United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY
JOHN CORBETT O'MEARA, District Judge.
This is a habeas case filed under 28 U.S.C. § 2254. Petitioner Marcus Andrew Strong, an inmate currently incarcerated at the Earnest C. Brooks Correctional Facility in Muskegon Heights Michigan, filed a pro se petition for writ of habeas corpus challenging his convictions for voluntary manslaughter and witness intimidation. He raises these claims for habeas relief: ineffective assistance of trial counsel, ineffective assistance of appellate counsel, and the trial court erred in assessing attorney fees without considering Petitioner's current and future financial circumstances. Respondent filed an answer arguing the claims are procedurally defaulted and/or meritless. For the reasons set forth, the Court denies the petition.
I. Factual Background
Petitioner was convicted of voluntary manslaughter and witness intimidation following a jury trial in Wayne County Circuit Court. The Michigan Court of Appeals recited and relied on the following facts in denying Petitioner's appeal on direct review:
In July 2003, Darrell Zion was driving a pickup truck on a residential street in Detroit, and he veered to avoid a group of people who were playing basketball. The truck hit some sand and struck a pole, and Zion and the victim emerged from the truck. A group of men approached them. Zion ran away, and the victim was beaten and kicked to death. Constance Holland, who lived in the neighborhood and witnessed the incident, knew defendants and identified them as the perpetrators. Zion, who was hiding nearby and witnessed the incident, identified defendants Strong and Warren.
Less than two weeks after the incident, defendant Strong approached Holland outside a local store and punched her twice in the face, threatening to burn down her mother's house if she testified against him. Defendant Dunbar also told Holland that he would find out where her mother lived if she "told on him, " and she construed this as a threat. Holland moved away from the neighborhood because she was afraid, and she avoided the police until 2006, when she was arrested as a material witness.
All three defendants were charged with first-degree premeditated murder, M.C.L. 750.316(1)(a), and tried jointly before a single jury. All three defendants were convicted of the lesser offense of voluntary manslaughter, M.C.L. 750.321. Defendants Strong and Dunbar were also convicted of witness intimidation, MCL 750.122(7)(c).
People v. Warren, No. 276425, 2008 WL 2548445, at *2 (Mich. Ct. App. June 24, 2008).
On February 6, 2009, Petitioner was sentenced to 200 months to 40 years for each of his convictions. He filed an appeal of right in the Michigan Court of Appeals raising these claims: (i) counsel was ineffective for failing to sever the trial for the charge of witness intimidation; (ii) Petitioner was improperly sentenced as a fourth habitual offender; (iii) offense variable one was incorrectly scored; and (iv) counsel was ineffective for failing to interview alibi witnesses, failing to assert an alibi defense, and advising Petitioner not to testify in his own defense. The Michigan Court of Appeals affirmed Petitioner's convictions, but held that Petitioner should have been sentenced as a third, rather than fourth, habitual offender. The court remanded for resentencing. People v. Warren, No. 276425, 2008 WL 2548445 (Mich. Ct. App. June 24, 2008).
Petitioner filed an application for leave to appeal in the Michigan Supreme Court raising claims that trial counsel was ineffective for: (i) failing to interview alibi witnesses; (ii) failing to assert an alibi defense at trial; and (iii) advising Petitioner not to testify in his own defense. The Michigan Supreme Court denied leave to appeal. People v. Strong, 482 Mich. 1068 (Mich. Nov. 25, 2008).
On remand for resentencing, Petitioner was sentenced to concurrent terms of 129 months to 30 years for each of his convictions. Petitioner appealed his new sentence, challenging that portion of the judgment of sentence requiring him to reimburse the county for court-appointed counsel fees. The Michigan Court of Appeals affirmed the resentencing. People v. Warren, No. 290588, 2010 WL 716158 (Mich. Ct. App. March 2, 2010). The Michigan Supreme Court denied Petitioner's application for leave to appeal. People v. Strong, 487 Mich. 857 (Mich. July 26, 2010).
Petitioner then filed a motion for relief from judgment in the trial court, raising these claims: (i) counsel was ineffective for failing to investigate exculpatory evidence and call exculpatory witnesses; and (ii) appellate counsel was ineffective in failing to raise this issue on direct appeal. The trial court denied the motion. 1/19/11 Opinion Denying Defendant's Motion for Relief from Judgment, People v. Strong, No. 06-9249. Petitioner filed an application for leave to appeal in the Michigan Court of Appeals, raising the same claims raised in the trial court and an additional claim that counsel was ineffective in failing to file a motion to sever the trials between the co-defendants. The Michigan Court of Appeals denied the application for leave to appeal. People v. Strong, No. 302523 (Mich. Apr. 23, 2012). The Michigan Supreme Court also denied leave to appeal. People v. Strong, 491 Mich. 908 (Mich. Apr. 23, 2012).
Petitioner then filed the pending habeas corpus petition. He raises these claims:
I. Strong was denied the effective assistance of counsel by his counsel's:
a. failure to interview alibi witnesses;
b. failure to assert an alibi defense at ...