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Larry v. Rivard

United States District Court, E.D. Michigan, Southern Division

January 16, 2015

STEVEN RIVARD, Respondent.


AVERN COHN, District Judge.

I. Introduction

This is a habeas case under 28 U.S.C. § 2254. Petitioner Von Cedric Larry, (Petitioner), is a state inmate at the Oaks Correctional Facility (ECF) in Manistee, Michigan and serving a sentence of 99-145 years imprisonment for solicitation to commit murder, M.C.L. §750.157b, and being a fourth habitual offender, M.C.L. § 769.12. Petitioner has filed a pro se petition for writ of habeas corpus contending that he is incarcerated in violation of his constitutional rights. Respondent, through the Attorney General's Office, filed a response, arguing that petitioner's claims are meritless or procedurally defaulted. For the reasons that follow, the petition will be denied.

II. Procedural History

Petitioner was convicted following a jury trial. He filed an appeal of right to the Michigan Court of Appeals, raising several claims. The court of appeals affirmed Petitioner's conviction but remanded for resentencing, finding that the trial court failed to adequately explain why it believed a 36.5 year departure from the guidelines was appropriate. People v. Larry, No. 283364, 2009 WL 5194987 (Mich.Ct.App. December 15, 2009). Petitioner then filed an application for leave to appeal to the Michigan Supreme Court, raising the same claims. The Michigan Supreme Court denied petitioner leave to appeal. People v. Larry, 486 Mich. 929 (2010).

On remand, the trial court resentenced Petitioner to the same term of years, as described above.

In August of 2010, Petitioner filed the instant petition. (Doc. 1). Shortly after filing, Petitioner moved to stay the case while he pursued an additional claim that arose following his resentencing. (Doc. 8). The Court granted the motion and administratively closed the case. (Doc. 9).

Petitioner presented his new claim in the court of appeals. The court of appeals affirmed Petitioner's sentence. People v. Larry, No. 300370, 2011 WL 6464034 (Mich.Ct. App. December 22, 2011). The Michigan Supreme Court denied Petitioner's application for leave to appeal. People v. Larry, 491 Mich. 921 (2012).

Following the Michigan Supreme Court's decision, Petitioner filed a motion to reopen his case and amend the petition. (Doc. 14). The Court granted the motion. (Doc. 17). The matter is now ready for decision.

Petitioner raises the following claims, phrased by Petitioner as follows:

I. Defendant was denied due process of law because the evidence of solicitation to murder is insufficient to sustain his conviction and the verdict is against the great weight of the evidence. U.S. Const Am XIV.
II. Defendant was denied due process of law by the trial court's failure to instruct on all essential elements of the crime of solicitation to murder; the trial court also failed to instruct on solicitation to commit second-degree murder; Defendant was denied effective assistance of counsel by his trial attorney's failure to object. U.S. Const Am VI, XIV.
III. Defendant was denied a fair trial and his right of confrontation by the erroneous introduction, as 404(b) or res gestae evidence, of the details of a criminal sexual conduct case pending against him, and by exposing the jury to incriminating statements pertaining to a separate charge. U.S. Const Am XIV.
IV. Defendant was denied a fair trial and effective assistance of counsel by the erroneous flight instruction and the lack of an instruction on credibility of the witnesses promised leniency for their testimony against Defendant; Defendant was denied effective assistance of counsel by his trial attorney's failure to object. U.S. Const Am VI, XIV.
V. The trial court's imposition of a 99-year minimum sentence, a 36.5 year departure above the defendant's sentence guidelines was not proportionate to the offense and was cruel and unusual punishment in violation of the 8th Amendment of the U.S. Constitution.

III. Facts

The material facts leading to Petitioner's conviction are recited verbatim from the Michigan Court of Appeals' opinion affirming his conviction, which are presumed correct on habeas review under 28 U.S.C. § 2254(e)(1). See Wagner v. Smith , 581 F.3d 410, 413 (6th Cir. 2009):

.... [D]efendant purposely sought to have the victim, who was also the victim in an unrelated criminal sexual conduct prosecution against defendant, killed, and tried to engage defendant's cell-mate, Frederick Henderson, to commit the killing. One of defendant's other cell-mates, Robert Noell, testified that during a conversation relating to the practice of morticians breaking bones of corpses in order to counteract the effects of rigor mortis, defendant interjected that defendant would "like" for "the witnesses" in his pending criminal sexual conduct case "to end up like that." According to Henderson, defendant had maintained his innocence of the CSC charges. However, soon after his comments relating to rigor mortis, defendant stated that the police matched his DNA with the DNA evidence recovered from the victim, and acknowledged that, because the police had matched defendant's DNA with that recovered from the victim, he "was gonna get found guilty."
Henderson testified that defendant promised to procure $1, 000 from his employer, representing a deposit or down payment to Henderson, "so the girl would never show up in court." Henderson further testified that defendant attempted to contact defendant's employer by telephone in order to procure the money. Defendant also indicated to Henderson that he would pay Henderson between $20, 000 and $30, 000 after defendant was released from custody. However, Henderson did not actually receive any money from defendant.
As a result of an altercation between defendant and another of defendant's cellmates, defendant was relocated to a different cell in the Oakland County Jail. After defendant collected his personal effects, defendant sat on Henderson's bunk and wrote a note, which defendant then gave to Henderson. As defendant handed Henderson the note containing the victim's name, her birth date, the names of the victim's parents, and defendant's name and inmate number, defendant admonished Henderson to "make sure she never shows up in court." At trial, expert document examiner Ruth Holmes opined that there was "the highest degree of probability" that the handwriting on the note defendant handed to Henderson matched the handwriting on other documents written by defendant. Further, during previous conversations, defendant provided Henderson with a physical description of the victim, told Henderson where the victim went to school, and suggested that the best way to find the victim was "going or coming from school." Henderson testified that the police report did not provide a physical description of the victim.
Moreover, after Noell reported defendant's attempt to procure money in order to prevent the victim from appearing in court to testify against him, Oakland County Sheriff's Deputy David Hendrick and Madison Heights Police Officer Corey Haines sent defendant a note through the jailhouse mail system which stated, "Your boy didn't get out. If you still need help with your problem maybe I can help. Call me, Dave." The note included a telephone number for defendant to call, which was actually the number of an extension in Hendrick's office. Defendant called the number listed on the card, and asked Hendrick, posing as "Dave Ray, " if Henderson had supplied sufficient details regarding the problem for which defendant wanted a solution, and told "Dave" that defendant needed the problem to be solved "as soon as possible." Defendant also asked "Dave" to contact two people in order to obtain money. This evidence further demonstrates that defendant purposely sought to have the victim killed, and took steps to engage "Dave, " as Henderson's substitute or subcontractor, to commit the killing.

People v. Larry, No. 283364, 2009 WL 5194987, * 1-2 (Mich. Ct. App. Dec. 15, 2009).

IV. Standard of Review

28 U.S.C. § 2254(d) imposes the following standard of review for habeas cases:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim-
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

A decision of a state court is "contrary to" clearly established federal law if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if the state court decides a case differently than the Supreme Court has on a set of materially indistinguishable facts. Williams v. Taylor , 529 U.S. 362, 405-06 (2000). An "unreasonable application" occurs when "a state court decision unreasonably applies the law of [the Supreme Court] to the facts of a prisoner's case." Id. at 409. A federal habeas court may not "issue the writ simply because that court ...

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