United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS
CORPUS, DENYING CERTIFICATE OF APPEALABILITY, AND DENYING
LEAVE TO APPEAL IN FORMA PAUPERIS
H. CLELAND UNITED STATES DISTRICT JUDGE.
a habeas case filed by a state prisoner under 28 U.S.C.
§ 2254. Petitioner Jurdunn Gardner was convicted after a
jury trial in the Wayne Circuit Court of armed robbery, Mich.
Comp. Laws § 750.529, and assault with a dangerous
weapon. Mich. Comp. Laws § 750.82. Petitioner was
sentenced to 12 to 20 years for the robbery conviction and 1
to 4 years for the assault conviction. The petition raises
three claims: 1) the prosecutor committed misconduct during
trial, 2) the trial court erred in failing to instruct the
jury regarding the unanimity requirement as to which act
constituted armed robbery, 3) the trial court erroneously
failed to consider Petitioner's medical records during
sentencing. The court will deny the petition because
Petitioner's claims are without merit.
convictions stem from allegations that he and his
co-defendant, Angela Siblani, robbed Rodney Simpson at
Petitioner's residence in Detroit.
trial, Simpson testified that he met Siblani, a prostitute,
two weeks before the incident. On the date of the robbery,
Simpson met Siblani at a gas station. Siblani got into
Simpson's truck and quoted a price for oral sex, and the
two then drove back to Petitioner and Siblani's
and another man were present at the apartment. Simpson gave
Petitioner six dollars to get some beer, and Petitioner and
the other man left. Simpson and Siblani then went into her
bedroom. A few minutes later, there was a knock on the
window, and Petitioner reentered the apartment. Simpson
testified that Petitioner pointed a pistol at him and
demanded money. Simpson replied that he had no more money,
but Siblani told Petitioner that she saw Simpson cash a $100
bill at the gas station. Simpson then gave Petitioner $40.00.
Petitioner told Simpson to leave the apartment, struck him in
the back of the head with a cane, and broke his truck window
with the cane.
called the police and waited outside in his parked truck.
When the police failed to respond, he drove to the local
precinct to make a report. Police officers then followed him
back to the area, and Simpson identified the apartment where
the incident occurred.
Police Investigator Jeffrey Jones testified that he
interviewed both Siblani and Petitioner. Siblani stated that
she agreed to perform oral sex on Simpson for $40.00 at the
apartment she shared with Petitioner. As she was straddling
Simpson, Petitioner saw them and apparently thought they were
having intercourse. Petitioner picked up a cane and demanded
more money from Simpson for the additional sex act. Simpson
gave Petitioner more money but later requested a refund.
Petitioner used the cane to smash a window on Simpson's
then interviewed Petitioner. Petitioner stated that after
leaving the apartment he saw Siblani straddling Simpson
through a window instead of simply performing oral sex.
Petitioner returned and demanded more money from Simpson.
Simpson replied that he had no more. When Siblani reported
that Simpson had more money, Petitioner admitted that he
threatened Simpson with a cane to come up with the money.
Simpson then gave Petitioner $60.00 and two $10.00 rocks of
cocaine hidden in his shoe.
on this evidence the jury convicted Petitioner of armed
robbery and assault with a dangerous weapon.
his conviction and sentence, Petitioner filed a claim of
appeal in the Michigan Court of Appeals, raising two claims
that are not presented in this action. The Michigan Court of
Appeals affirmed Petitioner's convictions in an
unpublished opinion. People v. Gardner, No. 308501,
2014 WL 198719 (Mich. Ct. App. Jan. 16, 2014). Petitioner did
not file an application for leave to appeal in the Michigan
then returned to the trial court and filed a motion for
relief from judgment, raising the following claims:
I. The prosecutor [sic] improper conduct operated to deny
defendant appellant Gardner a fair trial pursuant to U.S.
Const. Amendment Fourteen.
II. Defendant's Sixth and Fourteenth Amendment rights
were violated by the judge not giving a jury instruction as
to the elements of not being charged with a gun, but the
discussion of a gun being present at the ...