United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING THE PETITION FOR WRIT OF HABEAS CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY OR LEAVE TO APPEAL IN FORMA PAUPERIS
John Corbett O’Meara, United States District Judge
Keith Antonio Tate, (“Petitioner”), confined at the Chippewa Correctional Facility in Kincheloe, Michigan, 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 second-degree murder, M.C.L.A. 750.317, assault with intent to commit great bodily harm less than murder, M.C.L.A. 750.84, and possession of a firearm during the commission of a felony, M.C.L.A. 750.227b. For the reasons stated below, the application for writ of habeas corpus is DENIED.
Petitioner was convicted following a bench trial 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):
The convictions arose from a drive-by shooting in which Toriano Collins (known as “T”) was killed, and Robert Madden was knocked down by a bullet that hit his zipper. Defendant was linked to the crime by Madden, who identified defendant as the shooter.
In a prior appeal, this Court originally determined that the trial court abused its discretion in denying defendant’s motion for a new trial based on newly discovered evidence. People v. Tate, unpublished opinion per curiam of the Court of Appeals, issued June 5, 2003 (Docket No. 231230). This Court’s decision focused on an affidavit from a prison inmate, Richard Eddings, concerning his knowledge of facts indicating that the perpetrators were two other men, known as Pooh and Red. The trial court had determined that this newly discovered evidence would not have led to a different result. Id., slip op, p 4. This Court explained that the trial court’s determination that the evidence would probably not have altered the outcome of the trial was not conclusive. Id., slip op, p 5. As explained by this Court, “The trial testimony of the prosecution’ sole eyewitness, Robert Madden, was full of contradictions and his ability to perceive the shooter deeply questionable, at best.”Id. This Court explained in detail the weaknesses of Madden’s testimony, including the fact that Madden claimed in a taped interview with defense counsel that defendant was not the shooter and that Madden had been pressured by the police to identify defendant. Id., slip op, p 6.
The prosecution filed a motion for reconsideration of this Court’s opinion, and this Court granted the motion as follows:
This Court orders that the motion for rehearing is granted to the limited extent that the remand for new trial is modified as follows: On remand, within 42 days of the Clerk’s certification of this order, the court shall conduct a hearing at which defendant shall present the inmate affiant’s testimony, and any other evidence in support of his motion for new trial. If the testimony is substantially in accord with the affidavit, a new trial shall be granted. If the inmate is not produced, or the testimony is not substantially in accord, the trial court shall either grant or deny the motion based on the record made, and consistent with our opinion. [People v. Tate, unpublished order of the Court of Appeals, entered September 22, 2003 (Docket No. 231230).]
On remand, the trial court held an evidentiary hearing at which the affiant of the affidavit, Richard Eddings, testified. Following the hearing, the trial court ruled that Eddings’ did not testify substantially in accord with his affidavit. The court concluded without explanation that his testimony was not credible.
People v. Tate, No. 254868, 2006 WL 1688085, at *1-2 (Mich.Ct. App. June 20, 2006).
The Michigan Court of Appeals reversed and remanded the matter for a new trial based on the newly discovered evidence. Id. at * 2-6.
In lieu of granting leave to appeal, the Michigan Supreme Court reversed the judgment of the Michigan Court of Appeals and reinstated the conviction. People v. Tate, 477 Mich. 1066, 728 N.W.2d 873 (2007)(Cavanagh and Kelly, JJ., would deny leave to appeal).
Petitioner filed a post-conviction motion for relief from judgment, which was denied. People v. Tate, No. 99-012340 (Third Judicial Circuit Court, April 24, 2008). The Michigan Court of Appeals denied petitioner leave to appeal. People v. Tate, No. 291123 (Mich.Ct.App. September 10, 2009).
The Michigan Supreme Court vacated the Court of Appeals order and remanded the case to the Court of Appeals for it to consider the issues raised in petitioner’s original direct appeal that had not yet been addressed by the Michigan Court of Appeals. People v. Tate, 486 Mich. 925, 781 N.W.2d 842 (2010).
On remand, the Michigan Court of Appeals again affirmed petitioner’s conviction. People v. Tate, No. 291123, 2011 WL 6376006 (Mich. Ct. App. Dec. 20, 2011). The Michigan Supreme Court denied petitioner leave to appeal. People v. Tate, 493 Mich. 855, 820 N.W.2d 794 (2012).
Petitioner seeks a writ of habeas corpus on the following grounds:
I. The evidence presented was insufficient to find petitioner guilty beyond a reasonable doubt, in violation of due process.
II. Petitioner’s right to a jury trial was violated by an involuntary, unknowing, and unintelligent waiver of that right, made under the false premise that he would otherwise be unable to use critical impeachment evidence while retaining the attorney of his choice.
III. The prosecutor withheld material, exculpatory, or impeachment evidence, refused to permit the defense to interview witnesses, elicited evidence of third-party threats against a prosecution witness without any evidence connecting them to petitioner, introducing other acts evidence in violation of the trial court’s order, and denigrated defense counsel.
IV. The trial court’s failure to suppress the in-court and out-of-court identifications by Robert Madden denied petitioner a fair trial.
V. Appellate counsel for the appeal after remand was ineffective for failing to raise the claims that were raised but not addressed in the initial appeal.
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 ...