United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DENYING CERTIFICATE OF APPEALABILITY
ROBERT H. CLELAND, District Judge.
Petitioner Andre Dillard filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner, currently incarcerated at the Michigan Reformatory in Ionia, Michigan, challenges his conviction for assault with intent to rob while armed. Petitioner claims that habeas relief should be granted because insufficient evidence was presented to establish beyond a reasonable doubt that he specifically intended to rob the victim and the Michigan Supreme Court violated his rights to due process and equal protection when it denied a motion for superintending control. Respondent has filed a response arguing that the claims are unexhausted and without merit. The court denies the petition and declines to issue a certificate of appealability.
I. BACKGROUND AND PROCEDURAL HISTORY
On February 22, 2007, Richard Balzer, a detective with the Romulus Police Department, met with an informant who arranged for an individual known as "V" to purchase 10 pounds of marijuana from Detective Balzer for $6, 500. Detective Balzer testified that he and the informant were supposed to meet "V" at a party store in Romulus. After Detective Balzer and the informant arrived at the party store, the informant received a call to move the meeting to a gas station in Inkster, and then to a laundromat near the gas station. They arrived at the laundromat at approximately 8:15 p.m. Undercover officers followed Detective Balzer and the informant to their destination. They also monitored the conversation in the Detective Balzer's vehicle via an audio transmitter.
When Detective Balzer and the informant arrived at the laundromat, Petitioner and another man approached the vehicle. The other man, who identified himself as Johnson, entered the vehicle to inspect the marijuana. Johnson then exited the vehicle. Johnson and Petitioner stood outside the open passenger side front door. Detective Balzer asked for payment. Johnson told Petitioner to pay. Petitioner removed from his waistband what appeared to be a small handgun, ordered Detective Balzer out of the car, and threatened to kill him. Detective Balzer asked Petitioner why he had pulled a gun in order to alert the undercover officers of the situation. Detective Balzer removed his own weapon from the car door and exited the vehicle. The backup officers announced that they were police officers and ordered Petitioner to put his gun down. Petitioner fled into the laundromat.
Police officer Joshua Monte stated that he was one of the officers assigned to conduct visual and audio surveillance of Detective Balzer's operation. He saw Petitioner remove something from his waistband, then heard Detective Balzer ask why Petitioner had pulled a gun. Officer Monte then ran toward Petitioner, ordering him to drop the gun and get on the ground. Petitioner ran into the laundromat and locked himself in the bathroom. After ten minutes, Petitioner exited the bathroom and was placed under arrest. Petitioner told Officer Monte that he did not have a gun, but, instead, had pretended his cell phone was a gun. Police searched Petitioner, the bathroom, and the surrounding area and no gun was found.
Petitioner was charged with carjacking, assault with intent to rob while armed, and attempted delivery of marijuana. Following a jury trial in Wayne County Circuit Court, Petitioner was convicted of assault with intent to rob while armed. He was acquitted of the remaining charges. On December 2, 2009, he was sentenced to ten to twenty years' imprisonment.
Petitioner filed an appeal of right in the Michigan Court of Appeals, raising a single claim: the evidence presented was insufficient to find that Petitioner had the intent to rob Detective Balzer. The Michigan Court of Appeals affirmed Petitioner's conviction. People v. Dillard, No. 296132, 2011 WL 832948 (Mich. Ct. App. March 10, 2011). Petitioner's application for leave to appeal in the Michigan Supreme Court was rejected for filing because it was not timely filed. See 11/20/13 Affidavit of Larry Royster, Clerk, Michigan Supreme Court.
On March 13, 2012, Petitioner filed a habeas corpus petition, arguing that his conviction was not supported by sufficient evidence. Because Petitioner had not exhausted his claim in state court by fairly presenting the claim to the Michigan Supreme Court, the court held the petition in abeyance to allow Petitioner to exhaust the claim. (Dkt. # 10.) On June 25, 2012, Petitioner filed in the Michigan Supreme Court a Complaint for Superintending Control, seeking an order compelling the Court of Appeals to reissue its decision in his case. The Michigan Court of Appeals did not accept the papers for filing because under state court rules superintending control is not available when an appeal is available. See 6/29/12 Letter from Corbin R. Davis, Supreme Court Clerk. On September 21, 2012, Petitioner filed a motion to reopen the habeas proceeding and an amended petition, claiming to have exhausted his state court remedies. The court granted the motion and ordered Respondent to file an answer to the amended petition. (Dkt. # 13.)
The amended petition raises these claims:
I. The prosecutor presented insufficient evidence to support a finding beyond a reasonable doubt that Appellant specifically intended to rob the complainant and his assault with intent to rob while armed conviction on insufficient evidence denied Appellant his state and federal constitutional right to due process.
II. The clerk of the Michigan Supreme Court violated the Petitioner's constitutional rights to due process and equal protection of the law, when the Michigan Supreme Court clerk has granted state prisoners' and prosecutors' motions for superintending control where they could afford attorneys and hearings to expand the record and Petitioner is a [poor] prisoner that cannot afford such luxuries.
28 U.S.C. § 2254(d) ...