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Donald v. Woods

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

December 13, 2016

CORY DONALD, Petitioner,
v.
JEFFREY WOODS, Respondent.

          ORDER GRANTING PETITIONER'S MOTION UNDER STRICKLAND (DOC. 39) AND STAYING PROCEEDINGS ON AMENDED PETITION (DOC. 42)

          AVERN COHN UNITED STATES DISTRICT JUDGE.

         I. Introduction

         This is 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.

         As will 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.

         Before 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.

         II. Background

         The 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 vehicle. Id.
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).

         III. Procedural History

         On 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.

         Indeed, 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).

         Petitioner 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).

         In 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 ...


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