United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF
HABEAS CORPUS (document no. 1), DENYING A CERTIFICATE OF
APPEALABILITY, AND DENYING LEAVE TO APPEAL IN FORMA
STEPHEN J. MURPHY, III United States District Judge
case sounds in habeas corpus brought pursuant to 28 U.S.C.
§ 2254. Following a jury trial in the Genesee County
Circuit Court, prisoner Walter Stephens was convicted of
first-degree felony murder, armed robbery, felon in
possession of a firearm, and possession of a firearm during
the commission of a felony. Mich. Comp. Laws §§
750.316, 750.529, 750.224f, 750.227b. In 2012, he was
sentenced to life imprisonment, a concurrent term of 20 to 40
years imprisonment, a concurrent term of two to five years
imprisonment, and a consecutive term of two years
imprisonment on those convictions. In his pro se pleadings,
Stephens raises claims concerning the sufficiency of the
evidence and the effectiveness of trial counsel. For the
reasons below, the Court finds that Stephens is not entitled
to habeas relief and will deny his petition. The Court will
also deny a certificate of appealability and leave to proceed
in forma pauperis on appeal.
AND PROCEDURAL HISTORY
convictions arise from the robbery and shooting death of a
man in an apartment in Flint, Michigan in July 2010. The
Court adopts the statement of facts set forth by defense
counsel on direct appeal to the extent that it is consistent
with the record. Those facts are as follows:
On July 7, 2010, near 12:45 p.m., Sergeant David Bender of
the Flint Police was patrolling downtown Flint in a
semi-marked car (TT I 251-253). Bender observed a panhandler
and pulled behind an apartment building on Court Street where
he observed a Chrysler Sebring in a parking area.
Id. The doors and trunk of the Chrysler were closed
and no one was near it (TT I 292-293). After about five
minutes, Bender circled the block and returned to said
building (TT I 253). This time, as he entered the parking
area, he saw two people near the Chrysler (TT I 254). He
There was two younger black males. The doors were open on the
car. The trunk was open. And, as I pulled in front of them, I
looked over to my right and they both had t-shirts on and
they were both tied around their noses, that using as like
[sic] a face mask (TT I 254).
Bender pulled within 10 feet of the men and noticed the butt
of a handgun sticking from one of their pockets (TT I 254).
He did not see the men place anything inside the Chrysler (TT
1309-310). He could not recall if the car's engine was
running (TT I 282). Bender made eye contact with the two men,
who then ran as Bender radioed-in for help and pursued them
(TT I 255). Bender admitted telling dispatch that he was
pursuing two white males; he testified he misspoke (TT I
Bender apprehended one of the men at gunpoint - defendant -
the man with the gun in his pocket (TT I 257, 259). The gun
was unloaded but capable of holding six rounds (TT I 310).
The gun was a revolver, so any fired casing would remain
inside the gun's cylinder until extracted (TT I 322-323).
The gun was unregistered (TT I 311). Defendant had his shirt
off (TT I 258). As Bender placed defendant in custody, Bender
saw Officer Howell pursuing the other man, Curtis McCloud (TT
I 262, 300-301).
Bender returned to the apartment building and found a large
flat screen television inside the trunk of said Chrysler (TT
I 264). A latent print examiner testified that
defendant's fingerprint was found on the television (TT
II 116, 143). A DNA analyst testified that a baseball cap
police found inside the Chrysler had DNA on it with a profile
consistent with defendant's DNA profile (TT I 284, II
254). Police found seven live .38 caliber rounds in the
console of the Chrysler (TT II 112).
Police suspected a breaking and entering had occurred into
said apartment building on Court Street (TT I 267). They made
their way to Apartment #9, where they found Steven Hood,
deceased, on the floor between a kitchen and front room (TT
II 10). No one else was in the apartment (TT II 12). A
pathologist testified that Hood suffered a single fatal
gunshot wound to his chest which passed through his lungs and
aorta (TT II 166, 169). One bullet was collected (TT II 169).
Its path was front to back, right to left, and downward at a
range of 12 to 36 inches (TT II 174). Hood's toxicology
was found to be positive for Prozac, Vicodin, Morphine, and
cocaine metabolite (TT II 177).
Inside Apartment 9, police found an entertainment center from
which a television appeared to be missing (TT I 275, II 181).
There was a glass cup on the floor with pink liquid inside it
(TT I 280). Police searched and found no spent shell casings
inside the apartment (TT I 325, II 26). The lead
investigator, Det. Marcus Mahan, described the apartment as
being in a state of disarray (TT II 181).
A firearm identification expert testified that the gun found
on defendant functioned properly (TT III 58). He opined that,
based on striation marks, the bullet found inside Mr. Hood
was fired from said gun (TT III 59). He testified that the
unfired cartridges found inside said Chrysler could be used
in said firearm (TT III 61). He could not say they were
identical to the spent round that killed Hood (TT III 64). He
too testified that a used casing would remain in the gun
after it was fired until removed (TT III 67).
