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Wilson v. Curtin

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

December 14, 2016

TYRONE WILSON, # 466855, Petitioner,
v.
CINDI CURTIN, Respondent.

          OPINION

          ROBERT HOLMES BELL UNITED STATES DISTRICT JUDGE

         This is a habeas corpus proceeding brought pro se by a state prisoner pursuant to 28 U.S.C. § 2254. Petitioner's criminal convictions stem from his role in the killing of Roland Johnson. On February 23, 2007, a Kalamazoo County Circuit Court jury found petitioner guilty of first-degree premeditated murder, Mich. Comp. Laws § 750.316(1)(a), and possession of a firearm during the commission of a felony, Mich. Comp. Laws § 750.227b. On April 9, 2007, petitioner was sentenced to life without parole on his first-degree murder conviction and a consecutive two years' imprisonment on his felony firearm conviction. (ECF No. 15-13, PageID.1596).

         After unsuccessful attempts to overturn his convictions in state court, petitioner filed this habeas corpus petition. Petitioner seeks federal habeas corpus relief on the following grounds:

I. Petitioner was denied his due process right to a fair trial and his right to confront the witnesses against him by the prosecution's surprise admission of a report from the firearms expert that was not disclosed in discovery. Petitioner was denied the effective assistance of counsel when his attorney failed to object or request a mistrial, continuance or other relief.
II. Petitioner received ineffective assistance of counsel and the trial court's finding to the contrary was clearly erroneous and the court abused its discretion in denying petitioner's motion for a new trial.
III. Trial counsel and appellate counsel were constitutionally ineffective in failing to object to inadmissible and highly prejudicial testimony that petitioner had previously been locked up and involved in selling drugs.
IV. Prosecutorial misconduct in introducing perjured testimony of a key prosecution witness that contradicted the medical examiner's findings concerning the distance between the gun barrel and the deceased; alternatively, defense counsel was ineffective in failing to impeach the witness with inconsistent preliminary examination testimony concerning her observation of the shooting; furthermore, appellate counsel was ineffective in failing to raise this issue.
V. Prosecutorial misconduct in knowingly presenting false testimony of a key witness deprived petitioner of a fair trial.
VI. Petitioner was denied effective assistance of counsel when his trial attorney failed to adequately cross-examine Medical Pathologist Brian Hunter to show that there was no soot or powder tattooing of the skin around the gunshot wound.
  1. Petitioner was denied effective assistance of appellate counsel when his appellate attorney (1) “failed to diligently find Ms. Simpson to confirm the newly discovered evidence claim;” and (2) failed to raise on direct appeal the ground that petitioner raised in his 6.500 motion.

(Amended Petition, ECF No. 11, PageID.121-35).[1] Respondent argues that Grounds I and II should be denied for lack of merit and that Grounds III-VII are barred by the statute of limitations. (ECF No. 16).

         After review of the state-court record, this Court concludes petitioner has not established grounds for federal habeas corpus relief. Petitioner has not shown that the decision of the Michigan Court of Appeals rejecting Grounds I and II was “contrary to, or involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States, ” or that it was “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). Grounds III through VII are barred by the statute of limitations. The petition will be denied.

         Standard of Review

         The Court's review of this petition is governed by the provisions of the Antiterrorism and Effective Death Penalty Act, Pub. L. No. 104-132, 110 Stat. 1214 (AEDPA). See Penry v. Johnson, 532 U.S. 782, 792 (2001). AEDPA “dictates a highly deferential standard for evaluating state-court rulings which demands the state court decisions be given the benefit of the doubt.” Bell v. Cone, 543 U.S. 447, 455 (2005) (citations omitted). “AEDPA requires heightened respect for state court factual and legal determinations.” Lundgren v. Mitchell, 440 F.3d 754, 762 (6th Cir. 2006). “State-court factual findings [] are presumed correct; the petitioner has the burden of rebutting the presumption by clear and convincing evidence.” Davis v. Ayala, 135 S.Ct. 2187, 2199-2200 (2015) (citations and internal quotations omitted).

         If a state court adjudicated the claim, deferential AEDPA standards must be applied. 28 U.S.C. § 2254(d); see Premo v. Moore, 562 U.S. 115, 121 (2011); Waddington v. Sarausad, 555 U.S. 179, 190 (2009); Holder v. Palmer, 588 F.3d 328, 341 (6th Cir. 2009) ((“[A]ny claim that was adjudicated on the merits in State court proceedings' is subject to AEDPA deference.”) (quoting 28 U.S.C. § 2254(d)). AEDPA prevents federal habeas “retrials” and ensures that state court convictions are given effect to the extent possible under law. Bell v. Cone, 535 U.S. 685, 693-94 (2002). It prohibits “using federal habeas corpus review as a vehicle to second-guess the reasonable decisions of state courts.” Parker v. Matthews, 132 S.Ct. 2148, 2149 (2012) (per curiam).

