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Treadwell v. Bergh

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

February 25, 2015

DAVID BERGH, Respondent.



This is a habeas case filed under 28 U.S.C. § 2254. Petitioner Jason Treadwell, currently in the custody of the Michigan Department of Corrections, filed a pro se petition for writ of habeas corpus challenging his convictions for first-degree murder, carjacking, two counts of armed robbery, assault with intent to murder, felon in possession of a firearm, and felony firearm. He raises five grounds for habeas relief. Respondent filed an answer arguing the claims are procedurally defaulted and/or meritless. For the reasons set forth, the Court denies the petition.

I. Factual and Procedural Background

Petitioner's convictions arise from his participation in a crime spree on the west side of Detroit during the early morning hours of April 28, 2006. The crime spree occurred over a brief, approximately 35-minute, period. During the crime spree, an off-duty police officer was shot nine times and killed, John Feazell was robbed and the victim of a carjacking, Dewayne Smith was robbed, and Marie Leinonen was assaulted and robbed.

John Feazell testified that he was driving home at approximately 3:00 a.m. on April 28, 2006, when a Honda CRV pulled in front of him and cut him off, forcing him to stop his vehicle. Three men exited the vehicle, all carrying weapons. He identified the oldest of the three men as Brian McConnell. The men identified themselves as police and ordered him to exit his vehicle. One of the men took Feazell's gold chain and cell phone. The shortest of the three men, Feazell estimated him to be about 5'2", asked if he could shoot Feazell. Another gunman said no, and told Feazell to run, which Feazell did. Feazell identified Treadwell at trial as the gunman who asked if he could shoot Feazell. He also identified McConnell as the oldest of the gunmen.

Dewayne Smith testified that, at about the same time Feazell was robbed, he pulled his Honda CRV into a driveway when a car pulled up behind him, three men exited the vehicle, and announced that they were police. Each of the men was carrying a weapon. Smith testified there was a short man, a taller man, and a medium-height man. The short man hit Smith in the head with a gun and took his money. The gunmen then directed Smith to run, which he did. Smith testified that he was unable to identify Treadwell as the short man, but that his physical stature was consistent with that of the short gunman.

Marie Leinonen testified that, at about 3:00 a.m., on April 28, 2006, she was driving in the area where the other two robberies occurred when an SUV pulled in front of her, forcing her to stop her vehicle. Four men carrying guns exited the SUV yelling "police, police." Leinonen attempted to back up her vehicle and one of the men fired a shot at her. He ordered her to open the door, which she did. She was hit in the head by one of the men, who she referred to as the short man, and her purse was taken. Leinonen then sped away from the scene. As she did so, the men shot at her, shattering her windows. She drove to a gas station and called police. She testified that Treadwell was one of the men who stepped from the SUV carrying a gun.

Detroit police officer Kirk Williams testified that he responded to a crime scene in the vicinity of where the robberies had occurred. He found a van crashed into a telephone pole. The windows of the van had been shot out. Near where the van had crashed, a man, who he knew to be fellow police officer Charles Phipps, was lying in the middle of the road. He was obviously deceased. An autopsy later revealed that Phipps had suffered nine gunshot wounds.

Detroit police investigator Barbara Simon testified that she interviewed Treadwell a few days after the crime spree. Treadwell gave a statement in which he admitted to being involved in the shooting of Phipps and the other robberies and carjackings. He admitted firing at Phipps with a.38 caliber gun. At trial, Treadwell denied participating in the crime spree, instead, claiming that he was at a friend's house during the relevant time period. He also claimed that he never told Investigator Simon that he was involved in the crime spree. He claimed that when he was at the police station, the officers wore masks, behaved aggressively, and told him that unless he told them something he would go to jail for the rest of his life.

Treadwell was convicted by a jury in Wayne County Circuit Court of the first-degree murder of Officer Charles Phipps, the felony murder of Phipps, assault with intent to rob Officer Phipps while armed, carjacking of John Feazell, two counts of armed robbery for the robberies of Feazell and Leinonen, assault with intent to murder Leinonen, felon in possession of a firearm, and possession of a firearm during the commission of a felony.

On February 23, 2007, Treadwell was sentenced to life imprisonment without parole for each murder conviction, 285 months to 50 years' imprisonment for each assault with intent to rob while armed, carjacking, armed robbery, and assault with intent to commit murder conviction, two to five years' imprisonment for the felon in possession conviction, and two years' imprisonment for the felony-firearm conviction.

