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Leonard v. Wolfenbarger

April 16, 2010

JOSEPH JOHN LEONARD, PETITIONER,
v.
HUGH WOLFENBARGER, RESPONDENT.



The opinion of the court was delivered by: Patrick J. Duggan United States District Judge

OPINION AND ORDER

At a session of said Court, held in the U.S. District Courthouse, Eastern District of Michigan, on April 16, 2010.

PRESENT: THE HONORABLE PATRICK J. DUGGAN U.S. DISTRICT COURT JUDGE

Petitioner, a Michigan prisoner, has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is challenging his January 14, 2004 conviction of assault with intent to murder in violation of Michigan Compiled Laws Section 750.83, following a jury trial in the Circuit Court for the County of Macomb, Michigan. On February 25, 2004, the trial court sentenced Petitioner to a term of imprisonment of 135 months to 20 years. The Michigan Court of Appeals affirmed Petitioner's conviction and sentence on December 29, 2005. People v. Leonard, No. 254492, 2005 WL 3556116 (Mich. Ct. App. Dec. 29, 2005) (unpublished opinion). The Supreme Court denied Petitioner's application for leave to appeal on July 31, 2006. People v. Leonard, 476 Mich. 855, 717 N.W.2d 887 (2006). On February 23, 2007, Petitioner filed his petition for a writ of habeas corpus.

Petitioner asserts six grounds in support of his request for habeas relief, which he summarizes as follows:

1. . . . The prosecutor presented insufficient evidence to support a finding that Mr. Leonard was guilty beyond a reasonable doubt of assault with intent to commit murder, because evidence that Mr. Leonard specifically intended to kill was lacking.

2. . . . Petitioner was deprived of the effective assistance of counsel at trial due to counsel's (a) failure to investigate (b) failure to file a motion for discovery (c) failure to raise a substantial defense (d) failure to obtain the services of an independent/defense medical expert (e) failure to object (f) failure to obtain and present [his] arrest/booking photo (g) failure to impeach key prosecution witnesses with prior inconsistent statements and testimony [and] (h) failure to request jury instructions on lesser included offense.

3. . . . The trial judge denied the defendant his right to a fair trial and right to effective assistance of counsel by informing him to "either accept this appointed counsel or represent yourself" thereby refusing to even consider any future request for substitution of counsel, regardless of "good cause showing."

4. . . . Petitioner was denied his state and federal constitutional rights to present a defense, to a fair trial and his right to confrontation, where the trial judge refused his request to recall two key prosecution witnesses to impeach them with their prior inconsistent statements and testimony.

5. . . . The Court reversibly erred by admitting expert testimony which was unreliable, speculative, and which failed to assist the trier-of-fact in understanding the evidence or determining a fact in issue as required under [Michigan Rules of Evidence] 403, 702, and 703.

6. . . . The prosecutor denied Petitioner a fair trial by "testifying" as to facts not in evidence.

Respondent filed an answer to the petition on October 22, 2007, arguing that Petitioner's claims lack merit or are procedurally defaulted. On January 7, 2009, this Court referred the matter to Magistrate Judge Mona K. Majzoub for a report and recommendation with respect to the petition.

On January 20, 2010, Magistrate Judge Majzoub issued her Report and Recommendation (R&R), in which she recommends that this Court deny Petitioner's application for a writ of habeas corpus. Magistrate Judge Majzoub concludes that there is no merit to the grounds raised in the petition. At the conclusion of her R&R, Magistrate Judge Majzoub advises the parties that they must file any objections to the R&R within ten days after ...


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