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Nelson v. Jackson

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

October 31, 2016

DARYL DUDE NELSON, Petitioner,
v.
SHANE JACKSON, Respondent,

          OPINION AND ORDER DENYING THE PETITION FOR WRIT OF HABEAS CORPUS, DENYING A CERTIFICATE OF APPEALABILITY, AND GRANTING PETITIONER LEAVE TO APPEAL IN FORMA PAUPERIS

          DENISE PAGE HOOD CHIEF UNITED STATES DISTRICT JUDGE

         Daryl Dude Nelson, (“Petitioner”), confined at the Brooks Correctional Facility in Muskegon Heights, Michigan, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction for second-degree murder, M.C.L.A. 750.317; reckless driving causing death, M.C.L.A. 257.626(4) and being a third felony habitual offender, M.C.L.A. 769.11. For the reasons that follow, the petition for writ of habeas corpus is DENIED. The Court grants petitioner's motion to file exhibits in a traditional manner and the motions to expand the record but denies the motion for an evidentiary hearing.

         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 e.g. Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009):

The evidence at trial indicated that defendant was driving a car at a high rate of speed while repeatedly, aggressively, and intentionally hitting the side of the victim's van. Although defendant argues that the victim was also driving in an irresponsible and dangerous manner, he does not refute that he was driving as the witnesses described. Similarly, there was no testimony indicating that defendant attempted to stop ramming the victim's vehicle or slow down before the collision. At trial there was also evidence that suggested defendant intended to act aggressively towards the victim. The victim's sister testified that on the day before the crash defendant had shown up at her home unannounced when the victim was there and had “kept texting [the victim]” while she was out that day. The victim's cousin testified that defendant had previously shown up unannounced at a family member's home while the victim was there and had attempted to prevent her from leaving. She testified that defendant had parked his car right behind the victim's car and didn't leave even after she asked him to. The victim's cousin also testified that defendant had acted in that manner before.

People of State v. Nelson, No. 323685, 2016 WL 155783, at *2 (Mich. Ct. App. Jan. 12, 2016).

         Petitioner's conviction was affirmed on appeal. Id., lv. den. 499 Mich. 917, 877 N.W.2d 885 (2016), reconsideration denied, __ Mich. __; 881 N.W.2d 811 (Mich. 2016).

Petitioner seeks a writ of habeas corpus on the following grounds:
I. Did the trial court lack jurisdiction / authority to try and to convict petitioner because (1) the warrant was invalid (2) the return was not properly filed, and (3) probable cause was not established, thereby rendering all proceedings null and void.
II. Was petitioner constructively deprived of counsel, and deprived of his constitutional right to contract and forced into being represented by counsel with conflict of interest.
III. Was petitioner denied his constitutional right to effective assistance of counsel where counsel (1) failed to investigate (2) failed to raise substantial defenses (3) failed to produce expert and non-expert witnesses.

         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 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).

         III. Discussion

         A. The motion to file exhibits in a traditional manner is GRANTED.

         On July 5, 2016, petitioner sent a letter to the Court, in which he asked that several compact discs be added to his exhibits as Appendix J. Neither the letter nor the compact discs have been added into the Court's record.

         The Court has listened to the five compact discs, which are all identical copies of an eighteen minute, fifty one second taped conversation between petitioner and his trial counsel concerning trial strategies and several motions that petitioner wanted filed. Petitioner also apparently wanted to argue several motions himself in court.

         Effective June 1, 2004, the official record of filed cases within the United States District Court for the Eastern District of Michigan was maintained electronically. As of this date, attorneys were permitted to file pleadings and other documents in all cases by electronic means. See E.D. Mich. LR 5.1.1. As of October 1, 2005, LR 5.1.1 was amended to require electronic filing of all court papers after November 30, 2005. The Rule permits the Court to “excuse a party from electronic filing on motion for good cause shown.” LR 5.1.1(a).

