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Durr v. McLaren

United States District Court, Eastern District of Michigan, Southern Division

March 4, 2015

RANDALL DURR, Petitioner,
v.
DUNCAN MCLAREN, Respondent.

OPINION AND ORDER DENYING THE PETITION FOR WRIT OF HABEAS CORPUS, DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY, AND GRANTING PETITIONER LEAVE TO APPEAL IN FORMA PAUPERIS

VICTORIA A. ROBERTS UNITED STATES DISTRICT JUDGE

Randall Durr, (“Petitioner”), confined at the Earnest C. Brooks Correctional Facility in Muskegon Heights, Michigan, filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his conviction for second-degree murder, M.C.L.A. § 750.317, and possession of a firearm during the commission of a felony (felony-firearm), M.C.L.A. § 750.227b.

For the reasons that follow, the petition for writ of habeas corpus is DENIED.

I. Background

A jury convicted Petitioner in the Wayne County Circuit Court. This Court recites verbatim the relevant facts relied upon by the Michigan Court of Appeals, which are presumed correct on habeas review pursuant to 28 U.S.C. § 2254(e)(1). See Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009):

This appeal arises out of the shooting death of Khali Badawi, who was the proprietor of a Dollar Tree and More store. On November 13, 2005, Badawi was shot three times, once in the neck, once in the chest and once in the back. His body was discovered inside the store, inside a glass booth. After initial photographs and evidence was gathered at the scene, the case was assigned to Detroit Police Officer Karen Miller.
Miller began questioning people in the neighborhood, and eventually after “tips had come in, ” Miller sought defendant who had been named by a neighbor as someone who had confessed to shooting the victim. Defendant was 16 at the time, so Miller made contact with defendant’s mother and arranged a meeting with defendant and his mother the next day at the juvenile courthouse. Defendant’s mother arrived at the meeting the next day, but defendant refused to come inside and was walking up and down the street. Miller then went outside and brought the defendant inside the courthouse. At this time, Miller stated that she arrested defendant on “suspicion of homicide” and further stated the she “needed to interrogate him and ask him questions.”

People v. Durr, No. 277877, 2008 WL 3851561 * 1 (Mich.Ct.App. August 19, 2008).

Petitioner’s conviction was affirmed on appeal. Id., lv. den. 483 Mich. 1016, 765 N.W.2d 309 (2009).

Petitioner filed a post-conviction motion for relief from judgment, which was denied. People v. Durr, No. 06-000099-01 (Wayne County Cir. Ct. July 27, 2010). The Michigan appellate courts denied Petitioner leave to appeal. People v. Durr, No. 301390 (Mich.Ct.App. February 10, 2011); lv. den. 492 Mich. 864, 819 N.W.2d 883 (2012).

Petitioner now seeks a writ of habeas corpus on the following grounds: (1) Petitioner was denied his constitutional right to a public trial, (2) Petitioner was denied his constitutional right to the effective assistance of counsel during trial, (3) Petitioner was denied his constitutional right to the effective assistance of counsel on direct appeal, (4) Petitioner’s statement was obtained based on an illegal arrest and detention, in violation of the right to counsel, in violation of the statutory safeguards provided to juveniles, and trial counsel was ineffective for failing to raise these suppression issues.

II. Standard of Review

28 U.S.C. § 2254(d), as amended by The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 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 concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly.” Id. at 410-11.

The Supreme Court explained that “[A] federal court’s collateral review of a state-court decision must be consistent with the respect due state courts in our federal system.” Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). The “AEDPA thus imposes a ‘highly deferential standard for evaluating state-court rulings, ’and ‘demands that state-court decisions be given the benefit of the doubt.’” Renico v. Lett, 130 S.Ct. 1855, 1862 (2010)(quoting Lindh v. Murphy, 521 U.S. 320, 333, n. 7 (1997); Woodford v. Viscotti, 537 U.S. 19, 24 (2002) (per curiam)). “[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, 131 S.Ct. 770, 786 (2011)(citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The Supreme Court emphasized “that even a strong case for relief does not mean the state court’s contrary conclusion was unreasonable.” Id. (citing Lockyer v. Andrade, 538 U.S. 63, 75 (2003)). Furthermore, pursuant to § 2254(d), “a habeas court must determine what arguments or theories supported or...could have supported, the state court’s decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision” of the Supreme Court. Id.

