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Powell v. Howes

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

September 30, 2016

ERIC ROMAN POWELL, Petitioner,
v.
CAROL R. HOWES, Respondent.

          OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF HABEAS CORPUS BUT GRANTING A CERTIFICATE OF APPEALABILITY AND IN FORMA PAUPERIS STATUS ON APPEAL

          Denise Page Hood Chief Judge

         I. Introduction

         This is a habeas case brought pursuant to 28 U.S.C. § 2254. Michigan prisoner Eric Roman Powell (“Petitioner”) was convicted of assault with intent to commit murder, Mich. Comp. Laws § 750.83, armed robbery, Mich. Comp. Laws § 750.529, and possession of a firearm during the commission of a felony, Mich. Comp. Laws § 750.227b, following a jury trial in the Kent County Circuit Court. He was sentenced as a third habitual offender, Mich. Comp. Laws § 769.11, to concurrent terms of 16 ½ to 75 years imprisonment on the assault and robbery convictions and a consecutive term of two years imprisonment on the felony firearm conviction in 2001.

         In prior decisions, the Court denied Petitioner habeas relief on claims concerning the prosecutor's closing argument, the victim's recantation, and the trial court's admission of alleged hearsay statements, granted Petitioner habeas relief on a jury pool fair cross-section claim, and did not rule on a related equal protection claim. The matter is now before the Court on remand from the United States Court of Appeals for the Sixth Circuit for a determination as to whether Petitioner can establish prejudice to excuse his procedural default for failing to raise the fair cross-section claim at the time of trial. Also before the Court is Petitioner's unresolved equal protection claim. For the reasons set forth, the Court finds that both of those claims are barred by procedural default and denies the habeas petition. The Court, however, grants a certificate of appealability so that Petitioner can seek further review in the Sixth Circuit.

         II. Facts and Procedural History

         Petitioner's convictions arise from the armed robbery and non-fatal shooting of Jonathan Bowman in Kent County, Michigan on March 23, 2000. At trial, the main prosecution witnesses were Petitioner's friend, Nicholas Seals, and the victim, Jonathan Bowman.

         Nicholas Seals testified that he ran into Petitioner around 10:30 that evening when he was walking home and Petitioner asked about purchasing marijuana. Seals saw Bowman, from whom he had bought marijuana in the past, nearby and they approached him. They were in the process of buying $20 worth of marijuana from Bowman when Petitioner pulled out a black .32 revolver and pointed it at Bowman. He told Bowman to empty his pockets and give Seals his jacket. Bowman gave Seals his car keys and his jacket. Petitioner then told Bowman to get into the car, but Bowman refused. There was a tussle and Petitioner fired the gun. Bowman then ran off around the corner and Seals ran the other way. Seals heard at least three gunshots. Seals dropped the coat and the car keys on the sidewalk. Seals ran to his girlfriend's house, which was a few blocks away. Seals did not have contact with Petitioner after the shooting because he was frightened. Seals was subsequently apprehended at a friend's house.

         Seals admitted that when he first spoke with the police, he denied being involved in the crime and denied knowing anything about it. In fact, he acknowledged that he denied being at the scene 28 times before finally telling the police what had transpired. During the interrogation, the police told him that they suspected that Petitioner was the shooter and Seals was only minimally involved in the crime. Seals denied being threatened by the police or being told to lie. He said that he identified Petitioner as the perpetrator because it was the truth. Seals was initially charged with armed robbery, but that charge was dropped in exchange for his plea to the misdemeanor offenses of possession of marijuana and providing false information to a police officer with a three-year maximum sentence in exchange for his testimony. Seals acknowledged that he did not want to testify because Petitioner was his friend and he was scared.

         Jonathan Bowman testified that he went to the neighborhood where the shooting occurred because he had friends and family there and sold marijuana there. As he exited a store, Nicholas Seals called him over and he approached Seals and Petitioner. While he and Seals were discussing a marijuana purchase, Petitioner pointed a rusty revolver at him. Bowman said he laughed at first because he and Petitioner never had any problems. Petitioner then told him to take his hands out of his pockets, remove his jacket and throw it to Seals, and walk down the street. Petitioner told him to get into his car and told Seals to get the keys out of his jacket to open the door. Bowman refused to get into the car. He saw a spark from the gun and ran zigzag to the store. He heard five or six shots. He was shot in the back and bleeding. He called his girlfriend and told her he had been shot, gave the man at the store $2, 000 that he had in his pants pocket to hold for him and asked him to call an ambulance. He went into a back room and waited for help. The bullet went through his diaphragm and liver and into his lung, which collapsed. He required an initial surgery to repair the damage and a second surgery a few weeks later to remove the bullet.

         Bowman admitted that he initially told the police that he did not know who had shot him and did not want to prosecute because he wanted to retaliate and he felt like the police would not do an accurate job. When the police questioned him again at the hospital and showed him photographs, he identified two other men, Chuckie and Little O, as the perpetrators and denied that Petitioner was involved, so that he could retaliate against Petitioner and the police would not connect him to it. Petitioner said that he changed his mind about his actions when he went to the police station to pick up his $2, 000 and realized that Petitioner's known addresses were close to his daughter's home and he was concerned that she could get caught up in further incidents of violence. Bowman then told the police what happened and identified Petitioner as the shooter. This occurred about four weeks after the shooting. Bowman said that the police did not threaten him or promise him anything to get him to make his statement.

