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Simmons v. Woods

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

October 18, 2016

MARCUS SIMMONS, Petitioner,
v.
JEFFREY WOODS, Respondent,

          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

          HON. NANCY G. EDMUNDS UNITED STATES DISTRICT COURT JUDGE

         Marcus Simmons, (“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, in which he challenges his conviction for first-degree premeditated murder, M.C.L.A. 750.316; assault with intent to commit murder, M.C.L.A. 750.83; assault with intent to do great bodily harm, M.C.L.A. 750.84; possession of a firearm by a felon, M.C.L.A. 750.224f; and possession of a firearm in the commission of a felony, M.C.L.A. 750.227b. For the reasons that follow, the petition for writ of habeas corpus is DENIED.

         I. Background

         Petitioner was convicted following a jury 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):

         This appeal arises from a shooting on April 19, 2013, in Detroit, Michigan,

which resulted in the death of one of the victims, Donte Mack. On April 19, 2012, at approximately 4 or 5:00 p.m., Faris Matti was working at the K & G Market on East Warren. According to Matti, defendant came into the K & G Market every day, when defendant came in on April 19, 2013, Matti noted that defendant was wearing a jacket with a picture of President Obama's face stitched into the back. At approximately 8:45 p.m., Kila Parks drove herself, Donte Mack, and their one-year-old daughter Dariyah Mack, to the K & G Market in Parks' Saturn. When they arrived at the K & G Market, Donte went straight inside and Parks noticed defendant standing against the K & G Market approximately 9 to 12 feet from where she was sitting in her car. At some point, Parks noticed that defendant entered the K & G Market through the side wearing a black “hoodie” sweatshirt. Inside the store, defendant purchased chips, threw money at Matti, and left the store.
Parks saw that Donte had come out of the K & G Market, so she unlocked her doors, when he got inside the car he locked the doors. Parks saw defendant walking behind Donte, and as soon as Donte locked the doors, she heard gunshots. Parks saw the bottom of defendant's pants and “hoodie” sweatshirt through the passenger side window of the car. Parks heard a total of 10 or 11 gunshots, which sounded like they came from the same gun and lasted for approximately 10 seconds. Matti also heard gunshots approximately 30 or 40 seconds after defendant left the store. Matti testified that he looked up and saw the shooting through the K & G Market's security camera.
After the shooting stopped, Parks saw defendant run, she then got out of the car and began to scream. Donte told her to grab Dariyah, he fell and sat down outside of the store, Parks took Dariyah into the K & G Market. During the shooting, Parks was shot twice in the leg, twice in the arm, once in the bladder, once in the kidney, and once in the liver. Dariyah was not injured.
Detroit Police Officer Michael Angeleri arrived at the scene and saw a car with the passenger side window shot or broken out. He also saw Donte lying face down at the entrance of the K & G Market. Donte and Parks were transported to the hospital by ambulance, but Donte was dead on arrival. Parks had surgery on her arm and bladder. After the incident, Parks was shown a photographic lineup and identified defendant as the shooter.
Detroit Police Officer Lance Sullivan arrived at the scene of the incident at approximately 11:00 p.m., and obtained surveillance videotape footage from the K & G Market. Several “screen shot” images of the videotape footage were admitted at trial. One image showed Donte at the counter of the K & G Market, while another image showed a person in dark clothing, a dark “hooded” jacket, and white shoes entering the K & G Market. The next image showed the person at the store counter, then the next images showed Donte walking toward the door of the K & G Market and exiting. The person in dark clothing then exited the store. Other images presented at trial showed a person wearing a “dark hood” standing at the passenger side door of a car extending his arm toward the door, an image showing a person with his right arm pointing and an image of a shadow on the sidewalk, and a “long item” appeared near the head of the person in the shadow. Additionally, the surveillance videotape recordings were also played at trial, and Officer Sullivan described what they depicted. One videotape recording showed an individual walk to a car parked at the K & G Market, and another individual approached the car. Two additional videotape recordings showed Donte leave the K & G Market, the man in the “hooded” sweatshirt leave, and a young woman come into the store with a young child shortly thereafter. Relative to the surveillance evidence, Matti informed the police that the video recording revealed that defendant was the person who started shooting.
Matti testified that on April 20, 2013, defendant came into the K & G Market. Matti telephoned the police, who searched the area and found defendant with a woman, DeAngela Kelly. Defendant was wearing a jacket with President Obama's picture on the back, he was immediately arrested and while conducting a search of his jacket, Detroit Police Officer Jarmiare McEntire, recovered 26 packages of marijuana.
DeAngela Kelly testified as defendant's alibi witness at trial, stating that she lived at 15736 Munich at the time of the incident, was a friend of defendant and her sister was defendant's girlfriend. Kelly further testified that defendant came to Kelly's house on April 19, 2013, at approximately 6 or 7:00 p.m., wearing a red shirt, blue jeans, and a coat. According to Kelly, defendant fell asleep on the floor of her bedroom, so she and her son went into another room to watch television. Kelly's sister arrived at her house at approximately 8:00 p.m., and she stayed at the house until sometime between 8:30 and 9:00 p.m. Kelly said defendant was at her house until she fell asleep at approximately 9:15 or 9:30 p.m., when she woke up around 1 or 2:00 a.m., defendant was no longer in her house. Defendant testified on his own behalf at trial, explaining that he and Donte were friends and there was no ill will between them. According to defendant, he went to the K & G Market at approximately 3:30 p.m. on April 19, 2013. He admitted that he was wearing the jacket with President Obama's face on it and further testified that he encountered Donte at the K & G Market, and Donte had given defendant advice because someone had tried to rob him earlier in the day. Defendant testified that he left the K & G Market at approximately 4:30 or 5:00 p.m and went to Kelly's house approximately one hour later, wearing a red T-shirt and blue “Mack” jeans, he said that he left his black “hoodie” sweatshirt and coat downstairs. Defendant testified that he left Kelly's house at approximately 9:15 or 9:30 p.m. because he had heard that there had been a shooting, so he went to the K & G Market where he said he stayed for 5 or 10 minutes.
At approximately 9:40 p.m., defendant said he left the scene of the incident and partied with a woman named Ashley for the rest of the night.
Defendant testified that he sold medical marijuana, but he did not have a prescription to sell medical marijuana. Defendant also admitted to selling drugs on occasion while he was at the K & G Market, but that he never intended to sell the 26 bags of marijuana that were found in his coat when he was arrested. He also admitted at trial, that during a telephone conversation in jail, he said that Donte was the man he “wacked out.” However, according to defendant's testimony, he meant to say: “Is that the one they said that I shot?”
The jury convicted defendant as outlined above. Defendant was then sentenced by the trial court as previously stated. This appeal then ensued.

