United States District Court, E.D. Michigan, Southern Division
Marion, Petitioner, Pro se, MUSKEGON HEIGHTS, MI.
AND ORDER GRANTING THE PETITION FOR WRIT OF HABEAS
Victoria A. Roberts, United States District Judge.
Marion, (" Petitioner" ), confined at the Chippewa
Correctional Facility in Kincheloe, Michigan, filed a pro
se petition for writ of habeas corpus pursuant to 28
U.S.C. § 2254. He challenges his convictions for second
degree murder, Mich. Comp. Laws § 750.317; felony
firearm, Mich. Comp. Laws § 750.227b; and possession of
a firearm by a felon, Mich. Comp. Laws §
Court GRANTS the petition for writ of habeas corpus; it finds
that Petitioner was denied the effective assistance of
counsel based on trial counsel's failure to investigate
and present an alibi defense.
was convicted following a jury trial in the Wayne County
Day was shot in Detroit, Michigan, on March 1, 2006 at
approximately 5:40 p.m. (Tr. 6/30/09, pp. 12-15, 20-22).
Although there were ten to fifteen people standing near the
victim, and in spite of the fact that police canvassed the
neighborhood to find eyewitnesses, they were unable to learn
the identity of the assailant, how the assailant came to be
there, or anything else helpful to their investigation. None
of the persons the police spoke with acknowledged knowing the
shooting victim or where he lived. ( Id., pp. 17,
28-29). The officers indicated in their report that the
suspected shooter was " unknown." ( Id.,
" Ricardo" Sims was the only witness at trial to
positively identify Petitioner as the shooter. Sims was
arrested on federal drug charges on May 23, 2006. On December
8, 2006, nine months after the shooting and almost seven
months after his arrest on the federal drug charges, Ricardo
Sims gave a statement to the officer in charge of this case,
Officer Zwicker. Sims for the first time identified
Petitioner as one of the people who shot Mr. Day. (Tr.
6/30/09, pp. 137-138, 166-67). At this meeting with Zwicker,
Ricardo Sims identified Petitioner's photograph from a
photo array. ( Id., pp. 138-39). Ricardo Sims told
Zwicker that Phillip Yeager and Carnell Sims, Ricardo's
brother, could confirm his story. ( Id., pp. 179,
182). Ricardo Sims acknowledged that but for his arrest, he
probably never would have given the police information about
Day's shooting. ( Id., p. 188).
Sims testified that at the time of his December 8, 2006
statement, he had no formal agreement with the police and was
not yet cooperating with them. ( Id., p. 138). On
cross-examination, Ricardo Sims acknowledged that he spoke
with Zwicker as part of a debriefing about his past that was
part of his Rule 11 plea agreement in federal court.
Ricardo's plea agreement included a term that his
truthful cooperation in other criminal investigations would
be taken into account in the final determination of his
sentence by the federal judge. ( Id., pp. 139-140,
176, 178). He pled guilty to a conspiracy that lasted from
1998 to 2004 to sell large quantities of marijuana in the
Detroit area. ( Id., p. 146). Ricardo acknowledged
that his current sentence of 84 months could be reduced based
on his cooperation in Petitioner's murder case. (
Id., pp. 140, 180).
Yeager testified that he witnessed the shooting of Day of
March 1, 2006. ( Id., pp. 42, 46-47, 59-64, 78). He
said that when Day was shot he was neither at his home down
the street, as a police officer who responded to the scene
recalled him saying, nor was he standing anywhere near Day,
as Ricardo claimed. Instead, Yeager says he was three houses
away from the shooting, at the corner of Manning and Pelkey.
Yeager testified he recalled seeing Ricardo near the area
where Day was shot beforehand, but Yeager did not go to the
scene until after Day was shot.( Id., pp. 38-40, 44,
57). Yeager could not identify the shooter or shooters. (
Id., pp. 43, 46, 52).
However, Yeager testified that he did tell Zwicker that he
did not see the shooting. Carnell Sims denied seeing the
shooting and denied knowing who shot Day. Carnell testified
that he was a little ways down the street when the shooting
occurred and did not see it. Carnell Sims denied seeing
Petitioner before, and testified that he did not know if
Petitioner was present at Day's shooting. ( Id.,
pp. 104-05). Carnell also denied knowing whether Day and/or
Ricardo were drug dealers. ( Id., pp. 97-98).
Zwicker testified that he spoke with Carnell Sims and Yeager
at the home of Sim's grandmother, around January 8, 2008.