         Bowman testified that he had a concealed weapons charge and a drug charge pending against him before the incident. A few weeks before trial, he accepted a deal on those charges which guaranteed him a maximum sentence of one year in jail. Bowman admitted that he had four prior convictions for providing false names to the police and one prior conviction for receiving and concealing stolen property.

         Michigan State Police Lab firearms expert Jeffrey Crump testified that the bullet recovered from the victim was a .32 Smith and Wesson long caliber and that it could have been fired from a revolver. Grand Rapids Police crime scene technician Dean Garrison testified that he recovered usable fingerprints from Bowman's car. Grand Rapids Police fingerprint expert Williams Wolz testified that the recovered prints did not match those obtained from Petitioner, Nicholas Seals, William Charles Kirkland, or Darryl Otis Nelson.

         Grand Rapids Police Detective Daniel Lubbers testified that he was assigned to a fugitive squad task force and was involved in Petitioner's and Seals' arrests. The police arrested Petitioner at his mother's house where they found him hiding in a bedroom closet. The police arrested Seals at another location, an apartment where he was hiding in a bedroom.

         Grand Rapids Police Detective Erica Clark testified that she investigated this crime as part of a major case team. When she and another detective spoke to Bowman at the hospital the day after the shooting, he said he did not know who shot him, but that he might be able to recognize the perpetrators if he saw them. When she and another detective spoke to Bowman at the hospital a few days later, he provided three nicknames, Chuck, Little O, and E, but said he did not want to pursue the matter. They subsequently determined that Chuck was William Kirkland, Little O was Otis Nelson, and E was Petitioner Eric Powell. When they showed Bowman photographs, he named Kirkland and Nelson as the perpetrators with Kirland being the shooter and said that Petitioner was not involved. On April 10, 2000, Petitioner came to the police station and asked to speak with her and another detective and said that he wanted to cooperate. He told them what happened and identified Petitioner as the shooter. Bowman said that he previously lied to them because he wanted to take matters into his own hands and retaliate. Warrants were then issued for Petitioner and Seals.

         Detective Clark also testified that she participated in Seals' interview after he was advised of his rights and waived them. Seals was not promised anything for his statement. Clark discussed the interrogation techniques that were used on Seals, including making him feel at ease, minimizing his involvement in the crime, and indicating that the police had more evidence than they had, in order to get him to make a statement. She denied ever telling him that he had to say that Petitioner was the shooter. She testified that the police investigation did not disclose any problems between Petitioner, Seals, and Bowman and it seemed that they were friends. Detective Clark recalled defense counsel asking Seals about whether he told Petitioner to “tell them I didn't know this was going to go down, I was just buying drugs” and Seals answering in the affirmative and stating that Petitioner said that “he couldn't help him out.”

         After deliberating for a half day, the jury convicted Petitioner of assault with intent to murder, armed robbery, and felony firearm. The trial court subsequently imposed his sentence.

         Following his convictions and sentencing, Petitioner filed an appeal of right with the Michigan Court of Appeals asserting that the prosecutor made an improper civic duty argument during closing argument, that minorities were under-represented in the jury pool selection process due to a computer glitch (fair cross-section claim), that he is entitled to a remand and new trial based upon the victim's recantation, and that the trial court erred in admitting alleged hearsay statements. The court denied relief on those claims and affirmed Petitioner's convictions and sentences. People v. Powell, No. 239310, 2003 WL 22976107 (Mich. Ct. App. Dec. 13, 2003) (per curiam). Petitioner filed an application for leave to appeal with the Michigan Supreme Court raising those same claims, as well as claims concerning his right to testify, the effectiveness of trial counsel as to that issue, and cumulative error. The court denied the application in a standard order. People v. Powell, 471 Mich. 865, 663 N.W.2d 675 (2004). The court also denied reconsideration. People v. Powell, 471 Mich. 922, 688 N.W.2d 830 (2004).

         Petitioner then filed his initial habeas petition with this Court raising the same claims he presented to the Michigan Court of Appeals on direct appeal. Adopting the Magistrate Judge's Report and Recommendation, the Court ordered an evidentiary hearing on the fair cross-section claim and denied habeas relief as to the other claims. See Opinion dated May 1, 2007. Petitioner then filed a motion to stay the proceedings so that he could return to the state courts and exhaust additional issues, which this Court granted on September 22, 2008.

         Petitioner subsequently filed a motion for relief from judgment with the state trial court asserting that court personnel engaged in racial discrimination during the jury selection process in violation of his equal protection rights. Adopting the State's response, the trial court denied the motion. People v. Powell, No. 01-05302-FC (Kent Co. Cir. Ct. Feb. 27, 2009). Petitioner filed an application for leave to appeal with the Michigan Court of Appeals, which was denied “for failure to establish entitlement to relief under Mich. Ct. R. 6.508(D).” People v. Powell, No. 290916 (Mich. Ct. App. Oct. 2, 2009) (unpublished). Petitioner then filed an application for leave to appeal with the Michigan Supreme Court, which was similarly denied. People v. Powell, 486 Mich. 927, 781 N.W.2d 848 (2010).

         Petitioner thereafter filed a motion to reopen this habeas case, which the Court granted on November 9, 2010. In his supplemental/amended petition, he raised his fair cross-section claim and his equal protection claim arising from the jury pool selection process. Specifically, he raised the following two claims:

I. When Kent County has acknowledged publicly that because of an error in its computer system, nearly seventy-five percent of the county's eligible jurors were being excluded from jury pools during the time when jurors were selected in this case, and they were being excluded in a manner that resulted in an underrepresentation of African-Americans, Petitioner was denied his constitutional ...

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