People v. Simmons, No. 318564, 2015 WL 302751, at *1-3 (Mich. Ct. App. Jan. 22, 2015).

         Petitioner's conviction was affirmed on appeal. Id., lv. Den. 498 Mich. 884 (2015).

         Petitioner seeks a writ of habeas corpus on the following grounds: (1) petitioner was denied a fair trial because of judicial misconduct, (2) petitioner was denied a fair trial because of prosecutorial misconduct, and (3) petitioner was denied the effective assistance of trial counsel.[1]

         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 concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly.” Id. at 410-11. “[A] state court's determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree' on the correctness of the state court's decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011)(citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Therefore, in order to obtain habeas relief in federal court, a state prisoner is required to show that the state court's rejection of his or her claim “was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington, 562 U.S. at 103. A habeas petitioner should be denied relief as long as it is within the “realm of possibility” that fairminded jurists could find the state court decision to be reasonable. See Woods v. Etherton, 136 S.Ct. 1149, 1152 (2016).

         The Court notes that the Michigan Court of Appeals reviewed and rejected petitioner's first and second claims under a plain error standard because petitioner failed to preserve the issues by objecting at the trial court level. People v. Simmons, 2015 WL 302751, at * 3, 8.

         In Fleming v. Metrish, 556 F.3d 520, 532 (6th Cir. 2009), a panel of the Sixth Circuit held that the AEDPA deference applies to any underlying plain-error analysis of a procedurally defaulted claim. In a subsequent decision, the Sixth Circuit held that that plain-error review is not equivalent to adjudication on the merits, so as to trigger AEDPA deference. See Frazier v. Jenkins, 770 F.3d 485, 496 n. 5 (6th Cir. 2014). The Sixth Circuit noted that “the approaches of Fleming and Frazier are in direct conflict.” Trimble v. Bobby, 804 F.3d 767, 777 (6th Cir. 2015). When confronted by conflicting holdings of the Sixth Circuit, this Court must follow the earlier panel's holding until it is overruled by the United States Supreme Court or by the Sixth Circuit sitting en banc. See Darrah v. City of Oak Park, 255 F.3d 301, 310 (6th Cir. 2001). This Court believes that the AEDPA's deferential standard of review applies to petitioner's first and second claims, even though they were reviewed only for plain error.

         III. Discussion

         A. Claim # 1. The judicial bias/misconduct claim.

         Petitioner first claims that he was denied a fair trial because of judicial bias or misconduct.