Treadwell filed an appeal of right in the Michigan Court of Appeals. He raised these claims: (i) insufficient evidence; (ii) ineffective assistance of counsel; and (iii) double jeopardy violation. The Michigan Court of Appeals held that Petitioner's convictions for first-degree premeditated murder and first-degree felony murder violated double jeopardy. People v. Treadwell, No. 277363, *6 (Mich. Ct. App. July 15, 2008). The state court also held that attempted larceny is a necessarily included lesser offense of assault with intent to rob while armed and, therefore, conviction of both also violated the Double Jeopardy Clause. Id. The court of appeals vacated the attempted larceny conviction. Id. The state court remanded the matter to the trial court for the purpose of amending the judgment of sentence to reflect one conviction and one sentence for first-degree murder supported by two theories, and to reflect that the attempted larceny conviction was vacated. Id.

Treadwell filed an application for leave to appeal in the Michigan Supreme Court. He raised the same claims raised in the Michigan Court of Appeals, with the exception of the double jeopardy claim. The Michigan Supreme Court denied leave to appeal. People v. Treadwell, 483 Mich. 881 (Mich. Jan. 27, 2009).

Treadwell then simultaneously filed a habeas corpus petition and a motion to hold the petition in abeyance to allow him to exhaust state court remedies. The Court granted the motion. Treadwell filed a motion for relief from judgment in the trial court, raising these claims: (i) counsel was ineffective for failing to investigate and prepare for trial; (ii) counsel was ineffective for failing to call an exculpatory witness; and (iii) counsel was ineffective in failing to seek an expert witness to testify as to false identification and false confessions. The trial court denied the motion. People v. Treadwell, No. 06-008315-01 (Wayne County Cir. Ct. Oct. 12, 2010). Treadwell filed applications for leave to appeal in the Michigan Court of Appeals and Michigan Supreme Court. Both state appellate courts denied leave to appeal. People v Treadwell, No. 306377 (Mich. Ct. App. May 2, 2012); People v. Treadwell, 493 Mich. 869 (Mich. Oct. 22, 2012).

Treadwell then returned to this Court and the Court granted his motion to reopen the proceeding. He raises these claims in his habeas petition:

I. Petitioner's convictions must be reversed and the charges dismissed, as the prosecution failed to present legally sufficient evidence that he was a principal or an aider and abettor in violation of his right to due process of law.
II. Appellant is entitled to a new trial where defense counsel provided constitutionally ineffective assistance by failing to move to sever unrelated offenses.
III. Defendant was denied a fair trial due to ineffective assistance of counsel because his attorney failed to investigate and prepare for trial.
IV. Defendant was denied a fair trial because his attorney failed to call an exculpatory defense witness.
V. Defendant was denied a fair trial because his attorney failed to seek an expert witness to testify as to false identification and false confessions.

II. Standard

Petitioner's claims are reviewed against the standards established by the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (AEDPA). The AEDPA provides:

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 proceedings.

28 U.S.C. § 2254(d).

"A state court's decision is contrary to'... clearly established law if it applies a rule that contradicts the governing law set forth in [Supreme Court cases]' or if it confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [this] precedent.'" Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003) (per curiam) ( quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). "[T]he unreasonable application' prong of the statute permits a federal habeas court to grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court but unreasonably applies that principle to the facts' of petitioner's case." Wiggins v. Smith, 539 U.S. 510, 520 (2003) ( quoting Williams, 529 U.S. at 413). However, "[i]n order for a federal court to find a state court's application of [Supreme Court] precedent unreasonable, ' the state court's decision must have been more than incorrect or erroneous. The state court's application must have been objectively unreasonable.'" Wiggins, 539 U.S. at 520-21 (citations omitted); see also Williams, 529 U.S. at 409. "A state court's determination that a claim lacks merit precludes federal habeas relief so long as fairminded jurists could disagree' on the correctness of the state court's decision." Harrington v. Richter, 562 U.S. 86, -, 131 S.Ct. 770, 789 (2011), quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004). "Section 2254(d) reflects the view that habeas corpus is a guard against extreme malfunctions in the state criminal justice systems, not a substitute for ...

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