         The AEDPA standard is difficult to meet “because it was meant to be.” Harrington v. Richter, 562 U.S. 86, 102 (2011). “Section 2254(d) reflects the that habeas corpus is a guard against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error corrections through appeal.” Id. at 102-03 (citation and internal quotation omitted); see Woods v. Donald, 135 S.Ct. 1372, 1376 (2015). Section 2254(d) states that an application for a writ of habeas corpus on behalf of a person who is incarcerated pursuant to a state conviction cannot be granted with respect to any claim that was adjudicated on the merits in state court unless the adjudication “(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 upon an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d); see White v. Wheeler, 136 S.Ct. 456, 460 (2015); Davis v. Ayala, 135 S.Ct. at 2198; White v. Woodall, 134 S.Ct. 1697, 1702 (2014).

         The only definitive source of clearly established federal law for purposes of § 2254(d)(1) is the holdings-not dicta-of Supreme Court decisions. White v. Woodall, 134 S.Ct. at 1702; see Woods v. Donald, 135 S.Ct. at 1377 (“Because none of our cases confront ‘the specific question presented by this case, ' the state court's decision could not be ‘contrary to' any holding from this Court.”). “[W]here the precise contours of a right remain unclear, state courts enjoy broad discretion in their adjudication of a prisoner's claims.” Id. (quotations and internal citations omitted).

         An unreasonable application of the Supreme Court's holding must be “‘objectively unreasonable, ' not merely wrong; even ‘clear error' will not suffice.” White v. Woodall, 134 S.Ct. at 1702 (quoting Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003)). Rather, “[a]s a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” White v. Woodall, 134 S.Ct. at 1702 (quoting Harrington v. Richter, 562 U.S. at 103). “[C]ircuit precedent does not constitute ‘clearly established Federal law, as determined by the Supreme Court, ' ” and “[i]t therefore cannot form the basis for habeas relief under AEDPA.” Hill v. Curtin, 792 F.3d 670, 677 (6th Cir. 2015) (quoting Parker v. Matthews, 132 S.Ct. at 2155); see Glebe v. Frost, 135 S.Ct. 429, 431 (2014) (per curiam) (“As we have repeatedly emphasized, [] circuit precedent does not constitute ‘clearly established Federal law, as determined by the Supreme Court.'”).

         “[A] state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance.” Wood v. Allen, 558 U.S. 290, 301 (2010). Section 2254 (d)(2) requires that this Court accord the state trial court substantial deference. If reasonable minds reviewing the record might disagree about the finding in question, on habeas review that does not suffice to supersede the trial court's determination. Brumfield v. Cain, 135 S.Ct. 2269, 2277 (2015); Burt v. Titlow, 134 S.Ct. 10, 15 (2013).

         Proposed Findings of Fact

         A. District Court Proceedings

         Petitioner was charged with open murder[2] in the March 27, 2006, killing of Roland Johnson and possession of a firearm during the commission of a felony. Petitioner received a preliminary examination in the 8th District Court in Kalamazoo. (ECF No. 15-2). On May 3, 2006, Judge Quinn Benson bound over petitioner for trial in Kalamazoo County Circuit Court on all charges. (Id. at PageID.398-99).

         B. Circuit Court Proceedings

         On Monday, October 9, 2006, Judge Philip Schaefer held a hearing on petitioner's attorney's motions for expert witness fees and to adjourn trial. (ECF No. 15-4). During the course of this hearing, the prosecutor advised defense counsel and the court that the resident of the home where Roland Johnson had been shot and killed had recently found what appeared to be a bullet fragment. It had been discovered during the process of cleaning the corner of the basement where the victim's body had been found. The bullet fragment was turned over to the police and the prosecutor learned of its existence on the Thursday or Friday before the hearing. The prosecutor indicated that the item was in the process of being packaged for delivery to a laboratory for testing. It was apparent that it would be necessary to determine whether this round came from the weapon fired by petitioner or whether it had been fired by the victim. (Id. at 4-5, PageID.413-14). The court granted petitioner's attorney's motions to adjourn the trial and for expert witness fees. (Id. at 6-7, PageID.415-16).

         Petitioner's trial began on February 13, 2007, and it concluded on February 23, 2007, with the jury's verdict finding him guilty of first-degree premeditated murder and possession of a firearm during the commission of a felony. (Trial Transcripts (TT ITT VII, ECF No. 15-6 through 15-12).

         Petitioner's group of associates included Maurice Furcron (aka Julio), Travanti Black (aka Big Ned or Ned), and Michael Johnson (aka “Mike-Mike). Petitioner used the aliases “Rero” and “Ron Ron.” (TT II, 353-57, ECF No. 15-7; TT III, 463-67, 487, 545-47, 564-66, 601-03, ECF No. 15-8; TT IV, 657-61, 734-40, ECF No. 15-9). Petitioner was Maurice Furcron's “flunky.” (TT II, 360, 368; TT IV, 740). Petitioner would “do just about anything [Furcron] told him to do.” (TT II, 360).