Returning to Officer Bender, he testified that, except for
"split seconds here or there, " both suspects were
in his sight as they ran (TT I 306, 320). He testified that
he lost sight of McCloud longer than he did defendant (TT I
321). The entire chase lasted about two minutes (TT I 306).
Bender retraced the path of the two men as they fled, in an
unsuccessful attempt to find spent shell casings (TT I 285).
Bender testified that he never saw defendant remove the gun
from his pocket, or empty any shell casings, as he fled (TT I
Bender collected defendant's personal items, including a
t-shirt he was found with (TT I 286-287, 325). Bender opined
that the t-shirt had appeared to be stained with a dry, pink
substance. Id. Defendant otherwise possessed a
lighter, one Swisher Sweet® cigar, and hair items but no
contraband, other than the unloaded gun (TT I 291-292).
Bender testified that he never observed defendant or McCloud
inside the apartment building (TT I 301).
Officers Dickenson and Dumanois responded to the scene.
Dickerson saw defendant in Bender's custody and Dumanois
saw McCloud in an Officer Howell's custody; no weapon was
found on McCloud (TT II 37, 43). Dickenson and Dumanois
transported defendant to the police station. According to
A: [Defendant] Stephens asked if we could take him by his
father's home on Cottage Grove.
Q: And, what did - - what was your response?
A: I just said - - I asked why. Mr. Stephens stated that he
wanted to go back and tell his father goodbye because he
wasn't going to see him for a long time [TT II 38-39].
Dumanois testified that he heard the same remark (TT II
Police Investigator Mahan observed a small cut to
McCloud's face (TT II 212). He observed no injury on
defendant (TT II 213). Mahan testified that defendant and
McCloud refused to talk with him (TT II 185). Mahan testified
that, " ... all the evidence pointed back to Mr. McCloud
and Mr. Stephens" (TT II 186). The trial court later
instructed the jury that defendant had a right to not speak
with police and that they should not consider the testimony
from Mahan that the two men chose to make no statement (TT II
Various items were collected from Apartment 9 and examined
for prints and DNA (See gen. TT II 234-236, III 17,
20-24). Counsel stipulated, " ... that there is nothing
conclusively in those [lab] reports that's able to - - to
link Mr. Stephens to the apartment" (TT II 195).
Investigator Mahan testified that, other than defendant's
fingerprint on the television, police had no evidence putting
defendant inside the apartment building (TT II 205). No blood
was found on defendant or his clothing (TT II 231-232).
Defendant's DNA was not found under Hood's nail
clippings (TT II 213, 252). The pink liquid found on the
floor was compared to the pink stain on defendant's
tshirt, via a gas chromatograph/mass spectrometer, and an
analyst testified that, while chemically similar, each stain
possessed a chemical the other did not (TT II 268). Dozens of
photographs of the Chrysler, the exterior and interior of
said apartment building, and the interior of Apartment 9 were
submitted (TT I 272, II 11).
Other residents of the building were called. Andrew Reese was
a friend and neighbor of Hood (TT II 49). He testified that
Hood owned the flat screen television found in said Chrysler
(TT II 53). Reese identified Hood for police and described
Hood's apartment after the shooting as
"disheveled" (TT II 56-58). Reese helped clean
Hood's apartment after the shooting and found no
"shells" (TT II 76). Reese's 'wife, '
Mary Woods, heard nothing unusual before she saw the police
outside (IT II 84-86).
Julia Montier-Washington was another neighbor of Mr. Hood (TT
II 218). From inside her apartment, on the day in question,
around noon, she heard what sounded like a man and woman
fighting inside Hood's apartment (TT II 220, 222). It was
loud enough to cause her to phone her landlord; she then
heard what sounded like two firecrackers (TT II 221). Within
five minutes the police arrived (TT II 223).
Hood's roommate, his cousin Colmonta Smith, testified
that when she left the apartment that morning the television
found in said Chrysler was inside Hood's entertainment
center (TT III 36). The temperature was in the 90s and Hood
had a habit of leaving his door open to get a breeze (TT III
38-39). She denied knowing defendant or McCloud (TT III 44).
Whereas Mr. Reese testified that Hood sold drugs (IT II 69),
Smith denied that Hood used or sold drugs (TT III 34, 42).
She testified, "As far as I know, [Hood] was taking
morphine for mental problems or whatever and whatnot"
(TT III 45).
The position of the defense was that: defendant was not with
McCloud; that he was never inside the apartment building;
that he saw the television when driving by; that he tried to
put it into his car; that he saw a gun laying nearby and
picked it up; that he saw the officer ...