United States District Court, W.D. Michigan, Southern Division
Daniel Eugene McIntee #216588, petitioner, Pro se, Kincheloe, MI.
For Hugh Wolfenbarger, respondent: Raina Korbakis, MI Dept Attorney General (Appellate), Appellate Division, Lansing, MI.
REPORT AND RECOMMENDATION
Honorable Phillip J. Green, United States Magistrate Judge.
This is a habeas corpus action brought by a state prisoner pursuant to 28 U.S.C. § 2254. Petitioner was convicted in the Monroe County Circuit Court of first-degree home invasion, being a felon in possession of a firearm and possession of a firearm during the commission of a felony. On April 1, 2004, the trial court sentenced Petitioner as a fourth-offense habitual offender to imprisonment of 21to 40 years for the home-invasion conviction, 2 to 10 years for the felon-in-possession conviction and 2 years for the felony-firearm conviction. In his pro se second-amended petition, Petitioner raises the following six grounds for relief:
I. PETITIONER WAS DENIED HIS RIGHT TO A FAIR TRIAL . . . WHEN THE TRIAL COURT REFUSED TO INSTRUCT THE JURY ON THE LESSER INCLUDED OFFENSE OF ENTERING WITHOUT PERMISSION.
II. DEFENDANT WAS DENIED A FAIR TRIAL . . . WHERE THE JUDGE WHO PRESIDED OVER THESE PROCEEDINGS WAS BIASED AND SUBJECT TO DISQUALIFICATION.
III. THE DUE PROCESS CLAUSE . . . WAS VIOLATED TO THE EXTENT THAT THE STATE FAILED TO SUPPLY THE DEFENSE WITH PHOTOGRAPHS AND POLICE REPORTS IN VIOLATION OF BRADY .
IV. PETITIONER WAS DENIED HIS SIXTH AND FOURTEENTH AMENDMENT RIGHT TO THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL . . . .
A. THERE WERE SEVERAL INSTANCES WHERE TRIAL COUNSEL COULD HAVE IMPEACHED SEVERAL OF THE PROSECUTION WITNESSES WITH THEIR PREVIOUS INCONSISTENT STATEMENTS BUT FAILED TO DO SO.
B. TRIAL COUNSEL WAS AWARE OF JUDGE COSTELLO'S BIAS AGAINST PETITIONER BUT FAILED TO MOVE FOR DISQUALIFICATION.
C. AFTER DISCOVERING THE SUPPRESSED EVIDENCE, TRIAL COUNSEL FAILED TO MOVE FOR A CONTINUANCE TO ASSESS THE VALUE OF THE SUPPRESSED EVIDENCE.
V. PETITIONER IS ENTITLED TO RESENTENCING WHERE THE TRIAL COURT'S APRIL 24, 2004 AMENDED SENTENCE WAS ENTERED WITHOUT JURISDICTION RENDERING IT NULL AND VOID.
VI. PETITIONER WAS DENIED HIS SIXTH AND FOURTEENTH AMENDMENT RIGHT TO THE EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.
(Second Am. Pet. 8-16, docket #17.)
Respondent has filed an answer to the petition (docket #26) stating that ground one should be denied because it is noncognizable and meritless, and grounds two through five are procedurally defaulted. Notwithstanding Respondent's decision to rely on procedural default as a basis for denying the petition, federal courts are not required to address a procedural-default issue before deciding against the petitioner on the merits. See Hudson v. Jones, 351 F.3d 212, 216 (6th Cir. 2003) (citing Lambrix v. Singletary, 520 U.S. 518, 525, 117 S.Ct. 1517, 137 L.Ed.2d 771 (1997) (" Judicial economy might counsel giving the [other] question priority, for example, if it were easily resolvable against the habeas petitioner, whereas the procedural-bar issue involved complicated issues of state law."), and Nobles v. Johnson, 127 F.3d 409, 423-24 (5th Cir. 1997) (deciding against the petitioner on the merits even though the claim was procedurally defaulted)). See also 28 U.S.C. § 2254(b)(2) (" An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State."). Where, as here, the procedural default issue raises more questions than the case on the merits, the Court may assume without deciding that there was no procedural default or that Petitioner could show cause and prejudice for that default. See Hudson v. Jones, 351 F.3d 212, 215-16 (6th Cir. 2003); Binder v. Stegall, 198 F.3d 177, 178 (6th Cir. 1999). Accordingly, I have considered each of Petitioner's claims on the merits. Having done so, and applying the AEDPA standards, I find that the petition is without merit. I therefore recommend that the petition be denied.
A. Trial Court Proceedings
The state prosecution arose from an attempted burglary at the home of Deborah Jedryczka and Jason Redmond. Ms. Jedryczka's two children, Courtney and Blake Wyatt, were alone inside the home at the time of the offense. In an amended complaint, Petitioner was charged with one count of first-degree home invasion, one count of felony-firearm, and one count of felon in possession of a firearm. (10/14/03 Prelim. Examination Tr., docket #33.) Petitioner was tried before a jury beginning February 2, 2004, and concluding on February 5, 2004.