         In order to demonstrate good cause within the meaning of LR 5.1.1(a), “a litigant must set forth reasons beyond the resistance to modernization, reluctance to invest in new equipment, or an aversion to technology” to qualify for an exception to electronic filing. Smith v. Port Hope School Dist., 407 F.Supp.2d 865, 868 (E.D. Mich. 2006). Instead, “there must be evidence that unusual, unanticipated, or extraordinary circumstances beyond the control of counsel” that would justify relieving a litigant from the electronic filing requirement. Id.

         At least one judge in this district has permitted compact discs to be filed with the court in a traditional manner. See Hawthorne-Burdine v. Oakland Univ., 158 F.Supp.3d 586, 592, n. 8 (E.D. Mich. 2016). In addition, petitioner is currently incarcerated. Pursuant to Rule 3(a) of the Electronic Filing (ECF) Procedures for the Eastern District of Michigan, “[A] filing user must be an attorney admitted and in good standing to practice in the Eastern District of Michigan, an attorney authorized to represent the United States Government, or a non-incarcerated pro se party granted access permission.” Petitioner, as an incarcerated prisoner, by definition does not qualify as a filing user pursuant to the ECF Procedures of this Court. Because petitioner does not have access to the Court's electronic docketing system, this Court will permit him to file his exhibits in a traditional manner.

         B. The motions to expand the record are GRANTED.

         Petitioner has filed motions to supplement the record. Petitioner filed a motion to supplement his habeas petition to add several exhibits as Appendix I and Appendix M, which were filed with the Court's docket. (Doc. Nos. 12 and 14). Petitioner also raised arguments regarding the Rule 5 Materials (Doc. No. 13). As mentioned above, petitioner has also filed a motion to supplement the record to include an audiotaped conversation between himself and his trial lawyer.

         Rule 7 (a) of the Rules Governing § 2254 Cases, 28 U.S.C. foll. § 2254, indicates that if a habeas petition is not summarily dismissed, the district court judge “may direct the record be expanded by the parties by the inclusion of additional materials relevant to the determination of the merits of the petition.” A federal district court judge may employ a variety of measures to avoid the necessity of an evidentiary hearing in a habeas case, including the direction to expand the record to include evidentiary materials that may resolve the factual dispute without the need for an evidentiary hearing. See Blackledge v. Allison, 431 U.S. 63, 81-82 (1977). The decision whether to expand a habeas record is within the sound discretion of the district court. See West v. Bell, 550 F.3d 542, 551 (6th Cir. 2008). The Court will grant petitioner's motions to expand the record.

         C. The motion for an evidentiary hearing is denied.

         Petitioner also filed a motion for an evidentiary hearing.

         When deciding whether to grant an evidentiary hearing, a federal court must consider whether such a hearing could enable the habeas petitioner to prove the petition's factual allegations, which, if true, would entitle the petitioner to federal habeas relief on his claim or claims. Schriro v. Landrigan, 550 U.S. 465, 474 (2007). “[B]ecause the deferential standards prescribed by § 2254 control whether to grant habeas relief, a federal court must take into account those standards in deciding whether an evidentiary hearing is appropriate.” Id. If the record refutes the habeas petitioner's factual allegations or otherwise precludes habeas relief, a district court is not required to hold an evidentiary hearing. Id. Stated differently, a habeas petitioner is not entitled to an evidentiary hearing on his claims if they lack merit. See Stanford v. Parker, 266 F.3d 442, 459-60 (6th Cir. 2001). Because petitioner's claims lack merit, as will be discussed in greater detail below, petitioner is not entitled to an evidentiary hearing.

         D. Claim # 1. The jurisdiction/arrest warrant/defective complaint/bindover claims.

         Petitioner first claims that the circuit court lacked jurisdiction over his case because the felony complaint and arrest warrant were not supported by probable cause because they were Dated:ly by an assistant prosecutor but not the complaining witness. Petitioner further claims that the complaint was not properly “sworn to.” Petitioner further claims that the circuit court lacked jurisdiction because there was no ...


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