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Allen v. Haas

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

November 30, 2016

JOEL ANTHONY ALLEN, Petitioner,
v.
RANDALL HAAS, Respondent,

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

          HONORABLE DENISE PAGE HOOD CHIEF UNITED STATES DISTRICT JUDGE

         Joel Anthony Allen, (“Petitioner”), confined at the Macomb Correctional Facility in New Haven, Michigan, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, through his attorney John Minock, challenging his conviction for first-degree premeditated murder, M.C.L.A. 750.316, and several counts of assault with intent to commit murder, M.C.L.A. 750.83. For the reasons that follow, the petition for writ of habeas corpus is DENIED.

         I. Background

         Petitioner was convicted following a jury trial in the Wayne County Circuit Court, in which he was tried jointly with his co-defendant Willie James Robinson, but with separate juries. This 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 e.g. Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009):

Defendants' convictions arise from a drive-by shooting in which a seven-year-old girl was killed and her mother and siblings were wounded. The injured victims were inside a parked car when they were shot. There was no dispute at trial that defendant Allen drove defendant Robinson's car while Robinson repeatedly fired an automatic carbine rifle. Robinson's theory at trial was that he did not intend to kill anyone, and was shooting at the car in retaliation for an earlier confrontation in which his car was struck with a baseball bat. Allen's theory was that he did not know that Robinson was going to shoot at anyone.
The events that culminated in the shooting began with Donnell Brown's sale of a car stereo, either to Robinson or Robinson's friend, for $40, which allegedly was paid for with counterfeit money. Although the facts surrounding the sale and the ensuing confrontation over the counterfeit money were disputed, at some point, Anthony Niebrzydowski (“Blue”) became involved, and either he or Brown threw a bat that struck Robinson's car. Allen was with Robinson during this argument, which was witnessed by Blue's sister, Aelizabeth Niebrzydowski (“Niebrzydowski”). Robinson left, but threatened retaliation.
Approximately thirty minutes later, Robinson and Allen returned. Niebrzydowski and her three daughters were in Blue's girlfriend's car to go shopping. The car was parked at an angle and was partially on the grass and partially on the driveway, with the back end of the car nearly in the street. The passenger door was open. The girls' brother, “B.J., ” approached the car with Blue. Brown was sitting on the porch. Robinson's car came around the corner. Allen was driving, and Robinson was firing the gun. Brown ran inside the house. The car was showered with bullets. Niebrzydowski's left index finger was hit as it was on the steering wheel and a bullet also grazed her behind her ear on the right side. One daughter was killed by a gunshot to her head. Two of Niebrzydowski's other daughters and B.J. received nonfatal wounds.
Robinson admitted the shooting, but denied knowing that anyone was inside the car. In his statement to the police, Robinson said, “When we turned onto Dolphin I saw Blue standing next to a white car that was parked in the yard. When I saw Blue I began firing at the car.” He claimed that he fired the weapon about eight times. When asked, “Did you see anyone inside the vehicle when you shot at [B]lue, ” Robinson responded, “No. Blue was standing on the outside by the passenger side. I was shooting at the car.”

People v. Allen, No. 246419, 2004 WL 2290483, at *1 (Mich. Ct. App. Oct. 12, 2004).

         In addition to this evidence, Mario Godfrey testified that he received a telephone call from petitioner on February 25, 2002 at about 12:30 p.m. Petitioner informed Godfrey that Brown and Blue attempted to “jump” Mr. Robinson and that “then we did a drive by.” On cross-examination, Mr. Godfrey admitted that in his statement to the police he did not inform them that petitioner said that the men had done a drive-by shooting, but instead told the police that petitioner said that his co-defendant “shot up the car.” (Tr. 8/21/02, pp. 156, 168).

         Petitioner's conviction was affirmed on appeal. People v. Allen, No. 246419, 2004 WL 2290483 (Mich. Ct. App. Oct. 12, 2004); lv. den. 477 Mich. 903, 722 N.W.2d 793 (2006).

         Petitioner filed a petition for writ of habeas corpus, which was held in in abeyance to permit petitioner to return to the state courts to exhaust additional claims. The Court also administratively closed the case. Allen v. Wolfenbarger, No. 08-10403, 2010 WL 3397338 (E.D. Mich. Aug. 27, 2010).

         Petitioner filed a post-conviction motion for relief from judgment pursuant to M.C.R. 6.500, et. Seq., which was denied. People v. Allen, No. 02-003922 (Third Jud.Cir.Ct. Nov. 26, 2013). The Michigan appellate courts denied petitioner leave to appeal. People v. Allen, No. 321298 (Mich.Ct.App. May 28, 2014); lv. den. 497 Mich. 953, 858 N.W.2d 427 (2015); reconsideration denied, 497 Mich. 1031, 863 N.W.2d 46 (2015).

         On July 12, 2016, this Court granted petitioner's motion to lift the stay and his motion to amend his habeas petition.

