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Marion v. Woods

United States District Court, E.D. Michigan, Southern Division

September 4, 2015

ALLEN MARION, Petitioner,
JEFFREY WOODS, Respondent,

          Allen Marion, Petitioner, Pro se, MUSKEGON HEIGHTS, MI.

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         HONORABLE Victoria A. Roberts, United States District Judge.

         Allen 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 § 750.224f.[1]

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          The 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.

         I. Background

         Petitioner was convicted following a jury trial in the Wayne County Circuit Court.

         Joseph 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., p. 22).

         Donald " 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).

         Ricardo 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).

         Phillip 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).

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          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).

         Officer 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)

         Petitioner's 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.[2] No alibi defense was presented.

         Petitioner 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[3] 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.

         After 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 trial.[4]

         Attached 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

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told this information to Petitioner's lawyer prior to trial.[5]

         Rochelle 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.[6]

         Appellate counsel attached a receipt from Mirage Jewelry dated March 1, 2006, with Petitioner's name on it to the motion to remand.[7] 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 photograph.[8]

         Linda 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 available.[9]

         Significantly, 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.[10]

         The 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, ...

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