United States District Court, E.D. Michigan, Southern Division
ORDER GRANTING PETITIONER'S MOTION UNDER
STRICKLAND (DOC. 39) AND STAYING PROCEEDINGS ON AMENDED
PETITION (DOC. 42)
COHN UNITED STATES DISTRICT JUDGE.
a habeas case under 28 U.S.C. § 2254. Petitioner Cory
Donald is serving a mandatory and non-parolable life sentence
following his conviction for first-degree murder and a
concurrent sentence of ten-and-one-half to twenty years for
armed robbery. His convictions occurred following a jury
trial in Wayne County Circuit Court. Petitioner, who was
sixteen-years old at the time of the crime, was tried with
co-defendants, Rashad Moore and Dewayne Saine under an aiding
and abetting theory. At trial, Petitioner's counsel was
absent during a portion of the prosecution's
case-in-chief, in which a detective was testifying about
phone calls made around the time of the crime from three of
the co-defendants' cell phones.
be explained, the Court granted habeas relief on the grounds
that Petitioner's counsel's absence violated
United States v. Cronic, 466 U.S. 648 (1984) and on
the ground that counsel's actions constituted ineffective
assistance of counsel under Strickland v.
Washington, 466 U.S. 668 (1984). Donald v.
Rapelje, 2012 WL 6047130 *1-6 (E.D. Mich. Dec. 5, 2012).
The Court of Appeals for the Sixth Circuit affirmed based on
Cronic. Donald v. Rapelje, 580 F. App'x
277, 278-80 (6th Cir. 2014). The Supreme Court
reversed the Cronic holding. Woods v.
Donald, 575 U.S., 135 S.Ct. 1372 (2015). Neither the
Supreme Court nor the Court of Appeals considered
Petitioner's Strickland claim.
the Court is Petitioner's motion to again grant relief
based on Strickland. Also before the Court is
Petitioner's amended petition in which he asserts claims
based on Miller v. Alabama, 132 S.Ct. 2455 (2012)
and Montgomery v. Louisiana, 136 S.Ct. 718 (2016).
For the reasons that follow, Petitioner's motion based on
Strickland will be granted. Proceedings on the
amended petition will be stayed pending exhaustion of
remedies in state court.
background was described in detail in the Court's prior
decision. See The Sixth Circuit also described the background
which is repeated in substantial detail below.
On November 14, 2005, Cory Donald (“Donald”) and
Rashad Moore (“Moore”) entered Mohamed
Makki's1 (“Makki”) home. While Donald and
Moore were inside, Makki was shot and Makki's
acquaintance Michael McGinnis (“McGinnis”) was
robbed. Makki died soon after from the gunshot wounds.
Much of the information about that day comes from the
testimony of Seante Liggins (“Liggins”).2 Liggins
testified that on the day of the incident, he gathered with
Donald, Moore, Dewayne Saine (“Saine”), and Fawzi
Zaya (“Zaya”) in a Detroit, Michigan, parking
lot. R. 8-8 (9/20/06 Trial Tr. at 143). While the men drank
alcohol and smoked marijuana, Moore and Zaya discussed
robbing Makki. Id. at 253-54. Liggins testified that
the gathering moved on to a nearby vacant house where he saw
Saine and Donald walk to the back of the house. When Donald
returned, he was situating something on his hip that Liggins
believed was a gun. Id. at 162-63. At some point
Moore announced to the group that it was time to go
“hit the lick, ” and Liggins, Moore, and Donald
got into Liggins's car. Id. at 161, 163. Moore
directed Liggins to drive them to a house at 5251 Kendall
Street in Dearborn, Michigan. Id. at 164-65. Moore
spoke on his cell phone during the drive. Id. at
164. Liggins stopped the car in front of a house at 5251
Kendall Street. He stayed in the car while Moore and Donald
entered the house. Id. at 165 .
The only testimony as to what transpired inside the house
came from Michael McGinnis. McGinnis testified that a person
entered the house wearing a face mask and holding a gun. R.
8-7 (9/19/06 Trial Tr. at 154-55). McGinnis lay face-down on
the floor; he heard a person whose voice he did not recognize
say “let it go” and then heard two shots.
Id. at 156-57. Someone stood over McGinnis, holding
a gun to his head and searching through his pockets.
