen a habeas petitioner fails to obtain consideration of a claim by a state court, either due to the petitioner's failure to raise that claim before the state courts while state-court remedies are still available or due to a state procedural rule that prevents the state courts from reaching the merits of the petitioner's claim." Seymour v. Walker, 224 F.3d 542, 549-50 (6th Cir. 2000) (citing Wainwright v. Sykes, 433 U.S. 72, 80, 84-87 (1977), and Picard v. Connor, 404 U.S. 270, 275-80 (1971)). Three elements must be satisfied before a claim may be considered procedurally defaulted: "(1) the petitioner failed to comply with a state procedural rule that is applicable to the petitioner's claim; (2) the state courts actually enforced the procedural rule in the petitioner's case; and (3) the procedural forfeiture is an 'adequate and independent' state ground foreclosing review of a federal constitutional claim." Willis v. Smith, 351 F.3d 741, 744 (6th Cir. 2003) (quoting Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986)).
A. The State Procedural Rule
Michigan Court Rule 6.508(D) is the state procedural rule at issue here. Subsection 3 of this rule prohibits state courts from granting relief from judgment if the defendant alleges non-jurisdictional grounds that could have been raised on appeal from the conviction. An exception exists when the defendant demonstrates "good cause" for the failure to raise such grounds on appeal and "actual prejudice from the alleged irregularities." Mich. Ct. R. 6.508(D)(3)(a) and (b). Petitioner violated this rule by failing to raise the majority of his habeas claims on direct review of his conviction. The only habeas claim that Petitioner raised on direct appeal from his conviction is his claim that the trial court should have instructed the jury on manslaughter. He raised all his other claims for the first time in his motion for relief from judgment.
The state courts, moreover, enforced Rule 6.508 on state collateral review of Petitioner's conviction. The trial court, the Michigan Court of Appeals, and the Michigan Supreme Court rejected Petitioner's claims on the basis of Rule 6.508(D). The state courts' reliance on Rule 6.508(D) is a sufficient basis for this Court to conclude that the orders were ...