United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS, DENYING A CERTIFICATE OF APPEALABILITY, AND GRANTING PERMISSION TO APPEAL IN FORMA PAUPERIS
SEAN F. COX, District Judge.
This matter is before the Court on Petitioner Peno Washington's petition for a writ of habeas corpus filed under 28 U.S.C. § 2254. Petitioner was convicted in the Oakland Circuit Court of possession of between 50 and 450 grams of cocaine, MICH. COMP. LAWS § 333.7403(2)(a)(iii), and possession of marijuana. MICH. COMP. LAWS § 333.7403(2)(d). As a result of these convictions Petitioner was sentenced as a fourth-time habitual felony offender to 99-to-240 months imprisonment for the cocaine conviction and 25 days for the marijuana conviction. The petition raises three claims: 1) the evidence presented at trial was insufficient to show that Petitioner constructively possessed the drugs, 2) the trial court erred in failing to give a "mere presence" jury instruction, and 3) defense counsel was ineffective or the prosecutor withheld exculpatory evidence when a jail property receipt regarding Petitioner's footwear was not presented at trial. The Court finds that Petitioner's claims are without merit. Therefore, the petition will be denied. The Court will also deny Petitioner a certificate of appealability, but will grant him permission to proceed on appeal in forma pauperis.
I. Facts and Procedural History
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):
Defendant's convictions arise from the seizure of cocaine and marijuana during the execution of a search warrant at a 900-square foot, one-story, two-bedroom house in Pontiac. Defendant did not own the house, had a different residence, and was not the person named in the search warrant. During pre-raid surveillance, officers observed numerous short-term visits by different unidentified individuals. When the police entered the house, defendant was the sole occupant and was found in the front living room where the cocaine and marijuana were discovered hidden in a sectional sofa. The prosecutor's theory at trial was that defendant constructively possessed the cocaine and marijuana. The defense argued that defendant did not live in the house and had no knowledge of the concealed drugs.
People v. Washington, No. 300360, 2012 WL 2335936, at *1 (Mich. Ct. App. June 19, 2012).
Following his conviction and sentence, Petitioner filed a claim of appeal in the Michigan Court of Appeals, and he was appointed appellate counsel. Appellate counsel filed a motion to remand, raising the following claims:
I. Where a police officer linked defendant-appellant Peno Washington to the house where drugs were kept and sold by testifying that he saw Mr. Washington put on tan work boots the same size as the other shoes found in the house, and where the jail's clothing receipt would have contradicted that claim by showing that Mr. Washington instead wore black shoes, trial counsel was ineffective for not discovering and using the receipt to impeach the police officer. In the alternative, if the prosecution knew of the receipt, it violated Mr. Washington's right to due process by not disclosing the document even without request by the defense.
II. Remand is needed for appellate counsel to object to, and the trial court to correct, two guidelines-scoring errors.
On November 18, 2011, the Michigan Court of Appeals issued an order denying the motion to remand "for failure to persuade the Court of the necessity of a remand at this time." Petitioner moved for reconsideration, but the motion was denied on December 15, 2011. Petitioner then filed his brief on appeal, raising the following claims:
I. The evidence was insufficient to show that defendant-appellant Peno Washington constructively possessed the drugs hidden in the house in which he was arrested.
II. Where Mr. Washington's defense was that he was merely present in the house in which the drugs were hidden, and where the prosecution argued that Mr. Washington might be an accomplice to the actual owner of the drugs, the trial court erred by refusing to give the uniform jury instruction explaining the concept of mere presence.
III. Remand is needed for the trial court to correct a guidelines scoring error. OV 13 should have been scored 0 points, not 10, because [Washington's] record discloses no "continuing pattern of criminal behavior."
In an unpublished per curiam opinion, the Michigan Court of Appeals affirmed Petitioner's convictions but remanded for correction of the sentencing information report. Washington, 2012 WL 2335936, at *1.
Petitioner then filed an application for leave to appeal in the Michigan Supreme Court, raising what now form his three habeas claims. The Michigan Supreme Court denied the application because it was not persuaded that the questions presented should be reviewed by ...