Id. at 155-57. The individual took between two
hundred and three hundred dollars and a cell phone from
McGinnis's pockets. Id. at 161. McGinnis
testified that he heard someone walk down the basement
stairs, return from the basement, and whisper “I got
shot, I got shot.” Id. at 158. The individuals
left the house and McGinnis went to the kitchen where he
found Makki slumped over and gasping for air. Id. at
158. McGinnis first took marijuana from the house and $2, 400
in cash that was on his person but not taken during the
robbery and put those items in his car and then sought
assistance from neighbors, who contacted the police.
Id. at 162, 164, 166. The police responded to the
house around 8:30 p.m. and pronounced Makki dead. R. 8-9
(9/21/06 Trial Tr. at 74); R. 8-7 (9/19/06 Trial Tr. at 210).
Liggins testified that Moore and Donald were in the house for
approximately seven minutes and that he heard two or three
gunshots come from the house during that time. R. 8-8
(9/20/06 Trial Tr. at 165, 176). Liggins testified that when
Moore and Donald returned to the car, both had weapons and
Donald said that Moore had shot him. Id. at 168-69.
Liggins drove a few blocks away from Makki's house and
saw Saine's parked car. Id. at 171. Donald
jumped out of Liggins's car and entered Saine's car.
Id. at 172 . Liggins testified that he did not see
or hear any phone calls being made during the time between
when he left Makki's house and when he encountered Saine.
Id. at 172. In a statement to the police, Saine
stated that Donald called him and asked Saine to pick him up
because he had been shot in the foot. R. 8-9 (9/21 /06 Trial
Tr. at 214, 215-16).
Hospital records show that Donald was taken to Sinai Grace
Hospital and treated for a gunshot wound to the right foot.
Id. at 85. At trial, laboratory technicians
testified that Donald's DNA was found on the barrel of
the murder weapon, but not on the handle. R. 8-7 (9/19/06
Trial Tr. at 86). Donald's DNA also matched drops of
blood on the carpet and a piece of plastic in Moore's
At trial, the prosecution argued that Moore, Zaya, Liggins,
Saine, and Donald all participated in the plan to rob Makki.
The prosecution argued that Moore shot Makki, but that Donald
was guilty of felony murder through aiding and abetting. The
prosecution relied on testimony and phone records showing
calls between cell phones belonging to Zaya, Moore, and Saine
during the day, with an increased burst of calls around the
time of the incident, to show that the men together planned
and executed the robbery and murder. R. 8-9 (9/21/06 Trial
Tr. at 71-75). During testimony from Detective-Sergeant Gary
Marcetti (“Marcetti”), the prosecution introduced
a demonstrative chart diagraming the phone records.
Moore's attorney objected and the trial judge excused the
jury to hold a conference about the chart. Donald's
attorney, *280 Richard L. Cunningham
(“Cunningham”), did not join in the objection to
the chart. He stated “I don't have a dog in this
race. It doesn't affect me at all.” Id. at
67. The trial judge ruled that the chart was admissible and
took a recess before calling the jury back into the
courtroom. Id. at 68.
When the jury returned and the judge prepared to resume
testimony, Donald's attorney Cunningham was not in the
courtroom. The judge noticed Cunningham's absence and
initially said that “[w]e'll wait for him, ”
but after determining that the prosecution was going to
continue with the phone-call chart, the judge decided to
proceed with the trial. Id. at 69. The trial judge
said, “I think that since we already know Mr.
Cunningham, it doesn't apply to his client, we'll go
ahead and proceed with that and I'll just let him know
that that's what we're doing, okay, all right.”
Id. The judge did not ask Donald if he consented to
moving forward without his attorney present. The prosecution
continued with Marcetti's testimony. He testified that on
the day of the robbery and murder, phone calls were made from
Moore's phone to Zaya's phone at 1:54 and 3:19 p.m.;
Saine's phone to Zaya's phone at 3:23 and 9:17 p.m.;
Saine's phone to Moore's phone at 8:17, 8:19, 8:19,
8:28, 8:32, 8:32, and 8:32 a.m. and 7:06, 7:07, 7:38, 7:41,
8:33, 8:33, 8:33, 8:57, 9:09, 9:14, 9:18, and 9:18 p.m.
Id. at 71-75.
