United States District Court, E.D. Michigan, Southern Division
ORDER GRANTING PETITIONER'S MOTION TO AMEND (Dkt. #5), DENYING HIS MOTION FOR APPOINTMENT OF COUNSEL (Dkt. #6), AND DENYING HIS MOTION FOR AN EVIDENTIARY HEARING (Dkt. #7)
SEAN F. COX, District Judge.
Petitioner Donald Jamal Isom, proceeding pro se, has filed an application for the writ of habeas corpus under 28 U.S.C. § 2254. The habeas petition challenges Petitioner's state convictions for second-degree murder, conspiracy to commit armed robbery, attempted armed robbery, felon in possession of a firearm, carrying a concealed weapon (CCW), and four counts of possessing a firearm during the commission of a felony (felony firearm). Petitioner alleges that: (1) the trial court erred in denying his objections to the prosecutor's use of peremptory challenges to remove two prospective African-American jurors; (2) there was insufficient evidence to convict him of conspiracy to commit armed robbery; (3) there was insufficient evidence to convict him of felony murder; (4) he was denied a fair trial when a police witness and the prosecutor commented on his silence in the face of questioning; (5) he was denied a fair trial by the improper joinder of two counts; (6) the trial court exceeded the sentencing guidelines range without offering any explanation; (7) trial counsel was ineffective for (a) failing to present a defense of self defense and request a jury instruction on self defense and (b) failing to call or consult an expert witness to rebut the prosecution's theory that Petitioner fired his weapon first; (8) appellate counsel was ineffective for failing to raise a claim about trial counsel's ineffectiveness; and (9) he is entitled to an evidentiary hearing on his claims about trial and appellate counsel.
Currently pending before the Court are Petitioner's motions for permission to amend his habeas petition, for appointment of counsel, and for an evidentiary hearing. A history of Petitioner's case follows as background for his motions, particularly his motion for an evidentiary hearing.
I. Procedural History
The facts leading to Petitioner's convictions have been summarized by the state court as follows:
Defendant's convictions arose out of the attempted robbery of Raychan Williams and the shooting death of Darnell Eiland. The evidence at trial indicated that on the night of the crimes, defendant and Prophet Phillips were driving around with Doretha Ransom. The men went together to Williams's apartment, where Phillips tried to convince Williams to open the door by stating that he wanted to buy drugs. When Williams refused to open the door, defendant pointed a gun at him. Williams jumped away, and defendant and Phillips returned to the car. Shortly thereafter, the three drove to another home, ostensibly to buy drugs. Defendant and Phillips went to the house while Ransom waited in the car. Ransom heard gunshots, and then defendant and Phillips returned to the car. Defendant had been shot in the hand. Defendant gave Phillips a gun, and then Phillips left. Ransom took defendant to the hospital. While defendant was being treated, Eiland's body was found. When the police came to the hospital to investigate defendant's gunshot wound and to determine if the Eiland death was related, defendant fled, but was apprehended shortly thereafter.
People v. Isom, No. 284857, 2010 WL 1404430, at *1 (Mich. Ct. App. Apr. 8, 2010). Following his convictions, Petitioner was sentenced to sixty to ninety years in prison for the murder and conspiracy convictions. He also received five to ten years in prison for the attempted armed robbery, felon-in-possession, and CCW convictions and two years for each felony firearm conviction.
Petitioner raised his first six habeas claims on direct appeal from his convictions and sentences. The Michigan Court of Appeals affirmed his convictions, see id., and on September 9, 2010, the Michigan Supreme Court denied leave to appeal. See People v. Isom, 488 Mich. 854; 787 N.W.2d 488 (2010).
Petitioner subsequently filed a motion for relief from judgment in which he raised his seventh and eighth habeas claims regarding trial and appellate counsel. He claimed that trial counsel was ineffective for failing to present a defense of self defense and failing to request a jury instruction on self defense and that appellate counsel was ineffective for failing to raise a claim about trial counsel's ineffectiveness.
The state trial court analyzed Petitioner's motion under Michigan Court Rule 6.508(D)(3), which prohibits a state court from granting relief from judgment if the motion alleges grounds for relief that could have been raised on appeal. An exception exists if the defendant demonstrates "good cause for failure to raise such grounds on appeal" and "actual prejudice from the alleged irregularities that support the claim for relief." Mich. Ct. R. 6.508(D)(3)(a) and (b).
The state court assumed that Petitioner had shown "actual prejudice" under Rule 6.508(D)(3)(b) because he would have had a reasonable chance of acquittal if trial counsel had requested a self-defense instruction. The court nevertheless determined that Petitioner had not shown "good cause" for failing to raise his self-defense issues on appeal because he resisted efforts to bring the issue before the courts. Accordingly, the court denied Petitioner's motion for relief from judgment.
Petitioner moved for reconsideration of the trial court's order on the ground that his appellate attorneys failed in their minimum obligations and duties to assist him in bringing his self-defense claims before the Michigan Court of Appeals. The trial court denied relief after concluding that it was unnecessary to hold a hearing on appellate counsel's alleged ineffectiveness. The court stated that there was no evidence to support a self-defense claim and, therefore, Petitioner was not entitled to such an instruction and appellate counsel's failure to preserve the issue for appeal was inconsequential.
Petitioner appealed the trial court's decision without success. Both the Michigan Court of Appeals and the Michigan Supreme Court denied leave to appeal for failure to establish entitlement to relief under Rule 6.508(D). See People v. Isom, No. 312567 (Mich. Ct. App. Sept. 6, 2013); People v. Isom, 495 Mich. 947; ...