“[I]f this standard is difficult to meet, that is because it was meant to be.” Harrington, 131 S.Ct. at 786. Although 28 U.S.C. § 2254(d), as amended by the AEDPA, does not completely bar federal courts from relitigating claims previously rejected in state courts, it preserves the authority for a federal court to grant habeas relief only “in cases where there is no possibility fairminded jurists could disagree that the state court’s decision conflicts with” the Supreme Court’s precedents. Id. Indeed, “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 ordinary error correction through appeal.” Id. (citing Jackson v. Virginia, 443 U.S. 307, 332, n. 5 (1979)(Stevens, J., concurring in judgment)). Thus, a “readiness to attribute error [to a state court] is inconsistent with the presumption that state courts know and follow the law.” Woodford, 537 U.S. at 24. Therefore, in order to obtain habeas relief in federal court, a state prisoner is required to show that the state court’s rejection of his claim “was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington, 131 S.Ct. at 786-87.

III. Discussion

A. Claims # 1, # 2, and # 3. Right to a public trial/Ineffective assistance of counsel.

Petitioner first contends that his Sixth Amendment right to a public trial was violated when three of his friends were removed from the courtroom. In the alternative, Petitioner argues that trial counsel was ineffective for failing to object to the removal of his friends from the courtroom and by failing to assert his right to a public trial.

Petitioner also claims that appellate counsel was ineffective for failing to raise this claim on his appeal of right.

Respondent contends that Petitioner’s public trial claim is waived and/or procedurally defaulted because Petitioner failed to object to the removal of three individuals from the courtroom prior to trial.

“The central aim of a criminal proceeding must be to try the accused fairly.” Waller v. Georgia, 467 U.S. 39, 46 (1984). The Sixth Amendment public-trial guarantee was created to further that aim. Id. (citing Gannett Co. v. DePasquale, 443 U.S. 368, 380 (1979)). A public trial helps to ensure that judge and prosecutor carry out their duties responsibly, encourages witnesses to come forward, and discourages perjury. Id. The violation of the constitutional right to a public trial is a structural trial error, not subject to the harmless error analysis. Id. at 49-50, n. 9.

Although the right to a public trial is a fundamental right, it can also be waived if a habeas petitioner either acquiesces to the closure of the courtroom or fails to object. See Johnson v. Sherry, 586 F.3d 439, 444 (6th Cir. 2009)(citing Freytag v. Commissioner, 501 U.S. 868, 896 (1991)(“[T]he Sixth Amendment right to a trial that is ‘public, ’ provide[s] benefits to the entire society more important than many structural guarantees; but if the litigant does not assert [it] in a timely fashion, he is foreclosed.”); Peretz v. United States, 501 U.S. 923, 936–37 (1991)(citing Levine v. United States, 362 U.S. 610, 619 (1960)). Other circuits have reached the same conclusion. See U.S. v. Reagan, 725 F.3d 471, 488-89 (5th Cir. 2013); cert. den. 134 S.Ct. 1514 (2014) (defendants waived claim that right to public trial violated by the closing of the courtroom during voir dire, hence, claim unreviewable on appellate review); U.S. v. Christi, 682 F.3d 138, 142-43 (1st Cir. 2012)(defendant waived any claim of error in court limiting public access to courtroom during most of jury instructions by counsel’s failure to object); U.S. v. Rivera, 682 F.3d 1223, 1232 (9th Cir. 2012)(defendant may forfeit the right to a public trial, either by affirmatively waiving it or by failing to assert it in a timely fashion); But see Walton v. Briley, 361 F.3d 431, 434 (7th Cir.2004)(holding that habeas petitioner had not waived right to a public trial by failing to object at trial because a right to a public trial is a fundamental trial right which may be relinquished only upon a showing that defendant knowingly and voluntarily waived such a right).

The fact that the denial of the right to a public trial is a structural error does not mean than the claim cannot be waived by Petitioner’s failure to object. Although structural errors are presumed to be prejudicial and thus not subject to harmless error review, such errors are nevertheless subject to the general rules of waiver, forfeiture, and default. See Johnson v. United States, 520 U.S. 461, 466 (1997)(waived or forfeited structural error subject to plain error review under Fed. R.Crim. P. 52(b)). See also United States v. Suescun, 237 F.3d 1284, 1288, n. 12 (11th Cir. 2001)(‚ÄúStructural defects do not ...


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