Approximately seventeen minutes later, the transcript
indicates that Cunningham returned to the courtroom.
Id. at 68, 80. The judge informed Cunningham that
“up until that point we only were discussing the
telephone chart that was there.” Id. at 82.
Cunningham responded, “[y]es, your Honor, and as I had
indicated on the record, I had no dog in the race and no
interest in that.” Id. at 83. Marcetti
proceeded to testify to other matters. Cunningham conducted
cross-examination on issues unrelated to the telephone
records. Id. at 106-18.
In closing argument, the prosecutor argued that Donald's
participation in the planning and execution of the robbery
constituted felony murder. The prosecution focused on
McGinnis's testimony demonstrating that there were two
men in the house who had a plan and worked together, R. 8-10
(9/25/06 Trial Tr. at 118); Donald's connection to the
house through his gunshot wound and his DNA on the murder
weapon, Id. at 117; and the phone calls as
indication that the robbery and Saine's pick-up of Donald
and the money was pre-planned, Id. at 128-32. The
prosecutor reminded the jury of Saine's statement to
police that Donald called him, and emphasized that
“these phone records are critical, to show the contact
of all the parties to show that this is one conspiracy coming
all together.” Id. at 126, 130.
Cory Donald was convicted of one count of felony murder and
two counts of armed robbery. R. 8-11 (9/26/06 Trial Tr. at
47-48). Donald was sentenced to the statutorily required
prison term of life without the possibility of parole for the
felony murder conviction, as well as two concurrent prison
terms of ten and one-half to twenty years for the armed
robbery convictions. Id. at 47-48.
Donald v. Rapelje, 580 F. App'x 277, 278-80
(6th Cir. 2014) (internal citations omitted).
December 5, 2012, the Court granted Petitioner a conditional
writ of habeas corpus on the ground that his convictions are
unconstitutional because counsel's absence during a
critical stage in his trial was per se ineffective
under United States v. Cronic, 466 U.S. 648 (1984)
and on the ground that counsel's actions constituted
ineffective assistance of counsel under Strickland v.
Washington, 466 U.S. 668 (1984). Donald v.
Rapelje, No. 09-cv-11751, 2012 WL 6047130 (E.D. Mich.
Dec. 5, 2012). The State appealed. The Court of Appeals for
the Sixth Circuit, 2-1, affirmed based on Cronic.
Donald v. Rapelje, 580 F. App'x 277 (2014). The
Supreme Court granted certiorari and reversed the Sixth
Circuit's Cronic decision. Woods v.
Donald, 575 U.S. ___, 135 S.Ct. 1372 (2015). On remand,
the court of appeals vacated the Court's grant of the
writ and remanded for further proceedings. Donald v.
Woods, 12-2624 (June 17, 2015). Neither the Supreme
Court nor the Sixth Circuit addressed Petitioner's
Strickland claim. Presumably, and according to the
parties, this left the claim open for the Court to again
consider it on remand.
following the Sixth Circuit's remand, Petitioner filed a
motion styled “Motion for Consideration and Grant of
Petition for Writ of Habeas Corpus under Strickland v.
Washington.” (Doc. 39). Petitioner again urges the
Court to again grant the writ based on a finding that
Petitioner's counsel's absence during the trial
constitutes ineffective assistance of counsel. Respondent
filed a response, contending that counsel's brief absence
did not violate Strickland. (Doc. 40).
filed a motion to amend the petition. (Doc. 31). Petitioner
sought to assert a claim based on the Supreme Court's
June 25, 2012 decision in Miller v. Alabama, 567
U.S. ___. 132 S.Ct. 2455 (2012). In Miller, the
Supreme Court held that for a juvenile, a mandatory life
without parole sentence violates the Eighth Amendment's
prohibition of cruel and unusual punishment. The Supreme
Court subsequently granted certiorari on the question of
whether Miller is retroactive. See Montgomery v.
Louisiana, 135 S.Ct. 1546 (2015). The Court therefore
stayed proceedings in the case pending the outcome of
Montgomery. (Doc. 38).
2016, the Supreme Court issued its decision in
Montgomery, holding, inter alia, that (1)
the Supreme Court has jurisdiction to review a state
collateral review court's failure to give retroactive
effect to a new rule and (2) Miller is a new rule
that is ...