United States District Court, W.D. Michigan, Southern Division
Craig Michael Smith #307117, Petitioner, Pro se, Carson City, MI.
For Blaine C. Lafler, Warden; named as " State of Michigan", Respondent: David Henry Goodkin, MI Dept Attorney General, Lansing, MI.
HUGH W. BRENNEMAN, JR., United States Magistrate Judge. Hon. Robert J. Jonker.
REPORT AND RECOMMENDATION
HUGH W. BRENNEMAN, JR., United States Magistrate Judge
Petitioner, Craig Michael Smith, a prisoner currently incarcerated at a Michigan correctional facility, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
The Michigan Court of Appeals summarized the underlying facts of petitioner's claims as follows:
In this case arising from an incident in April 2004, when defendant Craig Smith and Kyle Carr broke into Nelson Oil gas station, Smith appeals as of right from his jury convictions of breaking and entering a building with intent to commit larceny [M.C.L. § 750.110] and safe breaking [M.C.L. § 750.531]. The trial court sentenced Smith as a fourth-offense habitual offender M.C.L. [§ 769.12] to concurrent prison terms of 6 to 15 years for the breaking and entering conviction, and 11 to 20 years for the safe breaking conviction, with those sentences to be served consecutively to a sentence related to a parole violation.
People v. Smith, No. 264196, slip op. at p. 1 (Mich.App. Oct. 17, 2006) (footnotes omitted) (docket no. 16).
Petitioner, through counsel, raised three issues on appeal to the Michigan Court of Appeals:
I. Did rampant prosecutorial misconduct deprive [petitioner] of his constitutional right to a fair trial?
II. Did the trial court improperly limit [petitioner's] right to confrontation by limiting his ability to cross-examine the prosecution's star witness, Kyle Carr?
III. Must [petitioner] be resentenced where he was denied his constitutional right to a jury determination that he was the leader in a multiple offender situation?
The Michigan Court of Appeals affirmed the convictions. Smith, No. 264196 (Mich.App. Oct. 17, 2006) (docket no. 16). Petitioner raised the same three issues in an application for leave to appeal to the Michigan Supreme Court, which that court denied. People v. Smith, No. 132669 (Mich. March 26, 2007) (docket no. 17).
Petitioner returned to the trial court on September 28, 2007, when he filed a motion for relief from judgment pursuant to MCR 6.500 et seq. See People v. Smith, No. 05-1684 (Alger Co. Cir. Ct.) (Register of Actions) (docket no. 7). A copy of this motion does not appear in the record. However, in a later document, petitioner states that it included the following claims (in his words):
Defendant Smith raised: A) The Prosecutor failed to disclose unspoken " tact" agreements forgoing Life Offenses of Life Imprisonment of Home Invasion & Armed Robbery; 1) Judge's post-sentencing sua sponte amendment of judgment of sentence attempting to cure sentence exceeding statutory maximum with forfeited habitual offender act; 2) Post Amendment of Judgment of Sentence deprived the right to effective assistance of counsel; 3) Prosecutor improperly coerced accomplice government witness to refuse to give material impeachment evidence; 4) Suppression & Destruction of exculpatory evidence and ineffectiveness of appellate counsel; 5) Ineffective assistance of Appellate Counsel failing to raise trial counsel's failure to move for Brady Hearing and Instruction on Missing Evidence.
Delayed Application for leave to appeal (docket no. 1-3 at p. ID# 174). On October 22, 2007, petitioner filed a motion for evidentiary hearing. See People v. Smith, No. 05-1684 (Alger Co. Cir. Ct.) (Register of Actions) (docket no. 7). On July 24, 2008, Alger County Circuit Court Judge Charles H. Stark (Judge Stark) apparently denied both motions in an order which stated in pertinent part:
The Court has reviewed Plaintiff's request for an evidentiary hearing, his response to the Attorney General's response, the Supreme Court and the Appellate Court's opinions and orders.
Plaintiff [sic] has exhausted his appellate rights and there is no basis now for an evidentiary hearing.
NOW, THEREFORE, IT IS ORDERED that Plaintiff's [sic] motion for an evidentiary hearing is DENIED.
Order Denying Evidentiary Hearing (docket no. 18).
On March 23, 2009, Smith filed a motion to amend his motion for relief from judgment, an amended motion and a brief in support of an amended motion. See People v. Smith, No. 05-1684 (Alger Co. Cir. Ct.) (Register of Actions). Smith's amended motion raised the following issues (in his words):
I. Defendant-Appellant was denied his federal and state constitutional rights by the trial court's sua sponte amendment of judgement of sentence with fortified habitual offender enhancement to cure sentence in excess of statutory maximum.
II. Defendant was deprived a fair trial where the judge allowed both the state's witnesses an accomplice and detective to submit false and or misrepresent testimony, then allowed the prosecutor to bolster false impression instead of correcting.
III. Defendant was denied a fair trial, by the prosecutor's misconduct in handling /coercion of key witness informant-accomplice. Appellate council was ineffective in failing to raise trial counsel failure to properly raise and move for ...