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Jones v. Winn

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

November 15, 2016

DONTAYE JONES, Petitioner,
v.
THOMAS WINN, Respondent.

          OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DENYING CERTIFICATE OF APPEALABILITY

          HONORABLE GERSHWIN A. DRAIN UNITED STATES DISTRICT JUDGE

         Petitioner Dontaye Jones filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254. Jones is a state prisoner in the custody of the Michigan Department of Corrections pursuant to convictions for carrying a concealed weapon, Mich. Comp. Laws § 750.227, felon in possession of a firearm, Mich. Comp. Laws § 224f, resisting a police officer, Mich. Comp. Laws § 750.81d, receiving and concealing a stolen firearm, Mich. Comp. Laws § 750.535b, and three counts of possession of a firearm during the commission of a felony, Mich. Comp. Laws § 750.227b. He argues that his convictions were obtained in violation of his constitutional rights because: trial counsel was ineffective for failing to object to joinder of the co-defendants for trial; insufficient evidence supported firearms-related convictions; the judgment of sentence is inaccurate; Double Jeopardy violation; and trial court improperly imposed consecutive sentences. Respondent argues that the claims are meritless. The Court denies the petition.

         I. Background

         Petitioner's convictions arise from a traffic stop on June 18, 2010, in Saginaw, Michigan. The Michigan Court of Appeals summarized the testimony presented at trial as follows:

At about 3:30 a.m., Michigan State Police Officer Paul Oster attempted to stop a vehicle because the passenger headlight was not working. Oster turned on the flashing red light on his vehicle and directed two spotlights at the vehicle he intended to stop. Oster pulled up behind the vehicle at a stop sign, and once the vehicle turned, Oster activated his vehicle's siren. The vehicle Oster was pursuing accelerated. Oster observed defendant in the backseat of the vehicle moving from the right to the center and leaning forward. Oster eventually pulled along the side of the vehicle he was pursuing and intentionally struck the vehicle with his patrol vehicle, causing it to spin and eventually stop. Oster observed two firearms thrown from the vehicle as it was stopping. The firearms were identified as a .45-caliber firearm and a 9-millimeter firearm. A .357-caliber firearm was discovered in the vehicle between the middle pillar and the front passenger seatbelt; during the trial an officer testified that the firearm was primarily in the backseat of the vehicle. Two of the firearms were identified as firearms that were reported stolen, the serial number on one of the firearms was scratched off making that firearm unidentifiable.
Defendant immediately ran from the scene after the vehicle stopped. Another officer chased defendant and eventually arrested him. Police found a .45-caliber magazine with bullets in it and a handful of 9-millimeter bullets in defendant's pockets. Defendant was charged with carrying a concealed weapon, felon in possession of a firearm, resisting a police officer, receiving and concealing a stolen firearm, and three counts of felony-firearm. Defendant's jury trial began on October 13, 2010, and the jury convicted defendant of the charged crimes on October 15, 2010.

People v. Jones, No. 301651, 2012 WL 593136, *2 (Mich. Ct. App. Feb. 23, 2012).

         Petitioner was tried jointly in Saginaw County Circuit Court with the other individuals in the vehicle. He was convicted and sentenced as a fourth habitual offender as follows: 76 months to 18 years' imprisonment for carrying a concealed weapon, 76 months to 18 years' imprisonment for being a felon in possession, 76 months to 15 years' imprisonment for resisting a police officer, 76 months to 18 years' imprisonment for receiving and concealing a firearm, and 2 years' imprisonment for each of three felony-firearm convictions. These sentences were imposed consecutive to a sentence of 200 months to 50 years for an unrelated unarmed robbery conviction.

         Petitioner filed an appeal of right in the Michigan Court of Appeals. His appeal was consolidated with an appeal of right from the conviction for unarmed robbery. In his appeal of right in this case, Petitioner raised these claims: (i) ineffective assistance of counsel; (ii) insufficient evidence; (iii) OV-13 incorrectly scored; and (iv) sentences for carrying a weapon in a vehicle and felony firearm should have been imposed to run concurrently. The Michigan Court of Appeals held that Petitioner's carrying a concealed weapon sentence should have been imposed to run concurrently, rather than consecutively to his sentence for felony firearm. Jones, 2012 WL 593136 at *6. The Court remanded for resentencing and correction of the judgment of sentence to reflect that the carrying a concealed weapon sentence should run concurrently with the felony-firearm conviction. Id. at *7. The Michigan Court of Appeals affirmed Petitioner's convictions and sentences in all other respects. Id.

         Petitioner filed an application for leave to appeal in the Michigan Supreme Court. He raised these two claims: ineffective assistance of counsel and insufficient evidence. The Michigan Supreme Court denied leave to appeal. People v. Jones, 492 Mich. 856 (Mich. July 21, 2012).

         The trial court resentenced Petitioner on August 27, 2012, to concurrent sentences of 45 months to 18 years for carrying a concealed weapon, felon in possession of a firearm, and receiving or concealing stolen firearm; and 45 months to 15 years for resisting or obstructing a police officer. Petitioner's sentence for carrying a concealed weapon was to run concurrently with the sentences for felony-firearm, and his remaining sentences to run consecutively to the sentences for felony firearm. People v. Jones, No. 312510, 2013 WL 6508825, *1 (Mich. Ct. App. Dec. 12, 2013). One month later, the trial court issued a corrected judgment of sentence clarifying that the sentences were again to be served consecutively to the sentence in the robbery case. Id.

         Petitioner filed an appeal of right from his amended judgment of sentence. He raised these claims: (i) the amended judgment of sentence incorrectly reflects a minimum sentence of 76 rather than 45 months; (ii) Double Jeopardy violation; and (iii) trial court abused its discretion in making sentences consecutive to the unarmed robbery case. The Michigan Court of Appeals found the amended judgment of sentence incorrectly stated the minimum sentence and remanded for correction of that error. Id. at *3. In all other respects, the Court of Appeals affirmed Petitioner's sentence. The trial court corrected the clerical error at a hearing on January 15, 2014. Petitioner then filed an application for leave to appeal in the Michigan Supreme Court raising the same claims raised in the Michigan Court of Appeals. The Michigan Supreme Court denied leave to appeal. People v. Jones, 497 Mich. 852 (Mich. Sept. 2, 2014).

         Petitioner then filed the pending habeas corpus petition. He raises these claims:

I. Defense trial counsel was constitutionally ineffective in failing to object to joinder of the co-defendants for trial without separate juries, where counsel for one of the acquitted co-defendants had argued that appellant was the only person making movements while the police were behind the vehicle in which appellant and the two co-defendants were riding, and that appellant knew he had the guns and tried to get rid of them.
II. Due process requires vacating appellant's firearms related convictions where the prosecutor presented legally insufficient evidence that appellant constructively possessed the recovered firearms.
III. The trial court should be ordered to file a corrected judgment of sentence and commitment to Department of Corrections changing the minimum sentence of 76 months for count, 3, 4, 6, and 10 to a minimum sentence of 45 months, which was the minimum sentence actually articulated by the judge at the time of the August 27, 2012 resentencing, in order to conform the judgment of sentence to what actually took place at the resentencing.
IV. The increase in the defendant's sentence, as ordered by the trial court weeks after the resentencing (by making the sentence in this case consecutive to that in another case), is a violation of the United States and Michigan constitution prohibitions against double jeopardy (multiple punishment) and must be changed to reflect the actual sentence imposed by the judge at the time of ...

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