         Christina Davis had been Maurice Furcron's girlfriend. (TT II, 353, 373). She broke up with Furcron a short time before Roland Johnson was shot and killed. (TT II, 354). Maurice Furcron had injured his leg and was using crutches. Approximately two weeks before Johnson was killed, Furcron found Johnson's car at Tawana Simpson's residence at 1516 Humphrey Street. Furcron was upset about Christina Davis's relationship with Roland Johnson. Maurice Furcron used his crutch to smash out the windows in Roland Johnson's car. (TT III, 463, 471-72, 479).

         A few days later, on March 27, 2006, Roland Johnson returned to 1516 Humphrey Street. Christina Davis, Alysa Davis, Shami Ballard, and Donald (aka “Dub”) Cobb were also present. This group was in the basement smoking marijuana and drinking alcohol. (TT II, 375-77, 389-90; TT III, 427-30, 512-13, 531-32, 548). Alysa Davis was talking to someone on the telephone and she revealed Roland Johnson's location. (TT II, 392; TT III, 425). Less than an hour later, petitioner, his aforementioned group of associates, and others were at 1516 Humphrey Street demanding entry. (TT II, 395-96; TT III, 513).

         Candie Briley testified that, on the night in question, she drove her van to 1516 Humphrey Street. Briley had six passengers. The four male passengers were petitioner, Maurice Furcron, Travanti Black, and Michael Johnson. The two female passengers were Tionna Brown, and Crystal Ware. (TT III, 563-69, 605-06; TT IV, 651-62). Maurice Furcron was on crutches and he initially stayed by the van with Ms. Briley while the others went up to the house and began banging on the doors and windows and yelling. (TT III, 572-73). Neighbors heard a lot of banging and cursing and loud noises coming from 1516 Humphrey. They heard someone demanding that the door be opened and saw a number of people running around the house and banging on the doors and windows. A short time thereafter, they heard gunshots that sounded like firecrackers. (TT II, 293-99, 304-08).

         Christina Davis testified that Maurice Furcron had threatened to kill her if he caught her with another guy. (TT II, 396). She recognized Travanti Black's voice as he was demanding that the occupants open the door. She recognized petitioner's voice. She later heard Maurice Furcron's voice after his group gained entry into the residence. Christina Davis also heard Candie Briley and Tionna Brown. (TT II, 397, 402).

         When the people inside the home failed to open the door, the pounding became more violent. (TT II, 397; TT III, 513-15). Prints matching Michael Johnson's shoes were found on the front door. (TT V, 874-75, ECF No. 15-10). Christina Davis heard people moving around the outside of the house. (TT II, 398-400). She heard the sound of someone breaking in through an upstairs window. (TT II, 401; TT III, 473-74). Donald Cobb testified that he went upstairs when he heard the banging. (TT III, 516-17). He became frightened when he heard someone coming in through the bathroom window. (TT III, 517-22). Michael Johnson testified that, with assistance from Travanti Black and petitioner, he was able to get inside the house through the bathroom window. (TT IV, 668-71). Donald Cobb opened the front door and ran away. (TT IV, 672-73, 747). Cobb testified that a group of men rushed in past him as he was headed in the opposite direction. (TT III, 517-22). Cobb was well away from the house when the shooting started. (TT III, 523).

         Candie Briley saw someone open the door. Petitioner, Travanti Black, and Michael Johnson rushed inside. Briley accompanied Furcron from the van into the house. (TT III, 573). Briley testified that she was on the stairs a few steps behind Furcron when she heard gunshots.

         Michael Johnson testified that petitioner was the first of his group to go through the front door and that petitioner immediately went downstairs. (TT IV, 673). Travanti Black and Tionna Brown were next. Michael Johnson testified that he came next, and that he was near the middle of the stairs, with Maurice Furcron and Crystal Ware further up on the stairs behind him, when the shooting started. (TT IV, 674-77).

         Crystal Ware testified that petitioner grabbed Roland Johnson by the collar. Roland Johnson appeared “scared like he knowed [sic] he was going to die.” (TT IV, 749). Petitioner pulled a gun from his waistline. Roland Johnson fought for his life and tried to keep petitioner from pointing the gun at him. Roland Johnson lost this struggle and he was shot, and then fell. Petitioner retained the gun in his hands. (TT IV, 752-57, 767). Crystal Ware testified that she heard three or four shots. (TT IV, 763).

         Michael Johnson heard around six gunshots. (TT IV, 677-78). Johnson testified that he saw petitioner coming up the stairs and wiping off the gun. Petitioner handed the gun to Johnson. Johnson looked inside the revolver and saw that all the bullets had been fired. ...


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