         In his amended habeas petition, petitioner seeks habeas relief on the following grounds:

I. Petitioner was denied his constitutional right to due process where the trial court erred in instructing the jury regarding the intent and temporal requirements for aiding and abetting first-degree murder, the key issues in the case. The ineffectiveness of trial counsel and appointed appellate counsel excuse the procedural defaults of failure to make a contemporaneous objection and failure to develop the record on direct appeal.
II. The prejudicial conduct of the trial judge during trial denied Petitioner due process and a fair trial.

         II. 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. “[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)). Therefore, 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.” Harrington, 562 U.S. at 103. A habeas petitioner should be denied relief as long as it is within the “realm of possibility” that fairminded jurists could find the state court decision to be reasonable. See Woods v. Etherton, 136 S.Ct. 1149, 1152 (2016).

         III. Discussion

         A. The statute of limitations issue.

         Respondent first contends that petitioner's amended petition is barred by the Antiterrorism and Effective Death Penalty Act's (AEDPA) statute of limitations found in 28 U.S.C. § 2244(d)(1). Respondent contends that the petition is untimely because petitioner did not return to the state courts to file his post-conviction motion for relief from judgment within a reasonable time after this Court held his petition in abeyance nor did he file his motion to lift the stay within a reasonable time of the Michigan Supreme Court denying petitioner's post-conviction appeal. Respondent further argues that the claims raised by petitioner in his amended petition are untimely because the amended petition was filed after the one year limitations period had expired and the claims contained in his amended petition do not relate back to the claims raised in his original petition.

         Regarding respondent's first argument, respondent acknowledges that the opinion and order holding the petition in abeyance did not give petitioner any deadlines with which to return to the state courts to exhaust his claims and to return to this court following the exhaustion of such claims. In light of the fact that this Court failed to set such deadlines, this Court believes that it would be unfair to rule that petitioner had somehow not complied with the terms of the stay.

         Respondent's second argument is also without merit. When a habeas petitioner files an original petition within the one-year deadline, as petitioner did here, and subsequently presents new claims in an amended petition that is filed after the one year limitations period expired, the new claims relate back to the date of the original petition if the new claims share a “common core of operative facts” with the original petition. See Mayle v. Felix, 545 U.S. 644, 664 (2005).

         Petitioner's amended habeas petition contains two of the same claims that he raised in his original petition, with the addition of a claim that appellate counsel was ineffective for not properly raising on petitioner's appeal of right the instructional error and ineffective assistance of trial counsel claims that petitioner raised in his original petition. The Court denies respondent's motion to dismiss because petitioner's ineffective assistance of appellate counsel claim shares the same common core of operative facts as the claims raised in petitioner's original habeas petition concerning the defective jury instruction and ineffective assistance of trial counsel claims. See Cowan v. Stovall, 645 F.3d 815, 819 (6th Cir. 2011).

         In any event, the statute of limitations does not constitute a jurisdictional bar to habeas review. A federal court, can, in the interest of judicial economy, proceed to the merits of a habeas petition. See Smith v. State of Ohio Dept. of Rehabilitation, 463 F.3d 426, 429, n. 2 (6th Cir. 2006)(quoting Trussell v. Bowersox, 447 F.3d 588, 590 (8th Cir. 2006)). This Court need not resolve the dispute over the timeliness of petitioner habeas application. Assuming that the current petition was timely, petitioner's habeas application fails on the merits. See Ahart v. Bradshaw, 122 F. App'x. 188, 192 (6th Cir. 2005).

         B. Claim # 1. The defective jury instruction/ineffective assistance of counsel claim.

         Petitioner first contends that the jury instructions on aiding and abetting were inaccurate and misleading because they gave conflicting instructions regarding the specific intent required to be convicted as an aider and abettor and also because the instructions failed to distinguish between being an aider and abettor to an offense and being an accessory after the fact. Petitioner further contends that his trial counsel was ineffective for failing to object to the defective jury instructions and his appellate counsel was ineffective for failing to develop a record on petitioner's appeal of right regarding the claim.[1]

         The judge initially gave the jury the following instruction on aiding and abetting:

Now, I've stated to you that Murder in the First Degree, and also Assault with Intent to Commit Murder are what we call specific intent crimes.
At the time of giving the assistance, the aider and abetter must either have the intent himself to kill the victim, or to assault with intent to commit murder.
He must either have that intent himself, or he must aid and abet another person, knowing that that person intends to kill, or intends to do great bodily - intends to kill, or kills another person. In other words, the aider and abetter either intends himself, or he knows that the person that he is assisting intends to do the act.

(Tr. 8/23/02, pp. 82-83)(emphasis added).

         After the jury was excused, but before it began deliberations, defense counsel objected to the jury instruction as being ambiguous with respect to the issue of the specific intent required to convict petitioner under an aiding and abetting theory. The judge agreed to give a clarifying instruction to the jurors. The judge gave the following instruction to the jury:

The specific intent in the first count of Murder in the First Degree, is that the perpetrator specifically intended to kill the victim. And that the aider and abetter [sic] knew that the ...

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