United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF HABEAS CORPUS, DENYING A CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
DENISE PAGE HOOD, District Judge.
This is a habeas case brought pursuant to 28 U.S.C. § 2254. Michigan prisoner Edmund Lowell Fields ("Petitioner"), confined at the Thumb Correctional Facility in Lapeer, Michigan at the time he instituted this action, was convicted of second-degree murder, MICH. COMP. LAWS § 750.317, and possession of a firearm during the commission of a felony, MICH. COMP. LAWS § 750.227b, following a jury trial in the Eaton County Circuit Court. He was sentenced to consecutive terms of 23 to 50 years imprisonment and two years imprisonment in 2005. In his pleadings, Petitioner raises 18 claims concerning the great weight of the evidence, the submission of a first-degree murder charge, the sufficiency of the evidence, the jury instructions, the conduct of the prosecutor, perjured testimony, the effectiveness of trial and appellate counsel, the acceptance of the jury verdict, and his state collateral proceedings. For the reasons set forth, the Court denies the habeas petition. The Court also denies a certificate of appealability and denies leave to proceed in forma pauperis on appeal.
II. Facts and Procedural History
Petitioner's convictions arise from the shooting death of Deshawn Bibbs, the father of his pregnant girlfriend's two other children, following an altercation outside a gas station/convenience store in Waverly, Michigan on April 17, 2005.
Several eyewitnesses testified at trial. Vaneeka Black testified that she went to the Quicky Convenience Store that day with her cousin Shyann Green. She saw two men and a woman talking in the parking lot as she entered the store. When she exited, the two men were fighting and wrestling. They were arguing about somebody "riding with somebody's girl." Vaneeka saw Petitioner spit on Bibbs. Eventually, Bibbs returned to his car. She saw Petitioner go to his car, open the hood, and walk toward Bibbs. She heard someone yell, "he has a gun, " so she ran into the store. She heard clicking and saw Petitioner point the gun. When she got to the back of the store, she heard two or three gunshots. She called 911, went back to the front of the store, and saw Petitioner driving away.
Shyann Green testified that she was with Vaneeka Black that day. She also saw the two men fighting and wrestling, but did not hear what they were saying. She saw both men go to their cars and saw Petitioner get a gun. As Bibbs tried to drive away, Petitioner pointed the gun at Bibbs and fired three or four times. Bibbs was bleeding at his temple.
Sade Johnson testified that she was at the store that day with a friend. She went into the store and bought a drink. When she exited, she saw Bibbs and her cousin, Tameca Jackson, in the parking lot. A minute or two later, she saw Petitioner drive up in his car. He walked over to Tameca and asked her what she was doing in the car with Bibbs. Words were exchanged. Then Bibbs got out of his car and hit Petitioner in the face. She and Tameca pulled them apart as they were trying to fight. At one point, Bibbs threw Petitioner to the ground. She and Tameca kept trying to stop them from fighting. They kept tussling with each other. Bibbs grabbed Petitioner, slammed him to the ground, and choked him. Petitioner looked like he could not breathe. Tameca tried to pull Bibbs away from Petitioner and eventually Bibbs let him go. Bibbs went to his car and Petitioner walked to his car. She then heard three gunshots, but did not see the shooting.
Tameca Jackson testified that she had a 14-year relationship with DeShawn Bibbs and had two children with him. She last lived with Bibbs in January, 2004, but her children stayed with him and he talked about getting back together with her all the time. She began a relationship with Petitioner in September, 2003 and moved in with him in February, 2004.
On the day of the incident, Petitioner dropped Tameca off at her grandmother's house around 3:00 p.m. and she stayed there until about 6:00 p.m. She called Bibbs to pick her up so that she could see her children. They stopped at the Quicky Convenience Store on Waverly Road near Bibb's house. When they arrived, her cousin Sade Johnson was parked in the lot. Bibbs went into the store while she stayed outside and talked to her cousin. As Bibbs exited the store and returned to the car, Petitioner pulled up in his car. Petitioner parked his car, came over, and asked Tameca what she was doing in Bibb's car. Tameca said that she was going to see her daughters. As Petitioner began walking away, Bibbs made a gesture or said something to him. The two men argued. Petitioner said, "I heard you been wanting it with me, " to Bibbs and they got in each other's faces. Tameca stepped between them and told them to get back into their cars. Instead, Bibbs hit Petitioner in the face. Petitioner tried to hit back, but missed. Bibbs picked up Petitioner, slammed him to the ground, and choked him. Tameca was able to pull them apart. Petitioner went to his car and pulled the hood release. Tameca knew that was where Petitioner kept a gun, so she told Bibbs that he needed to leave. Petitioner walked back toward them and the men started arguing again. Bibbs hit Petitioner, slammed him to the ground, and choked him again. Tameca intervened and pulled them apart. Bibbs had blood on his face and kept telling Petitioner that he was a "B___" and fights like a "B___" because he bit him. They continued arguing. The store manager came out and said he was calling the police. Bibbs then hit Petitioner a third time, slammed him to the ground, and choked him. Tameca could not get them apart, so she asked her cousin for help. Eventually they were able to pull Bibbs away from Petitioner. Tameca told Bibbs he needed to leave because she knew that Petitioner had a gun. Bibbs was not armed. Bibbs got into his car and was starting to back out when Petitioner shot him. Tameca saw Petitioner point the gun at Bibbs' car. When Petitioner first pulled the trigger, she heard a clicking sound, but the gun did not fire. Petitioner shot again and she saw two bullets hit the windshield. She walked toward Bibb's car. Petitioner stood there saying something, then walked away and left in his car. Tameca noticed that Bibbs was shot in the head.
