United States District Court, E.D. Michigan, Southern Division
MEMORANDUM AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY
AVERN COHN, District Judge.
This is a habeas case filed under 28 U.S.C. § 2254. Petitioner Charles Hawkins (Petitioner), proceeding pro se, was convicted of second-degree murder, M.C.L. § 750.317, felon in possession of a firearm, M.C.L. § 750.224f, carrying a concealed weapon, M.C.L. § 750.227, and commission of a felony with a firearm. M.C.L. As a result of these convictions, Petitioner was sentenced as a third-time habitual felony offender to 50-to-75 years for the murder conviction, as well as lesser terms for the firearm convictions. Petitioner says he is incarcerated in violation of his constitutional rights. He raises eight claims which will be discussed below. As will be explained, the petition will be denied because the claims either lack merit or are procedurally barred from review.
The following facts leading to Petitioner's convictions follow.
On June 18, 2008, seventeen-year-old Anthony Willis was shot and killed in front of a Detroit housing complex. The shooting occurred during an altercation and was witnessed by several bystanders who knew the participants. The testifying eyewitnesses largely agreed on the basic circumstances of the shooting. Willis and another young man, Bobby Lindsey, were arguing outside the housing complex, prompting a small crowd to gather. Petitioner was called to help Lindsey. When he arrived, words were exchanged between Petitioner and Willis. Petitioner then shot Willis in the leg. Willis ran into his house. The bullet had severed his femoral artery, and as a consequence Willis bled to death.
Tamika Winfield testified that she lived in the complex and knew the individuals involved in the incident. She said she was in the crowd and saw Willis and Lindsey exchange threatening words. She testified that when Willis saw Petitioner, Willis told Petitioner "your old ass can get it too." Petitioner then pulled out a handgun and said, "What the fuck you say now?" Winfield further testified that as Willis turned to run, Petitioner shot him the back of the leg. After the shooting, Petitioner walked to his car, threw the gun in the engine compartment, covered his licence plate with a piece of cloth, and drove away. Winfield further testified that she saw Willis pace back in forth in front of his house while his leg was bleeding.
Timothy Moore testified he saw Willis and Lindsey arguing, but he did not see either with a weapon. Moore said he saw Petitioner arrive and heard Willis threaten to beat him. Moore further testified that his back was turned when he heard a gunshot. When Moore turned around, he saw Petitioner holding a handgun and Willis running. Moore also said that he saw Petitioner fire at Willis a second time; he thought Petitioner missed.
Bernard Wilson and Jerry Smith testified to similar accounts of the shooting. Both Wilson and Smith testified that Willis was shot at a second time as he ran away and that Willis did not appear to be armed with a weapon.
Another set of eyewitnesses, however, testified that Willis appeared to be armed prior to the shooting. Keith Hill testified that he saw Willis reach for a gun under his shirt just before Petitioner shot him. Hill also testified that the police refused to talk to him at the scene. Latisha Lindsey likewise testified that Willis reached for something at his side before he was shot, but she did not see what it was. Brenda Lindsey similarly described Willis patting himself as if he was looking for something just prior to being shot. She also testified that Willis had threatened to shoot her son prior to the altercation.
Petitioner made a statement shortly after his arrest while being transported to the police station. In the statement, admitted at trial, Petitioner told a police officer that he aimed at Willis' buttocks. Petitioner also said that he did not intend to kill Willis and only shot him because Willis pulled a gun. A search of Willis' house and surroundings did not uncover any firearm.
Following his conviction and sentence, Petitioner filed a direct appeal in the Michigan Court of Appeals, raising the following claims:
I. Verdicts of guilty based upon insufficient evidence constituted a denial of due process.
II. Sentences imposed violated constitutional guarantees against cruel and/or unusual punishment. Petitioner filed a pro se supplemental brief, raising the following additional claims:
I. Defendant-Appellant was denied due process of law and his conviction should be reversed because the prosecution failed to establish that Defendant-Appellant's intent to kill or maim the victim, also that witness'es [sic] testified that they tried to stop the bleeding but the victim would not stay seated thereby the prosecutor failed to establish that the Defendant-Appellant intended to kill the victim, wherefore trial counsel was ineffective in violation of the Sixth and Fourteenth Amendments, as well Const 1963, art. 1, §§ 17, 20.
II. Defendant-Appellant was denied the effective assistance of trial counsel where counsel failed to investigate the Defendant-Appellant's defense, or to retain a medical expert to testify as to the victim and others assistance which aided in the victims [sic] death.
The Michigan Court of Appeals affirmed Petitioner's conviction in an unpublished opinion without oral argument. People v. Hawkins, 2010 WL 673358 (Mich. Ct. App. Feb. 25, 2010). The Michigan Supreme Court denied leave to appeal. People v. Hawkins, 487 Mich. 856 (2010).
Petitioner then filed a petition for habeas relief in this Court. (Doc. 1). After filing, the Court issued an order granting Petitioner's request to stay the case and hold it in abeyance so he could present the state courts with a new set of claims. (Doc. 5).
Petitioner then filed a motion for relief from judgment in the trial court, raising the following claims:
I. Defendant was denied his Sixth Amendment right to effective assistance of appellate counsel where counsel failed to raise several meritorious claims on direct review.
II. Defendant was denied his Sixth and Fourteenth Amendment right to effective assistance of counsel and due process of law.
III. Defendant was denied his Fifth Amendment right to be free from self-incrimination and Fourteenth Amendment right to due process was violated where Defendant was not given his Miranda warning before given [sic] a statement after being arrested which was used against him in Court.
IV. Defendant was denied his Sixth and Fourteenth [sic] right to a fair trial and due process when the prosecutor committed misconduct.
V. Defendant was denied his Sixth and Fourteenth Amendment right to a fair trial and due process where the trial court erroneously instructed the jury to change its verdict which had been read into the record.
VI. Cause and prejudice.
The trial court denied the motion for relief from judgment under Michigan Court Rule 6.508(D)(3) and for lack of merit. Petitioner then filed an application for leave to appeal in the Michigan Court of Appeals. The Court of Appeals denied the application for failure to establish entitlement to relief under Michigan Court Rule 6.508(D). People v. Hawkins, No. 308456 (Mich. Ct. App. Aug. 24, 2012). The Michigan Supreme Court also denied review. People v. Hawkins, 493 Mich. 920 (2012).
Petitioner then returned to this Court and filed an amended petition. (Doc. 8). It raises the following claims: (1) sufficiency of the evidence; (2) Petitioner's trial counsel was ineffective for failing to argue that the victim's conduct after being shot caused his own death; (3) Petitioner's lengthy sentence violates the Eighth Amendment; (4) Petitioner was denied the effective assistance of appellate counsel; (5) Petitioner's counsel failed to raise objections at trial; (6) Petitioner was not given his Miranda warnings prior to giving a statement to police; (7) prosecutorial misconduct; and (8) the trial court erroneously instructed the jury to change its verdict.
III. Standard of Review
28 U.S.C. § 2254(d) imposes the following standard of review ...