United States District Court, E.D. Michigan
OPINION AND ORDER DENYING (1) THE PETITION FOR WRIT OF HABEAS CORPUS (DKT. 1); (2) A CERTIFICATE OF APPEALABILITY; AND (3) LEAVE TO APPEAL IN FORMA PAUPERIS
TERRENCE G. BERG, District Judge.
Gerald Lee Hudson, Jr., ("Petitioner"), on parole supervision with the Holland Probation Office, with a supervision discharge date of May 4, 2015, seeks the issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his pro se application, Petitioner challenges his conviction for operating while intoxicated, third offense, Mich. Comp. Laws § 257.625(1); Mich. Comp. Laws § 257.625(9); malicious destruction of police property, Mich. Comp. Laws § 750.377b; and resisting and obstructing a police officer, Mich. Comp. Laws § 750.81d. For the reasons stated below, the application for a writ of habeas corpus is DENIED WITH PREJUDICE.
I. FACTUAL BACKGROUND
Petitioner was convicted of the above offenses following a jury trial in the Ottawa County Circuit Court. Katherine Infante drove Petitioner to Buffalo Wild Wings to meet with Petitioner's future boss. (Tr. 1/5/2011, pp. 186-187). Petitioner drank beer at the restaurant and left with Infante an hour and a half later. Id. Petitioner and Infante argued and Infante took Petitioner's house keys and locked herself in his house. Petitioner then drove to his nephew's house. Id. at 188-190. Petitioner sat outside his nephew's house for a while and then drove back to his house, yelling to Infante to let him in. Id. at 99-100. Petitioner broke a glass window and Infante let him inside, fearing that he was losing blood from a cut on his right wrist. Id. at 99-103, 193.
The police were called. Deputy Michael Hallmeyer found Petitioner unconscious at the top of the stairs, moved him to a couch, and tried to treat his lacerations. Based on the statements of other witnesses that he was driving drunk, Petitioner was placed in the back of a patrol car. Id. at 107, 152-154. Petitioner moved his cuffed hands from behind his back, flailing his arms, legs and body while spouting a list of expletives at the officers, and then pulled the patrol car door shut on Officer VanderLaan's finger. Id. at 155-156, 213-214. Officer Hallmeyer left Petitioner in the patrol car to type up a warrant and to test Petitioner's blood and returned to find the back window on the passenger side of his patrol car had come away from its mountings as a result of Petitioner kicking out the window from inside the car. Id. at 157, 216-217. Petitioner's blood was found to contain 0.27 percent alcohol, over three times the legal driving limit of 0.08 percent. Id. at 126-127
At trial, Petitioner sought to act as his own co-counsel equally with his attorney; he did not request to exercise his right to represent himself, but sought to act as co-counsel, equal to his trial counsel in representation. (Motion Tr. 1/5/2011, pp. 3-4). When asked whether he understood the dangers of self-representation, Petitioner answered, "I understand what you are saying, but I never said that I wanted to represent myself. I said I wanted to be co-counsel." Id. As the Michigan Court of Appeals explained:
Initially, there was confusion concerning the nature of defendant's request to act as co-counsel. Five months before trial, the trial court permitted defendant's appointed counsel to withdraw and appointed attorney David Hall-in whom defendant expressed confidence-to represent defendant. One month before trial at a bond hearing, defendant stated, "I am supposed to be co-counsel in this case according to the transcript records." Defendant apparently was referring to the proceeding at which Hall was appointed counsel, noting that "the whole appointment of counsel... was on the record." The trial court responded it would review the transcript and took no other action.
On the first day of trial, before voir dire of the jury venire, the trial court opened the record by noting that it understood that defendant wanted to represent himself with standby counsel. Defendant clarified that he was merely requesting to act as co-counsel: "to [be] an equal with Mr. Hall, not representing myself." The trial court advised defendant regarding his right to counsel, the dangers of self-representation, which defendant stated he understood, and that defendant would not be permitted to disrupt the court proceedings. With respect to acting as co-counsel, the trial court advised defendant that only one counsel would be permitted to act at any given time. The trial court asked defendant "[i]s it your decision to represent yourself, at least in part, and are you making that decision voluntarily?" Defendant responded, "In part that would be correct, Your Honor." The trial court found that "defendant unequivocally has waived his right to counsel in part, " noting that "Mr. Hall will be present through the trial and take those duties which the defense and he agrees will be assigned to him." The court also determined defendant's waiver of counsel was knowing, voluntary and intelligent, and that defendant's self-representation would not unduly disrupt or inconvenience the court.
Hudson, 2012 WL 6049652, at *2.
The Michigan Court of Appeals further noted that trial counsel "conducted the voir dire of the jury, made an opening statement, presented defendant's testimony, participated in some cross-examination, and delivered a closing argument. Defense counsel also advised defendant regarding objections to the prosecution's evidence." Hudson, 2012 WL 6049652, at *3. The Court of Appeals found that Petitioner did not waive his right to counsel, but merely sought to act as co-counsel. Nevertheless, the Court of Appeals also found that, to the extent that Petitioner's request for hybrid representation required a valid waiver of counsel, the record showed that Petitioner knowingly and intelligently waived his right to counsel. Hudson, 2012 WL 6049652, at *2.
Petitioner was sentenced on February 21, 2011. (Tr. 2/21/2011). On the charge of operating while intoxicated, Petitioner was sentenced to a term 24 to 120 months. Id. at p. 4. On the charge of malicious destruction of fire or police property, Petitioner was sentenced to a term of 24 to 96 months. Id. Lastly, on the charge of resisting and obstructing, Petitioner was sentenced to a term of 21 to 48 months. Id. All sentences ran concurrently. Id. Petitioner's conviction was affirmed on appeal. People v. Hudson, No. 302876, 2012 WL 6049652, at *3 (Mich. Ct. App. Nov. 29, 2012).
Petitioner seeks a writ of habeas corpus on the following grounds:
I. The trial court violated Petitioner's Sixth Amendment right to counsel when the trial court failed to establish that Petitioner's waiver of counsel was knowing, voluntary, and intelligent and failed to warn Petitioner of the nature of the accusation of the charges against him and the range of allowable sentences for each charge.
II. Petitioner's Sixth and Fourteenth Amendment right's (sic) were violated by ineffective assistance of counsel for not filing necessary motions, subpoenas, curriculum vitae for expert witness or at a minimum some type of investigation into what evidence was in the possession of the prosecution and police officers when asked by the Petitioner while ...