Tameca further testified that she bought the gun used in the shooting in September, 2004. She and Petitioner stored it under their bed at home and under the hood of the car when they traveled. She last saw the gun under their bed a few days before the shooting.
Several police officers testified about their investigation of the shooting. Their testimony indicated that the gunshots were fired within a few feet of the victim. The medical examiner testified that Bibbs had several contusions and lacerations on his body, including a bite mark, and that he died from a gunshot wound to the head.
Petitioner testified in his own defense at trial. He discussed his relationship with Tameca Jackson and recalled prior altercations with DeShawn Bibbs at a Mexican restaurant, Tameca Jackson's school, and a nightclub. Petitioner testified about the confrontation at the Quicky Convenience Store. He described the argument and fight with Bibbs. He recalled being slammed to ground and choked. Petitioner admitted firing the gun while Bibbs was in his car, but said that he did not intend to injure or kill Bibbs. He claimed that he acted in the heat of passion while he was angry and upset.
At the close of trial, the jury convicted Petitioner of second-degree murder and felony firearm. The trial court subsequently sentenced him as a second habitual offender to consecutive terms of 25 to 50 years imprisonment and two years imprisonment.
Following his convictions and sentencing, Petitioner, through counsel and in a pro per supplemental pleading, filed an appeal of right with the Michigan Court of Appeals raising claims concerning the great weight of the evidence, the submission of the first-degree murder charge to the jury, the lack of instruction on self-defense, imperfect self-defense, and defense of others, the conduct of the prosecutor, the effectiveness of trial counsel, and the scoring of the sentencing guidelines. The court affirmed Petitioner's convictions and sentences, but remanded for correction of the pre-sentence investigation report. People v. Fields, No. 266738, 2007 WL 1712619 (Mich. Ct. App. June 14, 2007) (unpublished). Petitioner filed an application for leave to appeal with the Michigan Supreme Court, which was denied in a standard order. People v. Fields, 480 Mich. 925, 740 N.W.2d 264 (2007).
Petitioner subsequently filed a pro se motion for relief from judgment with the trial court raising claims concerning the lack of instruction on self-defense, the acceptance of the verdict, the sufficiency of the evidence, the use of perjured testimony, and the effectiveness of trial and appellate counsel. Defense counsel moved to amend the motion for relief from judgment and supplemented Petitioner's argument on the claim concerning the acceptance of the verdict. The trial court denied the motion finding that Petitioner had not shown good cause and actual prejudice for failing to raise the claims on direct appeal and ruling that there was no evidence that the court impeached or compromised the jury verdict. People v. Fields, No. 05-279-FC (Eaton Co. Cir. Ct. April 6, 2010). More than one month later, Petitioner filed a supplemental brief with the trial court concerning the manslaughter jury instruction. The trial court deemed this a successive motion for relief from judgment and denied it pursuant to Michigan Court Rule 6.502(G). People v. Fields, No. 05-279-FC (Eaton Co. Cir. Ct. June 29, 2010). Petitioner then filed another motion for relief from judgment pursuant to Michigan Court Rule 2.612(C)(1) raising claims concerning the trial court's ruling on his first motion for relief from judgment and the effectiveness of defense counsel on collateral review. The trial court deemed this another successive motion for relief from judgment and denied it pursuant to Michigan Court Rule 6.502(G). People v. Fields, No. 05-279-FC (Eaton Co. Cir. Ct. Oct. 29, 2010).
After the trial court denied the various motions for relief from judgment, Petitioner filed a delayed application for leave to appeal with the Michigan Court of Appeals, which was denied "for failure to establish entitlement to relief under Mich. Ct. R. 6.508(D)." People v. Fields, No. 303330 (Mich. Ct. App. Sept. 20, 2011) (unpublished). Petitioner then filed an application for leave to appeal with the Michigan Supreme Court, which was similarly denied. People v. Fields, 491 Mich. 919, 812 N.W.2d 732 (2012). The Michigan Supreme Court also denied reconsideration. People v. Fields, 492 Mich. 858, 817 N.W.2d 79 (2012).
Petitioner thereafter filed his federal habeas petition. He raises the following claims:
I. The murder verdict is a manifest injustice and it violates the federal and Michigan due process right to a fair trial because the verdict is against the great weight of the evidence.