Officer Zwicker testified that Ricardo Sims may have been
walking around inside the home while he spoke with Carnell
and Yeager. (Tr. 7/1/09, pp. 26-28, 44). Officer Zwicker
testified that the answers he wrote on Carnell Sim's
statement came from Carnell and that Carnell signed the
statement. Zwicker testified that the same was true of
Yeager, though Yeager did not have much to say ( Id.
pp. 27-28). Zwicker testified that Carnell identified
Petitioner as the shooter from a photo array he showed him
during the questioning. ( Id., pp. 31-32)
attorney filed a Notice of Alibi prior to trial, indicating
that he planned to call Charles Lewis and a person named
Arnell as alibi witnesses at trial. No alibi defense was
filed a direct appeal with the Michigan Court of Appeals.
Although Petitioner raised several claims both in the brief
filed by appellate counsel and in a Supplemental pro
se Standard 4 brief that Petitioner filed on his own
behalf, including several ineffective assistance of trial
counsel claims, there was no claim raised that trial counsel
was ineffective for failing to investigate an alibi defense
or call alibi witnesses.
Petitioner's appellate briefs had been submitted but
before the Michigan Court of Appeals issued a decision,
Petitioner's appellate counsel filed a motion to remand
to the trial court for an evidentiary hearing based on newly
discovered evidence that would bolster the alibi defense that
Petitioner's counsel intended to present at
to the motion to remand was an affidavit from Charles A.
Lewis, Jr., dated December 14, 2009. Lewis stated in his
affidavit that he knew Petitioner from the music business and
as a friend. Lewis stated that on March 1, 2006, Petitioner
picked him up at about 4:00 p.m. and the two drove to a
jewelry store in Hamtramck, Michigan, arriving between 4:45
p.m. and 5:00 p.m. Lewis stated in his affidavit that
Petitioner looked at some rings, before making a down payment
on a ring and receiving a receipt from the jewelry store
owner. Lewis stated that the two men were at the jewelry
store for over an hour before leaving after 6:00 p.m.
Petitioner and Lewis drove to Rochelle Moore's house on
Cheyenne Street, arriving between 6:45 p.m. and 7:00 p.m.
Lewis left Petitioner and Moore at about 7:45 p.m. Lewis
claimed that Petitioner was with him continuously between
4:00 p.m. and 7:45 p.m. on March 1, 2006. Lewis
told this information to Petitioner's lawyer prior to
Moore signed an affidavit stating that during the fall of
2009, her home was broken into and her engagement ring was
stolen. While searching for receipts that would support her
insurance claims, Moore discovered a receipt for the
engagement ring that Petitioner bought her. The receipt was
from Mirage Jewelry Store, listed Petitioner's name, and
was dated March 1, 2006.
counsel attached a receipt from Mirage Jewelry dated March 1,
2006, with Petitioner's name on it to the motion to
remand. Also attached to the motion to remand
was an affidavit from Zaher Murray, the owner of Mirage
Jewelry. Murray was shown a copy of the receipt from his
store and a photograph of a woman (Moore) wearing the diamond
ring that was purchased from the store. Murray acknowledged
that the receipt from Mirage Jewelry was his and described a
diamond ring that was consistent with the ring that the woman
in the photograph was wearing and was also consistent with
the rings that Murray sold at the time and continues to sell.
Murray recognized Petitioner as one of his customers from a
Borus, Chief Investigator with the State Appellate Defender
Office, indicated that on July 8, 2010, she went to the
Mirage Jewelry Store with a copy of the receipt that
indicated Petitioner purchased a diamond ring on March 1,
2006. Murray identified the writing on the receipt as his and
verified the receipt coming from his store. Murray told Ms.
Borus that his store did not put receipt information on its
computer and did not keep copies of paper receipts for more
than six months. Thus, the original store copy was not
appellate counsel attached an affidavit from Petitioner's
trial counsel, Steven Scharg, to the motion to remand. Mr.
Scharg acknowledged that he submitted an alibi witness list
on June 4, 2009, which included the names Charles Lewis and a
person identified only as Arnell. Scharg acknowledged that
these individuals, whom Petitioner had provided the names of,
could have provided Petitioner with an alibi. Scharg
indicated that none of these witnesses, including Petitioner,
could have corroborated where they believed Petitioner to be
at the time of the incident. Scharg indicated that he was now
aware of the Mirage Jewelry Store receipt discovered by
Rochelle Moore. Scharg stated that this receipt provided
corroboration for Petitioner's alibi. Scharg indicated
that had he been able to verify the authenticity of the
receipt, he would have run " a now very credible alibi
defense" on Petitioner's behalf.
Michigan Court of Appeals denied Petitioner's motion to
remand, based on Petitioner's " failure to persuade
the Court of the necessity of a remand at this time."
People v. Marion, ...