United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS
CORPUS AND DENYING CERTIFICATE OF APPEALABILITY
HONORABLE GERSHWIN A. DRAIN UNITED STATES DISTRICT JUDGE
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.
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
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).
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
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
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).
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.
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).
then filed the pending habeas corpus petition. He raises
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 ...