Courtney testified that at the time of the events, she was 16 years old and lived at 14836 Briar Hill Road, Ash Township, Monroe County. (Tr. I, 171.) On the morning of June 18, 2003, her house was broken into while she and her younger brother Blake were there alone. (Id. at 171-172.) As Courtney was getting dressed, Blake came upstairs and told her to come quick that there was someone knocking on the door, he did not know who it was and he wanted Courtney to come downstairs. (Id. at 172.) When she got downstairs she heard someone pounding on the living room door. (Id. at 174, 176.) When the pounding stopped Courtney and Blake went into the kitchen where they looked out a small gap in a window curtain. (Id. at 177.) Courtney saw a gray Pontiac, heard it shut off and then saw another man get out of the car. (Id.) The two men started talking. (Id.) She could see the men. (Id.) One was heavyset and was wearing a black sleeveless, muscle-type shirt, and black shorts. (Id.) The second man was thinner and was wearing a blue t-shirt with a left breast pocket, blue jeans and distinctive octagonal-shaped glasses. (Id. at 177-78.) She did not recognize either man. (Id. at 178.)
After she saw the two men talking, she told her brother to go upstairs to his bedroom and look out the window. (Id. at 178.) She got the telephone and ran upstairs after him. (Id.) As she got to the top of the stairs she heard the downstairs north kitchen door slamming against the wall. (Id. at 179.) The door had a wreath with jingle bells on it so she could hear the sound of the jingle bells and realized the door had been opened. (Id.)
After she heard the door slam open she went into her room and called her grandmother. (Id. at 180.) She told her grandmother that the house was getting broken into, she was scared to death and her grandmother needed to send someone quickly. (Id.) She then went into her brother's room and she and her brother hid under the bed. (Id.) She could hear sounds of drawers opening and shutting and the sound of things being rifled through. (Id. at 181.) She could not tell what rooms the men were in, but at one point she knew they were in the master bedroom because that room is directly below her brother's bedroom. (Id.) She heard two sets of footsteps run up the stairwell. (Id. at 182.) They went through her bedroom and the north bedroom and then Blake's bedroom. (Id.) Eventually she heard one of the men say: " Let's get out of here, " and they went back downstairs. (Id. at 184.) While Courtney and Blake were hiding under the bed in Blake's room one of the men came in but she did not see his feet. (Id. at 185.) After the men went downstairs, she and Blake stayed under the bed. (Id. at 186.) Eventually she heard the voice of her Uncle Randy downstairs saying: " Get down on the ground, " and she heard a gunshot fired. (Id.)
After she heard her Uncle Randy's voice, her brother got out from under the bed, grabbed a baseball bat and lead pipe and ran downstairs. (Id. at 187.) She followed after him and when she got downstairs she saw a comforter stacked with their belongings, including guns and jewelry, jammed against the kitchen screen door. (Id. at 187-89.) She pulled it out of the way of the door. (Id. at 189.) She went out onto the porch and saw her uncle and grandfather standing over the two men who were laying on the ground held at gunpoint. (Id. at 190.) Her uncle told her to call the police. (Id. at 191.) Courtney called 911 and the recording of that call was played for the jury. (Id. at 204-205.) The pertinent parts of the conversation between Courtney and the 911 Operator are as follows:
Courtney Wyatt: Hi. Hurry up. We just got broken into, and the guys are right here. Please, we need help.
* * *
Dispatcher: And the people that did it are still there?
Courtney Wyatt: Yes, they're right here.
* * *
Dispatcher: Okay. Do you know these people?
Courtney Wyatt: No, I don't, but please hurry.
(Id. at 205.)
Courtney identified the items that were piled on the comforter that was jammed against the kitchen screen door, including the jewelry items taken from her room, her brother's pellet gun, a large stack of guns, a couple of glass jars filled with coins and a camera. (Id. at 198-201, 213.) Courtney identified the Petitioner and his co-defendant, David McIntee, Petitioner's cousin, as the men she saw being held at gunpoint by her grandfather and uncle. (Id. at 193.)
Blake, who was 13 at the time of the incident, testified consistently with Courtney regarding the events leading up to the break-in, the break-in and the arrival of their uncle and grandfather. (Id. at 244-58, 282.) Blake testified that when the men came up to his room, he saw a pair of shoes when he peeked out from under the bed. (Id. at 257.) On cross-examination, Blake testified that he saw two pairs of shoes while he was hiding underneath the bed. (Id. at 284.) Blake also testified that when he got outside, he talked to his uncle and grandfather, and then his uncle told Courtney to call 911. (Id. at 259.) Courtney called 911 one time and later Blake made two calls to 911. (Id.) The tape of Blake's 911 calls was played for the jury. (Id. at 261-70.) The pertinent parts of the conversations between Blake and the 911 Operator are as follows:
Dispatcher: Can you tell me what kind of car it is?
Blake Wyatt: It's a gray Pontiac.
* * *
Dispatcher: There's two people that broke in?
Blake Wyatt: No, there were more than two, but there's only two left. The others got away.
Dispatcher: Okay. The ones that are there, can you tell me what kind of clothes they're wearing?
Blake Wyatt: Okay. One's kind of fat, and he's got a black -- a black muscle shirt -- black sleeveless.
Blake Wyatt: Black shorts, white socks, and white Reeboks. And the other one's got on a blue tee-shirt, light blue jeans, and red-and-black Nike shirt. And the fat one's got black hair and so does the skinny one, and both of them have glasses, and they both have a bunch of tattoos.
Dispatcher: Glasses and tattoos, okay.
* * *
Blake Wyatt: The fat one's white and the other one's kind of tanned.
* * *
Dispatcher: How many more were there other than these two, do you know?
Blake Wyatt: I don't know. For sure, one black guy, 'cause he was talking like a black guy. There was -- I don't know -- more than two.
* * *
Dispatcher: Do you know anything about who the other person might have been or where they went?
Blake Wyatt: No. They-- They're saying they won't tell. They're saying that their ...