II. Trial counsel rendered ineffective assistance under the state and federal constitutions by failing to request the jury instructions to self defense, imperfect self-defense, and defense of others.
III. The trial court erred by improperly submitting the first-degree and
second-degree murder instructions to the jury where there was no evidence of premeditation and the resulting compromise verdict violated petitioner's state and federal constitutional due process right to a fair trial.
IV. The trial court erred in its April 6, 2010 order when it failed to review and rule on the issues of Petitioner's original MCR 6.500 motion for relief from judgment filed on January 26, 2009 while yet reviewing and ruling on Petitioner's attorney's amended MCR 6.500 motion, which was filed on March 17, 2010 after the Petitioner's attorney and the assistant prosecutor stipulated in February of 2009 to a 56-day extension of time for the amended motion, and because it is error, all issues of the Petitioner's original 6.500 motion are considered exhausted at the trial court level.
V. The trial court in its October 29, 2010 opinion erred and abused its discretion when the trial court deemed and denied petitioner's MCR 2.612(C) (1) (A) (D) & (F) motion for relief from judgment as a successive motion under MCR 6.502(G).
VI. The trial court erred in not sua sponte giving self-defense instructions.
VII. Petitioner's right to due process and a fair trial was violated when the trial court refused to accept a verdict of not guilty after the jury had concluded deliberations.
VIII. The evidence was insufficient to support Petitioner's conviction of second-degree murder because once evidence supporting a claim of self defense was presented, the prosecutor failed to negate that evidence.
IX. Petitioner's state and federal due process right to a fair trial was violated when the prosecutor permitted Tameca Jackson to perjure herself by testifying there were no threats between the decedent and Petitioner and when the prosecutor committed further misconduct during closing arguments.
X. Petitioner was denied his state and federal right to effective assistance of trial counsel where: (1) his trial attorney failed to object to the trial court not sua sponte giving self-defense or imperfect self defense instructions to the jury, (2) his trial attorney failed to object to the prosecution knowingly allowing witness Tameca Jackson to testify falsely and failed to object when the prosecutor committed further misconduct during closing arguments, and (3) his trial attorney failed to object when the trial court actively "coerced" a guilty verdict from the jury after they found petitioner not guilty of murder.
XI. Petitioner was denied his state and federal right to effective assistance of appellate counsel where: (1) his appellate attorney failed to raise the above insufficient evidence issue in his appeal by right, and (2) his appellate attorney failed to raise in Petitioner's appeal by right the above ineffective assistance of trial counsel issues.
XII. The April 6, 2010 order overlooking Petitioner's entire 6.500 motion while denying attorney Reynolds' amended 6.500 motion is void and the rendering of it is an inadvertent mistake made by the Eaton County Circuit Court Judge Thomas S. Eveland, because, in February of 2009, attorney Reynolds and Senior Assistant Prosecutor Worden, with the court's approval, stipulated to a 56-day extension of the time for Reynolds to file an amended motion for relief from judgment; however, Reynolds filed the amended 6.500 motion over a year later, on or about March 17, 2010.
XIII. Attorney Reynolds' deception in convincing Petitioner that he would file on Fields' behalf a timely 6.500 motion raising all of Petitioner's claims and his failure to do so constitutes extraordinary circumstances which mandates setting aside the April 6, 2010 order under MCR 2.612(C)(1)(f).
XIV. Petitioner's federal due process rights were violated: (1) when the trial court's first-degree and second-degree murder instructions to the jury failed to mention that the circumstances that reduce the killing to the lesser charge of voluntary manslaughter (which the prosecutor must disprove beyond a reasonable doubt) are that which are found under CJI 2d 16.9 being the circumstance of Petitioner committing the killing in a sudden heat of passion caused by adequate provocation, and (2) when the trial court's manslaughter instruction erroneously required the prosecutor to prove the above circumstances of CJI 16.9 beyond a reasonable doubt.
XV. Whether petitioner is not required to meet the good cause and actual prejudice requirement to permit relief under MCR 6.508(D)(3) of his claims that he was denied his federal due process rights to adequate jury instructions of the prosecutor's burden on first-degree and second-degree murder and in regard to an incorrect jury instruction of the prosecutor's burden on voluntary manslaughter because the claims constitute jurisdictional defects that render his conviction and sentence void.
XVI. Petitioner Fields is actually innocent of the second-degree murder offense; therefore, the "good cause" requirement of subrule (d)(3)(a) is waived in regard to all issues raised in his original 6.500 motion and supplemental brief.
XVII. For the purpose of a federal court considering the merit of petitioner Fields' claims on habeas review, equitable tolling of the statute of limitations is appropriate, with cause existing for the procedural default in failing to present claims in petitioner's MCR 6.500 motion for relief from judgment.
XVIII. The one-year statute of limitations may toll in petitioner's case and the court may consider the merits of any procedurally defaulted claims of this habeas petition because ...