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Stephens v. Rivard

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

November 29, 2016

WALTER STEPHENS, Petitioner,
v.
STEVEN RIVARD, Respondent.

          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 PAUPERIS

          STEPHEN J. MURPHY, III United States District Judge

         INTRODUCTION

         The 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.

         FACTS AND PROCEDURAL HISTORY

         Stephens's 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:

         The Prosecution

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 testified:
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 256-257).
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 326).
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 Dickenson:
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 44-45).
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 216).
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 Defense
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 ...

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