         The Due Process Clause of the Fourteenth Amendment requires a fair trial in a fair tribunal before a judge with no actual bias against the defendant or an interest in the outcome of the case. See Bracy v. Gramley, 520 U.S. 899, 904-05 (1997). The right to an impartial judge is a right whose deprivation a state prisoner may complain of in a federal habeas corpus proceeding. Tyson v. Trigg, 50 F.3d 436, 438 (7th Cir. 1995)(citing to Turner v. Ohio, 273 U.S. 510, 523 (1927); In Re Murchison, 349 U.S. 133 (1955)). Trial judges have a wide latitude in conducting trials, but they must preserve an attitude of impartiality and scrupulously avoid giving the jury the impression that the judge believes that the defendant is guilty. Harrington v. State of Iowa, 109 F.3d 1275, 1280 (8th Cir. 1997); Brown v. Palmer, 358 F.Supp.2d 648, 657 (E.D. Mich. 2005).

         However, in reviewing an allegation of judicial misconduct in a habeas corpus petition, a federal court must ask itself whether the state trial judge's behavior rendered the trial so fundamentally unfair as to violate federal due process. Duckett v. Godinez, 67 F.3d 734, 740 (9th Cir. 1995); Brown v. Palmer, 358 F.Supp.2d at 657. To sustain an allegation of bias by a state trial judge as a grounds for habeas relief, a habeas petitioner must factually demonstrate that during the trial the judge assumed an attitude which went further than an expression of his or her personal opinion and impressed the jury as being more than an impartial observer. Brinlee v. Crisp, 608 F.2d 839, 852-53 (10th Cir. 1979); Brown, 358 F.Supp.2d at 657. A trial judge's intervention in the conduct of a criminal trial would have to reach a significant extent and be adverse to the defendant to a significant degree before habeas relief could be granted. McBee v. Grant, 763 F.2d 811, 818 (6th Cir. 1985); Brown, 358 F.Supp.2d at 657. The Supreme Court has ruled that “expressions of impatience, dissatisfaction, annoyance, and even anger” do not establish judicial bias or misconduct. Liteky v. United States, 510 U.S. 540, 555-56 (1994). “A judge's ordinary efforts at courtroom administration-even a stern and short-tempered judge's ordinary efforts at courtroom administration-remain immune.” Id.

         Petitioner first claims that the trial judge improperly questioned Ms. Parks with the following questions:

THE COURT: Ms. Parks, you drove the car, right?
THE WITNESS: Yes.
THE COURT: All right. And Mr. Mack was in the passenger seat of the front seat?
THE WITNESS: Yes.
THE COURT: And do you remember where you parked the car when you pulled up in front of K & G Party Store?
THE WITNESS: Yes, I do.
THE COURT: If I gave you a little piece of paper, could you draw in for us where the car was?
THE WITNESS: If I could.
THE COURT: Okay. You see it says K & G Party Store.
THE WITNESS: Yes, and the sidewalk.
THE COURT: And the sidewalk. Okay. Draw in for us where you parked your car. Can you 10 put an X where you first saw this person that 11 ultimately wound up shooting? Put an X where he was standing. Okay. Now put an S, the letter S, where he was when the shooting started. When this shooting took place, did the person who was doing the shooting say anything?
THE WITNESS: No.
THE COURT: When the shooting took place, Mr. Mack was already in the car?
THE WITNESS: Yes.
THE COURT: In the front seat, passenger side?
THE WITNESS: Yes.
THE COURT: You had never gotten out of 24 the car by that time, had you?
THE WITNESS: No.
THE COURT: And your daughter was in the center of the back seat?
THE WITNESS: Yes.
THE COURT: So Mr. Mack was in between the shooter and your daughter?
THE WITNESS: Excuse me?
THE COURT: In the car there was a shooter that was outside; is that right?
THE WITNESS: Yes.
THE COURT: Mr. Mack was seated in the front seat on the passenger side, right?
THE WITNESS: Yes.
THE COURT: And your daughter was in the back seat, correct?
THE WITNESS: Yes.
THE COURT: So who was between the shooter and your daughter?
THE WITNESS: Mr. Mack, my child's father.
THE COURT: Right. Was there any particular reason why you were going to this K & G Party Store that night?
THE WITNESS: No. It's the neighborhood store.
THE COURT: No further questions. Redirect.

(Tr. 9/4/13, pp. 157-60).

         Petitioner further argues that the judge's questioning of Detroit Police Officer David Andrews with respect to the caliber and make of the shell casings exhibited bias:

THE COURT: Officer Andrews, can you just return to your seat, please? The spent shell casings that you and your partner found outside of 15500 East Warren, were they all of the same caliber?
THE WITNESS: No, they weren't.
THE COURT: Look at the jury and speak into the ...

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