United States District Court, E.D. Michigan, Southern Division
William Dothard, Petitioner, Pro se, KINCHELOE, MI.
For Duncan MacLaren, Respondent: Elizabeth M. Rivard, Laura Moody, Michigan Department of Attorney General, Appellate Division, Lansing, MI.
DAVID M. LAWSON, United States District Judge. Magistrate Judge Paul J. Komives.
ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION, OVERRULING PETITIONER'S OBJECTIONS, AND DENYING PETITION FOR WRIT OF HABEAS CORPUS
DAVID M. LAWSON, United States District Judge
Before the Court are objections by petitioner William Harold Dothard to a report issued by Magistrate Judge Paul J. Komives recommending that Dothard's petition for a writ of habeas corpus be denied. Dothard was convicted by a Wayne County, Michigan jury of first-degree (felony) murder, armed robbery, first-degree home invasion, and possession of a firearm during the commission of a felony (felony-firearm). He is currently serving a two-year prison term for felony-firearm, and a consecutive life-without-parole prison sentence for the murder conviction, along with lesser, concurrent prison terms for the other crimes. He filed his habeas corpus petition pro se . After the state answered the petition, Dothard filed a reply combined with a motion for an evidentiary hearing. That document raised new issues, which had not been presented to the Michigan courts. In his report, Judge Komives also recommended that the motion for evidentiary hearing be denied. The Court has conducted a de novo review of the petition, response, reply, and state court record, and agrees with the magistrate judge's conclusions. Therefore, the Court will overrule the objections, adopt the magistrate judge's recommendation, and deny the petition and motion.
The prosecution arose from the robbery and killing of Jamal Harper by five individuals in Detroit, Michigan in 2009. Three pleaded guilty to second-degree murder; two, including Dothard, went to trial, although separate juries heard their cases. The petitioner's co-defendant, Dreshawn Grant, was convicted of first-degree home invasion, but acquitted of the murder and robbery charges. The facts of the case were summarized by the state court of appeals as follows:
Defendants' convictions arise from the shooting death of 29-year-old Jamal Harper during the commission of a robbery. Three others were also charged in the offense, Elesha Fullwood, Treisa Lyles, and Dione Wade. Lyles and Fullwood both pleaded guilty to second-degree murder pursuant to plea agreements in which they agreed to testify truthfully for the prosecution. Wade was charged with first-degree premeditated murder, but pleaded guilty to second-degree murder and felony-firearm pursuant to a plea agreement. Wade was called as a defense witness by defendant Dothard. Testimony at trial indicated that Lyles, Fullwood, Wade, and defendants Grant and Dothard were all at a house together when someone raised the idea of committing a robbery. According to Lyles, defendant Grant, who was Lyles's boyfriend, identified Jamal Harper as a potential target. Defendant Grant had previously found Harper's telephone number in Lyles's purse and he threatened to end his relationship with Lyles if she did not agree to contact Harper to arrange to meet. Lyles thereafter contacted Harper, who later picked up Lyles and Fullwood and brought them back to his house. According to both Lyles and Fullwood, at some point later that evening, Wade and defendant Dothard both entered Harper's house at gunpoint and announced a robbery. Wade and defendant Dothard later brought Harper to the basement of his house where he was eventually shot to death, apparently by Wade. The women and defendant Dothard then removed several garbage bags of clothing, jewelry, and other items from Harper's house, and the group returned to the house where they were at previously and divided up the stolen property. According to Lyles and other witnesses, defendant Grant was present at the house, and Lyles and another witness both testified that Grant received a share of the stolen property. Wade testified at trial on behalf of defendant Dothard. Wade testified that, contrary to the testimony of other witnesses, defendant Dothard was not involved in the planning or commission of the offense.
People v. Grant, No. 298711, 2012 WL 2402053, at *1 (Mich. Ct. App. June 26, 2012). On April 20, 2010, following the jury trial, the petitioner was convicted of the crimes listed above. In addition to the life prison term for murder, Dothard was sentenced to concurrent terms of 11-20 years imprisonment for robbery and home-invasion convictions, and two years consecutive imprisonment for felony-firearm. The petitioner filed a direct appeal in the Michigan Court of Appeals, raising the issues noted by the magistrate judge that consisted of a challenge to the adequacy and weight of the evidence, competence of trial counsel, misconduct of the prosecutor, and improper impeachment of the petitioner's confederate witness. Dothard's conviction and sentence were affirmed on June 26, 2012. People v. Grant, No. 298711, 2012 WL 2402053 (Mich. Ct. App. June 26, 2012). The state supreme court denied Dothard's application for leave to appeal on December 26, 2012. People v. Dothard, 493 Mich. 918, 823 N.W.2d 596 (2012).
On December 23, 2013, Dothard filed his petition for a writ of habeas corpus, raising the same issues presented to the state courts. The state filed a response on July 2, 2014. On July 23, 2014, the petitioner filed a reply, which included a motion for an evidentiary hearing, leave to conduct limited discovery, and a request for counsel. In that paper, he raised the following new issues: (1) appellate counsel was ineffective by failing to raise a claim that trial counsel was ineffective by failing to challenge an evidentiary insufficient theory of aiding and abetting murder submitted to the jury; (2) appellate counsel also was ineffective by failing to raise a claim that trial counsel was ineffective by failing to object to the defective jury oath; (3) evidence of the time of death was " extrinsic" and therefore improper, and it failed to establish beyond a reasonable doubt that the crime occurred on the date charged in the information; (4) the trial court's instructions on aiding and abetting and felony murder were improper; and (5) convictions and sentences for both felony murder and the predicate felony violated the Double Jeopardy Clause. The magistrate judge's report recommending denial of the petition and evidentiary hearing was filed on September 9, 2014. The petitioner filed objections to the report and recommendation on September 22, 2014 [dkt. #15]. Those objections are currently before the Court.
When timely objections to a report and recommendation are filed, the Court gives fresh review to those issues that are contested. " A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1).
The Sixth Circuit has stated that " [o]verly general objections do not satisfy the objection requirement." Spencer v. Bouchard, 449 F.3d 721, 725 (6th Cir. 2006). " The objections must be clear enough to enable the district court to discern those issues that are dispositive and contentious." Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995). " '[O]bjections disput[ing] the correctness of the magistrate's recommendation but fail[ing] to specify the findings . . . believed [to be] in error' are too general." Spencer, 449 F.3d at 725 (quoting Miller, 50 F.3d at 380). " [T]he failure to file specific objections to a ...