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Hicks v. Napel

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

November 21, 2016

RODNEY HICKS, Plaintiff,
v.
ROBERT NAPEL, Defendant.

          OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS (DOCUMENT NO. 1), CLOSING THE CASE, AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY OR LEAVE TO APPEAL IN FORMA PAUPERIS

          HON. STEPHEN J. MURPHY, III United States District Judge.

         Rodney Hicks, currently on parole supervision with the Michigan Department of Corrections through the Wayne County Parole Office in Detroit, Michigan, filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction for unarmed robbery and being a fourth felony habitual offender, Mich. Comp. Laws §§ 750.530, 769.12. For the reasons stated below, the Court will deny the petition.

         BACKGROUND

         Hicks was convicted following a jury trial in the Wayne County Circuit Court. The 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):

Defendant's conviction arises out of an incident on March 28, 2001, outside a Mobil gasoline station on Fenkell Road in Detroit. Erin Branham, the victim, testified that she arrived at the gas station around to meet a coworker who daily drove her to work. Branham entered the station to make a purchase and noticed that two men entered shortly after she did. She recognized them from other encounters at the gas station and had a brief conversation with them. After making her purchase, Branham left the station and waited outside for her coworker. As she stood with her purse strap over her shoulder and her hand on her purse, she felt someone pulling her purse strap from behind her. She reacted by moving forward, and the tugging grew stronger, forcing her backward. She struggled to hold on to her purse, but the perpetrator wrestled the purse away from her and ran down Fenkell Street. As the perpetrator ran away, Branham recognized him as one of the men she spoke to in the gas station that morning, later identified as defendant.
Valerie Jackson, an employee of the Mobil station, witnessed the incident from inside the gas station. Immediately after the incident, Branham entered the gas station and asked Jackson to call the police, which she did. A few minutes later, Branham flagged down two passing police officers, Officer Mark Frazier and Officer John Baritche, told them about the incident, and described the perpetrator to them. Jackson confirmed Branham's description of the perpetrator to the officers, and the officers immediately informed their dispatcher of the crime and the perpetrator's description.
A few minutes later, the officers received a call from their police sergeant, who was at a BP gas station six or seven blocks down the street. Officers Frazier and Baritche went to the BP station and saw a man who matched Branham's description of the perpetrator. The officers approached the man, whom Officer Frazier identified in court as defendant, and arrested him. When the officers searched defendant's person upon arrest, papers, bills, and medical cards, including items belonging to the victim, fell out of defendant's sweatshirt.
After his arrest, defendant provided a written statement that read: "[Y]es, I was in the gas station. Me and her [sic] talked for a while. She went outside to look for her ride, and I went outside and snatched her purse and went about my business." During trial, defendant, who represented himself with the assistance of his former counsel, rested without presenting any evidence. In his closing argument, defendant admitted committing larceny from a person, but claimed that he did not commit unarmed robbery. The jury convicted defendant of unarmed robbery. The trial court subsequently sentenced defendant to 14 to 22-1/2 years' imprisonment, departing from the sentencing guidelines range of 50 to 125 months. Defendant now appeals.

People v. Hicks, 259 Mich.App. 518, 520-21 (2003).

         Hicks's conviction was affirmed on appeal. Id., lv. den. 471 Mich. 97 (2004); reconsideration den., 472 Mich. 869 (2005). Hicks filed a post-conviction motion for relief from judgment on November 21, 2005. On November 29, 2005, Hicks filed a supplemental post-conviction motion for relief from judgment. The trial court denied the motions. People v. Hicks, No. 01-004688-01 (Third Jud. Cir. Ct. Dec. 13, 2005). The Michigan appellate courts denied Hicks leave to appeal. People v. Hicks, No. 274181 (Mich. Ct. App. May 14, 2007); lv. den. 480 Mich. 921 (2007).

         On November 16, 2007, Hicks filed a petition for a writ of habeas corpus, which was ultimately held in abeyance so that Hicks could complete additional post-conviction proceedings in the state courts. Hicks v. Bell, No. 2:07-cv-14916, 2008 WL 2115252 (E.D. Mich. May 19, 2008).

         Over the course of the next few years, Hicks filed several supplemental post-conviction motions, which were ultimately denied. People v. Hicks, No. 01-004688-01 (Third Jud. Cir. Ct. Aug. 11, 2014). The Michigan appellate courts denied Hicks leave to appeal. People v. Hicks, No. 323645 (Mich. Ct. App. Dec. 11, 2014); lv. den. 498 Mich. 919 (2015).

         On January 25, 2016, the Court granted Hicks's motion to lift the stay and to amend the petition. Hicks seeks habeas relief on a number of grounds. For purposes of judicial clarity, the Court will adopt respondent's renumbering and paraphrasing of the claims:

I. The trial court abused its discretion when it granted Hicks's request for self-representation without determining that his waiver of counsel was unequivocal, voluntary, and knowingly made.
II. There was insufficient evidence of a forceful or violent act to support unarmed robbery.
III. The prosecutor engaged in multiple acts of prejudicial misconduct.
IV. The trial court improperly scored Offense Variable 4 and also improperly exceeded the sentencing guidelines for his minimum sentence.
V. The trial court gave improper jury instructions related to a forceful or violent act.
VI. The trial court improperly admitted hearsay.
VII. Hicks was denied the effective assistance of appellate counsel.

         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.

         The Supreme Court has explained that "[A] federal court's collateral review of a state-court decision must be consistent with the respect due state courts in our federal system." Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). The "AEDPA thus imposes a 'highly deferential standard for evaluating state-court rulings, ' and 'demands that state-court decisions be given the benefit of the doubt.'" Renico v. Lett, 559 U.S. 766, 773 (2010) (quoting Lindh v. Murphy, 521 U.S. 320, 333 n.7 (1997)). "[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)). The Supreme Court has emphasized "that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Harrington, 562 U.S. at 102. Furthermore, pursuant to § 2254(d), "a habeas court must determine what arguments or theories supported or . . . could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision" of the Supreme Court. Id. 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." Id. at 103.

         DISCUSSION

         I. Claim One - Hicks knowingly, intelligently, and unequivocally exercised his right to self-representation

         Hicks first claims that the trial court erred in permitting him to represent himself at trial when he did not unequivocally request to represent himself and did not ...


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